1
Exhibit (10h)
SHAREHOLDERS AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 17th day of April,
1997.
BETWEEN:
504308 N.B. INC., a corporation incorporated pursuant
to the laws of New Brunswick,
(hereinafter referred to as "HOLDCO 2"),
OF THE FIRST PART,
-and-
The individuals listed on Schedule A hereto, (subject
to the further definition below, such individuals
being hereinafter collectively referred to as "IMPARK
MANAGEMENT" and individually as a "MEMBER OF IMPARK
MANAGEMENT"),
OF THE SECOND PART,
-and
FIRST UNION MANAGEMENT, INC.,
a corporation incorporated pursuant to the laws of
Delaware,
(hereinafter referred to as "FUMI"),
OF THE THIRD PART.
WHEREAS the individuals listed in Schedule A are employed in the management
of Impark (as hereinafter defined);
AND WHEREAS Holdco 2 has incorporated 504463 N.B. Inc. ("Canco 2") for the
purpose of acquiring all of the shares of certain corporations from Imperial
Parking Limited;
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AND WHEREAS, at the date hereof, FUMI holds 448,611 common shares of Holdco
2 being the only outstanding shares of Holdco 2;
AND WHEREAS the members of Impark Management wish to become shareholders of
Holdco 2;
AND WHEREAS the parties to this agreement wish to establish their
respective rights and obligations in respect of the shares of Holdco 2 which the
members of Impark Management will acquire;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and of the respective covenants and agreements herein contained and for
other good and valuable consideration (the receipt and sufficiency of which are
hereby acknowledged by each of the parties), the parties covenant and agree as
follows:
ARTICLE 1
INTERPRETATION
1.1 CERTAIN DEFINITIONS. Where used in this agreement, unless there is something
in the context or the subject matter inconsistent therewith, the following terms
shall have the following meanings:
"ADDITIONAL PARKING FACILITIES" means any parking facilities (other
than the Cleveland Parking Facilities and the Transferred Parking
Facilities) which are acquired by FUR after April 17, 1997 whether by
direct purchase or by acquisition of an entity owning such parking
facilities;
"ADJUSTED OPERATING INCOME" for any period means the Facilities
Operating Income for such period minus the Facilities Return to FUR for
such period;
"AFFILIATE", in relation to an individual, means a corporation that is
controlled by such individual and all of the shares of which are owned
by such individual and/or such individual's spouse and/or children or a
trust of which such individual and/or such individual's spouse and/or
children are the sole beneficiaries;
"BASE INDEBTEDNESS" means the amount as of the close of business on
April 17, 1997 of the combined indebtedness (excluding indebtedness
incurred for normal working capital purposes including without
limitation operating lines of credit) of Holdco 2, Canco 2, Canco 1 and
Imperial Parking, which is expected to be approximately $77,500,000;
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"BOARD" means the board of directors of Holdco 2;
"BUSINESS DAY" means any day which is not a Saturday, a Sunday or a
statutory holiday in Ontario or British Columbia;
"CANCO 1" means 3357392 Canada Inc. or any successor thereto;
"CLEVELAND PARKING FACILITIES" means the Huntington garage, the West
Third Street surface parking lot and the 55 Public Square garage, all
in the City of Cleveland, Ohio;
"COMMON SHARES" means the common shares in the capital of Holdco 2, any
securities into which such common shares may be converted, exchanged,
reclassified, redesignated, subdivided or otherwise changed from time
to time and any securities of any successor corporation or a
corporation continuing from Holdco 2 into which such common shares or
such other securities may be changed as a result of any amalgamation,
merger, consolidation, plan of arrangement or reorganization, statutory
or otherwise;
"CONSOLIDATED PERFORMANCE" for any period means the total of the Impark
EBITDA and the Adjusted Operating Income for such period;
"DATE OF CLOSING" and "TIME OF CLOSING" have the respective meanings
ascribed thereto in Articles 5 and 6, as the case may be;
"DEPOSITARY" has the meaning ascribed thereto in section 9.1;
"DESIGNATED REPRESENTATIVE" means the Designated Representative as
determined at the relevant time in accordance with section 3.1;
"DISABILITY" means the inability of a member of Impark Management to
continue to perform his duties for Impark on a full-time basis for a
period of more than six (6) months as a result of physical or mental
disability, as determined by a qualified medical practitioner;
"EFFECTIVE DATE" has the meaning ascribed thereto in sections 6.1, 6.2,
6.3 and 7.2;
"FACILITIES OPERATING INCOME" for a period means, without double
counting, the actual revenues realized by Impark during such period
from the operation of First Union Facilities less all expenses
associated with operating the First Union Facilities (other than real
estate taxes, utilities, ground rent and insurance
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covering damage to the physical facility) incurred by Impark during
such period in operating the First Union Facilities (but for greater
certainty not deducting any amounts payable to FUR pursuant to any
lease or management agreement and not deducting any interest expense);
"FACILITIES RETURN TO FUR" for any period means an amount of imputed
interest calculated at the rate of 11% per annum on the amount of any
outstanding FUR Capital Expenditure;
"FAIR VALUE PER SHARE" as at any date means:
(i) in the case of Preferred Shares, the Redemption Amount of a
Preferred Share as at such date determined in accordance with
the articles of Holdco 2 but without regard to the fact that
the Preferred Shares are not redeemable prior to April 1,
2002; and
(ii) in the case of Common Shares, the amount determined by
dividing the Management Enterprise Equity Value as at the end
of the immediately preceding calendar year by 1,322,140;
"FIRST UNION FACILITIES" means the Cleveland Parking Facilities, the
Transferred Parking Facilities and Additional Parking Facilities which
are leased to or managed by Impark;
"FUMI PROPORTION" has the meaning ascribed thereto in section 5.1;
"FUR" means First Union Real Estate Equity and Mortgage Investments, an
Ohio business trust;
"FUR CAPITAL EXPENDITURE" means the following:
(i) the amount of the gross acquisition cost to FUR (including
purchase price, fees, commissions and out-of-pocket expenses
of acquisition) of Additional Parking Facilities, and such FUR
Capital Expenditures shall be deemed to be outstanding during
any period while such Additional Parking Facilities constitute
First Union Facilities; and
(ii) the amount expended directly or indirectly by FUR to make
capital improvements to any First Union Facilities on Impark's
recommendation for the purpose of increasing the Facilities
Operating Income, and such FUR Capital Expenditures shall be
deemed to be outstanding from the
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date any such amount is so expended and for so long as such
parking facilities constitute First Union Facilities;
"IMPARK" means collectively Imperial Parking and Canco 2 and any direct
or indirect subsidiaries of either of them;
"IMPARK EBITDA" for any period means the consolidated earnings of
Impark before interest expense (or interest income), income taxes,
depreciation and amortization, as calculated in accordance with
generally accepted accounting principles as used in the December 31,
1996 audited financial statements of Imperial Parking, consistently
applied, adjusted as follows:
