UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 21, 2021
BBX CAPITAL, INC.
(Exact name of registrant as specified in its charter)
|
|
|
|
|
|
|
|
|
|
|
|
|
Florida |
|
000-56177 |
|
82-4669146 |
|
(State or other jurisdiction of incorporation) |
|
(Commission File Number) |
|
(IRS Employer Identification No.) |
|
|
|
|||
|
401 East Las Olas Boulevard, Suite 800, Fort Lauderdale, Florida |
|
33301 |
||
|
(Address of principal executive offices) |
|
(Zip Code) |
||
Registrant’s telephone number, including area code: 954-940-4900
Not applicable
(Former name or former address, if changed since last report.)
Securities registered pursuant to Section 12(b) of the Act: None
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
|
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☒
|
|
|
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On May 21, 2021, BBX Capital, Inc. (“BBX Capital”), upon the approval of the Compensation Committee of its Board of Directors, entered into employment agreements with Alan B. Levan, Chairman of the Board, John E. Abdo, Vice Chairman of the Board, Jarett S. Levan, Chief Executive Officer and President, Seth M. Wise, Executive Vice President, and Brett Sheppard, Chief Financial Officer (collectively, the “Executive Officers”).
Under the terms of their respective employment agreements, each of the Executive Officers will continue to receive an annual base salary and be entitled to receive bonus payments under bonus plans established from time to time by the Compensation Committee or otherwise at the discretion of the Compensation Committee. The following table sets forth information regarding the base salary and Annual Bonus (as defined below) opportunity of the Executive Officers under their respective employment agreements.
|
Annu |
|
|
|
|
|
|
|
Base |
|
Annual Bonus |
|
Executive Officer |
|
Salary (1) |
|
Opportunity (2) |
|
Jarett S. Levan |
$ |
900,000 |
|
60% |
|
Seth M. Wise |
$ |
900,000 |
|
60% |
|
Alan B. Levan |
$ |
400,000 |
|
200% |
|
John E. Abdo |
$ |
400,000 |
|
200% |
|
Brett Sheppard |
$ |
325,000 |
|
50% |
(1)Represents base salaries for the year ending December 31, 2021. The Compensation Committee will review and have the discretion to increase each Executive Officer’s base salary on an annual basis. The base salaries may not be decreased without the applicable Executive Officer’s written consent.
(2)Represents the Executive Officer’s bonus opportunity, stated as a percentage of his then-current base salary, for each calendar year during the term of the agreement commencing with the year ending December 31, 2021 (the amount actually paid to the applicable Executive Officer in respect of his annual bonus opportunity being hereinafter referred to as the “Annual Bonus”).
Each Executive Officer is also entitled to receive awards, including restricted stock awards, stock options, and performance-based cash awards, under BBX Capital’s 2021 Incentive Plan and any other equity plans adopted by BBX Capital in the future.
Each employment agreement has an initial term of three years (except for Mr. Sheppard’s employment agreement, which has an initial term of one year) and provides for annual renewal terms unless either the applicable Executive Officer or BBX Capital elects for the agreement to expire at the end of the then-current term or the agreement is earlier terminated as set forth below.
Each employment agreement may be terminated by BBX Capital for “Cause” or “Without Cause” or by the applicable Executive Officer for “Good Reason” (as such terms are defined in the employment agreement). If an employment agreement is terminated by BBX Capital for “Cause,” the applicable Executive Officer will be entitled to receive his base salary through the date of termination. If an employment agreement is terminated by BBX Capital “Without Cause” or by the Executive Officer for “Good Reason,” the applicable executive officer will be entitled to receive (i) his base salary through the date of termination, (ii) the prorated portion of the Executive Officer’s Annual Bonus (based on the average Annual Bonus paid to him during the prior two fiscal years) through the date of termination, and (iii) in accordance with the applicable Executive Officer’s employment agreement, the following severance payments. Each of Mr. Alan Levan and Mr. Abdo will be entitled to receive a severance payment in an amount equal to (a) 2 times the sum of his annual base salary and Annual Bonus opportunity at the date of termination or (b) 2.99 times the sum of his annual base salary and Annual Bonus opportunity at the date of termination if such termination occurs within two years after a “Change in Control” (as defined in the employment agreement). Each of Mr. Wise and Mr. Jarett Levan will be entitled to receive a severance payment in an amount equal to (a) 1.5 times the sum of his annual base salary and Annual Bonus opportunity at the date of termination or (b) 2 times the sum of his annual base salary and Annual Bonus opportunity at the date of termination if such termination occurs within two years after a “Change in Control.” Mr. Sheppard will be entitled to receive a severance payment equal to his annual base salary as of the date of termination. In addition, if an Executive Officer’s employment agreement is terminated by BBX Capital “Without Cause” or by the Executive Officer for “Good Reason,” BBX Capital
1
will be required to provide the Executive Officer with continued benefits, including, without limitation, health and life insurance, for the following periods: (x) two years following the year in which the termination occurs (or three years following the year in which the termination occurs if such termination occurs within two years after a Change in Control) in the case of each of Mr. Alan Levan and Mr. Abdo, (y) eighteen months following the year in which the termination occurs (or two years following the year in which the termination occurs if such termination occurs within two years after a Change in Control) in the case of Mr. Jarett Levan and Mr. Wise, and (z) six months following the year in which the termination occurs in the case of Mr. Sheppard. Further, other than in the case of Mr. Sheppard, if an Executive Officer’s employment agreement is terminated by BBX Capital “Without Cause” or by the Executive Officer for “Good Reason,” all incentive stock options and restricted stock awards previously granted to the Executive Officer by BBX Capital but not yet vested as of the termination date, if any, will immediately accelerate and fully vest as of the termination date. Each employment agreement will also be terminated upon the Executive Officer’s death, in which case the applicable Executive Officer’s estate will be entitled to receive (i) his base salary through the date of his death and (ii) for Mr. Alan Levan, Mr. Abdo, Mr. Jarett Levan and Mr. Wise, the prorated portion of the Executive Officer’s Annual Bonus (based on the average Annual Bonus paid to him during the prior two fiscal years) through the date of his death and a death benefit equal to his annual base salary. BBX Capital’s obligation to make and provide the post-termination payments and benefits described in this paragraph is subject to the applicable Executive Officer’s entry into and compliance with a non-disclosure, non-competition, confidentiality and non-solicitation of customers agreement with BBX Capital on terms acceptable to both the Executive Officer and BBX Capital.
