EXHIBIT 10.9
AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of the 1st day of
April, 1993, by and between The PBSJ Corporation and Post, Xxxxxxx, Xxxxx &
Xxxxxxxx, Inc., Florida corporations with principal offices in Miami, Florida
(collectively referred to herein as the "Corporation", and Xxxx 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 Employee is a member of a select group of management
employees, is serving as Executive Vice President/Assistant Secretary and a
Director (of Post, Xxxxxxx, Xxxxx & Xxxxxxxx, Inc.) and has been instrumental in
the development, expansion and success of the business of the Corporation; and
WHEREAS, the Corporation desires to provide the Employee with the
additional benefits specified in this Agreement during the term of his
employment with the Corporation.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. DEFINITIONS.
(a) "Board" shall mean the Board of Directors of the
respective corporation.
(b) "Stock" shall mean the common stock, par value $.DI, of
The PBSJ Corporation.
(c) "Restricted Stock" shall mean stock that is represented by
certificates bearing the wording contained in Exhibit "A" (attached to and made
a part hereof) on the back of said certificates...).
(d) "Total Disability" shall mean the inability of the
Employee to perform further services for the Corporation on a full-time basis
due to physical or mental disabilty. The date on which the Employee begins to
receive disability benefits under Social Security shall be evidence of the onset
of said Total Disability.
(e) "Stock Ownership Plan" shall mean The PBSJ Corporation
Stock Ownership Plan, as amended and restated through February 1, 1993 and as
may be amended in the future.
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2. BENEFIT. Simultaneous with the execution of this Agreement, the
Corporation shall cause two hundred (200) shares of Restricted Stock to be
issued to Employee. Thereafter, on April 1st in each of the next nine years
(i.e., April 1, 1994 through April 1, 2002, inclusive) the Corporation shall
cause an additional two hundred (200) shares of Restricted Stock to be issued to
Employee, provided Employee is a full-time employee on each such April 1st. The
total Restricted Stock contemplated to be issued herein is two thousand (2,000)
shares.
3. STOCK OWNERSHIP PLAN. The employee will be credited with satisfying
the requirement under the Stock Ownership Plan of having committed to the
ownership of 2,000 shares of stock.
4. FEDERAL INCOME TAX CONSEQUENCES. The current Federal income tax
consequences with respect to the receipt of Restricted Stock are set forth in
Exhibit "B" (attached to and made a part hereof).
5. EXISTING AGREEMENT. The intent of this Agreement is to supplement
(and raise to Level III status) the already existing Supplemental
Retirement/Death Benefits Agreement between the Corporation and the Employee
which provides for Level II supplemental retirement and death benefits to the
Employee.
6. EMPLOYMENT RIGHTS. This Agreement 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
specified 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, nor
shall this Agreement restrict the right of the Corporation to discharge or
terminate the Employee.
7. PARTICIPATION IN OTHER EMPLOYEE BENEFIT PLANS. Any benefit 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 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.
8. ARBITRATION. Any controversy or claim arising out of or
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relating to this Agreement, or the breach thereof, 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.
9. AMENDMENT AND TERMINATION. The Board reserves the right to amend,
alter, modify or revoke this Agreement at any time and for any reason.
10. 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 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.
11. 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.
12. INTEGRATED AGREEMENT. This Agreement constitutes 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.
13. 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 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.
14. 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
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necessary to effectuate this Agreement and to fulfill its terms.
15. 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.
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/ H. XXXXXXX XXX
-------------------------------- ------------------------------------
Secretary Its President
ATTEST: THE PBSJ CORPORATION
By /s/ [ILLEGIBLE] By /s/ XXXXXXX X. XXXXXXXX
-------------------------------- ------------------------------------
Asst. Secretary Its President
WITNESS: EMPLOYEE:
/s/ XXXXXXX X. XXXXXXX /s/ XXXX X. XXXXXXX
----------------------------------- ---------------------------------------
/s/ XXXX X. XXXX
-----------------------------------
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EXHIBIT "A"
THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED: (a) UNDER THE PROVISIONS
OF SECTION 83 OF THE INTERNAL REVENUE CODE, AND (b) AS PER TERMS OF AN AGREEMENT
DATED APRIL 1, 1993 BETWEEN SHAREHOLDER (AS NAMED ON THE FACE HEREOF) AND THE
PBSJ CORPORATION (HEREINAFTER "CORPORATION"). THESE SHARES ARE BOTH FORFEITABLE
AND NON-TRANSFERABLE IN THE EVENT THE SHAREHOLDER DOES NOT REMAIN IN THE
CONTINUOUS FULL-TIME EMPLOYMENT OF THE CORPORATION AND/OR ITS SUBSIDIARIES FROM
THE DATE OF ISSUANCE ON THE FACE HEREOF UNTIL APRIL 16,2007, EXCEPT IN THE CASE
OF DEATH OR TOTAL DISABILITY (AS DEFINED IN SAID AGREEMENT).
THE BY-LAWS OF THIS CORPORATION CONTAIN RESTRICTIONS, LIMITATIONS, PREFERENCES
AND QUALIFICATIONS INCIDENT TO OWNERSHIP, SALE AND TRANSFER OF THE SHARES
REPRESENTED BY THIS CERTIFICATE INCLUDING, AMONG OTHERS, PURCHASE OPTIONS;
EVALUATION FORMULAS AND PROCEDURES TO DETERMINE PER SHARE SALE/PURCHASE
VALUE/PRICE; INSTALLMENT PAYMENT PROVISIONS AND OPTIONS; OTHER RESTRICTIONS,
LIMITATIONS, PREFERENCES AND QUALIFICATIONS; AND PROVISIONS RESTRICTING,
LIMITING AND BINDING SHAREHOLDER9S GUARDIANS, HEMS, PERSONAL REPRESENTATIVES,
ASSIGNEES, AND OTHERS RESPECTING THE FOREGOING. COPIES OF SAID BY-LAWS MAY BE
OBTAINED, WITHOUT CHARGE FROM THE OFFICE OF THIS CORPORATION. NO TRANSFER SHALL
BE VALID OR SHALL BE REGISTERED ON THE BOOKS OF THE CORPORATION OF ANY SHARES
UPON WHICH THE SHAREHOLDER IS INDEBTED TO THE CORPORATION. NO TRANSFER SHALL BE
VALID OR BE REGISTERED ON THE BOOKS OF THE CORPORATION WITHOUT THE ORDER OF THE
BOARD OF DIRECTORS.
EXHIBIT "B"
FEDERAL INCOME TAX CONSEQUENCES
In the case of Restricted Stock, an employee will generally not be
deemed to have realized taxable income upon receipt of such shares. An employee
will realize ordinary income on the date on which the Restricted Stock is no
longer subject to forfeiture, in an amount equal to the fair market value of the
shares on that date.
As an alternative, an employee may elect, upon the receipt thereof, to
include in his gross income in that year the fair market value of such shares at
the time they are issued. Such an election must be made within 30 days after the
date of the issuance of Restricted Stock and may not be revoked by the employee
except with the consent of the Internal Revenue Service. In the event that an
election is made and the Restricted Stock is subsequently forfeited, an employee
will not be entitled to a deduction with respect to the forfeiture.
The Corporation will be entitled to a deduction for the amount included
in the ordinary income of the employee in the year in which such inclusion
occurs.