(a) deducting any revenues or expenses of any type related to
First Union Facilities for such period; and
(b) deducting an amount on account of imputed interest calculated
at the rate of 8% per annum on any indebtedness (excluding
indebtedness incurred for normal working capital purposes
including without limitation operating lines of credit) of
Impark which is outstanding at any time during such period in
any amount in excess of the Base Indebtedness;
"IMPARK MANAGEMENT" means the individuals listed on Schedule A hereto
and any other employee of Impark who hereafter becomes a party to this
agreement and any legal personal representative of any such individual
who dies or becomes mentally incapacitated (the foregoing being
"individual members"), and includes any Affiliate of any individual
member of Impark Management which holds Shares or to which Shares are
transferred or any successor or assign of such Affiliate and also
includes individuals to whom Shares are transferred in accordance with
the provisions of sections 4.3 and 4.5; and reference herein to the
"members" or a "member" means members or a member of Impark Management;
"IMPERIAL PARKING" means Imperial Parking Limited or any successor
thereto;
"MANAGEMENT ENTERPRISE EQUITY VALUE" as at the end of any calendar year
means the amount obtained by multiplying $5,555,556 by the
Proportionate Change as at such year end and deducting $4,233,416 from
such product;
"PERFORMANCE SHORTFALL" for any period means the amount, if any, by
which the Performance Target for such period exceeds the Consolidated
Performance for such period, provided that if such Consolidated
Performance exceeds such Performance Target the Performance Shortfall
shall be zero;
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"PERFORMANCE TARGET" means $13,146,105 for the 1997 calendar year,
$14,340,350 for the 1998 calendar year, $14,895,964 for the 1999
calendar year, and $15,473,803 for the 2000 calendar year, subject in
each case to the provisions of section 3.4;
"PERSON" includes an individual, a trust, a firm, a corporation, a
syndicate, a partnership, an association, a joint venture and every
other legal or business entity whatsoever;
"PREFERRED SHARES" means preferred shares in the capital of Holdco 2
having rights and attributes substantially the same as the Class A
Preferred Shares of Canco 1, any securities into which such preferred
shares may be converted, exchanged, reclassified, redesignated,
subdivided or otherwise changed from time to time and any securities of
any successor corporation or a corporation continuing from Holdco 2
into which such preferred shares or such other securities may be
changed as a result of any amalgamation, merger, consolidation, plan of
arrangement or reorganization, statutory or otherwise;
"PROPORTIONATE CHANGE" as at the end of a calendar year means (i) one
as at the end of 1996, and (ii) other than as at the end of 1996, the
Consolidated Performance for such calendar year divided by the
Performance Target for 1997;
"PURCHASE PRICE" means the purchase price for any Purchased Shares
pursuant to any transaction of purchase and sale of Shares provided for
in this agreement;
"PURCHASED SHARES" means, in the context of any provision hereof
pursuant to which a Vendor is selling Shares, such Shares;
"PURCHASER" means, in the context of any provision hereof pursuant to
which a Vendor is selling Shares, the purchaser of such Shares;
"SHARE PURCHASE CLOSING" means the completion of the sale and purchase
of shares of Holdco pursuant to the Share Purchase Agreement;
"SHARES" means Common Shares and Preferred Shares;
"SPOUSE" has the meaning ascribed thereto in Part I of the Family Law
Act (Ontario);
"THIRD PARTY" means, as applicable to sections 5.1 and 6.4, a person
dealing at arm's length (within the meaning of the Income Tax Act
(Canada)) with Holdco
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2, and for greater certainty, in all cases, neither (i) any individual
who is a full time member of the management of FUR or FUMI or any of
their respective affiliates, or any corporation wholly-owned, directly
or indirectly, by any such individual or a trust related to any such
individual, nor (ii) any person that is a firm, corporation, syndicate,
partnership, association, joint venture or other legal or business
entity whatsoever which is controlled by FUR or FUMI, shall be deemed
to be a Third Party;
"THIRD PARTY OFFER" has the meaning ascribed thereto in section 5.1;
and
"TRANSFERRED PARKING FACILITIES" means 633 - 10th Avenue S.W., Calgary,
Alberta; 1009 A, B and C - 9th Avenue S.W., Calgary, Alberta; 10040 -
103 Street, Edmonton, Alberta; 10244 - 103 Street, Edmonton Alberta;
10239 - 107 Street, Edmonton, Alberta; 1709 Blanshard Street, Victoria,
B.C.; 245 Graham Avenue and 257 Smith Street, Winnipeg, Manitoba; 168
Water Avenue, Winnipeg, Manitoba; 336 Young Street, Winnipeg, Manitoba;
296, 298 and 304 Broadway, Winnipeg, Manitoba; 115 Donald Street,
Winnipeg, Manitoba; 178 Queen's Quay East, Toronto, Ontario; and 1724
Broad Street, Regina, Saskatchewan; and
"VENDOR" means, in the context of any provision hereof pursuant to
which Shares are being sold, the shareholder selling such Shares.
1.2 OTHER RULES OF INTERPRETATION. All words used in this agreement shall be
read with such changes in gender and number as are required by the context.
Words importing the singular number shall include the plural and vice versa and
words importing gender shall include all genders. The terms "this agreement",
"hereof", "herein", "hereunder" and similar expressions refer to this agreement
and not to any particular Article, section or paragraph or other portion hereof
and include any agreement, schedule, amendment or other instrument supplementary
or ancillary hereto. Time is of the essence hereof.
1.3 CURRENCY. All dollar amounts stated herein are, unless otherwise indicated,
in Canadian dollars.
1.4 HEADINGS AND REFERENCES. The division of this agreement into Articles,
sections and paragraphs and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation of this
agreement. Reference in this agreement to an Article, section or Schedule is to
the applicable Article, section or Schedule of this agreement unless the context
otherwise requires.
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1.5 REFERENCE TO STATUTES. Reference in this agreement to a statute means such
statute as amended, re-enacted or replaced from time to time and includes all
regulations promulgated thereunder.
ARTICLE 2
SUBSCRIPTION
2.1 SUBSCRIPTION. Each person named in Schedule A hereby subscribes for and
agrees to take up the number of Common Shares set out opposite such person's
name in such Schedule and to pay therefor the subscription price of $1.00 per
Common Share and, contemporaneously with the execution and delivery of this
Agreement, tenders the aggregate subscription price for such Common Shares.
Holdco 2 accepts such subscription by each such person.
ARTICLE 3
VOTING, ORGANIZATION AND MANAGEMENT
3.1 DESIGNATED REPRESENTATIVE. The representative from time to time of the
members of Impark Management (the "Designated Representative") shall be the
Chief Executive Officer of Imperial Parking then in office provided he is a
holder of Shares who shall have the irrevocable and full authority to give and
receive all notices, communicate all decisions and otherwise take all actions
that are to be given, made or taken pursuant to this agreement by Impark
Management and the parties hereto shall be entitled to rely upon the authority
of the Designated Representative to bind Impark Management in respect of all
matters arising pursuant to this agreement.
