EXHIBIT 10.7
SUPPLEMENTAL RETIREMENT/DEATH BENEFITS AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of the 17th day of
December 1987, by and between Post, Xxxxxxx, Xxxxx & Xxxxxxxx, Inc. ("PBSJ,
Inc.") and The PBSJ Corporation ("PBSJ Corp."), Florida corporations with
principal offices in Miami, Florida (collectively referred to herein as the
"Corporation"), and Xxxxxxx X. Xxxxxxx, a resident of the State of Florida
(hereinafter referred to as the "Employee").
WHEREAS, the Corporation is engaged in the business of rendering
engineering services, including consulting, planning and surveying as well as
allied professional services; and
WHEREAS, the Board of Directors of the Corporation has approved, and
the shareholders of the Corporation have ratified, the Post, Xxxxxxx, Xxxxx &
Xxxxxxxx,, Inc. Supplemental Income Plan (the "Plan"), the purpose of which is
to provide supplemental retirement and death benefits to key employees of the
Corporation; and
WHEREAS, the Board of Directors of the Corporation has determined, in
its sole discretion, that the Employee satisfies the eligibility requirements
for participation in the Plan at the Benefit Level set forth below.
NOW, THEREFORE, pursuant to Section 8.10 of the Plan, and in
consideration of the mutual covenants herein contained, the parties hereto agree
as follows:
1. Benefit Level. The Employee shall be entitled to participate in
the Plan at Benefit Level III.
2. Eligibility for Benefits.
(a) Full Benefit. The Employee shall be eligible to receive a Full
Benefit, as defined in Section 5. 1 of the Plan, provided that the Employee (i)
is at least 56 years old and has participated in the Plan at Benefit Level III
for at least ten (10) years, and (ii) remains in the active and continuous
employ of the Corporation until he is at least 56 years old. Except as provided
in Section 3 below, the Employee shall commence to receive his Full Benefit on
the date upon which he terminates his employment with the Corporation (the "Full
Benefit Commencement Date").
(b) 50% Benefit. The Employee shall be eligible to receive a 50%
Benefit in an amount equal to fifty percent (50%) of his Full Benefit even if he
is no longer in the active and continuous employ of the Corporation, provided
that the Employee has participated in the Plan for at least ten (10) years. The
Employee shall commence to receive his 50% Benefit upon reaching age 56 (the
"50% Benefit Commencement Date").
(c) Disability Benefit. In the event that the Employee is ineligible
to receive either a Full Benefit or a 50% Benefit, he shall be eligible to
receive a Disability Benefit in an amount equal to twenty-five percent (25%) of
his Full Benefit if he shall become disabled (as such term is defined in Section
4.2 of the Plan) after completing at least five (5) years of participation in
the Plan. The Employee shall commence to receive his Disability Benefit at such
time as the Employee (i)
2
is 65 years of age; and (ii) would have been in the Plan for at least ten (10)
years but for the disability (the "Disability Benefit Commencement Date").
(d) Death Benefit. If the Employee dies prior to becoming eligible
to receive either a Full Benefit or a 50% Benefit, his designated beneficiary
shall be entitled to receive an annual Death Benefit of $20,000, payable for a
period of ten (10) years; provided, however, that in order to be eligible for a
Death Benefit, the Employee must have participated in the Plan for at least six
(6) months prior to the date of his death.
3. Amount of Benefit. The amount of the Employee's Full Benefit payable
under this Agreement shall be THIRTY-FIVE THOUSAND ($35,000), payable commencing
on the Full Commencement Date for a period of ten (10) years. In the event that
the Employee continues in active and daily employment with the Corporation after
he reaches age 56, the Full Benefit shall be increased at the end of each
calendar year by THREE THOUSAND EIGHT HUNDRED AND NINETY DOLLARS ($3,890) until
the earlier of such time as (i) the Employee terminates his employment with the
Corporation or (ii) the Employee reaches age 65, at which time the Employee
shall commence to receive a full Benefit of SEVENTY THOUSAND DOLLARS ($70,000)
hereunder whether or not he continues in the active and daily employ of the
Company. The amount of the Employee's 50% Benefit and Disability Benefit
hereunder shall be $17,000 and $8,750 respectively, payable commencing on the
applicable Benefit Commencement date as set
3
forth in Sections 2 (b) and (c) hereof for a period of ten (10) years. The
Corporation shall withhold applicable federal, state and local taxes from
amounts due pursuant to the payment of any Benefit hereunder to the extent such
withholding is required by reason of such laws.
