AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is
made and entered into as of January 1, 2000 by and between BF ENTERPRISES,
INC., a Delaware corporation ("Corporation"), and XXXXX X. XXXXX, an individual
domiciled in Florida ("Officer").
R E C I T A L S
A. Corporation and Officer entered into that certain Employment Agreement,
dated November 30, 1992 (the "1992 Employment Agreement");
B. Corporation and Officer entered into that certain Amendment to
Employment Agreement, dated December 28, 1995 (the "First Amendment"),
pursuant to which certain provisions of the 1992 Employment Agreement
were amended;
C. Corporation and Officer entered into that certain Second Amendment to
Employment Agreement, dated December 12, 1996 (the "Second Amendment"),
pursuant to which certain provisions of the 1992 Employment Agreement
and the First Amendment were amended;
D. Corporation and Officer entered into that certain Second Amendment to
Employment Agreement, dated January 1, 1997 (the "Third Amendment,"
together with the 1992 Employment Agreement, the First Amendment and
the Second Amendment, the "Employment Agreement"), pursuant to which
certain provisions of the 1992 Employment Agreement, the First
Amendment and the Second Amendment were amended; and
E. Corporation and Officer desire to amend and restate the Employment
Agreement in its entirety, pursuant to which Corporation will continue
to employ Officer as the Chairman of Corporation's Board of Directors
(the "Board of Directors"), Chief Executive Officer and President, and
Officer is willing to accept such continued employment by Corporation,
on the terms and subject to the conditions set forth in this Agreement.
F. The parties hereto, in consideration of the mutual covenants contained
herein, agree upon the following terms of employment of Officer by
Corporation.
A G R E E M E N T
1. Duties. During the term of this Agreement, Officer agrees to be
employed by and to serve Corporation as Chairman of the Board of Directors,
Chief Executive Officer and President, and Corporation agrees to employ and
retain Officer in such capacities. Officer shall devote such of his business
time, energy, and skill to the affairs of the Corporation as shall be necessary
to perform the duties of such positions. Officer shall continue to be permitted
to engage, from time to time, in various charitable and community affairs,
managing his personal investments, serving as a member of boards of directors or
as a trustee of other companies, associations or entities, participating in
outside business activities which are not related to the business and affairs of
Corporation for which he may receive compensation and any other activities that
Officer is currently participating in or in the past has participated in,
provided that such activities do not materially and adversely interfere with the
performance of his duties under this Agreement.
2. Term of Employment. The term of employment of Officer by Corporation
shall commence on the date hereof and continue until December 31, 2004 (the
"Employment Period"), unless terminated earlier pursuant to Section 5 herein. At
any time before December 31, 2004 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.
3. Compensation.
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 Ninety-Five Thousand and No/100 Dollars ($295,000.00)
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 $295,000 per annum during the Employment Period.
3.2 Bonuses. Officer shall be eligible to receive a bonus of
up to one hundred percent (100%) of Officer's Base Salary for each calendar year
(or portion thereof) during the Employment Period, with the actual amount of any
such bonus to be determined in the discretion of the Board of Directors based
upon its evaluation of Officer's performance during such year. Subject to
Section 5 herein, all such bonuses shall be payable within forty-five (45) days
after the end of the calendar year to which such bonus relates.
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3.3 Additional Benefits. During the Employment Period,
Officer shall be entitled to the following additional benefits:
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, 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). 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
years of service to Corporation (f/k/a Xxxxxx Financial) as a Director, and in
the year 2001 will have provided twenty (20) years of service to the Corporation
as a Chairman of the Board of Directors and Chief Executive Officer.
3.3.2 Clubs. Corporation shall, in accordance with past
practices, pay all dues charged for business, health and social clubs, and
similar organizations of which Officer is a member or desires to become a member
and all other clubs used now or in the future by Officer for business
development.
