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EXHIBIT (10)(u)
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 ANNE
NELSON ZAHNER, an individual residing at 15 Woodlawn Avenue, New Rochelle, New
York 10804 ("Executive"), and FIRST UNION REAL ESTATE EQUITY AND MORTGAGE
INVESTMENTS, an Ohio business trust with offices at 55 Public Square, Suite
1900, Cleveland, Ohio 44113 (the "Company").
IMPERIAL PARKING CORPORATION (formerly named First Union Canadian
Holdings, Inc.), a Delaware corporation with offices at 601 West Cordova
Street, Suite 300, Vancouver, British Columbia, Canada V6B1G1 ("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 (a) ("Salary") of the Original Agreement is amended
to be Section 4(a)(i) and a new Section 4(a)(ii) is added to read as follows:
"(ii) Bonus The Executive shall be entitled to a bonus,
on or before December 29, 1999, of $135,000, in cash.
(2) 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."
(3) 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
360,000 Share Options granted pursuant to this
subsection (v) shall be as follows: 180,000 shall be
exercisable at $6.50 per Common Share (the "$6.50
Options") and 180,000 shall be exercisable at $8.50
per Common Share (the "$8.50 Options").
(B) Additional Share Options to purchase 125,504
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)(vi)
captioned "Additional Share Options." In addition,
Additional Options to purchase 31,250 shares have
been transferred to the Executive by Daniel Friedman
contemporaneously herewith (the "Transferred
Options"), and the Company has agreed and consented
to such transfer. The Transferred Options shall be
exercisable in full as of December 1, 1999. The term
"Additional Share Options" shall be deemed to include
such Transferred Options.
(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
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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,
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)."
(4) 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, David Schonberger and Daniel P.
Friedman 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.
(5) 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
the Good Reason pursuant to this Section 5(a)(iv)(H) shall not
occur unless and until David Schonberger and Daniel Friedman
shall
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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 Parl Plaza
mall shall be deemed to have occurred for Good Reason; and
provided 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. .
(6) 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 her employment for Good Reason until June
1, 2000 unless such Good Reason is described in subparagraph
(A) (2) of this subsection (iv).
(7) Section 5(a)(vii) ("Change of Control") is amended to delete
subsections (D) and (E) thereof.
(8) 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 her 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 Six Hundred Thirty
Thousand Dollars ($630,000). 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."
(9) 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"),
she 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 her 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
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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 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
her 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 Additional 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");
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(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 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 0.417% 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 0.833% 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 her right to be issued Additional Impark Options shall expire upon
the Termination Date with respect to Daniel P. Friedman's and David
Schonberger's employment with Impark whichever is the latter such Termination
Date; provided, however, that if such termination (with respect to the latter
Termination Date) is by Impark without Cause, or by the person so terminating
for Good Reason, or by reason of the death or disability of the person so
terminating, her Impark Rights and her right to receive Additional Impark
Options shall expire six (6) months after such latter Termination Date.
(c) Pursuant to amendments to the Employment Agreements between
each of Daniel Friedman and David Schonberger and the Company of even date
herewith (which amendments have been executed by Impark) Impark intends to
employ Daniel Friedman and David Schonberger, and Daniel Friedman and David
Schonberger have agreed to accept employment in executive positions with
Impark. If, following the grant of Impark Options and Additional Impark Options
pursuant hereto, neither Daniel Friedman nor David Schonberger remain employed
by Impark, then, as of the last of employment date ("Last Employment Date") of
the later of Daniel Friedman or David Schonberger ("Last Impark Executive") ,
(i) If Impark terminated the Last Impark Executive
without Cause, or the Last Impark Executive terminated his employment for Good
Reason (as such terms are defined in the Employment Agreements applicable to
Daniel Friedman and David Shonberger); then (A) all of
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the Impark Options and Additional Impark Options shall become immediately
exercisable, the Impark Call Option (as defined below) shall not apply, and (B)
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; and
(ii) if the Last Impark Executive terminated his
employment voluntarily without Good Reason, then (A) 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; (B) the Impark Options and
Additional Impark Options which were not exercisable on the Termination Date
shall become subject to the Impark Call Option; and (C) 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
six-month period following the Last Employment Date.
(iii) Upon the Executive's death or disability, the
Executive's estate may exercise all Impark Options and Additional Impark
Options which were exercisable on the date of death or disability 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 death or disability
occurs. Such exercise may be effected until the earliest of one year
following the Executive's death or disability 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.
(d) Impark Call Option. If any Impark Options and Additional
Impark Options are subject to an Impark Call Option pursuant to subsection
(c)(ii) 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 the Last Employment 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
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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.
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 her address as set
forth in the Company records and at 15 Woodlawn Avenue, New Rochelle, New York
10804 (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 Herrick, Feinstein LLP, 2 Park Avenue, 21st
Floor, New York, New York 10016, Attention: Harvey S. Feuerstein, 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.
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(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, 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 her 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.
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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
ANNE NELSON ZAHNER
/s/ Anne Nelson Zahner By: [SIG]
---------------------- -------------------------
Name:
Title:
IMPERIAL PARKING CORPORATION
(formerly known as First Union Canadian
Holdings, Inc.)
(as to Section C only)
By:
--------------------------
Name:
Title
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