3.2 ASSIGNMENT OF VOTING RIGHTS. Each member of Impark Management does hereby
irrevocably nominate, constitute and appoint the Designated Representative as
his true and lawful attorney with authority to vote any and all of the Shares
held from time to time by such member, and to execute resolutions in writing of
the shareholders of Holdco 2 as holders of such Shares for and on behalf of and
in the name of such member, in such manner as may be determined by the
Designated Representative in his sole discretion, at all times and on all
matters that may come before the shareholders of Holdco 2 or any class thereof
while this agreement remains in effect and to make, execute, seal and deliver
for and on behalf of and in the name of such member of Impark Management, one or
more proxies in respect of Shares held by such member of Impark Management from
time to time. The members of Impark Management shall each deliver to the current
Designated Representative, concurrently with the execution of this agreement and
from time to time thereafter upon request therefor, a continuing power of
attorney in the form attached hereto as Schedule B in
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favour of the Designated Representative for the purposes of this section 3.2 and
Article 8, which power of attorney shall not be revocable by the member without
the consent of FUMI and which, being coupled with an interest, shall not be
revoked by the insolvency, bankruptcy or incapacity of the member or of any
Affiliate of the member to which Shares may be transferred in accordance with
section 4.2. Each member of Impark Management hereby ratifies and confirms and
agrees to ratify and confirm all that such attorney may lawfully do or cause to
be done by virtue of the authority hereby or thereby conferred. Upon any change
in the Designated Representative, the former Designated Representative and all
members of Impark Management shall forthwith agree to the revocation of all such
powers of attorney and new powers of attorney shall be forthwith provided in
favour of the new Designated Representative.
3.3 BOARD OF DIRECTORS. The Board shall consist of three members. One member of
the Board shall be the nominee of the Designated Representative and the other
two members of the Board shall be nominees of FUMI.
3.4 ADJUSTMENT OF PERFORMANCE TARGETS AND CONSOLIDATED ACHIEVEMENT.
Notwithstanding the definition of Performance Targets and the definition of
Consolidated Performance and the definitions related thereto, the amounts
otherwise provided for or determined in accordance with any of such definitions
shall be subject to adjustment in the discretion of the Board to be exercised in
good faith and after consultation with the Designated Representative and the
auditors of Holdco 2 in the event of material asset dispositions or in the event
of unusual circumstances which would lead to anomalous or inappropriate results
and to offset the effect of any office rent paid by Impark to FUR on the First
Union Facilities.
3.5 PERFORMANCE ACHIEVEMENT PROGRAM. Holdco 2 shall cause Canco 2 to establish
and implement a performance achievement program for the benefit of Impark
Management on the terms set forth in Schedule C.
3.6 PERFORMANCE BONUS PROGRAM. Holdco 2 shall cause Canco 2 to establish and
implement a performance bonus program for the benefit of, inter alia, Impark
Management on the terms set forth in Schedule D.
3.7 ADDITIONAL ISSUANCE OF COMMON SHARES. If after the date hereof Holdco 2
proposes to issue from treasury any additional Common Shares, Holdco 2 shall
first offer such Common Shares to the parties hereto (the "Eligible
Shareholders") who then hold Common Shares by notice given to the Eligible
Shareholders of the intention of Holdco 2 and the number of additional Common
Shares proposed to be issued. Each Eligible Shareholder shall have the right to
purchase his pro rata portion of the Common Shares so offered with such pro rata
portion to be determined based on the number of Common Shares owned by such
Eligible Shareholder at the date such notice
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is given relative to the total outstanding number of Common Shares as at such
date. Each Eligible Shareholder shall have 20 Business Days from the date such
notice is given to agree to take up and pay for the Common Shares so offered.
Any Common Shares that the Eligible Shareholders have not agreed to take up and
pay for within such 20 Business Days may be issued at any time within the
ensuing 60 days to such persons as the Board in its discretion determines on
terms not more favourable to the purchaser than the terms offered to the
Eligible Shareholders.
ARTICLE 4
GENERAL RESTRICTIONS ON TRANSFERS
4.1 GENERAL RESTRICTION. Except as specifically provided in sections 4.2, 4.3
and 4.4 and Articles 5, 6 and 7, no member of Impark Management may, except with
the prior written consent of FUMI, which consent may be withheld in its sole
discretion, sell, transfer (including by operation of law, by winding-up or by
amalgamation and whether or not for consideration), assign or otherwise dispose
of (any of the foregoing being a "sale") or mortgage, charge, encumber, pledge,
assign by way of security or grant a security interest in (any of the foregoing
being a "pledge") its rights, title or interest in, to or under any Shares to
any person other than FUMI. Any sale or pledge attempted to be made which is not
in accordance with this agreement shall be void and of no effect and Holdco 2
shall not accept any such sale or pledge or any transfer by any person claiming
rights through any such sale or pledge for registration on its books of record.
4.2 TRANSFERS TO AFFILIATES. Subject to the provisions of the articles of Holdco
2 and sections 4.5 and 4.6 and Article 6 of this agreement, nothing herein shall
prevent the transfer of any Shares or any interests therein by any of the
individual members of Impark Management to an Affiliate of such member or by an
Affiliate of such individual member to another Affiliate of such individual
member provided that: (i) the Affiliate executes and delivers a document
agreeing to be bound by the provisions hereof pursuant to section 4.5 and such
other instruments as FUMI may reasonably request to ensure that such Affiliate
continues to qualify as an Affiliate of such member; (ii) each of the Affiliate
and such individual member agrees with Holdco 2 and FUMI not to effect or agree
to effect any sale or pledge of any securities of such Affiliate without the
prior written consent of FUMI, such consent not to be unreasonably withheld; and
(iii) such individual member shall remain liable under this agreement as a
guarantor to ensure that the Affiliate, or any further Affiliate to which such
Shares may be transferred, abides by the terms of this agreement.
4.3 PERMITTED TRANSFERS. Any member of Impark Management may sell all or
any portion of such member's or such member's Affiliate's Shares to:
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(i) with the prior written consent of the Designated
Representative, any other member of Impark Management or any
person who has been an employee of Impark continuously since
April 17, 1997; or
(ii) with the prior written consent of FUMI, such consent not to be
unreasonably withheld, any other full-time employee of Impark,
provided that such purchaser shall, as a condition precedent
to such purchase and sale, execute an agreement as required by
section 4.5 and such purchaser shall thereupon become a member
of Impark Management for the purposes of this agreement.
4.4 PERMITTED PLEDGES. Any member of Impark Management may, with the prior
written consent of FUMI, such consent not to be unreasonably withheld, pledge
all or any portion of such member's or such member's Affiliate's Shares to a
recognized Canadian financial institution solely to secure bonafide indebtedness
or financial obligations of such member or Affiliate to such financial
institution for an amount not exceeding two-thirds (2/3) of the original issue
price of the Shares held by such member and such member's Affiliate and solely
for the purpose of such member or Affiliate acquiring such Shares, provided
that: (i) such financial institution acknowledges in writing, on terms
acceptable to FUMI, to be bound by the terms and provisions of this agreement in
dealing with such Shares to the same extent as if it were a member of Impark
Management; (ii) such financial institution agrees to notify the Designated
Representative and FUMI of any default by a member of Impark Management with
respect to such indebtedness or financial obligations and to grant the
Designated Representative and FUMI the option to purchase such member's Shares
in accordance with section 6.2; (iii) such financial institution agrees, in the
event of a sale, realization or other disposition of all or any portion of such
Shares, that the same shall only be dealt with subject to and in accordance with
the terms and provisions of this agreement; and (iv) such financial institution
agrees that upon repayment of such indebtedness or financial obligations it will
deliver the certificates representing such member's Shares to the Depositary and
not to such member.
