EXHIBIT 10.4
EXECUTIVE EMPLOYMENT CONTRACT
THIS AGREEMENT made as of September 27, 2004 by and between PMC
Commercial Trust, a Texas Real Estate Investment Trust with its principal places
of business in Dallas, Collin County, Texas, hereinafter referred to as the
"CORPORATION," and Xxxxx X. Xxxxxx, hereinafter referred to as "EXECUTIVE."
WITNESSETH THAT:
In consideration of the promises herein contained, the parties hereto
mutually agree as follows:
1. Employment: The Corporation hereby employs the Executive as its
Chief Financial Officer with such powers and duties as may be specified by the
Board of Directors. The Executive hereby accepts employment upon the terms and
conditions as hereinafter set forth.
2. Term: Subject to the provisions for termination as hereinafter
provided, the term of this Agreement shall begin immediately and shall terminate
on the earlier of (i) the Executive's seventieth (70th) birthday or (ii) July
31, 2007 or such later date as determined by the Board of Directors (the
"Term"). The Term of this Executive Employment Contract may be extended annually
by the Board of Directors.
3. Compensation: For all services rendered by the Executive under this
contract, the Executive shall be paid an annual salary at a minimum at the
annual rate for the Executive effective as of September 30, 2004 (the "Minimum
Rate"). The Minimum Rate may be increased by the Board at its discretion. The
annual salary is payable pursuant to the normal payroll practices of the
Corporation.
The Board of Directors may consider bonus compensation for the
Executive if the performance of the Corporation and the Executive justifies such
bonus compensation.
4. Authorized Expenses: The Executive is authorized to incur reasonable
expenses for the promotion of the business of the Corporation. The Corporation
will reimburse the Executive for all such reasonable expenses upon the
presentation by the Executive, from time to time, of an itemized account of such
expenditures.
The Executive shall be entitled to such additional and other fringe
benefits as the Board of Directors shall from time to time authorize, including
but not limited to: A) health insurance coverage for the Executive, his wife and
dependent children; B) a monthly automotive allowance of $550, which the
Executive is to use to obtain an automobile to be available for company needs.
All operating expenses such as maintenance, insurance and fuel (excluding fuel
for company travel) will be the responsibility and expense of the Executive.
5. Extent of Services: The Executive shall devote a substantial portion
of business time, attention and energies to the business of the Corporation, and
shall not, during the term of this Agreement, engage in any other business
activities, whether or not such activities are pursued for gain, profit or other
pecuniary advantage. This provision is not meant to prevent him from A) devoting
reasonable time to civic or philanthropic activities or B) investing his assets
in such form or manner providing that it does not require any substantial
services on the part of the Executive that will interfere with the Executive's
employment pursuant to this Agreement. Executive's employment is considered as
full-time.
6. Working Facilities: The Executive shall be furnished with such
facilities and services suitable to his position and adequate for the
performance of his duties.
7. Duties: The Executive is employed in an executive and supervisory
capacity and shall perform such duties consistent herewith as the Board of
Directors of the Corporation shall from time to time specify. Subject to the
provisions of Section 14 hereof, the precise services of
the Executive may be extended or curtailed, from time to time, at the discretion
of the Board of Directors of the Corporation.
8. Disclosure of Information: The Executive recognizes and acknowledges
that the Corporation's operating procedures or service techniques are valuable,
special and unique assets of the Corporation's business. The Executive will not,
during or after the term of his employment, disclose the list of the
Corporation's customer base or service techniques to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever.
In the event of breach or threatened breach by the Executive of the provisions
of this paragraph, the Corporation shall be entitled to an injunction
restraining any such breach. Nothing herein shall be construed as prohibiting
the Corporation from pursuing any other remedies available to the Corporation
for such breach or threatened breach, including the recovery of damages from the
Executive.
9. Vacations: The Executive shall be entitled each year to a vacation
in accordance with the vacation contract addendum dated effective July 1, 1999.
10. Disability: If the Executive is unable to perform his services by
reason of illness or total incapacity, based on standards similar to those
utilized by the U.S. Social Security Administration, he shall receive his full
salary for one (1) year of said total incapacity through coordination of
benefits with any existing disability insurance program provided by the
Corporation ( a reduction in salary by that amount paid by any Corporation
provided insurance). Should said Executive be totally incapacitated beyond a
one-year period, so that he is not able to devote full time to his employment
with said Corporation, then this Agreement shall terminate.
