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EXHIBIT (10)(s)
AMENDMENT TO EMPLOYMENT AGREEMENT
AMENDMENT executed March 27, 2000 as of November 30, 1999 (the
"Amendment") to Employment Agreement entered into as of by and between XXXXXX
X. XXXXXXXX, an individual residing at 00 Xxxxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxx
Xxxx 00000 ("Executive"), and FIRST UNION REAL ESTATE EQUITY AND MORTGAGE
INVESTMENTS, an Ohio business trust with offices at 00 Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxx, Xxxx 00000 (the "Company").
IMPERIAL PARKING CORPORATION (formerly named First Union Canadian
Holdings, Inc.), a Delaware corporation with offices at 000 Xxxx Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X0X0 ("Impark") is
joining in this Agreement with respect to Section C hereof.
(1) The Executive and the Company entered into an Employment Agreement
dated November 2, 1998 (the "Original Agreement");
(2) Certain significant operational and business developments affecting
the Company have occurred since the date the Original Agreement was executed,
as a result of which the parties have concluded that an amendment to the
Agreement would be in the best interests of both parties, and the parties have
accordingly agreed to amend the Agreement in the manner and upon the
considerations set forth in this Amendment;
(3) Impark is executing this agreement, and shall be bound only by the
terms of Section C hereof.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, the parties hereby agree as follows:
A. CERTAIN DEFINED TERMS; CONTINUATION OF ORIGINAL EMPLOYMENT AGREEMENT
(1) Amended Agreement The term "Amended Agreement" as used in this
Amendment refers to the Original Agreement, as amended by this Amendment.
(2) "Impark Spinoff" "Impark Spinoff" means (a) the reorganization of
certain of the subsidiaries of the Company in order to position the Company's
parking real estate assets under Impark and to repay certain indebtedness of
Impark, (b) the settlement of certain debts owed by First Union Management,
Inc. ("FUMI") to the Company by the transfer to the Company and its
subsidiaries of the assets of FUMI relating to its business of leasing and
managing parking facilities and (c) and distributing all of the shares of
Impark not owned by its directors to the owners of the common shares of the
Company (the "Common Shares"), (the date of such distribution being referred to
as the "Impark Spinoff Date").
(3) Other Defined Terms Unless otherwise provided herein, capitalized
terms herein shall have the meanings ascribed to them in the Original
Agreement. As used herein:
(4) Continued Effectiveness of Original Agreement Except as
otherwise provided in this Amendment to the contrary, the terms and conditions
of the Original Agreement as amended by this Amendment shall remain in effect.
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(5) Inconsistent Provisions In any case in which the terms of this
Amendment are inconsistent with the terms of the Original Agreement, the terms
of this Amendment shall control.
B. AMENDMENT OF CERTAIN SECTIONS OF THE ORIGINAL AGREEMENT
THE FOLLOWING SECTIONS OF THE ORIGINAL AGREEMENT ARE HEREBY AMENDED AS
SPECIFIED BELOW:
(1) Section 4(c)(v) ("Share Option. Grant") is amended so that the three
(3) paragraphs included within the subsection captioned "Vesting/Exercise" are
deleted; and the following paragraph is inserted:
"All of the Share Options vested as of November 2, 1998
(other than the Additional Options, which vested upon
grant). All of the $6.50 Options, all of the $8.50 Options,
and all of the Additional Options shall be exercisable in
full as of December 1, 1999."
(2) Section 4(c)(v) is further amended so that the paragraph in the
subsection captioned "Exercise Price" is amended in its entirety to read as
follows:
"(v) (A) The option exercise price with regard to the 1,080,000
Share Options granted pursuant to this subsection (v) shall
be as follows: 540,000 shall be exercisable at $6.50 per
Common Share (the "$6.50 Options") and 540,000 shall be
exercisable at $8.50 per Common Share (the "$8.50 Options").
(B) Additional Options to purchase 376,514 Common Shares
having an initial exercise price of $4.00 were issued to the
Executive on May 28, 1999, pursuant to the subsection of
Section 4(c)(v) captioned "Additional Options." The
Executive hereby irrevocably transfers his right to exercise
Additional Options as to 31,250 shares to Xxxx Xxxxxx Xxxxxx
and his right to exercise Additional Options as to 31,250
shares to Xxxxx Xxxxxxxxxxx; and the Company hereby agrees
and consents to such transfers.