4. Consulting. The Employee shall remain reasonably available to serve
the Corporation with no further compensation as a consultant or advisor for a
period of five (5) years, commencing on date of termination of the Employee's
active and daily employment with the Corporation. Such services shall not
require the Employee to be involved in the active day-to-day activities of the
Company, and the Employee shall perform such services as an independent
contractor. During each such year of availability, the Employee agrees to serve
as a consultant or advisor to the Corporation for a period of up to 40 days upon
request by the Corporation and subject to the conditions specified below. The
performance of advisory and consulting services to and for the Corporation, as
provided in this Section 4, shall be subject to the following conditions:
(a) The Employee shall not be required to render consulting or
advisory services during vacation periods or during periods of personal or
family illness or other incapacity.
(b) To the extent such services are not reasonably required to be
performed at a particular location, they may be performed at such place or
places as the Employee may designate from time to time.
4
(c) The Employee shall be entitled to designate up to three
one-month periods (which may or may not be consecutive) in a twelve-month period
during which he shall not be required to render consulting or advisory services.
(d) The Employee shall be entitled to at least ten (10) business
days' notice prior to the commencement of any proposed consulting or advisory
assignment.
(e) The Employee shall be subject to the same confidentiality
requirements as a consultant or advisor as he was during the term of his
employment.
5. Confidentiality. The Employee agrees that, during the period of his
employment and thereafter, he shall not, to the detriment of the Corporation,
knowingly disclose or reveal to any unauthorized person any confidential or
proprietary information relating to the Corporation, its subsidiaries or its
affiliates. If the Employee reveals to any third party any trade secrets or
financial or other confidential or proprietary information concerning the
Corporation, the Employee's entire or remaining Benefit payments, as the case
may be, shall be forfeited.
6. Noncompetition. The Employee agrees that, unless otherwise agreed by
the Board of Directors of the Corporation, during the period of his employment
with the Corporation and for ten (10) years thereafter, he shall not compete
with the Corporation. As used in this Agreement, "compete" shall mean entering
into, performing or engaging, directly or indirectly, in the rendering of
engineering services or allied professional
5
services similar to those provided by the Corporation, including but not limited
to consulting, planning and surveying, either as an individual for his own
account, or as a partner or joint venturer, or as an employee or agent for any
person or as an officer, director, or shareholder of any business entity or
otherwise, within the State of Florida, or any state in which the corporation
has an office or offices. If the Employee should compete with the Corporation in
violation of this Section 6, the Employee's entire or remaining Benefit
payments, as the case may be, shall be forfeited.
The Employee acknowledges that his services under this Agreement are of
a special, unique, unusual, extraordinary, and intellectual character, and that
a breach by the Employee of Sections 5 and 6 could cause the Corporation
irreparable injury and damage and would therefore cause a breach of this
Agreement.
7. Reasons for Forfeiture. The Corporation shall stop payments to the
Employee hereunder if the Employee is involved in fraud, or if the Corporation
determines that the Employee has been grossly negligent or has been engaged in
willful misconduct in the course of his employment. Nothing contained in this
Agreement shall in any way be construed to limit or otherwise waive the legal or
equitable rights or remedies of the Corporation to recoup monies paid hereunder
to the Employee if the Corporation determines that it is entitled to such
recoupment.
8. Assignment. Neither the Employee nor any designated
6
beneficiary, nor any other payee under this Agreement, shall have any power to
transfer, assign, anticipate, hypothecate or otherwise encumber in advance any
Benefit payable hereunder, nor shall any Benefit payable be subject to seizure
for the payment of any debts or judgments of the Employee or any payee or be
transferable by the Employee or any payee by operation of law in the event of
such person's bankruptcy, insolvency or otherwise.
