Exhibit 10.10e
AMENDMENT TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made and
entered into as of July 3, 2003 by and between BF ENTERPRISES, INC., a Delaware
corporation ("Corporation"), and XXXXX X. XXXXX, an individual domiciled in
Florida ("Officer").
RECITALS
A. Officer is employed by Corporation, as Chairman of the Board of
Directors, Chief Executive Officer and President, pursuant to that Amended and
Restated Employment Agreement, dated January 1, 2000 (the "Employment
Agreement").
B. Corporation and Officer desire to amend the Employment Agreement.
In consideration of the mutual covenants contained herein, and for
other good and valuable consideration, the parties agree as follows:
1. Section 2 of the Employment Agreement is amended in its entirety to provide
as follows:
2. Term of Employment. The term of employment of Officer by
Corporation shall commence on the date hereof and continue until
December 31, 2008 (the "Employment Period"), unless terminated earlier
pursuant to Section 5 herein. At any time before December 31, 2008,
Corporation and Officer may by mutual written agreement extend
Officer's employment under the terms of this Agreement for such
additional periods as they may agree. All references herein to the
Employment Period shall refer to both the initial Employment Period and
any such successive Employment Periods.
2. Section 3.1 of the Employment Agreement is amended in its entirety to provide
as follows:
3.1 Base Salary. As payment for the services to be rendered by
Officer as provided herein, Corporation agrees to pay to Officer a base
salary at the rate of Two Hundred Sixty-Five Thousand and No/100
Dollars ($265,000.00) per annum (the "Base Salary") payable in equal
semi-monthly installments. The Base Salary shall be subject to review
by the Board of Directors, but shall in no event be less than a rate of
$265,000 per annum during the Employment Period.
3. Section 3.3.1 of the Employment Agreement is amended in its entirety to
provide as follows:
3.3.1 General Benefits. Officer shall be eligible to
participate in such of Corporation's benefit and deferred compensation
plans as are now generally available or later made generally available
to executive officers of Corporation, including, without limitation,
any and all stock option, profit sharing, medical, dental, health,
annual physical examination, life, disability insurance, tax
preparation, estate planning, financial planning, and supplemental
retirement programs (including, without limitation, the Group Ltd.,
Life and AD&D benefits through UNUM, the Travel and Accident Plan
through the Hartford and The Aetna Group Medical Plan, or any successor
to any such plan or benefit); provided, however, that any obligation of
Corporation to purchase, acquire, provide or maintain life insurance
coverage on the life of Officer or Officer's current wife shall be
limited to group term life insurance coverage of the type and in the
face amount no greater than the amount in effect as of the date hereof,
and such coverage shall expire on the earlier of Officer's death or the
end of the Employment Period. Corporation shall also pay the premiums
on Officer's current long-term care insurance plan. For purposes of
establishing the length of service under any benefit plans or programs
of Corporation, the parties hereto acknowledge and agree that Officer
has provided more than twenty-seven (27) years of service to
Corporation (f/k/a Xxxxxx Financial) as a Director, and in the year
2003 will have provided twenty-two (22) years of service to the
Corporation as the Chairman of the Board of Directors and Chief
Executive Officer.
4. Section 4 of the Employment Agreement is amended in its entirety to provide
as follows:
4. Extended Healthcare Benefits. In consideration for
Officer's more than twenty years of service to Corporation, in the
event of a termination of this Agreement for a reason other than a
Termination for Cause, Officer and his then current wife shall each
continue to participate until the later of his or her death, at the
Corporation's expense (or its successor's or assign's expense), in
whatever medical, healthcare, dental, life insurance, reimbursement,
disability and other benefits, plans and programs may be maintained by
Corporation from time to time for its then current employees as if
Officer were still a full-time employee of Corporation; provided,
however, that if Officer is, for any reason, no longer eligible for
such benefits, plans or programs, Corporation shall otherwise pay for
all healthcare costs of Officer and his then current wife (including,
without limitation, insurance premiums for healthcare, dental, life,
disability and long-term care, and prescriptions and ancillary
treatments and procedures); and provided further, however, that any
obligation of Corporation to purchase, acquire, provide or maintain
life insurance coverage on the life of Officer or Officer's current
wife shall be limited to group term life insurance coverage of the type
and in the face amount no greater than the amount in effect as of the
date hereof, and such coverage shall expire on the earlier of Officer's
death or the Employment Period.
5. Section 5.9 shall be added to the Employment Agreement to provide as follows:
5.9 Limitation on Payments Upon Death, Disability,
Termination, Etc.. Notwithstanding anything in this Agreement to the
contrary (including, but not limited to, any payments required pursuant
to Sections 5 and 6 herein), under no circumstances shall Corporation
be obligated to make payments to Officer (or Officer's estate or
assignee) upon termination of Officer for any period exceeding
thirty-six (36) months from the Date of Termination.