4.5 AGREEMENT BINDING. If any Shares or any interests therein are transferred,
issued or sold to any person who is not an original party to this agreement, as
a condition precedent to being registered as a holder of Shares and to the
exercise or enjoyment by such acquiror of any rights attaching to such Shares,
the acquiror of such Shares shall execute and deliver an agreement, in form and
on terms satisfactory to FUMI, whereby such acquiror agrees to be bound by the
provisions hereof, with such amendments hereto and thereto as may be required by
FUMI, as if he were an original party hereto, and such acquiror shall thereupon
become a member of Impark Management (for purposes only of this agreement but
not for the purposes of the
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program described in Schedule C) and shall have the same rights, and be subject
to the same obligations and restrictions, hereunder as the other members of
Impark Management or the original party hereto previously holding such Shares.
In the case of a sale of all of the Shares of an original party other than to an
Affiliate thereof, the obligations hereunder of such original party as a holder
of Shares shall thereupon cease to be effective and such member shall cease to
be entitled to any benefits hereunder in respect of such Shares arising after
the time of such sale, subject to the continuing liability under section 4.2 in
respect of transfers to Affiliates and provided that the foregoing shall not
release or affect any rights or obligations arising prior to such time hereunder
in respect of such Shares. For greater certainty, if such a transferee is
already a member, his rights and obligations as a member hereunder shall
thereupon apply to the Shares thus sold to him in the same manner as to his
original Shares (provided that such transferee shall not thereby acquire any
additional rights for the purposes of the program described in Schedule C).
4.6 LEGENDS ON SHARE CERTIFICATES. Any and all certificates representing Shares
now or hereafter issued to any person during the term of this agreement (whether
such certificates are issued at present or subsequently issued or sold) shall
have typed or otherwise written thereon a legend substantially to the following
effect:
"The shares represented by this certificate are subject to certain
restrictions on the right to transfer, sell, assign or otherwise deal
with them, pursuant to a shareholders' agreement made as of the 17th
day of April, 1997, and notice of the terms and conditions of such
agreement is hereby given."
ARTICLE 5
THIRD PARTY OFFERS
5.1 DRAG ALONG. If at any time FUMI proposes to sell any of its Common Shares
pursuant to a bonafide offer by, or letter of intent of, a Third Party (a "Third
Party Offer"), FUMI shall deliver a notice in writing to the members of Impark
Management setting out the price per Common Share of the Third Party Offer (the
"Offer Price") and the other relevant material terms and conditions (the "Offer
Terms") of the Third Party Offer and the number of Common Shares that FUMI
intends to sell pursuant to the Third Party Offer and the proportion of the
Common Shares held by FUMI that such number then constitutes (the "FUMI
Proportion"). FUMI may, at its option, specify in such notice that the members
of Impark Management shall be required to sell to the Third Party, at the Offer
Price and on the Offer Terms, that proportion of their Common Shares that is
equal to the FUMI Proportion, and, if FUMI
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so states in such notice, the members of Impark Management shall sell their
Common Shares to the Third Party at the Offer Price and on the Offer Terms.
5.2 TAG ALONG. If FUMI does not require the members of Impark Management to sell
their Common Shares pursuant to section 5.1, then each of the members of Impark
Management may, by notice in writing delivered to FUMI at any time within ten
(10) days following the delivery of the notice by FUMI to such members pursuant
to section 5.1, elect either of the following alternatives:
(a) to sell that proportion of such member's Common Shares that is
equal to the FUMI Proportion at the Offer Price and on the
Offer Terms, in which case FUMI shall cause the Third Party to
purchase, and such member shall sell, such member's Common
Shares to the Third Party; or
(b) not to sell any Common Shares held by such member pursuant to
this section 5.2, in which case FUMI may proceed to sell the
Common Shares indicated in the FUMI' notice described above in
section 5.1 to the Third Party pursuant to the Third Party
Offer at the Offer Price and on the Offer Terms.
5.3 PREFERRED SHARES. In the event that as a result of any Third Party Offer all
of the Common Shares held by any member of Impark Management are to be sold by
such member, FUMI shall cause all of the Preferred Shares held by such member of
Impark Management either to be redeemed by Holdco 2 or to be acquired by some
other person for a price equal to the then current redemption price of such
Preferred Shares, in either event immediately prior to or contemporaneously with
the sale of the Common Shares.
5.4 REPRESENTATIONS AND WARRANTIES. In connection with any sale of Common Shares
in accordance with this Article 5, FUMI may require the members of Impark
Management to enter into agreements with FUMI and/or the Third Party in which
such members shall represent and warrant that, except as specifically disclosed
to FUMI or the Third Party in writing, such member at the time of closing of
such sale does not have actual knowledge that any warranty made by FUMI pursuant
to a written sale agreement, a copy of which was provided to such member, in
connection with such sale was untrue in any material respect as of the closing
of such sale, provided that no such member need make any independent enquiry or
investigation in connection with giving such representation and warranty. The
liability of such member for any inaccuracy in such representation and warranty
shall be limited to the amount which he receives from the sale of his Shares in
connection with such sale and shall be pro rata in accordance with the number of
Shares sold by such member in relation to the total number of shares sold to the
Third Party.
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5.5 CLOSING OF THIRD PARTY PURCHASES. Any purchase and sale of Common Shares
pursuant to this Article 5 shall be effected concurrently with the sale of
Common Shares by FUMI to the Third Party in accordance with the provisions of
Article 8 and shall be completed at the date and time (the "Date of Closing" and
"Time of Closing", respectively, for purposes of Article 8) specified by FUMI or
the Third Party by notice in writing delivered to the member not later than ten
(10) days following the date on which the obligations of such member to sell
Common Shares have arisen pursuant to this Article 5, and in any event the Date
of Closing shall be no later than ninety (90) days following the date of the
Third Party Offer.
ARTICLE 6
DEATH, DISABILITY,
TERMINATION, RESIGNATION AND DEFAULT
6.1 OPTION TO PURCHASE. If at any time any individual member of Impark
Management has ceased to be employed by Impark or by an affiliate of Impark for
any reason (including, without limitation, by reason of voluntary resignation,
termination with or without cause, death or Disability), the following rights
shall arise with respect to the Shares held by such individual member of Impark
Management and by any Affiliate of such individual member (the "Subject
Shares"):
(a) the Designated Representative shall have the right, at his
option, to purchase for cash all but not less than all of the
Subject Shares, which option may be exercised by notice in
writing to such individual member of Impark Management or the
executors or legal personal representatives of an individual
member who has died or become mentally incapacitated or the
permitted successors and assigns of an Affiliate of that
member (the "Selling Manager") and to FUMI given at any time
within 30 days following the date (the Effective Date") which
is the effective date of the resignation, the date of giving
of notice of termination or the date of death or Disability,
as the case may be;
(b) if the Designated Representative does not exercise his option
as set forth in subsection (a) above within 30 days following
the Effective Date or gives notice to the Selling Manager and
FUMI that he does not wish to exercise such option, FUMI shall
have the right, at its option, to purchase for cash all but
not less than all of the Subject Shares, which option may be
exercised by notice in writing to the Selling Manager given at
any time after 30 days following the Effective Date; and
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(c) if the Designated Representatives does not exercise his option
as set forth in subsection (a) above and FUMI does not
exercise its option as set forth in subsection (b) above, the
Selling Manager shall have the right, at his option, to sell
all of his Common Shares to Holdco 2 with the price therefor
to be payable by the issuance of additional Preferred Shares
at $1 per Preferred Share, which option may be exercised by
the Selling Manager giving notice to Holdco 2 and FUMI at any
time after 40 days but before 60 days following the Effective
Date and, in the event of the exercise of such right, the
Preferred Shares issued as a result thereof shall become
Subject Shares of such Selling Manager.