3.3.3 Automobile. For Corporation's convenience, and as
a condition of Officer's employment by Corporation, Officer shall, to the extent
reasonably possible, use a luxury automobile to be provided and maintained by
Corporation. Corporation shall pay all costs of gasoline, servicing and other
upkeep of the automobile during the Employment Period. Officer shall be
entitled to exchange such automobile for a new luxury automobile every three
(3) years during the Employment Period. Corporation shall, in accordance with
past practices, provide (at Corporation's expense) adequate personal injury and
property damage insurance covering such automobile.
3.3.4 Tax Preparation, Financial Planning and Estate
Planning. Corporation will pay the fees for tax preparation, outside custom
financial planning and estate planning for Officer by a recognized financial
planning organization and a law firm of Officer's choice.
3.3.5 Vacation. Officer shall be entitled to no less than
five (5) weeks of vacation during each calendar year during the Employment
Period, prorated for partial years.
3.3.6 Other Expenses. In accordance with past practices,
Corporation shall promptly reimburse Officer for all reasonable business
expenses (e.g., travel, business, entertainment, etc.) incurred by Officer in
performing his duties hereunder upon Officer accounting to Corporation for such
expenses (in accordance with past practices).
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
when Officer attains the age of 65 or for any other reason is 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).
5. Termination. Unless otherwise agreed to in writing by
Corporation and Officer, Officer's employment hereunder may only be terminated
under the following circumstances, in addition to terminations pursuant to
Section 6 hereof:
5.1 Death.
5.1.1 Termination Upon Death. Officer's
employment will be terminated upon Officer's death ("Termination Upon Death").
5.1.2 Payment Upon Termination Upon Death.
In the event of Termination Upon Death, Corporation shall immediately pay to
Officer's estate all accrued Base Salary, bonus compensation, vested deferred
compensation (other than pension plan or profit sharing plan benefits which
will be paid in accordance with the applicable plan), any benefits under
any plans of Corporation in which Officer is a participant to the full extent of
Officer's rights under such plans, accrued vacation pay and any appropriate
business expenses incurred by Officer in connection with his duties
hereunder, all to the Date of Termination (as defined in Section 5.8 herein),
the death benefits provided in Section 5.1.3 and, Officer's then current wife
shall be entitled to those benefits described in Section 4 herein.
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5.1.3 Death Benefits. Notwithstanding anything in
this Agreement to the contrary, in the event of Termination Upon Death,
Corporation shall continue to pay to Officer's estate or assignee, as the case
may be, one hundred percent (100%) of Officer's Base Salary at the time of
Officer's death through the remaining Employment Period; provided, however, that
in no event shall the aggregate amount payable under this Section 5.1.3 be
less than two (2) times Officer's then Base Salary.
5.2 Disability.
5.2.1 Termination By Reason of Disability. If,
during the Employment Period, Officer becomes incapacitated due to physical or
mental illness (such incapacity being determined by a qualified, independent
physician selected by Corporation and approved by Officer (or, if Officer is
unable to give such approval, by his legal representative or his wife)) for a
period of more than six (6) consecutive months, Corporation shall have the right
to terminate Officer's employment hereunder by Notice of Termination (as defined
in Section 5.7 herein)("Termination By Reason of Disability").
5.2.2 Payment Upon Termination By Reason of
Disability In the event of a Termination By Reason of Disability, Corporation
shall immediately pay Officer all accrued Base Salary, bonus compensation,
vested deferred compensation (other than pension plan or profit sharing plan
benefits which will be paid in accordance with the applicable plan), any
benefits under any plans of Corporation in which Officer is a participant to the
full extent of Officer's rights under such plans, accrued vacation pay and any
appropriate business expenses incurred by Officer in connection with his
duties hereunder, all to the Date of Termination, together with the disability
benefits provided in Section 5.2.3, and those benefits described in
Sections 3.3.2, 3.3.3, 3.3.4 and 4 described herein.