The foregoing description of the employment agreements is a summary only, does not purport to be complete, and is qualified in its entirety by reference to the full text of the agreements, which are included as Exhibits 10.1 through 10.5 of this Current Report on Form 8-K and are incorporated herein by reference.
2
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
10.1Employment Agreement between the Company and Alan B. Levan
10.2Employment Agreement between the Company and John E. Abdo
10.3Employment Agreement between the Company and Jarett S. Levan
10.4 Employment Agreement between the Company and Seth M. Wise
10.5Employment Agreement between the Company and Brett Sheppard
3
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: May 21, 2021
BBX Capital, Inc.
By: /s/ Brett Sheppard
Brett Sheppard
Chief Financial Officer
4
Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”), is signed as of May 21, 2021, by and between BBX Capital Inc, a Florida corporation (the “Company”) and Alan B. Levan (the “Executive”) but effective as of May 20, 2021 (the “Effective Date”).
WHEREAS, the Company desires to employ the Executive as Chairman and the Executive desires to accept such employment, all upon the terms and conditions set forth in this Agreement;
WHEREAS, the Executive has experience and expertise in the Company’s business (the “Business”). By virtue of his employment with Company, and the predecessors from which it emerged, the Executive has become familiar with and possesses knowledge of the manner, methods, trade secrets and other confidential information pertaining to the Business.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set forth in this Agreement, the Company and the Executive agree as follows:
1.Recitals; Defined Terms. The above recitals are true and correct and are incorporated herein by reference. When used in this Agreement, a “Change in Control” shall be deemed to occur if:
|
|
1.1 any “person” (as such term is utilized in Section 13(d) and Section 14(d)(2) of the Securities and Exchange Act), including without limitation any “group” (as such term is utilized in Section 13(d)(3) of the Exchange Act), who is not, on the date of this Agreement, either (1) an affiliate of the Company, or (2) the beneficial owner of 10% or more of the Company’s issued and outstanding common stock, shall become the “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act) of securities of the Company (or any successor thereto) representing more than 33% of the votes that may be cast for the election of directors of the Company, or any successor company as the case may be; or |
|
|
1.2 any person who is not, on the date of this Agreement an affiliate of the Company, shall become a shareholder of the Company holding fifty percent or more of the outstanding stock of any class of the Company; or |
|
|
1.3 as the result of, or in connection with, any cash or other tender offer, or exchange offer, merger, consolidation or other business combination, or any combination of any one or more of the foregoing transactions, the persons who were directors of the Company immediately prior to the consummation of any such transaction or combination of transactions shall cease to constitute a majority of the directors of the Company, or any successor thereto; or as a result of a sale of all or substantially all of the assets of the Company, or any liquidation, dissolution, bankruptcy, assignment for the benefit of creditors (whether such action is voluntary or involuntary by the Company), or any similar transaction or any combination of any one or more of the foregoing or similar transactions, the persons who were directors of the Company immediately prior to the consummation of any such transaction or combination of transactions shall cease to constitute a majority of the directors of the successor to the Company. |
2.Employment Term. The term of the Executive's employment (the "Term") begins on the Effective Date and concludes three (3) years from the Effective Date; provided, however, that the Term shall be automatically renewed for successive one-year periods commencing on the third anniversary of the Effective Date unless: (i) either the Company or the Executive, not fewer than six (6) months prior to the expiration of the initial three year term, provides notice of intention not to renew the Agreement for a one year term or, during any one year extension of the initial term, provides notice of intention not to renew not fewer than ninety (90) days prior to the expiration of any such one year term, (ii) the Executive terminates this Agreement for Good Reason (defined below), (iii) the Company terminates this Agreement for Cause (defined below) or (iv) this Agreement is otherwise terminated in accordance with its provisions.