6.2 SALE UPON DEFAULT ON INDEBTEDNESS. If a member of Impark Management defaults
on any indebtedness referred to in section 4.4 or commits any act of bankruptcy,
the Designated Representative and FUMI shall have the option, exercisable in
accordance with the provisions of subsections (a) and (b) of section 6.1,
mutatis mutandis, upon notice (the date of which shall be, for these purposes,
the "Effective Date") to such member at any time following a default, to
purchase all or any portion of the Shares held by such member.
6.3 FUMI OPTION TO PURCHASE. By notice given to the members of Impark Management
at any time after April 17, 2001, FUMI shall have the right, at its option
exercisable from time to time, to purchase all or any portion of the Shares held
by any member or members of Impark Management. The date of the giving of any
such notice shall be the "Effective Date".
6.4 SALE OF PREFERRED SHARES. By written notice given to Holdco 2 and FUMI, at
any time during the month of March in any year commencing with March of 2004,
any member of Impark Management who is not at such time employed by any of FUR,
FUMI or a subsidiary of any of them (the "Selling Manager") shall have the
right, at his option, to require Holdco 2 to purchase all of the Preferred
Shares then owned by such Selling Manager unless such purchase by Holdco 2 would
result in a breach or default under any agreement between Holdco 2 and a Third
Party or would otherwise be contrary to law. The date of the giving of any such
notice shall be the "Effective Date", subject to such condition.
6.5 PURCHASE PRICE. The purchase price per share for Shares transferred pursuant
to sections 6.1, 6.2, 6.3 and 6.4 shall be the Fair Value Per Share as of the
Effective Date.
6.6 CONFLICT WITH THIRD PARTY OFFER. If an Effective Date occurs with respect to
a member at any time following the delivery of a notice pursuant to section 5.1
setting out a Third Party Offer, the provisions of this Article 6 shall not
apply with respect to
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the Shares held by such member or Affiliate of such member unless (i) FUMI has
not required such member to sell his Shares pursuant to section 5.1 and the
member has elected not to sell any Shares held by the member in accordance with
alternative (b) of section 5.2, in which case the provisions of this Article 6
shall apply, (ii) the purchase and sale transaction with the Third Party
pursuant to section 5.1 is not completed for any reason other than the default
of the member, in which case the provisions of this Article 6 shall apply, or
(iii) such member has become obligated to sell less than all of his Shares to
the Third Party, in which case the provisions of this Article 6 shall apply to
those Shares held by such member which he has not become so obligated to sell.
6.7 COMPLETION. Subject as hereinafter provided, each transfer of Shares under
this Article 6 shall for all purposes be deemed to have been completed on the
Effective Date relating thereto and title to the Shares being transferred shall
pass to the transferee thereof on and as of such date. In the case of transfers
of Shares other than pursuant to section 6.4 and subsection (c) of section 6.1,
the party having the option to purchase shall, in the notice exercising such
option, notify the Selling Manager of a date and time (the "Date of Closing" and
"Time of Closing", respectively, for the purposes of Article 8) for the payment
of the purchase price for the Subject Shares, which date shall be not more than
sixty (60) days after the date of such notice and the closing shall be effected
in the manner provided for in Article 8. In the case of transfers to Holdco 2 of
Common Shares pursuant to subsection (c) of section 6.1 and of Preferred Shares
pursuant to section 6.4, Holdco 2 shall notify the Selling Manager of a date and
time (the "Date of Closing" and "Time of Closing", respectively, for the
purposes of Article 8) for the payment of the purchase price for the Subject
Shares, which date shall be not more than sixty (60) days after the date of such
notice and the closing shall be effected in the manner provided for in Article
8. Notwithstanding the foregoing, any transfer of Shares to Holdco 2 provided
for in section 6.4 or in subsection (c) of section 6.1 shall be conditional upon
all of the members of Impark Management, other than the Selling Manager,
consenting to such transfer and waiving any rights they may have as a condition
precedent to or as a consequence of such transfer in their capacity as holders
of Preferred Shares and Common Shares (i) to the immediate payment of any
accrued but unpaid dividends on their Preferred Shares or (ii) to the
contemporaneous repurchase of any of their Shares. The members of Impark
Management hereby consent to any such transfer and waive any such rights to the
extent arising as a result of any such transfer and hereby authorize and direct
the Designated Representative to execute and deliver on their behalf at the time
of any such transfer a document confirming such consent and waiver.
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ARTICLE 7
FAMILY LAW
7.1 PREVENTION OF TRANSFER ORDERS. Each member of Impark Management agrees to
use his best efforts to prevent or avoid any order or similar act being rendered
by any court of competent jurisdiction under the Family Law Act (Ontario), the
Divorce Act (Canada) or comparable laws or legislation of any other jurisdiction
that would have the effect of transferring beneficial ownership of the Shares
held by such member or any Affiliate of such member to any person (other than by
reason of that person being the individual's heir or legal personal
representative at the time of his or her death or mental incapacity) who was
not, immediately prior to the making of such order or similar act, a member of
Impark Management (any such act or order being a "Transfer Order"), except that
this section 7.1 shall not require any such member to obtain the execution by
his Spouse of any instrument binding such Spouse to the terms of this Article 7
prior to the time of any transfer of Shares or any beneficial interest therein
to his Spouse.
7.2 RIGHT OF FIRST REFUSAL ON TRANSFER. Each member of Impark Management agrees
that any amount that is required to be paid by the member to any Spouse of the
member by order of a court of competent jurisdiction shall, if reasonably
possible, be satisfied by the transfer to such Spouse of property of the member
other than the Shares. If a Transfer Order is made or if any transfer or sale of
Shares is required to satisfy a court order, the affected member of Impark
Management shall forthwith give written notice thereof to the Designated
Representative and FUMI (the date of the giving of such notice being the
"Effective Date") and the Designated Representative and FUMI shall have first
rights, in accordance with the provisions of subsections (a) and (b) of section
6.1, mutatis mutandis, to acquire from such member or any transferee such Shares
as are subject to a Transfer Order or otherwise required to be sold, at a price
per Share (without interest) equal the Fair Value Per Share of such Shares on
the Effective Date.
ARTICLE 8
COMPLETION OF PURCHASE AND SALE OF SHARES
8.1 OUTSTANDING INDEBTEDNESS. If any indebtedness of the Vendor to: (i) any
authorized pledgee pursuant to any financing in accordance with section 4.4;
(ii) Canco 1, Holdco 2, FUMI, or any of their affiliates; or (iii) the
Purchaser; is outstanding upon the occurrence of any purchase and sale of Shares
hereunder, the Vendor hereby irrevocably authorizes and directs that a portion
of the Purchase Price for the Purchased Shares equal to such outstanding
indebtedness be applied in repayment of such indebtedness. The Purchased Shares
shall not be registered in the name of the
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Purchaser unless all such indebtedness has been repaid to the extent of the
Purchase Price.