(C) The exercise price of each Share Option (including the
Additional Share Options) will be adjusted (but not below
zero) (1) to increase on each anniversary of its grant by an
amount equal to an increase of 10% per annum (compounded
annually) and (2) to decrease from and after the date of its
grant through the date of its exercise by the sum of all
dividends or other distributions (including the value of
non-cash dividends, including without limitation, share
dividends, the Distributable Value of the Impark Spinoff and
the Attributable Value of other spin-offs) declared per
Common Share for the applicable year. As used herein, (1)
the "Distributable Value of the Impark Spinoff" means the
Initial Impark Option Price, and (2) "Attributable Value of
other spinoffs" means the value ascribed to such spin-offs
by the Company, or if not so ascribed, the fair market value
of the assets so spun off. Notwithstanding the foregoing,
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the adjustment to the exercise price set forth in clause (C)
(1) shall not commence until the eighteen (18) month
anniversary of the commencement of the Employment Period;
and (y) be applied ratably at the time(s) Executive
exercises the Share Options (e.g. if Share Options are
exercised on the 20 month anniversary of the commencement of
the Employment Term, the exercise price in effect on that
date would be increased by 1.667% (2/12 of 10%) minus any
dividends or other distributions paid on or prior to the
date of exercise (to the extent such dividends or other
distributions were not previously deducted)."
(3) Section 4(c)(v) is further amended so that, in the first paragraph
in the subsection captioned "Option Exercise Term,"
(a) the period (.) at the end of the second sentence shall be
replaced by a comma (,) and the following provision shall be
added at the end thereof:
"except that Additional Options (as defined in subsection
4(c)(vi) below) shall remain exercisable for eight (8)
months following such event after which they shall expire."
(b) a new sentence shall be added after the second sentence and
shall read as follows:
"Notwithstanding the foregoing, if the Company enters into
an Asset Management Agreement with an entity of which the
Executive, Xxxx Xxxxxx Xxxxxx and Xxxxx Xxxxxxxxxxx are the
principal equity holders then the $8.50 Options and the
$6.50 Options shall be terminated and shall no longer be
exercisable if the Asset Management Agreement is executed
and is not thereafter terminated pursuant to Article III,
Section (a)(v) of the Management Agreement"; and
(c) a period (.) shall replace the comma (,) after the first use
of the word "expire" in the last sentence, the balance of
the last sentence shall be deleted and the "(i)" in such
sentence shall be deleted.
(4) Section 5(a)(iv) (Good Reason) is amended to add the following
lettered subparagraphs (G), and (H) before the words "provided, however:"
"(G) The Board of Directors shall have adopted a resolution
approving a complete liquidation or dissolution of the Company; or
(H) there shall have occurred (1) the Impark Spinoff and (2) a
sale or refinancing of the Park Plaza mall on terms acceptable to
the Board of Directors; provided, however, that Good Reason pursuant
to this Section 5(a)(iv) shall not occur unless and until Xxxx
Xxxxxx Xxxxxx and Xxxxx Xxxxxxxxxxx shall have resigned for Good
Reason or shall have been terminated under their respective
Employment Agreements with the Company without Cause, after which
such termination by reason of the Impark Spinoff and the sale or
refinancing of the Park Plaza mall shall be deemed to have occurred
for Good Reason; and provided
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further that if such Good Reason does occur, the Company, upon
receipt of notice of resignation for such Good Reason, waives its
right to cure.
(5) Section 5(a)(iv) (Good Reason) is further amended by adding the
following sentence at the end thereof.
"Notwithstanding the foregoing, the Executive shall not be entitled
to terminate his employment for Good Reason until June 1, 2000
unless such Good Reason is described in subparagraph (A) (2) of this
subsection (iv).
(6) Section 5(a)(vii) ("Change of Control") is amended to delete
subsections (D) and (E) thereof.
(7) Section 6(c)(i) is amended in its entirety to read as follows:
"In the event the Company terminates Executive's employment
for any reason other than Cause, death or Disability, or
Executive terminates his employment for Good Reason (other
than as set forth in Paragraph 6(c)(ii)), or in the event of
a Change of Control, the Company shall pay to Executive and
Executive shall be entitled to receive the sum total of: (A)
the accrued but unpaid Annual Base Salary at the rate then
in effect; (B) earned but unpaid incentive compensation
and/or bonuses for completed performance periods; and (C)
the sum of One Million One Thousand Dollars ($1,001,000.00).