11. Death During Employment: If the Executive dies during the term of
employment and has not attained the age of seventy years, the Corporation and/or
any third party insurance
provided by the Corporation, through a coordination of benefits, shall pay the
estate of the Executive a death benefit equal to two times the Executive's
annual salary. In the event the Executive receives death benefits payable under
any group life insurance policy issued to the Corporation, the Corporation's
liability under this clause will be reduced by the amount of the death benefit
paid under such policy. The Corporation shall pay any remaining death benefits
to the estate of the Executive over the course of twelve (12) months in the same
manner and under the same terms as the Executive would have been paid if he had
still been working for the Corporation. No later than one (1) month from the
date of death, the estate of the Executive will also be paid any accumulated
vacation pay. Such payments pursuant to this paragraph shall constitute the full
compensation of said Executive and he and his estate shall have no further claim
for compensation by reason of his employment by the Corporation.
12. Assignment: The acts and obligations of the Corporation under this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Corporation.
13. Invalidity: If any paragraph or part of this Agreement is invalid,
it shall not affect the remainder of this Agreement but the remainder shall be
binding and effective against all parties.
14. Additional Compensation: If during the Term, this Agreement is
terminated by the Corporation (other than pursuant to the provisions of Section
15 hereof) or by the Executive due to "Constructive Discharge" then the
Executive shall receive termination pay in an amount equal to 2.99 times the
average of the last three years compensation. For purposes of this Agreement,
"Constructive Discharge" shall mean:
- Any reduction in salary below the Minimum Rate;
- A material change diminishing the Executive's job
function, authority, duties or responsibilities, or a
similar change deteriorating Executive's working
conditions that would not be in accordance with the
spirit of this Agreement;
- A required relocation of Executive of more than 100
miles from Executive's current job location; or
requires Executive to travel away from Executive's
office in the course of discharging Executive's
responsibilities in excess of that typically required
of executives in similar positions.
- Any breach of any of the terms of this Agreement by the
Corporation which is not cured within 14 days following
written notice thereof by Executive to the Corporation.
The amount payable by the Corporation pursuant to this Section 14 shall be made
in one lump sum cash payment payable to the Executive no later than 30 days
following termination of this Agreement.
15. Termination: The Corporation cannot terminate this agreement except
for: 1) the intentional, unapproved material misuse of corporate funds, 2a)
professional incompetence (i.e. the intentional refusal to perform or the
inability to perform the duties associated with Executive's position with the
Corporation in a competent manner, which is not cured within 15 days following
written notice to Executive) or 2b) willful neglect of duties or
responsibilities in either case not otherwise related to or triggered by the
occurrence of any event or events described in or prescribed by Section 14
hereof.
16. Indemnification: The Corporation hereby agrees to indemnify and
hold the Executive harmless from any loss for any corporate undertaking, as
contemplated in Section 7 hereof, whereby a claim, allegation or cause of action
shall be made against the Executive in the performance of his contractual duties
except for willful illegal misconduct. Said indemnification shall include but
not be limited to reasonable cost incurred in defending the Executive in his
faithful performance of contractual duties.
17. Entire Agreement: This contract may not be changed except in
writing and embodies the whole Agreement between the parties hereto and there
are no inducements, promises, terms, conditions or obligations made or entered
into by the Corporation or the Executive other than contained herein. This
Executive Employment Contract supercedes and replaces that certain Executive
Employment Contract dated September 17, 2003 between the Corporation and the
Executive.
IN WITNESS WHEREOF, the parties here hereunto signed and sealed this
Agreement the date first above written.
Signed, Sealed and Delivered "Corporation"
In the presence of: PMC Commercial Trust
/s/ Xxxxxx X. Xxxxxx
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/s/ Xxxxx X. Xxxxxxxx
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By: Xxxxx X. Xxxxxxxx
President
"EXECUTIVE"
/s/ Xxx X. Xxxxx
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/s/ Xxxxx X. Xxxxxx
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By: Xxxxx X. Xxxxxx,
Chief Financial Officer
(CORPORATE SEAL)