8.2 DELIVERY OF SHARES AND PAYMENT. At the Time of Closing on the Date of
Closing in respect of any sale and purchase of Purchased Shares, the parties
shall attend at the offices where the closing is being held, the Vendor shall
deliver to the Purchaser certificates representing the Purchased Shares, duly
endorsed in blank for transfer (or, if the Depositary holds such certificates
pursuant to Article 9, an acknowledgement that the Depositary holds such
certificates for the Purchaser), and the Purchaser shall pay to the Vendor the
Purchase Price (or the balance thereof after the repayment of any indebtedness
referred to in section 8.1).
8.3 VENDOR DEFAULT. If the Vendor does not attend at the place of closing at the
Time of Closing, or fails for any reason whatsoever to produce and deliver to
the Purchaser the certificates representing the Purchased Shares duly endorsed
in blank for transfer (or, if the Depositary holds such certificates pursuant to
Article 9, an acknowledgement that the Depositary holds such certificates for
the Purchaser) at or prior to the time payment of the Purchase Price therefor is
required to be made, then the Purchase Price shall be deposited at the time
otherwise provided for its payment into a special account in the name of the
Vendor at the branch of the principal Canadian chartered bank (the "Bank")
primarily utilized by Imperial Parking. Such deposit shall constitute valid and
effective payment to the Vendor of the Purchase Price and shall result in title
to the Purchased Shares passing to the Purchaser, even if the Vendor has
voluntarily sold or pledged any of the Purchased Shares, and notwithstanding
that certificates representing any of the Purchased Shares may have been
delivered to an authorized pledgee, a transferee or other person. If any of the
Purchased Shares have been pledged to an authorized pledgee to secure
obligations or indebtedness of the Vendor, the Purchaser may, at its option, in
lieu of depositing the Purchase Price as aforesaid, pay all or any part of the
Purchase Price to the authorized pledgee to the extent required to discharge
such obligations or indebtedness and receive the certificates representing the
Purchased Shares from the authorized pledgee and deposit the remainder, if any,
of the Purchase Price as aforesaid.
8.4 TRANSFER OF TITLE. From and after the Date of Closing until the time
provided for the payment for the Purchased Shares, and thereafter if such
payment is then made or if a deposit and/or payment is then made in accordance
with section 8.3, and even though the certificates representing the Purchased
Shares may not have been delivered to the Purchaser, the purchase of the
Purchased Shares shall be deemed to have been fully completed and all right,
title, benefit and interest, both at law and in equity, in and to the Purchased
Shares (except as provided in section 8.5) shall be deemed to have been
transferred and assigned to and become vested in the Purchaser and all right,
title, benefit and interest, both at law and in equity, of the Vendor or of
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any transferee, pledgee or any other person having any interest, legal or
equitable, therein or thereto shall cease and determine.
8.5 PAYMENT OF DEFAULTING VENDOR. Subject to section 8.1, the Vendor shall be
entitled to receive the Purchase Price deposited with the Bank upon delivery to
the Purchaser of the certificates representing the Purchased Shares, duly
endorsed in blank for transfer (or, if the Depositary holds such certificates
pursuant to Article 9, an acknowledgement that the Depositary holds such
certificates for the Purchaser).
8.6 POWER OF ATTORNEY. The Vendor hereby irrevocably constitutes and appoints
the Designated Representative (and if the Designated Representative is the
Vendor he appoints each of the officers from time to time of FUMI) as a true and
lawful attorney-in-fact and agent for, in the name of and on behalf of, the
Vendor to execute and deliver in the name of the Vendor all such assignments,
transfers, deeds, receipts, directions and instruments as may be necessary
effectively to sell, transfer and assign the Purchased Shares, or any part
thereof, to the Purchaser on the books of Holdco 2. Each member of Impark
Management shall deliver to the Designated Representative concurrently with the
execution of this agreement a continuing power of attorney for the purposes set
out in section 3.2 and this Article 8 in accordance with section 3.2 and shall
hereafter, upon request, provide such additional or replacement powers of
attorney for such purposes as may be required to fulfil the requirements of
applicable law for valid, effective and enforceable powers of attorney. Each
member of Impark Management hereby ratifies and confirms and agrees to ratify
and confirm all that the attorney appointed pursuant to this section 8.6 may
lawfully do or cause to be done by virtue of the authority hereby and thereby
conferred.
8.7 CONSENT. The Vendor hereby irrevocably consents to any sale or transfer of
the Purchased Shares made pursuant to the provisions hereof.
ARTICLE 9
DEPOSITARY ARRANGEMENTS
9.1 DEPOSIT OF SHARE CERTIFICATES. For so long as this agreement remains in
force, the certificates representing all of the Shares that are at any time held
by any member of Impark Management shall be held by FUMI or a person designated
by FUMI (the "Depositary") to be dealt with in accordance with this agreement.
Notwithstanding the foregoing, in the event that FUMI consents to the pledge of
any Shares pursuant to section 4.4, Shares that are pledged as a result to any
authorized pledgee shall, for so long as they are held by such authorized
pledgee pursuant to such pledge, not be governed by this Article 9.
20
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9.2 DEPOSIT RECEIPT. The Depositary will issue in the name of and deliver to
each member of Impark Management who deposits with the Depositary a certificate
or certificates representing Shares, a receipt (the "Deposit Receipt") in
substantially the form annexed hereto as Schedule E to evidence such deposit,
which Deposit Receipt shall be non-transferable.
9.3 TRANSFER OF SHARES. If a transfer of Shares has been made in accordance with
the provisions of this agreement, upon delivery to the Depositary of (a) the
relevant Deposit Receipt and (b) written evidence satisfactory to the Depositary
that the transfer of Shares has been made in accordance with the provisions of
this agreement, the Depositary shall return the certificates representing such
Shares to Holdco 2 for cancellation and Holdco 2 shall cancel such Share
certificates and issue in the name of the transferee new Share certificates
evidencing the transferred Shares and, if less than all the Shares held by a
transferor have been transferred, issue in the name of the transferor new Share
certificates evidencing the Shares that were not transferred, which Share
certificates shall be delivered by Holdco 2 to the Depositary to be dealt with
in accordance with the terms of this agreement. Upon receipt by the Depositary
of such new Share certificates, the Depositary shall issue in the name of and
deliver to such transferee a Deposit Receipt evidencing such transferee's rights
to the deposited Share certificates issued in the transferee's name subject to
the terms of this agreement, and, if applicable, shall issue in the name of and
deliver to such transferor a Deposit Receipt evidencing such transferor's rights
to the deposited Share certificates issued in the transferor's name subject to
the terms of this agreement.
9.4 RETURN OF SHARE CERTIFICATES. On the termination of this agreement, each
Deposit Receipt shall entitle the holder thereof, or his executors,
administrators, legal personal representatives or its successors or assigns, or
its or his or their attorney duly appointed by an instrument in writing in form
and execution satisfactory to the Depositary, as the case may be, to
certificates representing the number of Shares represented thereby on surrender
of such Deposit Receipt to the Depositary. Each party agrees that, except as
otherwise expressly provided herein, the Shares represented by certificates
deposited with the Depositary in accordance with the terms hereof shall not be
released by the Depositary except on termination of this agreement and that each
such party will not request nor be entitled to the release of certificates
except on such basis.