5.2.3 Disability Benefits. Notwithstanding
anything in this Agreement to the contrary, in the event of Termination By
Reason of Disability pursuant to Section 5.2.1, Corporation shall pay to Officer
the difference between (a) seventy-five percent (75%) of the sum of Officer's
Base Salary (at the rate payable at the Date of Termination) through the
remaining Employment Period, and (b) amounts received by Officer from
long-term disability insurance carried by Corporation, on the dates specified
in Section 3.1 through the remaining Employment Period; provided,
however, that in no event shall the aggregate amount payable under this Section
5.2.3 be less than two (2) times Officer's then Base Salary.
5.3 Cause.
5.3.1 Termination For Cause. Officer's employment
hereunder may be terminated for cause and effected upon receipt by Officer
of a Notice of Termination ("Termination For Cause"). For purposes of this
Agreement, "Termination For Cause" shall mean termination by Corporation
of Officer's employment by Corporation by reason of Officer's willful
dishonesty towards, fraud upon, or deliberate injury or attempted injury to,
Corporation or by reason of Officer's willful material breach of this Agreement
which has resulted in material injury to Corporation; provided, however, for
purposes of this Section 5.3, no act or failure to act on Officer's part shall
be considered "willful" unless done, or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission was in the best
interests of Corporation. Notwithstanding the foregoing, any termination of
Officer shall not be considered a Termination For Cause pursuant to this
Section 5.3 and shall be considered a Termination Without Cause pursuant to
Section 5.4 hereof, if such termination is effected without (a) reasonable
notice to Officer setting forth the reasons for Corporation's intention
regarding a Termination For Cause; (b) an opportunity for Officer, together
with his counsel, to be heard before the Board of Directors; and (c) delivery
to Officer of a Notice of Termination as provided for in Section 5.7 hereof
from the Board of Directors finding that in the good faith opinion of the
Board of Directors, Officer was guilty of conduct set forth above in the
preceding sentence, and specifying the particulars thereof in
detail. If Officer is the prevailing party as a result of a hearing before the
Board of Directors pursuant to Section 5.3.1(b) above, Officer shall be promptly
reimbursed for attorneys' fees and related costs pursuant to Section 8.10
herein.
5.3.2 Payment Upon Termination For Cause. In the
event of a Termination For Cause, Officer shall immediately be paid all accrued
Base Salary, bonus compensation, vested deferred compensation (other than
pension plan or profit sharing plan benefits which will be paid in accordance
with the applicable plan), any benefits under any plans of Corporation in which
Officer is a participant to the full extent of Officer's rights under such
plans, accrued vacation pay and any appropriate business expenses incurred
by Officer in connection with his duties hereunder, all to the Date of
Termination, and Officer shall be entitled to receive any extension of
benefits beyond the Date of Termination, provided that (a) such benefits were
received by Officer prior to the Date of Termination, and (b) such extension is
customarily offered by Corporation to its employees or is otherwise required by
applicable law.
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5.4 Without Cause.
5.4.1 Termination Without Cause. Any termination of
Officer by Corporation upon receipt by Officer of a Notice of Termination
(including any action which is deemed a termination of Officer pursuant to
Section 5.6 hereof), other than a Termination Upon Death, Termination By Reason
of Disability or a Termination For Cause pursuant to Sections 5.1, 5.2 and
5.3, respectively, shall be deemed a "Termination Without Cause."
5.4.2 Payment Upon Termination Without Cause.
In the event of any Termination Without Cause, Officer shall immediately be paid
all accrued Base Salary, bonus compensation, vested deferred compensation
(other than pension plan or profit sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of
Corporation in which Officer is a participant to the full extent of Officer's
rights under such plans, accrued vacation pay and any appropriate
business expenses incurred by Officer in connection with his duties hereunder,
all to the Date of Termination, together with all severance compensation
provided in Section 5.4.3.
5.4.3 Severance Compensation. In the event of any
Termination Without Cause, (a) Corporation shall pay Officer in a lump sum
payment within 30 days after the Date of Termination the aggregate of the
following amounts: (i) an amount equal to Officer's Base Salary (at the rate
payable at the Date of Termination) through the Employment Period, plus
(ii) an amount equal to the amount in clause (i) above in lieu of a bonus;
provided, however, that in no event shall such aggregate amount be less than two
(2) times Officer's Base Salary; and (b) Officer shall be entitled to those
benefits described in Sections 3.3.2, 3.3.3, 3.3.4 and 4 herein.
