EXHIBIT 10.4
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 Xxxxxx 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 II.
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 II
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 $10,000, 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 TWENTY-FIVE THOUSAND ($25,000), 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 TWO THOUSAND SEVEN HUNDRED AND SEVENTY-EIGHT DOLLARS ($2,778)
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 FIFTY THOUSAND DOLLARS
($50,000) 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 $12,500 and $6,250 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. 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.
5. 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 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
4
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.
6. 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.
7. Assignment. Neither the Employee nor any designated 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
5
the event of such person's bankruptcy, insolvency or otherwise.
8. 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.
9. 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.
10. 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 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
6
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.
11. 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.
12. 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
7
both trial and appellate levels.
13. 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.
14. 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.
15. 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.
16. 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,
8
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.
17. 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: [ILLEGIBLE] By: /S/ XXXXX X. GLAN
---------------------------------- ----------------------------------
Assistant Secretary Its President & CEO
----------------------------------
ATTEST: THE PBSJ CORPORATION
By: [ILLEGIBLE] By: /S/ XXXXXXX X. XXXXXXXX
---------------------------------- ----------------------------------
Assistant Secretary Its Chairman
----------------------------------
WITNESS: EMPLOYEE:
/S/ XXXXXXXX X. XXXXXX /S/ XXXXXX X. XXXXXXX
------------------------------------- -------------------------------------
------------------------------------- -------------------------------------
9
EXHIBIT A
In the event of my death, I hereby designate Xxxxxx Xxxx 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 Xxxxxx X. Xxxxxxx (name), Daughter
(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/ XXXXXX X. XXXXXXX
----------------------------
/S/ XXXXXXXX X. XXXXXX
---------------------------------
Witness
/S/ XXXXX X. XXXXXX
---------------------------------
Witness