9. Employment Rights. This Agreement, and the Plan, shall not be deemed
to create a contract of employment between the Corporation and the Employee, and
shall create no right for the Employee to continue in the Corporation's employ
for any specific period of time, or to create any other rights in the Employee
or obligations on the part of the Corporation, except as are set forth herein or
in the Plan, nor shall this Agreement or the Plan restrict the right of the
Corporation to discharge or terminate the Employee.
10. Termination of the Plan. The Employee acknowledges and agrees that
PBSJ, Inc., through its Board of Directors, has the right to amend, alter,
modify or revoke the Plan for all participating employees at any time, without
the approval of the shareholders of PBSJ Corp., except as specifically set forth
in Section 8.7 of the Plan.
11. Participation in Other Employee Benefit Plans. Any retirement or
disability compensation payable under this Agreement shall not be deemed salary
or other compensation to the Employee for the purpose of computing benefits to
which he may be
7
entitled under any pension plan or other arrangement of the Corporation for the
benefit of its employees. Nothing contained herein shall in any manner modify,
impair or affect the existing or future right or interest of the Employee to
receive any employee benefits to which he would otherwise be entitled, or as a
participant in any future incentive profit-sharing or bonus plan, stock option
plan or pension plan of the Corporation, applicable generally to salaried
employees. The rights and interests of the Employee to any employee benefits or
as a participant or beneficiary in or under any or all such plans shall continue
in full force and effect unimpaired, and the Employee shall have the right at
any time hereafter to become a participant or beneficiary under or pursuant to
any and all such plans.
12. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, which has been processed through the
claims procedure set forth in Article VII of the Plan, shall be settled by
arbitration conducted by and in accordance with the rules then in existence of
the American Arbitration Association. Judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
13. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Florida (without regard to the
conflicts of laws thereof). All lawsuits and other proceedings related to this
Agreement or the
8
transactions herein described shall be commenced and held in Dade County,
Florida and the Employee waives all rights to object to the laying of venue in
such jurisdiction. In the event of any litigation or arbitration arising by
virtue of this Agreement, the prevailing party shall be entitled to an award of
all court costs, litigation and arbitration expenses and attorneys' fees at both
trial and appellate levels.
14. Notices. Any notice, payment, demand or communication required or
permitted to be given by any provision of this Agreement shall be in writing and
shall be deemed to have been delivered and given for all purposes, if delivered
personally to the party or to an officer of the party to whom the same is
directed, or, whether or not the same is actually received, if sent by
registered or certified mail, postage and charges prepaid, properly addressed to
the addressee's last known address.
15. Integrated Agreement. This Agreement, and the Plan, constitute the
entire understanding and agreement among the parties hereto with respect to the
subject matter hereof, and there are no agreements, understandings,
restrictions, representations or warranties among the parties other than those
set forth herein.
16. No Oral Modification. No modification or waiver of this Agreement
or any part hereof shall be valid or effective unless in writing and signed by
the party or parties sought to be charged therewith. No waiver of any breach or
condition of this
9
Agreement shall be deemed to be a waiver of any breach or condition of this
Agreement or of any other subsequent breach or condition, whether of like or
different nature.
17. Binding Effect. This Agreement is binding upon and shall inure to
the benefit of the Corporation, its representatives, successors and assigns, and
to the Employee, heirs and personal representatives and his designated
beneficiaries. The Corporation and the Employee agree to execute any instruments
and to perform any acts which are or may become necessary to effectuate this
Agreement and to fulfill its terms.
18. Paragraph Captions. Paragraph and other captions contained in this
Agreement are for reference purposes only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
10
IN WITNESS WHEREOF, the respective Corporation has caused this
Agreement to be executed by its duly authorized officer and the Employee has
hereunto set his hand and seal as of the date first above written:
ATTEST: POST, XXXXXXX, XXXXX &
XXXXXXXX, INC.