9.5 RIGHTS TO REMAIN WITH MEMBERS. FUMI hereby acknowledges and confirms on
behalf of itself and any designee of it that may at any time be the Depositary
that (a) the Depositary will hold the certificates representing Shares subject
to the provisions hereof, (b) the Depositary does not and will not have any
beneficial interest in the Shares in respect of which certificates have been
delivered to it pursuant to this Article 9 solely by reason of such delivery,
and (c) beneficial ownership of the
21
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Shares represented by certificates deposited with the Depositary pursuant to
this Article 9 and all other rights of ownership with respect thereto shall
remain with the members of Impark Management on behalf of whom the same were
deposited with the Depositary, subject to the powers of attorney provided under
sections 3.2 and 8.6.
9.6 LIMITATION OF DEPOSITARY LIABILITY. The Depositary shall be entitled to rely
as to all matters of fact conclusively upon documents and instruments in writing
signed by the members of Impark Management registered as holders of Shares or by
the Designated Representative as their lawful attorney. The Depositary shall not
be liable for relying in good faith on any such document required or permitted
to be given hereunder.
ARTICLE 10
MISCELLANEOUS
10.1 NOTICE. Any notice, document or thing required or permitted to be given or
delivered hereunder shall be deemed to be properly given or delivered to a party
if (a) delivered in person or by courier to the address set out below and
acknowledged by written receipt signed by the person receiving such notice, or
(b) sent by facsimile transmission and confirmed by prepaid registered letter
addressed to the party receiving such notice, at its respective address or fax
number set out below:
FUMI: c/o First Union Management, Inc.
Suite 1910
55 Public Square
Cleveland, Ohio
44113-1937
Attention: Paul F. Levin
Fax: (216) 781-7364
22
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Holdco 2: c/o First Union Management, Inc.
Suite 1910
55 Public Square
Cleveland, Ohio
44113-1937
Attention: John Dee
Fax: (216) 781-7467
Impark Management: Designated Representative
c/o Imperial Parking Limited
Suite 300, The Station
601 West Cordova Street
Vancouver, British Columbia
V6B 1G1
Attention: Paul Clough
Fax: (604) 681-4098
Any notice or delivery given in accordance with the provisions of this section
10.1 shall be deemed to have been given and received, if delivered in person or
by courier, on the day of delivery in person or at the time of actual receipt
thereof, and if delivered by facsimile transmission on the date of receipt of
the facsimile transmission at the time of actual receipt thereof unless received
after business hours or on a day other than a Business Day and then on the next
Business Day.
10.2 CHANGE OF ADDRESS. Any party may from time to time by notice in writing
delivered in accordance with the provisions of this Article 10 change its
address for purposes hereof.
10.3 COUNTERPARTS. This agreement may be executed in any number of counterparts,
each of which shall constitute an original, and all of which collectively shall
constitute a single instrument.
10.4 SUCCESSORS AND ASSIGNS. This agreement shall enure to the benefit of and be
binding upon the parties hereto and their respective heirs, legal personal
representatives, successors and permitted assigns. FUMI may assign its rights
and obligations hereunder to any corporation controlled by FUMI without the
consent of any other party hereto. No other party hereunder may assign its
rights or obligations hereunder without the prior written consent of FUMI.
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10.5 GOVERNING LAW. This agreement shall be construed and interpreted in
accordance with the laws of the Province of New Brunswick and the federal laws
of Canada applicable therein. Each of the parties hereby irrevocably attorns to
the non-exclusive jurisdiction of the courts of the Province of New Brunswick
and all courts competent to hear appeals therefrom.
10.6 SEVERABILITY. If any provision contained herein is determined to be void or
unenforceable in whole or in part, it shall not be deemed to affect or impair
the validity of any other provision herein and each such provision is deemed to
be separate and distinct.
10.7 ENTIRE AGREEMENT. This agreement constitutes the entire agreement between
the parties hereto pertaining to the respective obligations of Impark Management
and the other parties hereto in respect of the Shares, save and except for the
Share Purchase Agreement. There are not and shall not be any oral statements,
representations, warranties, undertakings or agreements between the parties with
respect to the subject matter hereof and this agreement may not be amended or
modified in any respect except by written instrument signed by the parties
hereto.
10.8 IMPLEMENTATION OF AGREEMENT. The parties hereto hereby covenant and agree
to do or cause to be done all acts and things, whether by the directors of Canco
2 or Holdco 2 or otherwise, to execute and deliver or cause to be executed and
delivered all such instruments and to exercise or cause to be exercised any and
all voting rights attaching to the Shares held by each of them in order that all
provisions of this agreement shall be fully and effectively carried out,
implemented and given effect to in accordance with the terms hereof. Holdco 2
agrees not to take or approve any action that would contravene any provision of
this agreement and shall cause to be provided all necessary approvals for any
transfer of Shares that is effected in compliance with this agreement.
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10.9 TERMINATION. This agreement shall terminate upon the agreement of
shareholders of Holdco 2 who hold at least 97% of the voting rights attached to
all Common Shares or, if earlier, at the option of FUMI immediately upon the
closing of a sale of 97% or more of the outstanding Common Shares to a Third
Party in accordance herewith.
IN WITNESS WHEREOF this agreement has been executed by the parties hereto
as of the date first above written.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
/S/ Paul Clough
----------------------
) Paul T. Clough
)
)
)
/S/ Bruce Newsome
----------------------
) J. Bruce Newsome
)
)
)
/S/ Douglas Poirier
----------------------
) Douglas I. Poirier
)
)
)
/S/ J. Robin Bateman
----------------------
) J. Robin Bateman
)
)
)
/S/ James MacKay
----------------------
) James MacKay
)
)
)
/S/ Michael T. Menzies
----------------------
) Michael T. Menzies
)
)
)
/S/ Robert Noiles
----------------------
) Robert L. Noiles
)
)
)
/S/ Harry Renaud
----------------------
) Harry J. Renaud
)
25
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)
)
/S/ Stuart MacKenzie
--------------------
) Stuart M. MacKenzie
)
)
)
/S/ Daniel Sawchuck
--------------------
) Daniel Sawchuck
)
LAURENTIAN BANK OF CANADA,
in trust for J.Bruce Newsome,
Account No. VOO2679
by Authorized Signor
------------------------------
RBC DOMINION SECURITIES INC.,
in trust for Douglas I. Poirier,
Account No. 496-81890-11
by Authorized Signor
------------------------------
GUNDYCO,
in trust for J. Robin Bateman,
Account No. 590-90333-17
by Authorized Signor
------------------------------
GUNDYCO,
in trust for Robert L. Noiles,
Account No. 590-77616-12
by Authorized Signor
------------------------------
GUNDYCO,
in trust for Stuart M. MacKenzie,
Account No. 590-90254-12
by Authorized Signor
------------------------------
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MIDLAND WALWYN CAPITAL INC.,
in trust for Henry J. Renaud,
Account No. 8RABNQS
by Authorized Signor
------------------------------
504308 N.B. INC.
by Authorized Signor
------------------------------
FIRST UNION MANAGEMENT, INC.
by Authorized Signor
------------------------------
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SCHEDULE A
Subscribers Common Shares of Holdco 2 to be Acquired
- ----------- -----------------------------------------
Paul T. Clough 19,632
Bruce Newsome 4,531
Doug Poirier 2,805
Rob Bateman 1,512
Jim MacKay 1,542
Mike Menzies 1,542
Rob Noiles 1,123
Harry Renaud 2,663
Stuart MacKenzie 1,379
Dan Sawchuck 771
28
SCHEDULE B
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned hereby
irrevocably nominates, constitutes and appoints ________________________ (the
"Attorney") , as the true and lawful attorney-in-fact and agent for the
undersigned and in the name, place and stead of the undersigned, in the capacity
of the undersigned as a shareholder of 504308 N.B. Inc. for the following
purposes:
(i) to execute and deliver proxies and vote any and all shares of the
undersigned in 504308 N.B. Inc. on behalf of the undersigned in
respect of any matter on which the undersigned is entitled to vote in
such manner as may be determined by the Attorney in his sole
discretion; and
(ii) to execute and deliver any and all assignments, transfers, deeds,
directions, receipts and other instruments as may be necessary
effectively to sell, transfer and assign any of such shares in
accordance with the provisions of the shareholders' agreement made as
of April 17, 1997.