5.5 Voluntary Termination.
5.5.1 Termination by Officer. Officer may
terminate Officer's employment by Corporation for any reason with thirty (30)
days prior written notice to Corporation ("Voluntary Termination").
For purposes of this Section 5.5, "Voluntary Termination" shall not include a
Termination Upon Change in Control pursuant to Section 6 herein or
any termination of Officer's employment pursuant to Section 5.6 herein.
5.5.2 Payment Upon Voluntary Termination. In the
event of a Voluntary Termination, on or after the Date of Termination,
Corporation shall no longer be obligated to pay Officer any amounts payable to
Officer hereunder for such period, whether in the form of Base Salary, bonus or
otherwise, and Officer shall have no right to compensation or other benefits
hereunder for any such period, but Corporation shall pay Officer all accrued
Base Salary, bonus compensation, vested deferred compensation (other than
pension plan or profit sharing plan benefits which will be paid in accordance
with the applicable plan), any benefits under any plans of Corporation in which
Officer is a participant to the full extent of Officer's rights under such
plans, accrued vacation pay and any appropriate business expenses incurred
by Officer in connection with his duties hereunder, all to the Date of
Termination, and Officer shall be entitled to those benefits described in
Section 4 herein.
5.6 Other Events of Termination. The following
circumstances shall specifically be deemed a Termination Without Cause of
Officer's employment by Corporation:
5.6.1 a vote by the Board of Directors to
Terminate Officer Without Cause, as defined in Section 5.4 hereof;
5.6.2 any termination of Officer's employment by
Corporation which is not effected pursuant to a Notice of Termination satisfying
the requirements of Section 5.7 hereof;
5.6.3 a breach by Corporation of this Agreement,
and a subsequent election by Officer to terminate this Agreement pursuant to
Section 5.5 above; or
5.6.4 the performance of any other act by
Corporation which is designed to prevent and does prevent Officer from properly
performing the authorities, duties and responsibilities of his employment
hereunder, including without limitation, a change in the duties or position
of Officer within Corporation.
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5.7 Notice of Termination. Any termination of Officer's
employment by Corporation or by Officer (other than termination pursuant to
Section 5.1 hereof) shall be communicated by written notice to the other party
hereto ("Notice of Termination"), which shall (a) indicate the specific
termination provision in this Agreement relied upon; (b) set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
Officer's employment under the provision so indicated; and (c) contain any other
information required by this Agreement.
5.8 Effective Date of Termination. For purposes of this
Section 5, "Date of Termination" shall mean: (a) if Officer's employment is
terminated by his death, the last day of the month during which his death
occurs; (b) if Officer's employment is terminated pursuant to Section 5.2
hereof, the termination date stated in the Notice of Termination after the
expiration of six (6) consecutive months of Officer's incapacity due to physical
or mental illness, in accordance with the procedure set forth in Section 5.2
hereof; (c) if Officer's employment is terminated pursuant to Sections 5.3 or
5.4 hereof, the date that the Notice of Termination is communicated pursuant to
Section 5.7 hereof; (d) if Officer's employment is terminated pursuant to
Section 5.5 hereof, the termination date stated in the Notice of Termination
received by Corporation; (e) if Officer's employment is deemed terminated
pursuant to Section 5.6.1 or 5.6.2 hereof, the date of such action which is
deemed a termination of Officer by Corporation or, if deemed terminated pursuant
to Section 5.6.3 or 5.6.4, the date specified by the Officer in the Notice of
Termination; or (f) if Officer's employment is terminated pursuant to Section 6
herein, the date set forth in the Notice of Termination.