By /S/ ILLEGIBLE By /S/ XXXXX X. GLAN
---------------------------- -----------------------------
Assistant Secretary Its President & CEO
----------------------------
ATTEST: THE PBSJ CORPORATION
By /S/ ILLEGIBLE By /S/ XXXXXXX X. XXXXXXXX
---------------------------- -----------------------------
Assistant Secretary Its Chairman
----------------------------
WITNESS: EMPLOYEE:
/S/ XXX X. XXXXXXXX /S/ XXXXXXX X. XXXXXXX
------------------------------ -------------------------------
------------------------------ -------------------------------
11
EXHIBIT A
In the event of my death, I hereby designate Xxxxxxx X. Xxxxxxx (name),
Wife (relation) to receive the deferred compensation payments provided for in
the foregoing Agreement. In the event that said beneficiary does not survive me,
the payments shall be made to Xxxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx equally
(name), Daughters (relation). In the event neither beneficiary designated above
shall survive me or if neither beneficiary designated above can be located, all
benefits to which I may from time to time be entitled shall be payable to my
estate.
EMPLOYEE
/S/ XXXXXXX X. XXXXXXX
-------------------------------
/S/ XXX X. XXXXXXXX
-----------------------------
Witness
-----------------------------
Witness
12
FIRST AMENDMENT TO
SUPPLEMENTAL RETIREMENT/DEATH BENEFITS AGREEMENT
THIS AMENDMENT entered into this 27th day of April, 1989 by and between POST,
XXXXXXX, XXXXX & XXXXXXXX, INC. (PBSJ,Inc.) and The PBSJ Corporation (PBSJ
Corp.), Florida corporations, with principal offices in Miami, Florida
(collectively hereinafter referred to as the "Corporations") and Xxxxxxx X.
Xxxxxxx, (hereinafter referred to a the "Employee").
RECITALS
A. The Corporations and the Employee entered into a Supplemental
Retirement/Death Benefits Agreement dated December 17, 1987 (the "Agreement")
which Agreement dealt with the employment of the Employee for a specified period
and thereafter for an advisory and consulting period.
B. The Corporation and the Employee wish to amend, add to and delete
from the Agreement certain provisions in order to more clearly state their
intentions with respect to certain provisions.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable considerations, the adequacy and receipt
of which is hereby acknowledged, the parties hereto agree as follows:
1. The Recitals a Part of This Amendment. The recitals and all
statements therein are hereby incorporated into and made a part of this
Amendment.
2. Amendment to Paragraph Three (3) of Agreement. Paragraph three (3)
of the Agreement is hereby deleted in its entirety and the following is
inserted:
3. Amount of Benefit. The amount of the Employee's Full Benefit payable
under this Agreement shall be Forty Thousand ($40,000), payable commencing on
the Full Benefit Commencement Date for a period of one (1) year and thereafter
Fifty Thousand per year for a period of nine (9) years. In the event the
Employee in active and daily employment with the Corporation for a period year
after he reaches the Full Benefit Commencement Date the Employee's Full Benefit
payable under this Agreement shall be Fifty Thousand Dollars ($50,000) (the
Adjusted Full Benefit) for a period of ten (10) years. In the event that the
Employee continues in active and daily employment with the corporation for two
(2) years after the Full Benefit Commencement Date, the Adjusted Full Benefit
($50,000) shall be increased at the end of each full year of such continued,
employment by Five Thousand Five Hundred and Fifty Five Dollars ($5,555) until
the earlier of such time as (I) the Employee terminates his employment with the
Corporation or (ii) the Employee reaches age 66, at which time the Employee
shall commence to receive a Full Benefit of One Hundred Thousand Dollars
($100,000) hereunder whether or not he continues in the active and daily employ
of the Company. The amount of the Employee's 50% Benefit and Disability Benefit
hereunder shall be Twenty Five Thousand Dollars ($25,000) and Twelve Thousand
Five Hundred Dollars ($12,500) respectively, payable commencing on the
applicable Benefit Commencement Date as set forth in Sections 2(b) and (c)
hereof for a period of ten (10) years. The Corporation shall withhold applicable
federal, state and local taxes from amounts due pursuant to the payment of any
Benefit hereunder to the extent such withholding is required by reason of such
laws.
IN WITNESS WHEREOF, the parties hereto have hereunto affixed their
hands and seals as of the date and year first above written.
POST, XXXXXXX, XXXXX & XXXXXXXX, INC.