The execution of this document indicates the intention of the
undersigned that this document provides the Attorney with a continuing power of
attorney for property under the [SUBSTITUTE DECISIONS ACT (ONTARIO)] for the
purposes set out herein and that such appointment and power of attorney, being
coupled with an interest, shall not be revocable at the option of the
undersigned and shall not be revoked by the insolvency, bankruptcy or incapacity
of the undersigned and shall come into effect upon the date that this document
is signed and witnessed. The undersigned hereby ratifies and confirms and agrees
to ratify and confirm all that the Attorney may lawfully do or cause to be done
by virtue of this power of attorney.
DATED this day of , 199 .
___________________________________ _________________________________
Name of Witness Name of Appointor
___________________________________ _________________________________
Signature Signature
___________________________________
Name of Witness
___________________________________
Signature
29
SCHEDULE C
PERFORMANCE ACHIEVEMENT PROGRAM
1. DEFINITIONS. Capitalized terms which are defined in the shareholders
agreement entered into as of April 17, 1997 between 504308 N.B. Inc., First
Union Management, Inc. and certain employees of Impark have the meanings as
provided for therein. In addition, the following terms have the following
meanings:
"PERFORMANCE ACHIEVEMENT" for any year means the Percentage Achievement
for such year of the Performance Bonus Base for such year;
"PERCENTAGE ACHIEVEMENT" means as follows:
(i) for 1997 and 1998, 100% minus the amount of any Shortfall
Percentage for the applicable year;
(ii) for 1999, 100% minus the product of 1.5 and any Shortfall
Percentage for 1999; and
(iii) for 2000, 100% minus the product of 3 and any Shortfall
Percentage for 2000;
"PERFORMANCE BONUS BASE" means as follows:
(i) for 1998, the Percentage Achievement for 1997 of $694,444;
(ii) for 1999, the Performance Achievement for 1998; and
(iii) for 2000, the Performance Achievement for 1999; and
"SHORTFALL PERCENTAGE" for any period means the percentage obtained by
multiplying 100% times the quotient of the Performance Shortfall for
such period divided by the Performance Target for such period.
2. PARTICIPANTS. Subject as hereinafter provided, the participants in the
Program (the "Participants") and the interest of each Participant (the
"Participant's Share") will be as follows:
30
Participant Participant's Share
Paul T. Clough 52.35%
J. Bruce Newsome 12.08%
Douglas I. Poirier 7.47%
J. Robin Bateman 4.03%
James MacKay 4.11%
Michael T. Menzies 4.11%
Robert L. Noiles 3.00%
Harry J. Renaud 7.11%
Stuart M. MacKenzie 3.68%
Daniel Sawchuck 2.06%
Notwithstanding the foregoing, in the event that individuals who are employed by
Impark as at April 17, 1997 become new members of Impark Management prior to
June 30, 1997, the Designated Representative shall have the right at any time
prior to such date to include any of such new members as Participants and to
designate the Participant's Share of each such new Participant provided that the
Participant's Share of Paul Clough shall be reduced by the aggregate of the
Participant's Shares of such new Participants. The inclusion and designation
provided for in the preceding sentence shall be made by written notice delivered
to Holdco 2 and FUMI on or before June 30, 1997.
3. PERFORMANCE ACHIEVEMENT AWARD. Each Participant will be conditionally
entitled to receive a bonus payment in respect of each of the calendar years
1998, 1999 and 2000. The amount to which a Participant will be conditionally
entitled in respect of any such year will be such Participant's Share of the
Performance Achievement for such year. The actual entitlement of such
Participant to such bonus will be dependant upon such Participant being
continuously employed by any of Impark, FUR or FUMI or a subsidiary of any of
them from April 17, 1997 through to the end of the third calendar year following
the year in respect of which such bonus was determined. If the Participant is so
continuously employed until the end of such third year, he will be paid the full
amount of such bonus on the last day of such third year. If such Participant
ceases to be so employed during such third year, he will be paid on or before
the last day of such third year a pro rata portion of such bonus based on the
number of days he was so employed during such third year relative to the total
number of days in such year.
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4. COORDINATION. The Program shall be coordinated with the comparable program to
be instituted by Imperial Parking so as to ensure that each member of Impark
Management participates in one or the other of the programs without double
counting.
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SCHEDULE D
PERFORMANCE BONUS PROGRAM
1. DEFINITIONS. Capitalized terms which are defined in the shareholders
agreement entered into as of April 17, 1997 between 504308 N.B. Inc. and certain
employees of Impark have the meanings as provided for therein.
2. PARTICIPANTS. The participants in the Program (the "Participants") will
be the employees from time to time of Impark and the interest of each
Participant (the "Participant's Share") will be determined from time to time by
the Designated Representative.
3. PERFORMANCE ACHIEVEMENT AWARD. In 1998, 1999, 2000 and 2001, each Participant
who is still employed by Impark will be entitled to receive a cash bonus payment
equal to such Participant's Share of the amount which is 5% of any amount by
which the Consolidated Performance for the immediately preceding calendar year
exceeds the Performance Target for such immediately preceding calendar year.
4. COORDINATION. The Program shall be coordinated with the comparable program to
be instituted by Imperial Parking so as to ensure that each member of Impark
Management participates in one or the other of the programs without double
counting.
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SCHEDULE E
DEPOSIT RECEIPT
THE UNDERSIGNED, ____________________ (the "Depositary"),
hereby confirms that ______________________ (the "Holder") is the registered
holder of the following shares (the "Shares") in the capital of 504308 N.B.
Inc.:
Common Shares _______________________
Preferred Shares _______________________
The certificates in respect of such Shares are held by the
Depositary pursuant to the agreement (the "Shareholders Agreement") made as of
the 17th day of April, 1997 between 504308 N.B. Inc., First Union Management,
Inc. and the individuals listed on Schedule A thereto. This Deposit Receipt
evidences the ownership by the Holder of the Shares held by the Depositary in
accordance with the Shareholders Agreement. The Depositary is bound to hold the
Shares in accordance with the Shareholders Agreement and the rights of the
Holder with respect to the Shares are expressly subject to, governed by and may
be exercised only in accordance with, the terms and conditions set forth in the
Shareholders Agreement (as such agreement may be amended from time to time). By
acceptance of this Deposit Receipt, the Holder assents to such terms and
conditions.
This Deposit Receipt is not transferable.
IN WITNESS WHEREOF the Depositary has caused this Deposit
Receipt to be signed by its duly authorized signatory this ____ day of ________,
_____.
_______________________________
by ___________________________