The aforesaid amounts shall be payable in cash immediately
upon such termination. In addition, the Executive shall be
entitled to continuation of Executive's participation in all
benefit plans, programs or arrangements of the Company
(except tax-qualified plans), including, without limitation,
Medical Continuation, for a period of two years following
such termination."
(8) Section 8 ("Non-Compete") is hereby amended to add a new subsection
(c) as follows:
"(c) First Refusals. (i) Executive agrees that, if,
prior to the earlier of (i) the termination of Executive's
employment and (ii) the date on which a proposal to
liquidate the Company is publicly announced, the Executive
shall be offered the opportunity to invest in or acquire an
interest in a business of any nature ("Investment
Opportunity"), he shall first offer such Investment
Opportunity to the Company. Such offer (the "Offer") shall
be in writing and shall describe the Offer and the
Investment Opportunity in sufficient detail, and provide to
the Company substantially all of the written information
furnished to him by the party ("Third Party") which made the
Offer. The Company's representatives shall thereupon have
fifteen (15) business days in which to consider and accept
the Offer, and the Executive shall reasonably cooperate with
the Company if it shall request further information
concerning the Offer and the Executive is able to obtain
such information from the Third Party. If at the end of
such period the Company has not delivered to the Third Party
its written acceptance of the Offer (or, having accepted the
Offer, shall not proceed to
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a closing pursuant to the Offer within the time allowed in
the Offer and/or shall fail to make such payments (including
deposits) to the Third Party as would have been required
from the Executive under the terms of the Offer), the
Executive shall be free to accept the Offer and consummate
the transactions contemplated thereby. The Executive's
participation in the Investment Opportunity shall not be
deemed a violation of any fiduciary, contractual or other
obligation of the Executive to the Company, including under
the provisions of Section 3(a) of the Original Agreement.
Notwithstanding the foregoing, the time devoted by the
Executive to any Investment Opportunity shall not
substantially interfere with his performance of services as
required under this Agreement."
(ii) The obligation of the Executive to make the
offers described in subsection (a) above shall terminate upon the
date on which a proposal to liquidate or merge the Company is
publicly announced.
C. ADDITIONAL PROVISIONS ADDED BY THIS AMENDMENT
(1) Impark Options
(a) Issuance of Impark Options Impark, by its execution of this
Agreement, covenants and agrees to issue to the Executive, on the day which is
the 30th trading date following the first day on which shares of Impark Common
Stock ("Impark Shares") are publicly traded, options to purchase shares of
Impark common stock ("Impark Shares") which shall, immediately following the
issuance thereof and after giving effect thereto, result in the Executive
owning, immediately after the issuance thereof, options (the "Initial Impark
Options") to purchase two and one half percent (2 1/2 %) of all of the
outstanding common stock of Impark on a fully diluted basis (it being
understood that the grant of Initial Impark Options are in lieu of and in full
satisfaction of any right the Executive may have to receive options or any
other consideration in connection with the Impark Spinoff pursuant to the
Plan).
As to the Initial Impark Options:
(i) The Exercise Price per share of the Initial Impark Options
shall be equal to the greater of (1) the last reported sales price of a share
of Impark common stock on the day which is the thirtieth (30th) trading date
following the first day on which Impark Shares are publicly traded, or (2) the
average closing price of a share of Impark common stock for the ten (10) day
trading period ending on the date which is the thirtieth (30th) trading date
following the first day on which Impark Shares are publically traded, in either
case, as reported on the principal trading market Impark Shares where quotes
are readily available;
(ii) The Impark Options shall be vested in full upon issuance,
and shall be exercisable as follows: 25% on each of the first four
anniversaries of the Impark Spinoff Date (each 12 month period ending on such
anniversaries being an "Exercise Year"). The Impark Options shall be
exercisable for a period which ends ten years after the anniversary of the
Impark Spinoff Date ("Impark Option Term");
(iii) The Initial Impark Options shall be represented by an option
certificate which shall contain anti-dilution provisions operable in the event
of the issuance of stock splits or similar transactions. The exercise price of
the Impark Options shall (A) increase on each
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monthly anniversary of grant at the rate of 10% per annum, compounded annually;
and (B) decrease by the amount, per share, of dividends in respect of Impark
common stock paid in cash and the fair market value of dividends paid in
property other than cash.
