Employment Agreement



 



EXHIBIT 10.5



EMPLOYMENT AGREEMENT



This EMPLOYMENT AGREEMENT (“Agreement”) is made effective as of January 1,
2003, by and between Imperial Parking Corporation, a Delaware corporation with
its principal place of business at 601 West Cordova Street, Vancouver, British
Columbia V6B 1G1 (the “Company”) and Bruce Newsome, 5741 – 125A Street, Surrey,
B.C. V3W 0J3 (“Executive”).


WHEREAS, the Company and Executive wish to amend the terms and conditions upon
which Executive continues as Chief Financial Officer, Senior Vice-President
Finance and Secretary of the Company.


NOW THEREFORE, in consideration of the premises and of the mutual covenants and
undertakings stated herein, Executive and the Company hereby agree as follows.


1.    Period of Employment. Subject to all of the terms and conditions hereof
including without limitation, the termination provisions of this Agreement, the
term of this Agreement shall commence on January 1, 2003 and end on March 27,
2006 (the “Initial Term”); provided that, this Agreement shall be automatically
renewed for additional successive one (1) year periods (each referred to as a
“Renewal Term” and the Initial Term or any Renewal Term sometimes referred to
herein individually as a “Term” and collectively as the “Employment Period”)
unless the Company delivers written notice to Executive at least thirty (30)
days prior to the expiration of such Initial Term or Renewal Term of its
election to terminate this Agreement as of the end of the then current Term.
By executing this Agreement, the Company and Executive represent that neither
(i) the negotiation or execution of this Agreement nor (ii) the performance of
their respective duties and obligations hereunder, shall violate any other
agreement or law to which such parties are bound or subject.


2.    Duties and Powers of Executive.


     (a)       Subject to all of the terms and conditions hereof, during the
Employment Period, the Company shall employ Executive as Chief Financial
Officer, Senior Vice-President Finance and Secretary of the Company. In
addition, during the Employment Period, Executive shall also serve in such
capacity for any and all subsidiaries of the Company, unless Executive waives
such assignment. During the Employment Period, Executive shall have these
powers and duties normally associated with the position of Chief Financial
Officer including responsibility for all financial and accounting affairs of
the Company and its subsidiaries, and such other powers and duties as may be
prescribed by the Company; provided, that, such powers and duties are
consistent with Executive’s position. During the Employment Period, Executive
shall exclusively devote his professional and business time (other than
absences due to illness or vacation) to Executive’s duties hereunder, except
that Executive may serve on boards of directors or advisory boards of
charitable organizations for reasonable amounts of time and make reasonable
personal investments; provided, that, such activities do not interfere with his
services to the Company.


     (b)       In the exercise of any of his responsibilities or authority hereunder,
Executive shall act in good faith, and so long as Executive acts in good faith,
he will have no liability or obligation to the Company for any act or omission
resulting from carrying out such obligation, irrespective of whether or not
such act or omission may have been reasonably prudent or in good business
judgment.


     (c)     The Company shall indemnify and hold Executive harmless from and
against any and all claims, damages, costs, suits, actions and expenses
(including legal fees), arising directly or indirectly, in whole or in part,
out of any matter related to the Company, or any action taken by Executive
within the scope of his duties or authority hereunder, excluding only such of
the foregoing as arise from negligent acts or bad faith of the CFO and this
indemnity will survive termination or expiration of this Agreement.


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     (d)       Executive shall indemnify and hold the Company harmless from and
against any and all claims, damages, costs, suits or actions arising out of any
breach, violation or non-performance of any covenant, condition or agreement in
this Agreement set forth and contained on the part of the Executive to be
fulfilled, kept, observed or performed and this indemnity will survive the
termination or expiration of this Agreement.


3.    Compensation.



     (a)       From January 1, 2003 to February 7, 2003, the Company shall pay
Executive an annual base compensation of $270,773 CDN and $7,500 USD and
thereafter for the remainder of the Employment Period the Company shall pay
Executive an annual base compensation of $270,773 CDN and $20,000 USD, in
approximately equal installments in accordance with the Company’s customary
payroll practices (“Base Salary”). During the Employment Period, Executive’s
Base Salary shall not be reduced.