A Florida Corporation
Attest:
/S/ ILLEGIBLE By: /S/ XXXXX X. GLAN
-------------------------- --------------------------------------
XXXXX X. XXXXX, President
--------------------------
Witnesses
The PBSJ Corporation
Attest:
/S/ ILLEGIBLE By: /S/ XXXXXXX X. XXXXXXXX
-------------------------- --------------------------------------
Xxxxxxx X. Xxxxxxxx
Employee
/S/ ILLEGIBLE /S/ XXXXXXX X. XXXXXXX
-------------------------- -----------------------------------------
Witnesses Xxxxxxx X. Xxxxxxx
SECOND AMENDMENT TO SUPPLEMENTAL
RETIREMENT/DEATH BENEFITS AGREEMENT
THIS AMENDMENT entered into this 19th day of May, 1998 by and between POST,
XXXXXXX, XXXXX & XXXXXXXX, INC. (PBSJ Inc.) and The PBSJ Corporation (PBSJ
Corp.), Florida corporations, with principal offices in Miami, Florida
(collectively hereinafter referred to as the "Corporations") and Xxxxxxx X.
Xxxxxxx, (hereinafter referred to as the "Employee").
RECITALS
A. The Corporations and the Employee entered into a Supplemental
Retirement/Death Benefits Agreement (the "Agreement"), as amended, dated
December 17, 1987, which Agreement and Amendment dealt with the employment of
the Employee for a specified period and thereafter for an advisory and
consulting period.
WHEREAS, the parties hereto desire to further amend the Agreement and
Amendment to reflect the current and revised understanding of the parties with
respect to certain rights, obligations and benefits of the parties under the
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable considerations, the adequacy and receipt
of which is hereby acknowledged, the parties hereto agree as follows:
1. Insurance Benefits. As additional compensation to the Employee for
services performed, after the Employee's retirement from active and daily
employment with the Corporation, the Corporation shall continue to pay for and
provide to the Employee and his wife major medical and hospitalization insurance
benefits of equal coverage and substantially similar to those major medical and
hospitalization insurance benefits paid for and provided to senior executives of
the Corporation, provided, however, that such insurance shall not provide
coverage or benefits substantially less valuable or protective than those now in
effect for the Employee. Said insurance benefits shall be paid for and provided
to the Employee and his wife for so long as either of them shall live.
Notwithstanding the fact that said period of coverage extends beyond the period
specified in paragraphs 2 and 3 of the Supplemental Retirement/Death Benefits
Agreement dated December 17, 1987, as amended, the Corporation and the Employee
hereby agree that said lifetime insurance coverage is without any further or
additional services from the Employee to the Corporation. The payment for and
furnishing to the Employee of said lifetime insurance benefits by the
Corporation is subject to and conditioned upon the Employee's compliance with
the terms and conditions of the Agreement, as amended.
2. Amendment to Paragraph Three (3) of the First Amendment. Paragraph
three (3) of the First Amendment is hereby deleted in its entirety and the
following paragraph three (3) is inserted:
3. Amount of Benefit. The amount of the Employee's Full Benefit payable
under this Agreement shall be Fifty Thousand Dollars ($50,000), payable monthly
commencing on the Full Benefit Commencement Date for a period of fifteen (15)
years. In the event that the Employee continues in active and daily employment
with the corporation after satisfaction of his eligibility for a Full Benefit,
the Full Benefit amount ($50,000) shall be increased at the end of each full
year of such continued employment by Five Thousand Five Hundred and Fifty-Five
Dollars ($5,555) until the earlier of such time as (i) the Employee terminates
his employment with the Corporation or (ii) the Employee reaches age 65, at
which time the Employee shall commence to receive a Benefit of One Hundred
Thousand Dollars ($100,000) hereunder whether or not he continues in the active
and daily employ of the Company. The amount of the Employee's 50% Benefit and
Disability Benefit hereunder shall be Twenty Five Thousand Dollars ($25,000) and
Twelve Thousand Five Hundred Dollars ($12,500) respectively, payable commencing
on the applicable Benefit Commencement Date as set forth in Sections 2(b) and
(c) hereof for a period of fifteen (15) years. The Corporation shall withhold
applicable federal, state and local taxes from amounts due pursuant to the
payment of any Benefit hereunder to the extent such withholding is required by
reason of such laws.