(b) Additional Impark Rights and Options. Impark, by its execution of
this Agreement, agrees that it will grant to the Executive, at such time as
rights to purchase common stock of Impark are offered to Impark's shareholders
subsequent to the Impark Spinoff Date ("Rights Offering") is made:
(i) The right (the "Impark Rights") to purchase such number of
shares of Impark common stock as would, after giving effect to the exercise of
such right, result in the Executive acquiring one percent (1%) of the number of
shares issued pursuant to such Rights Offering (not exceeding, however, such
number of shares as are issued for a gross aggregate price of $30,000,000) on
substantially the same terms and conditions (and identical terms relating to
price) as are contained in and are applicable to the Rights Offering; and
(ii) additional options ("Additional Impark Options") to
purchase, at an exercise price equal to the price per share at which the Rights
Offering is made, a number of shares of Impark common stock which would result
in the Executive acquiring upon exercise of one and one-half percent (1 1/2 %)
of the number of shares issued pursuant to such Rights Offering (not exceeding,
however, such number of shares as are issued for a gross aggregate price of
$30,000,000). Such Additional Impark Options shall be vested in full upon
issuance and shall be exercisable to the extent of 25% on each of the first
four anniversaries of the Impark Spinoff Date (each 12 month period ending on
such anniversaries being an "Exercise Year"); and shall remain exercisable for
a period which ends ten years after the Impark Spinoff Date ("Additional Impark
Option Term"); and
(iii) notwithstanding the foregoing, the Executive's Impark Rights
and his right to be issued Additional Impark Options shall expire upon his
Termination Date; provided, however, that if his termination is by Impark
without Cause, or by the Executive for Good Reason, or by reason of the
Executive's death or disability, his Impark Rights and his right to receive
Additional Impark Options shall expire six (6) months after his Termination
Date.
(c) Employment of Executive by Impark It shall be a condition of the
Executive's right to exercise the Initial Impark Options and the Additional
Impark Options and the Impark Rights that the Executive shall serve as an
employee of Impark under the terms described in subsections (d) and (e) below,
provided that Impark shall offer to employ and shall employ the Executive under
such terms as of the Impark Spinoff Date.
(d) Agreement to Serve as Officer of Impark The Executive agrees to
serve, at the request of the Company, as a Vice Chairman of Impark following
the Impark Spinoff Date, subject to (i) the Agreement of Impark to pay the
Executive a base salary at the rate of $82,500 per annum (payable in monthly
installments) during the period of his service; (ii) Executive receiving
directors fees equivalent to the fees paid to the other outside directors of
Impark and (iii) coverage of the Executive by a policy of Officers and
Directors liability insurance (with customary exclusions) in form and scope
reasonably satisfactory to the Executive in the amount of at least $15 million
with respect to claims made against officers and directors of Impark.
(e) Terms of Employment The Executive's employment with Impark shall be
subject to the following terms:
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(1) Executive shall perform duties on a part-time basis as reasonably
assigned by the Board of Directors of Impark consistent with his position as a
senior executive thereof; it being understood that Executive's employment shall
be on a part-time basis, and such duties are consistent with the Executive's
other business obligations including as a member of the Management Company
which is executing the Asset Management Agreement;
(2) Executive may perform such services within Manhattan or, where his
physical presence is not required, by telephone from any location.
(3) Executive shall be reimbursed for all out-of-pocket expenses
incurred in the performance of his obligations and documented in accordance
with Impark's generally applicable reimbursement policies;
(4) For purposes of this subsection C(1)(e): (x) "Cause" shall mean (A)
Executive's conviction of a felony; (B) Executive's engaging in an embezzlement
involving Impark; or (C) Executive's repeated and willful failure to carry out
his employment obligations to Impark, which failure continues for more than 15
days after written notice to him of such failure which specifies the nature
thereof; and (y) "Good Reason" means the failure of Impark to comply with the
provisions of subsection (d) or Impark's material breach of the requirements of
paragraphs (1) through (3) above, unless such failure is cured within 15 days
after written notice to Impark specifying the nature of such failure, or any
repetition of such failure which occurs after such cure; and
(5) (i) If Impark terminates the Executive for Cause all of the
unexercised Impark Options and Additional Impark Options which have not been
exercised shall be terminated as of the Termination Date, and he shall not be
entitled to any further salary payments accruing after the Termination Date.