     (b)       Executive shall be awarded such stock options as the Compensation
Committee of the Company, in its sole discretion, shall see fit.


     (c)       Executive shall be awarded such annual cash bonus as the Compensation
Committee of the Company, in its sole discretion, shall see fit based primarily
upon the financial performance of the Company. Any such bonus will be paid
within 120 days of the commencement of the fiscal year of the Company.


4.    Benefits.


     (a)       During the Employment Period, the Company shall provide to Executive
all such health insurance, dental insurance, life insurance, disability
insurance, retirement savings, pension, and other fringe benefits as are
provided from time to time by the Company to its senior executives generally,
in accordance with the Company’s general benefits practices then in effect, in
addition to any fringe benefits provided for expressly in this Agreement
without regard to eligibility restrictions contained therein.


     (b)       During the Employment Period and upon appropriate documentation, the
Company shall reimburse Executive for all reasonable business and travel
expenses incurred by Executive in performing his duties hereunder in accordance
with the Company’s reimbursement policy for senior executive officers.


     (c)       During the Employment Period, Executive shall be entitled to a minimum
of five (5) weeks paid vacation per year and such other paid absences whether
for holidays, sick days, personal time or any similar purposes in accordance
with the plans, policies and practices of the Company in effect from time to
time for senior executive officers generally; provided, however, if less than
five (5) weeks vacation is taken by Executive in any year, the balance of
vacation time may be taken in whole or in part in any later year or years, in
addition to that year’s vacation time.


     (d)       During the Employment Period, the Company shall contribute $1,125 per
month to a registered retirement plan of the Executive’s choice, for the
benefit of Executive.


     (e)       During the Employment Period, the Company shall reimburse the
Executive for all vehicle lease or purchase payments in the amount of $1,000
per month and shall further reimburse Executive for all reasonable motor
vehicle expenses and costs.


     (f)       During the Employment Period, the Company shall reimburse the
Executive for all club, membership and association fees and dues in The Point
Grey Golf and Country Club and all expenses


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incurred by Executive at such club for business purposes. All personal
expenses at the club shall be paid by Executive.


     (g)       During the Employment Period, the Company shall pay for all
professional association dues and expenses reasonably incurred by Executive in
his capacity as a chartered accountant.


     (h)       As soon as administratively feasible following the execution of this
Agreement, the Company shall pay directly to Executive’s legal counsel(s) the
reasonable attorneys’ fees and costs that Executive incurred in connection with
the negotiation and preparation of this Agreement, provided that such legal
fees and costs do not exceed $2,000.


5.    Termination. Executive’s employment by the Company hereunder shall end
immediately upon:


     (a)       Receipt by the Company of Executive’s resignation from the Company on
no less than forty-five (45) days prior written notice;


     (b)       Executive’s receipt of written notice from the Company of termination
of Executive’s employment on no less than forty-five (45) days prior written
notice;


     (c)       Executive’s death or Disability; or


     (d)       Expiration of the Employment Period;


and the date on which any of the foregoing terminations shall occur shall be
the “Termination Date” hereunder.


6.    Payments Upon Termination.


     (a)       If Executive’s employment hereunder ends by reason of:



		
	 	     (i)     Resignation by Executive without Good Reason;
	 
	 	     (ii)     The termination by the Company for Cause; or
	 
	 	     (iii)     Death;



then the Company shall pay Executive’s Base Salary through the Termination
Date, accrued but unpaid bonus for completed performance periods, and any other
payments or benefits due to Executive under any plan or policy of the Company
or as otherwise set forth in this Agreement. In addition, if Executive’s
employment is terminated due to his death, then the Company shall pay to his
beneficiaries or estate, as the case may be, a prorated bonus for the year of
termination.


     (b)       If Executive’s employment hereunder ends by reason of Disability, then
the Company shall continue to pay Executive’s Base Salary and pro-rated bonus
for six (6) months offset by any payments Executive should receive under a
long-term disability plan maintained by the Company or its affiliates. In
addition, Executive shall be paid any accrued, but unpaid Bonus for completed
performance periods and any other payments or benefits due to Executive under
any plan or policy of the Company or as otherwise set forth in this Agreement
including any benefits that Executive may be entitled to under any disability
insurance maintained for the benefit of Executive during the term of his
employment.