The amount of the Full Benefit payable under this Agreement shall be
increased at the beginning of each calendar year commencing with the initial
year of benefit payment and ending with the year preceding the last year during
which benefit payments are made under this Agreement by a percentage of such
amount equal to the lesser of (i) three percent (3%), or (ii) the increase in
the national Consumer Price Index ("CPI") as published by the United States
Government for such prior year. Adjustments shall be effective on January 1
based on the CPI for the prior year computed from December to December. For the
purposes of this Agreement, the CPI referred to shall be all items shown on the
U.S. city average for urban wage earners and clerical workers (including single
workers), all items, groups, subgroups and special groups of items as
promulgated by the Bureau of Labor Statistics of the U.S. Department of Labor.
If the U.S. Department of Labor ceases to publish the above described CPI, then
such CPI as may be published by such Department most nearly approaching said
discontinued CPI shall be used in making the above adjustments. If the
Department discontinues any such CPI, then such CPI as may be published by
another U.S. Government agency, as most nearly approximates the CPI first above
referred to, shall govern, subject to the application of an appropriate
conversion factor to be furnished by the governmental agency publishing the
adopted CPI.
4. Consulting Compensation. In consideration of the Employee's
availability as a consultant or advisor to the Corporation during the five (5)
year period commencing on the date of termination of the Employee's active and
daily employment with the Corporation, Employee shall receive the additional
amount of Twenty-Five Thousand Dollars ($25,000) per year (the "Consulting
Retainer") in addition to the Full Benefit amount in paragraph three (3) above.
These amounts shall constitute payment to Employee for his availability for up
to forty-five (45) days of actual service to the Corporation as a consultant or
advisor during any such year of availability. In the event the Corporation
desires consulting or advisory services from Employee in addition to
aforementioned forty-five (45) days, such service and the compensation therefor
shall be subject to the mutual agreement of the Corporation and the Employee.
The Consulting Retainer shall be paid whether or not Employee is requested by
the Corporation to provide consulting or advisory services and shall be payable
in a manner consistent with the Corporation's regular payroll system.
The amount of the above Consulting Retainer payable under this
Agreement shall be increased at the end of each calendar year commencing with
the year 1998 and ending with the year preceding the last year during which
consulting payments are made under this Agreement by a percentage of such amount
equal to the lesser of (1) three percent (3%), or (2) the increase in the
national Consumer Price Index ("CPI") as published by the United States
Government for such year. Adjustments shall be effective on January 1 based on
the CPI for the prior year computed from December to December. For the purposes
of this Agreement, the CPI referred to shall be all items shown on the U.S. city
average for urban wage earners and clerical workers (including single workers),
all items, groups, subgroups and special groups of items as promulgated by the
Bureau of Labor Statistics of the U.S. Department of Labor. If the U.S.
Department of Labor ceases to publish the above described CPI, then such CPI as
may be published by such Department most nearly approaching said discontinued
CPI shall be used in making the above adjustments. If the Department
discontinues any such CPI, then such CPI as may be published by another U.S.
Government agency, as most nearly approximates the CPI first above referred to,
shall govern, subject to the application of an appropriate conversion factor to
be furnished by the governmental agency publishing the adopted CPI.
5. Change of Control. In the event of (1) a Change of Control (as
defined below) of The PBSJ Corporation or of Post, Xxxxxxx, Xxxxx & Xxxxxxxx,
Inc. ("PBSJ Inc.) and (2) the termination of the Employee's employment by the
Corporation or any successor thereto for any reason other than for Cause (as
defined below), or the voluntary termination by the Employee of his employment
hereunder for Good Reason (as defined below) at any time at least six months
after the effective date of the Change in Control, all of the terms and
conditions of the Agreement, as amended, shall remain in full force and effect,
and shall be binding upon the Corporation. In the event of a termination for
Cause under this paragraph, the Corporation shall have no further obligation
under this Agreement to make any payments to, or bestow any benefits on, the
Employee from and after the date of said termination, other than payments or
benefits accrued for him prior to the date of said termination.