6. Termination of Employment Upon Change in Control.
6.1 Certain Definitions.
6.1.1 Change in Control. "Change in Control"
shall mean any of the following events:
(a) Corporation is provided a copy of a
Schedule 13D or Schedule 14D-1 filed pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act") indicating that any person, entity or
"group" (as such terms are defined in Section 13(d)(3) of the Exchange Act)
that does not on the date hereof hold more than five percent (5%) of the
outstanding shares of Corporation entitled to vote for the election
of directors has become the holder of more than twenty percent (20%) (in one or
more transactions, in the aggregate) of either the then outstanding shares of
common stock or the combined voting power of Corporation's then outstanding
voting securities entitled to vote generally in the election of directors;
(b) as a result of or in connection with
any cash tender offer, merger, or other business combination, sale of assets
or contested election, or combination of the foregoing, the persons who
were directors of Corporation just prior to such event shall cease to
constitute a majority of the Board;
(c) Corporation's stockholders approve a
definitive agreement providing for a transaction in which Corporation will cease
to be an independent publicly-owned corporation;
(d) the stockholders of Corporation
approve a definitive agreement either (x) to merge, consolidate or reorganize
Corporation with or into another corporation in which the holders of the
Corporation's common stock immediately before such merger, consolidation or
reorganization will not, immediately following such merger or reorganization,
hold as a group on a fully-diluted basis both the ability to elect at least a
majority of the directors of the surviving corporation and at least a majority
in value of the surviving corporation's outstanding equity securities, or
(y) to sell or otherwise dispose of all or substantially all of the assets of
the Company;
(e) the stockholders of Corporation
approve the liquidation or dissolution of Corporation; or
(f) an Offer (as defined in Section
6.1.2 below) is made. As used in this Agreement, "Corporation" shall mean
Corporation as defined herein and any successor to its business and/or assets
upon a Change in Control which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
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6.1.2 Tender Offer or Exchange Offer. "Offer"
shall mean a tender offer or exchange offer for shares of Corporation's common
stock other than one made by Corporation or by a person, entity, or "group,"
as such terms are defined in Section 13(d)(3) of the Exchange Act, that on the
date hereof holds more than five percent (5%) of the outstanding shares of
Corporation entitled to vote for the election of directors where the offeror
acquires more than twenty percent (20%) (in one or more transactions, in
the aggregate) of either the then outstanding shares of common stock or the
combined voting power of Corporation's then outstanding voting securities
entitled to vote generally in the election of directors.
6.1.3 Termination Upon a Change in Control.
Officer may, in his sole and absolute discretion, terminate his employment with
Corporation within one hundred eighty (180) days following a Change in Control
("Termination Upon Change in Control").
6.1.4 Payment Upon a Change in Control. In the
event of a Termination Upon a Change in Control, Officer shall immediately be
paid all accrued Base Salary, bonus compensation to the extent earned, vested
deferred compensation (other than pension plan or profit sharing plan benefits
which will be paid in accordance with the applicable plan any benefits under
any plans of Corporation in which Officer is a participant to the full extent of
Officer's rights under such plans, accrued vacation pay and any appropriate
business expenses incurred by Officer in connection with his duties hereunder,
all to the Date of Termination, together with all severance compensation
provided in Section 6.1.5 herein.
6.1.5 Severance Payment Upon a Change in Control.
(a) In the event of a Termination Upon a
Change in Control, (ii) Corporation shall pay Officer in a lump sum payment
with thirty (30) days after the Date of Termination the aggregate of the
following amounts: (A) an amount equal to Officer's Base Salary (at the rate
payable at the time of such termination) through the Employment Period, plus
(B) an amount equal to the amount in clause (A) above in lieu of a bonus;
provided, however, that in no event shall such aggregate amount be less than
two (2) times Officer's Base Salary; and (iii) Officer shall be entitled to
those benefits described in Sections 3.3.2, 3.3.3, 3.3.4 and 4 herein.
(b) Officer shall not be required to
mitigate the amount of any payment provided for in this Section 6.1 by seeking
other employment or otherwise, and the amount of any payment provided for
in this Section 6.1 shall not be reduced by any compensation earned by
Officer, either as the result of employment by any other employer after the date
of his termination of employment with Corporation or otherwise.