     (c)       If Executive’s employment hereunder ends by reason of:



                  (i)     Termination by the Company without Cause;

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                  (ii)     Resignation by Executive for Good Reason; or


                  (iii)    The Company electing to terminate this Agreement as of the
end of the then current Term by delivery of written notice to
Executive in accordance with section 1 of this Agreement,


then the Company shall, within 15 days after the Termination Date, pay
Executive a lump sum payment in cash equal to two times the sum of his then
annual Base Salary (“Severance”), together with any other amounts that he is
owed under any incentive plans or other benefit plans (including, without
limitation, severance or bonus plans) in which he is then participating. In
addition, the Company shall continue to provide Executive and his family with
fully paid health and dental insurance coverage for a period of two years
following such termination.


     (d)       Termination by the Company for Cause shall mean termination for:


                  (i)     An act or acts of dishonesty or fraud, knowingly and intentionally
undertaken by Executive, and intended to result in enrichment of Executive at
the expense of the Company;


                  (ii)     A significant and material failure to perform the duties and
obligations of Executive’s employment which are willful and deliberate on
Executive’s part and which are not remedied or in the process of being
substantially remedied in a reasonable period of time after receipt of written
notice from the Company;


                  (iii)    The final conviction of Executive of, or plea by Executive of guilty
to, an indictable offence involving theft, fraud or any other act inconsistent
with the general level of conduct reasonably expected of a senior financial
executive; or


                  (iv)    A breach of any material provision of this Agreement which Executive
has failed to cure or to commence to take reasonable steps to cure within
thirty (30) days of written notice thereof by the Company.


For purposes of this paragraph, no act by Executive shall be considered
“willful” or “intentional” unless committed in bad faith or without a
reasonable belief that the act or omission was in the best interests of the
Company. Cause shall not exist under this paragraph unless and until the
Company has delivered to Executive a copy of a resolution duly adopted by a
majority of the Board (excluding Executive for purposes of determining such
majority) at a meeting of the Board called and held for such purpose (after
reasonable, but in no event less than twenty (20) days, notice to Executive and
an opportunity for Executive, together with the counsel, to be heard before the
Board), finding that in the good faith opinion of the Board, Executive was
guilty of the conduct set forth in this paragraph and specifying the
particulars thereof in detail. This shall not prevent Executive from
challenging in any court of competent jurisdiction the Board’s determination
that Cause exists.


     (e)       Good Reason for resignation by Executive shall mean resignation
because of:


                  (i)     without the express written consent of Executive, the assignment to
Executive of duties materially adverse and inconsistent in any substantial
respect with Executive’s position, authority and responsibilities at the
Company or any other material change in authority;


                  (ii)     any material failure by the Company to comply with the provisions of
this Agreement other than any failure remedied by the Company, within thirty
(30) days following receipt of notice thereof given by Executive; or

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                  (iii)    any failure of the Company to pay Executive his Base Salary when
otherwise due or any action taken by the Company or the Company to reduce such
Base Salary, other than an inadvertent failure which is immediately remedied by
the Company after notice thereof given by Executive.


     (f)       Disability means the determination by a physician mutually agreeable
to the Company and Executive that Executive is unable to perform Executive’s
duties hereunder by reason of illness or other physical or mental impairment or
condition for 182 days in any 365 day period.


7.    Confidentiality; Non-Competition; and Non-Solicitation.


     (a)       Executive shall hold in a fiduciary capacity for the benefit of the
Company all secret or confidential information, knowledge or data relating to
the Company or its affiliates (“Confidential Information”), which shall have
been obtained by Executive during Executive’s employment by the Company and
which shall not be or become public knowledge (other than by acts by Executive
or representatives of Executive in violation of this Agreement). After
termination of Executive’s employment with the Company, Executive shall not,
without the prior written consent of the Company or as may otherwise be
required by law or legal process, communicate or divulge any such information,
knowledge or data to anyone other than the Company and those designated by it.