(ii) If Impark terminates the Executive without Cause or Executive
terminates for Good Reason, then (A) he shall have the right to payment of his
base salary from Impark through the Termination Date and no right to further
payments from Impark relating to any period after the Termination Date, and (B)
all of the Impark Options and Additional Impark Options shall become
immediately exercisable, the Impark Call Option set forth in subsection (6)
below shall not apply, and all of the Impark Options and Additional Impark
Options shall expire to the extent not exercised on or before the last day of
the six-month period following the Termination Date.
(iii) If the Executive terminates his employment voluntarily
without Good Reason, then (A) he shall have the right to payment of his base
salary through the Termination Date and no right to further payments from
Impark relating to any period after the Termination Date, (B) all of the Impark
Options and Additional Impark Options, to the extent not then exercisable,
shall continue to become exercisable in accordance with the schedules set forth
in (C)(1)(a)(ii) and (C)(1)(b)(ii), respectively, and shall expire thirty (30)
days after the date on which such options shall become exercisable, unless
exercised prior thereto; (C) the Impark Options and Additional Impark Options
which were not exercisable on the Termination Date shall become subject to the
Impark Call Option; and (D) the Impark Options and Additional Impark Options
which were exercisable on the Termination Date shall not be subject to the
Impark Call Option, shall continue to be exercisable and shall expire to the
extent not exercised on or before the last day of the thirty (30) day period
following the Termination Date.
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(iv) Upon the termination of Executive's employment by reason of
death or disability, the Executive's estate may exercise all Impark Options and
Additional Impark Options which were exercisable on the Termination Date plus a
Pro Rata portion of the Impark Options and Additional Impark Options which
would next have become exercisable had such death or disability not occurred.
As used herein, "Pro Rata" means an amount of Impark Options and Additional
Impark Options equal to (x) the percentage equal to (i) the number of days from
the commencement of the Exercise Year (as defined in subsections (a)(ii) (as to
Impark Options) and (b)(ii) (as to Additional Impark Options) of this Section
C) in which such termination occurs through the Termination Date divided by
(ii) 365; multiplied in each case by (y) the number of Impark Options and
Additional Impark Options, respectively, which would otherwise have become
exercisable at the end of the Exercise Year in which such Termination occurs.
Such exercise may be effected until the earliest of one year following the
Executive's Termination Date or the end of the Option Term or Additional Impark
Option Terms, after which time any unexercised Impark Options or Additional
Impark Options shall expire.
(v) For purposes of this paragraph, "Termination Date" means (a)
the Executive's last day of employment on or following the date upon which
written notice of termination is delivered to him by Impark, as the same shall
be stated in such notice; (b) the Executive's last day of employment on or
following the date upon which the Executive delivers written notice of
resignation to Impark (including a resignation for Good Reason); or (c) the
date of the Executive's death or disability.
(6) Impark Call Option. If any Impark Options and Additional Impark
Options are subject to an Impark Call Option pursuant to subsection (5) above
(the Impark Call Option) then Impark shall have the right to require the
Executive to transfer such Options (the "Subject Options") to Impark at any
time after his Termination Date for a price equal to the "Exercise Spread" (as
defined herein). If such Exercise Spread is zero or less, Impark may purchase
the Subject Options for no consideration. Impark shall provide written notice
to Executive that it is exercising the Call Option and the date on which such
notice is deemed to have been given under the terms of this Agreement shall be
deemed the "Valuation Date". The "Exercise Spread" shall be (i) the difference
between (a) the exercise price of a Subject Option and (b) the "Closing Price"
of a share of Impark common stock ("Common Stock") on the Valuation Date. The
"Closing Price" means (i) if the Common Stock is listed or admitted to trading
on the New York Stock Exchange (the "NYSE"), the American Stock Exchange
("AMEX") any national securities exchange or the Nasdaq Stock Market
("Nasdaq"), the closing price on the Valuation Date, or if no such sale takes
place on such day, the average of the closing bid and asked prices on such day;
(ii) if the Common Stock is not listed or admitted to trading on the NYSE, the
AMEX, any national securities exchange or the Nasdaq, the last reported sale
price on the Valuation Date or, if no sale takes place on such day, the average
of the closing bid and asked prices on such day, as reported by a reliable
quotation source designated by Impark; (iii) if the Common Stock is not listed
or admitted trading on the NYSE, the AMEX, any national securities exchange or
the Nasdaq and no such last reported sale price or closing bid and asked prices
are available, the average of the reported high bid and low asked prices on the
Valuation Date, as reported by a reliable quotation source designated by
Impark, or if there shall be no bid and asked prices on the Valuation Date, the
average of the high bid and low asked prices, as so reported, on the most
recent day (not more than five (5) days prior to the date in question) for
which prices have been so reported; provided, however, that if there are no bid
and asked prices reported during the five (5) days prior to the date in
questions, the Closing Price of the Common Stock shall be determined by the
independent trustees of Impark acting in good faith on the basis of such
quotations and other information as they consider, in their reasonable
judgment, appropriate.