(c) Notwithstanding anything else in this
Agreement, solely in the event of a Termination Upon a Change in Control
pursuant to Section 6.1, the aggregate of the amount of severance compensation
paid to Officer under Sections 3 or 6.1 or otherwise, shall not include any
amount that Corporation is prohibited from deducting for federal income tax
purposes by virtue of Section 280G of the Internal Revenue Code or any
successor provision.
6.1.6 Non-exclusivity of Rights. Nothing in this
Agreement is intended to or shall prevent or limit Officer's continuing or
future participation in any benefit, bonus, incentive or other plans, programs,
policies or practices provided by Corporation or its subsidiaries and for
which Officer may qualify, nor shall anything herein limit or otherwise affect
such rights as Officer may have under any stock option or
other agreements with Corporation or any of its subsidiaries. Amounts which are
vested benefits or which Officer is otherwise entitled to receive under any
plan, policy, practice or program of Corporation or any of its subsidiaries at
or subsequent to the Date of Termination shall be payable in accordance with
such plan, policy, practice or program; provided that the vesting schedules, if
any, under all stock options held by Officer shall continue to run to the
maximum extent permitted by applicable law.
7. Protection of Corporation's Business.
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 Further, Xxxxxxx & Xxxxx in any capacity and/or may employ
or solicit Ms. Xxxxx Xxxxx and Xx. Xxxxx Xxxxx to leave the employ of
Corporation at any time during or after the Employment Period.
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8. Miscellaneous.
8.1 Confidentiality. Officer agrees that all proprietary
information considered confidential by Corporation and relating to the business
or operations of Corporation shall be kept and treated as confidential both
during and after the Employment Period; provided, however, that such information
may be disclosed to third parties if required by applicable law or court process
or if such information (a) was then generally known to the public other than as
a result of a disclosure by Officer, (b) is or becomes known or available to
Officer on a non-confidential basis from a source whom, insofar as is known to
Officer, is not prohibited from transmitting the information to third parties by
a contractual, legal, fiduciary or other obligation, or (c) is independently
developed by Officer.
8.2 Waiver. The waiver of the breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of the same or other provision hereof.
8.3 Entire Agreement Modifications. Except as otherwise
provided herein, this Agreement represents the entire understanding among the
parties with respect to the subject matter hereof, and this Agreement supersedes
any and all prior understandings, agreements, plans and negotiations, whether
written or oral, with respect to the subject matter hereof, including without
limitation, any understandings, agreements or obligations respecting any past or
future compensation, bonuses, reimbursements, or other payments to Officer from
Corporation. All modifications to the Agreement must be in writing and signed by
the party against whom enforcement of such modification is sought.
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, Vice President and Treasurer
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
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
With a Copy to:
Gunster, Yoakley, Xxxxxx-Xxxxx & 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.
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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.
8.5 Headings. The Section headings herein are intended
for reference and shall not by themselves determine the construction or
interpretation of this Agreement.
8.6 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of California.
8.7 Severability. Should a court or other body of competent
jurisdiction determine that any provision of this Agreement is excessive in
scope or otherwise invalid or unenforceable, such provision shall be adjusted
rather than voided, if possible, so that it is enforceable to the maximum extent
possible, and all other provisions of this Agreement shall be deemed valid and
enforceable to the extent possible.
8.8 Survival of Corporation's Obligations. Corporation's
obligations hereunder shall not be terminated by reason of any liquidation,
dissolution, bankruptcy, cessation of business, or similar event relating to
Corporation. This Agreement shall not be terminated by any merger or
consolidation or other reorganization of Corporation. In the event any such
merger, consolidation, or reorganization shall be accomplished by transfer of
stock or by transfer of assets or otherwise, the provisions of this Agreement
shall be binding upon the surviving or resulting corporation or person. This
Agreement shall be binding upon and inure to the benefit of the executors,
administrators, heirs, successors and permitted assigns of the parties;
provided, however, that except as herein expressly provided, this Agreement
shall not be assignable either by Corporation or by Officer.