     (b)       In consideration of the benefits to be provided to Executive
hereunder, Executive covenants that he will not, without the prior written
consent of the Company, during the Employment Period and the twelve (12) month
period immediately following a termination of his employment for any reason
(“Restriction Period”) engage in any way, directly or indirectly, in the
Business (as defined below) within any geographic location in which the Company
is conducting the Business, other than as an employee of the Company. For
purposes of this Section 7, Business means all activities of the Company
relating to (i) acquiring, owning, leasing, managing or operating parking
facilities; (ii) providing consulting services in connection with the
development and operation of parking facilities; (iii) manufacturing,
assembling, selling and distributing parking meters and parking facility
operation and control equipment; and (iv) printing and selling parking tickets.


     (c)       Executive hereby covenants and agrees that, at all times during the
Restriction Period, Executive shall not employ or seek to employ any person
employed during such period by the Company, or otherwise encourage or entice
such person or entity to leave such employment.


8.    No Set-off. The Company’s obligations to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder shall not be
affected by any circumstances, including, without limitation, any set-off,
counterclaim, recoupment, or other right which the Company or the Company may
have against Executive or others. In no event, shall Executive be obligated to
seek other employment by way of mitigation of the amounts payable to Executive
under any of the provisions of this Agreement.


9.    Successors and Assigns. This Agreement is binding on Executive and the
Company and its successors and assigns; provided, however, that the rights and
obligations of the Company under this Agreement may not be assigned to a
successor without the prior written consent of Executive which consent shall
not be unreasonably withheld. No rights or obligations of Executive hereunder
may be assigned by Executive to any other person or entity.


10.    Governing Law. This Agreement shall be construed under and governed by the
laws of the Province of British Columbia without regard to the conflicts or
choice of law provisions thereof.


11.    Severability. Each section and provision of this Agreement shall be
considered severable and any invalidity of any provision shall not render
invalid or impair to any extent any other section or


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provision hereof, all of which shall be interpreted to carry out the intent of
the parties to the fullest extent permissible under the law.


12.    Arbitration. If any dispute arises between the parties with respect to the
application, interpretation, or termination of this Agreement, then such
dispute shall be submitted to arbitration for resolution in Vancouver, British
Columbia. The arbitrator shall be selected and the arbitration shall be
conducted pursuant to the B.C. Commercial Arbitration Act, except that the
rules set out in that Act are to apply rather than the rules of the British
Columbia International Arbitration Centre. Any request for arbitration must be
made in writing by the party seeking arbitration and must be delivered by hand
or sent by registered or certified mail, return receipt requested, postage
prepaid, to the other party within 90 days after the date on which the dispute
between the parties first arose. The decision of the arbitrator regarding any
such dispute shall be final and binding on both parties, and any court of
competent jurisdiction may enter judgment upon the award. The Company shall
reimburse Executive for all reasonable legal fees and out-of-pocket expenses
attributable to the dispute, unless the position taken by the Company is found
to be correct in all material respects.


13.    Notices. All notices hereunder shall be in writing and shall be deemed to
have been duly given if delivered by hand or sent by registered or certified
mail, return receipt requested, postage prepaid, to the party to receive the
same at the address set forth on the first page of this Agreement or at such
other address as may have been furnished to the sender by notice hereunder.
All notices shall be deemed given on the date on which delivered or, if mailed,
2 days after the date postmarked.


14.    Survival of Rights and Obligations. All rights and obligations of
Executive and the Company arising during the term of this Agreement shall
continue to have full force and effect after the termination of the Agreement
unless otherwise provided herein.


15.    Miscellaneous. This Agreement shall contain the entire understandings of
the parties hereto with respect to the employment of Executive by the Company,
and supersede all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto in respect of such
subject matter. No provision thereof may be altered, amended, modified,
waived, or discharged in any way whatsoever except by written agreement
executed by the parties. No delay or failure of either party to insist, in any
one or more instances, upon performance of any of the terms and conditions of
this Agreement or to exercise any rights or remedies thereunder shall
constitute a waiver or a relinquishment of such rights or remedies or any other
rights or remedies hereunder. All amounts herein are in Canadian currency
unless otherwise specified. All payments to Executive hereunder shall be paid
in Vancouver, Canada.


IN WITNESS HEREOF, the parties hereto have caused this Agreement to be duly
executed on the date and year first above written.



	 	 	 
	BRUCE NEWSOME	 	
IMPERIAL PARKING CORPORATION
	 	 	 
	 	 	 
	
	 	


	 	 	
Charles Huntzinger, President and CEO




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