For purposes of this paragraph, a "Change in Control" shall be deemed
to have taken place if:
(a) any person (as such term is used in Section 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended, but excluding the Corporation,
any of its subsidiaries, The PBSJ Corporation Profit Sharing Trust and The PBSJ
Corporation Employee Stock Ownership Plan and Trust), should acquire direct or
indirect ownership of 80% or more of the voting power of the then outstanding
securities of The PBSJ Corporation or PBSJ Inc. by any means whatsoever; or
(b) the shareholders of The PBSJ Corporation or PBSJ Inc. should
approve any one of the following transactions:
(i) the sale, lease, exchange or other transfer (in one
transaction or a series of related transactions or a series of related
transactions) of all, or substantially all, the assets of The PBSJ Corporation
or PBSJ Inc.; or
(ii) any consolidation or merger of The PBSJ Corporation
or PBSJ Inc., as the case may be, is not the surviving corporation, other than a
merger of The PBSJ Corporation or PBSJ Inc. in which the holders of the common
stock of The PBSJ Corporation or PBSJ Inc. immediately prior to the merger have
the same proportionate ownership of the surviving corporation immediately after
the merger.
For purposes of this paragraph, Cause shall mean (1) fraud or
misappropriation of corporate funds; or (2) conviction of a felony involving
moral turpitude and such conviction is no longer subject to direct appeal.
For purposes of this paragraph, "Good Reason" shall be deemed to exist
under any of the following circumstances:
(a) the employee has been assigned any duties inconsistent with his
position, duties, responsibilities and status with the Corporation immediately
prior to the effective date of the Change in Control (the "Effective Date"), or
has been assigned reporting responsibilities, titles or offices of a lesser
scope than those in effect immediately prior to the Effective Date, or he has
been removed from, or not re-elected to, any of such positions, except in
connection with the termination of his employment for Cause;
(b) the Corporation has reduced the Employee's base salary as in
effect immediately prior to the Effective Date or has failed to give him annual
salary increases consistent with performance review ratings as compared with
other employees of the same or similar rank;
(c) the Corporation has required the Employee to be based at any
office or location other than that at which the Employee is based at the
Effective Date, except for travel reasonably required in the performance of the
Employee's responsibilities;
(d) the Corporation has failed to comply with any provision of this
Agreement.
6. Miscellaneous.
(a) Except as expressly provided herein, the Agreement, as amended,
shall remain in full force and effect without any modification or waiver of any
provision thereof.
(b) This Second Amendment shall be governed by the laws of the State
of Florida, without regard to the principles of conflicts of laws thereunder.
(c) The Agreement, as amended, sets forth the entire understanding
of the parties as to the subjects discussed therein, and supersedes all prior
understandings, commitments, agreements, whether oral or written, relating to
the subject matter thereof.
(d) This Second Amendment may be executed in any number of
counterparts, and each such counterpart shall for all purposes be deemed an
original.
IN WITNESS WHEREOF, the parties hereto have hereunto affixed their
hands and seals as of the date and year first above written.
POST, XXXXXXX, XXXXX & XXXXXXXX, INC.
A Florida Corporation
Attest:
/S/ XXXX X. XXXXXXX By: /S/ H. XXXXXXX XXX
-------------------------- --------------------------------------
/S/ XXXXX X. XXXXXXXX H. Xxxxxxx Xxx, President
XXXXX X. XXXXXXXX
ASSISTANT SECRETARY
THE PBSJ CORPORATION
Attest:
/S/ XXXXX X. XXXXXXXX By: /S/ XXXXXXX X. XXXXXXXX
-------------------------- --------------------------------------
XXXXX X. XXXXXXXX Xxxxxxx X. Xxxxxxxx, Chairman
ASSISTANT SECRETARY
EMPLOYEE
/S/ XXXXXX X. XXXX /S/ XXXXXXX X. XXXXXXX
-------------------------- -----------------------------------------
Witnesses Xxxxxxx X. Xxxxxxx
THIRD AMENDMENT TO SUPPLEMENTAL
RETIREMENT/DEATH BENEFITS AGREEMENT
THIS AMENDMENT entered into this 22nd day of November, 1999 by and between POST,
XXXXXXX, XXXXX & XXXXXXXX, INC. (PBSJ Inc.) and The PBSJ Corporation (PBSJ
Corp.), Florida corporations, with principal offices in Miami, Florida
(collectively hereinafter referred to as the "Corporations") and Xxxxxxx X.