8.9 Counterparts. This Agreement may be executed in one
or more counterparts, all of which taken together shall constitute one and the
same Agreement.
8.10 Prevailing Parties. If any civil action, arbitration or
other legal proceeding is brought for the enforcement of this Agreement, or
because of an alleged dispute, breach, default or misrepresentation in
connection with any provision of this Agreement, the successful or prevailing
party or parties shall be entitled to recover reasonable attorneys' fees, sales
and use taxes, court costs and all expenses even if not taxable as court costs
(including, without limitation, all such fees, taxes, costs and expenses
incident to arbitration, appellate, bankruptcy and post-judgment proceedings),
incurred in that civil action, arbitration or legal proceeding, in addition to
any other relief to which such party or parties may be entitled. Attorneys' fees
shall include, without limitation, paralegal fees, investigative fees,
administrative costs, sales and use taxes and all other charges billed by the
attorney to the prevailing party.
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8.11 Attorney's 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,
hereby indemnifies Officer to the maximum extent permitted by law for Officer's
reasonable attorneys' fees and disbursements incurred in such litigation.
8.12 Indemnification. In addition to any rights to
indemnification to which Officer is entitled under the Corporation's Certificate
of Incorporation and Bylaws, Corporation shall indemnify officer at all times
during and after the Employment Period to the maximum extent permitted under
Section 145 of the Delaware Corporations Code or any successor provision thereof
and any other applicable state law, and shall advance Officer's expenses in
defending any civil or criminal action, suit or proceeding, to the maximum
extent permitted under such applicable state law.
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 San
Francisco County, California. The arbitrator shall be selected by the parties
and if the parties are unable to reach agreement on selection of the arbitrator
within thirty (30) days after the notice of arbitration is served, then the
arbitrator will be selected by the American Arbitration Association. All
documents, materials, and information in the possession of a party to this
Agreement and in any way relevant to the claims or disputes shall be made
available to the other parties for review and copying not later than sixty (60)
days after the notice of arbitration is served. To the extent that a party would
be required to make confidential information available to any other, an
agreement or an order shall be entered in the proceeding protecting the
confidentiality of and limiting access to such information before a party is
required to produce such information. Information produced by a party shall be
used exclusively in the arbitration or litigation that may arise, and shall not
otherwise be disclosed. In no event shall a party be entitled to punitive
damages in any arbitration or judicial proceeding and all parties hereby waive
their rights to any punitive damages. In the event an arbitration panel or a
court concludes that the punitive damages waiver contained in the previous
sentence is unenforceable, then the parties agree that the court with subject
matter jurisdiction over the confirmation of the award shall have sole and
exclusive jurisdiction to determine issues of entitlement and amount of punitive
damages. The arbitrator shall NOT have subject matter jurisdiction to decide any
issues relating to the statute of limitations or to any request for injunctive
relief, and the parties hereby stipulate to stay the arbitration proceeding
(without the need of a bond) until any such issues in dispute are resolved.
Judgment upon the award rendered by the arbitrator shall be final, binding and
conclusive upon the parties and their respective administrators, executors,
legal representatives, heirs, successors and permitted assigns, and may be
entered in any court of competent jurisdiction.
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 San Francisco County, California.
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 California in San Francisco County or the United States
District Court, Northern District of California. 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.
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8.15 Survival. Sections 3.3, 4, 5, 6, 7 and 8 shall survive
any termination or expiration of this Agreement. IN WITNESS WHEREOF,
the parties hereto have executed this Agreement as of the day and year
first above written.
CORPORATION:
BF ENTERPRISES, INC.
By: /s/ Xxxxxxx X.X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. X. Xxxxxxx
Title: Chairman of the Compensation
Committee
OFFICER:
By: /s/ Xxxxx X. Xxxxx
--------------------------
Xxxxx X. Xxxxx
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