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6. Section 7.1 of the Employment Agreement is amended in its entirety to provide
as follows:
7.1 Non-Solicitation. During the Employment Period, and for a
period of one (1) year following termination of Officer's employment
under this Agreement for any reason whatsoever, Officer shall not
directly or indirectly, as a partner, more than five percent (5%)
shareholder, employee, consultant or in any similar manner whatsoever
employ or join in partnership with any person who was an officer of the
Corporation or any subsidiary of the Corporation of the rank of vice
president or higher during the six-month period prior to the
termination of Officer's employment hereunder and Officer shall not
solicit any officer of the Corporation or any of its subsidiaries to
leave the employ of the Corporation; provided, however, that
notwithstanding the foregoing, Officer may join the law firm of Zelle,
Hofmann, Xxxxxxx, Xxxxx & Xxxxx LLP in any capacity and/or may employ
or solicit his son, Xxxxx X. Xxxxx, Xx., Ms. Xxxxx Xxxxx and Xx. Xxxxxx
Xxxxxxxx to leave the employ of Corporation at any time during or after
the Employment Period.
7. Section 8.4 of the Employment Agreement is amended in its entirety to provide
as follows:
8.4 Notices. All notices, requests, consents and other
communications required or permitted under this Agreement shall be in
writing (including electronic transmission) and shall be (as elected by
the person giving such notice) hand delivered by messenger or courier
service, electronically transmitted, or mailed (airmail if
international) by registered or certified mail (postage prepaid),
return receipt requested, addressed to:
If to Corporation:
BF Enterprises, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000 Fax: (000) 000-0000
Attn: Xxxxxxx Post, Chief Financial Officer and Treasurer
With a Copy to:
Zelle, Hofmann, Xxxxxxx, Xxxxx & Xxxxx LLP
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000 Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxxxxx, Esq.
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If to Officer:
Xxxxx X. Xxxxx
217 Via Tortuga
Xxxx Xxxxx, Xxxxxxx 00000
(000) 000-0000 Fax: (000) 000-0000
and
Xxxxx X. Xxxxx
0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx 00
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
With a Copy to:
Gunster, Yoakley & Xxxxxxx, P.A.
000 Xxxxx Xxxxxxx Xxxxx
Xxxxx 000, Xxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
(000) 000-0000 Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
and
Xxxxxx & Xxxxxx Co. P.A.
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
(000) 000-0000 Fax: (000) 000-0000
Attn: Xxxx X. Xxxxxx, C.P.A.
or to such other address as any party may designate by notice complying
with the terms of this Section 8.4. Each such notice shall be deemed
delivered (a) on the date delivered if by personal delivery; (b) on the
date of transmission with confirmed answer back if by electronic
transmission; and (c) on the date upon which the return receipt is
signed or delivery is refused or the notice is designated by the postal
authorities as not deliverable, as the case may be, if mailed.
8. Section 8.6 of the Employment Agreement is amended in its entirety to provide
as follows:
8.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
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9. Section 8.11 of the Employment Agreement is amended in its entirety to
provide as follows:
8.11 Attorneys' Fees. If litigation shall be brought to
enforce or interpret any provision contained herein, Corporation, to
the extent permitted by applicable law and Corporation's Certificate of
Incorporation, and subject to Section 8.10 herein, hereby indemnifies
Officer to the maximum extent permitted by law, for Officer's
reasonable attorneys' fees and disbursements incurred in such
litigation.
10. The first sentence of Section 8.13 is amended to provide as follows:
8.13 Arbitration. Notwithstanding anything to the contrary in
this Agreement, all claims for monetary damages and disputes relating
in any way to the performance, interpretation, validity, or breach of
this Agreement shall be referred to final and binding arbitration,
before a single arbitrator, under the commercial arbitration rules of
the American Arbitration Association in Palm Beach County, Florida.
11. Section 8.14 of the Employment Agreement is amended in its entirety to
provide as follows:
8.14 Jurisdiction and Venue. The parties acknowledge that a
substantial portion of the negotiations, anticipated performance and
execution of this Agreement occurred or shall occur in Palm Beach
County, Florida. Any civil action or legal proceeding not addressed by
Section 8.13 herein and arising out of or relating to this Agreement
shall be brought in the courts of record of the State of Florida in
Palm Beach County or the United States District Court, Southern
District of Florida. Each party consents to the jurisdiction of such
court in any such civil action or legal proceeding and waives any
objection to the laying of venue of any such civil action or legal
proceeding in such court. Service of any court paper may be effected on
such party by mail, as provided in this Agreement, or in such other
manner as may be provided under applicable laws, rules of procedure or
local rules.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Amended and Restated Employment Agreement as of the day and year first above
written.
BF ENTERPRISES, INC.
By: /s/ Xxxxxxx X.X. Xxxxxxx
-----------------------------------
Xxxxxxx X. X. Xxxxxxx, Chairman of
the Compensation Committee
OFFICER:
/s/ Xxxxx X. Xxxxx
--------------------------------
Xxxxx X. Xxxxx
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