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D. GENERAL PROVISIONS
(1) Notices.
All notices or other communications required or permitted hereunder shall
be made in writing and shall be deemed to have been duly given if delivered by
hand or delivered by a recognized delivery service or mailed, postage prepaid,
by express, certified or registered mail, return receipt requested, and
addressed to (1) to the Company and Impark at their respective addresses as set
forth above and (2) to the Executive at his address as set forth in the Company
records and 00 Xxxxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 (or to such
other address as shall have been previously provided in accordance with this
Section 7). In addition, copies of any notice to the Executive shall be
delivered to Xxxxxxx, Xxxxxxxxx LLP, 0 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
(2) Governing Law.
This Amendment will be governed by and construed in accordance with the
laws of the State of New York without regard to principles of conflicts of laws
thereunder.
(3) Severability.
Whenever possible, each provision and term of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision or term of this Amendment shall be held to be prohibited
by or invalid under such applicable law, then, such provision or term shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating or affecting in any manner whatsoever the remainder of such
provisions or term or the remaining provisions or terms of this Amendment.
(4) Counterparts.
This Amendment may be executed in separate counterparts, each of which is
deemed to be an original and both of which taken together shall constitute one
and the same agreement.
(5) Headings.
The headings of the Paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute a part hereof and shall
not affect the construction or interpretation of this Agreement.
(6) Entire Agreement.
This Amendment and the Original Agreement constitute the entire agreement
of the parties with respect to the subject matter hereof and thereof, and
supersede all other prior agreements and undertakings, both written and oral,
among the parties with respect to the subject matter hereof.
(7) Waiver and Modification. No amendment, modification, waiver,
termination or cancellation of this Amendment shall be binding or effective for
any purpose unless it is made in a writing signed by the party against whom
enforcement of such amendment, modification,
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waiver, termination or cancellation is sought. No course of dealing between or
among the parties to this Amendment shall be deemed to affect or to modify,
amend or discharge any provision or term of this Amendment. No delay on the
part of the Company or Executive in the exercise of any of their respective
rights or remedies shall operate as a waiver thereof, and no single or partial
exercise by the Company or Executive of any such right or remedy shall preclude
other or further exercise thereof. A waiver of right or remedy on any one
occasion shall not be construed as a bar to or waiver of any such right or
remedy on any other occasion.
The respective rights and obligations of the parties hereunder shall
survive the Executive's termination of employment and termination of this
Amendment to the extent necessary for the intended preservation of such rights
and obligations.
(8) Exculpation.
Notwithstanding anything contained herein to the contrary, this Agreement
is made and executed on behalf of the Company by its officer(s) on behalf of
the trustees thereof, and none of the trustees or any additional or successor
trustee hereafter appointed, or any beneficiary, officer, employee or agent of
the Company shall have any liability in his personal or individual capacity,
but instead, Executive shall look solely to the property and assets of the
Company for satisfaction of claims of any nature arising from or in connection
with this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
Executive: First Union Real Estate Equity And Mortgage
Investments
XXXXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxx By: /s/ XXXXXXX XXXXXX
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Name: XXXXXX XXXXXX
Title: CHAIRMAN
IMPERIAL PARKING CORPORATION
(formerly known as First Union Canadian
Holdings, Inc.)
(as to Section C only)
By: /s/ XXXXXXX XXXXXXXXXX
-------------------------
Name: XXXXXXX XXXXXXXXXX
Title PRESIDENT
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