Xxxxxxx, (hereinafter referred to as the "Employee").
RECITALS
A. The Corporations and the Employee entered into a Supplemental
Retirement/Death Benefits Agreement (the "Agreement"), as amended, dated
December 17, 1987, which Agreement and Amendments dealt with the employment of
the Employee for a specified period and thereafter for an advisory and
consulting period.
WHEREAS, the parties hereto desire to further amend the Agreement and
Amendments to reflect the current and revised understanding of the parties with
respect to certain rights, obligations and benefits of the parties under the
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable considerations, the adequacy and receipt
of which is hereby acknowledged, the parties hereto agree as follows:
1. Amount of Full Benefit. The amount of the Employee's annual Full
Benefit, identified in the Second Amendment to the Agreement dated May 19, 1998
as Fifty Thousand Dollars ($50,000), shall be increased by Twenty-Five Thousand
Dollars ($25,000) to a total of Seventy-Five Thousand Dollars ($75,000).
The above shall be payable according to the same terms, effective on
the Full Benefit Commencement Date of 12/17/97 for a period of fifteen (15)
years, and subject to the same escalation factors (lesser of three percent [3%]
or the increase in the CPI and scheduled full benefit annual increase amounts)
as stipulated in Section 3 of the Second Amendment to the Agreement dated May
19, 1998.
2. Expenses During Employment and Retirement Term
The Corporation shall reimburse the Employee for all reasonable
expenses incurred by him during the Five-Year Consulting and Ten-Year Retirement
Terms.
Reasonable expenses shall include, but are not limited to,
those items currently provided to the Employee in accordance with policies of
the Corporation:
(a) Cellular Telephone (one).
(b) State-of-the-Art Computer (new unit every three years).
(c) Internet Access Charges.
(d) Professional/Financial Newspapers and Magazines.
(e) Airline Club Membership (one).
(f) Inclusion as American Airlines Platinum Tier member (or
equivalent at another airline).
(g) Budget Rental Car Optimum level (or equivalent at another
company).
(h) Annual Tax Return Preparation.
(i) Annual Physical Exam.
(j) Use of Breckenridge Condominium for two weeks per year,
including one week during ski season.
Throughout the 15-year term of the Employee's Agreement, as amended,
and at the sole option of the Employee, he may substitute expenses listed under
items 5(k), (l) and (m) enumerated below in lieu of direct cash renumeration.
(k) Automobile lease, including insurance, tag, maintenance and repairs.
(l) Air fare; business (or first class where business is not
available).
(m) Country Club Membership.
3. Miscellaneous.
(a) Except as expressly provided herein, the Agreement, as amended,
shall remain in full force and effect without any modification or waiver of any
provision thereof.
(b) This Third Amendment shall be governed by the laws of the State
of Florida, without regard to the principles of conflicts of laws thereunder.
(c) The Agreement, as amended, sets forth the entire understanding
of the parties as to the subjects discussed therein, and supersedes all prior
understandings, commitments, agreements, whether oral or written, relating to
the subject matter thereof.
(d) This Third Amendment may be executed in any number of
counterparts, and each such counterpart shall for all purposes be deemed an
original.
IN WITNESS WHEREOF, the parties hereto have hereunto affixed their
hands and seals as of the date and year first above written.
POST, XXXXXXX, XXXXX & XXXXXXXX, INC.
A Florida Corporation
Attest:
/S/ XXXXXXX X. XXXXXXX By: /S/ H. XXXXXXX XXX
-------------------------- ---------------------------------(HMD)
H. Xxxxxxx Xxx, President
THE PBSJ CORPORATION
Attest:
/S/ XXXXXXX X. XXXXXXX By: /S/ XXXXXXX X. XXXXXXXX
-------------------------- ---------------------------------(WWR)
Xxxxxxx X. Xxxxxxxx, Chairman
EMPLOYEE
/S/ XXXX X. XXXXXXX /S/ XXXXXXX X. XXXXXXX
-------------------------- ------------------------------------
Witnesses Xxxxxxx X. Xxxxxxx