3. Services.
3.1 Office and Duties. During the Term, the Executive shall serve as Chairman of the Company, subject to the terms of this Agreement, with such duties, authority and responsibility as are commensurate with such position, subject to oversight and direction of the Company’s board of directors (the “Board”). In exercising his duties and responsibilities, the Executive shall have all the power and authority necessary to fulfill and discharge his duties and responsibilities and shall abide by lawful directions given by the Board. The Executive shall be responsible for such additional duties commensurate with his position not materially inconsistent with the foregoing as may be reasonably determined by the Board from time to time.
3.2Best Efforts. During the Term, the Executive shall diligently and competently devote his best efforts and energies to the Business and affairs of the Company, and shall use his best efforts, skills and abilities to promote the interests of the Company and otherwise to discharge his obligations under this Agreement; provided, however, that nothing in this Agreement shall restrict the Executive from serving in executive capacities with any affiliated companies or pursuing interests in accordance with historical practice.
4.Compensation.
4.1Annual Base Salary. During the Term, the Executive shall receive a base salary at the initial annual rate of Four Hundred Thousand Dollars ($400,000) (“Base Salary”), payable in accordance with the Company's normal payroll practices or at such other reasonable intervals as may from time to time be used by the Company for paying its other employees. The Executive will be entitled to annual salary reviews and as such the Executive’s Base Salary may be increased by the Company’s compensation committee (the “Compensation Committee”) from time to time during the term of this Agreement but shall not be reduced without his written consent.
4.2Annual Bonus. An annual bonus (the “Annual Bonus”) may be paid to the Executive of up to 200% of Base Salary in the discretion of the Compensation Committee. Such Annual Bonus amount shall include consideration of certain performance factors as determined by the Compensation Committee. Payments of Annual Bonus amounts to the Executive shall be made by March 15 of each year for the prior year’s performance. The Executive’s Annual Bonus opportunity shall commence in 2021, payable in cash by March 15, 2022 for 2021 performance.
4.3Long Term Incentive Compensation.
4.3.1 The Executive shall be entitled to participate in the Company’s stock plans for granting equity (e.g., future grants of restricted stock awards (“RSAs”) or other stock awards) as may subsequently be approved by the Compensation Committee.
These Restricted Shares are granted on the conditions that Executive remains employed by the Company through and including the respective vesting periods and that the Board has not terminated the employment of the Executive for “Cause,” as the term is defined in Section 6.2, below.
5.Reimbursement of Expenses; Benefits.
5.1Reimbursement of Expenses. Upon submission of appropriate documentation in accordance with the Company’s policy, the Executive shall be entitled to reimbursement for all reasonable, out-of-pocket expenses incurred by him during the Term in connection with the proper and efficient discharge of his duties hereunder, including, without limitation, all reasonable expenses incurred by the Executive for travel to promote the interests of the Company, as well as reasonable expenses for meals, hotels or other accommodations, and other customary items during any such trips, including existing expense reimbursement arrangements and practices.
5.2Employee Benefit Plans and Programs. During the Term, the Executive shall be entitled to participate in the Company’s employee benefit plans and programs, including such 401(k) plans, health insurance and welfare plans as the Company may adopt for employees generally or for the Company’s executives, including existing plans and programs under existing practices.
5.3Vacations. The Executive shall be entitled to paid vacation during each calendar year in such amounts as are commensurate with his position and company policy, however, no less than existing practices.
6.Termination. The Executive's employment under this Agreement may be terminated by the Company or the Executive without any breach of this Agreement only under the circumstances set forth in ensuing Sections 6.1 through 6.4 and upon provision of the applicable compensation set forth in Section 7:
6.1Death. This Agreement and the Executive's employment under this Agreement shall terminate immediately and automatically upon the Executive's death.
6.2By Company for Cause. The Company may terminate the Executive's employment under this Agreement for Cause (as hereinafter defined). “Cause,” as to the Executive, shall mean: (a) committing fraud against the Company or embezzlement of Company property; (b) being convicted of a felony or any other crime that involves moral turpitude under applicable laws of the United States or any state thereof; (c) an action or omission of the Executive which constitutes a willful and material breach of this Agreement which is not the result of the Executive's death or disability and which is not cured within fifteen (15) days after receipt by the Executive of written notice of the same from the Board.
6.3By Company Without Cause. The occurrence of any of the following shall be deemed to be a termination by the Company of the Executive's employment under this Agreement
“Without Cause:” (a) any action taken by the Company to terminate the Executive's employment other than for Cause, including providing notice of intention not to renew this Agreement, which termination shall only be effective upon written notice to the Executive; (b) any breach of this Agreement by the Company; or (c) upon the Disability (defined below) of the Executive. Failure of the Executive to timely terminate his employment upon the occurrence of an event described in subsection (b), above shall not result in a waiver of any right the Executive may have to terminate his employment based upon any future occurrence. “Disability” shall mean any incapacity or disability of the Executive which renders the Executive mentally or physically unable to perform his duties under this Agreement as determined in accordance with Company policy. ermination due to Disability shall be deemed to have occurred upon the first day of the month following the determination of Disability as defined in the preceding sentence.
6.4By Executive for Good Reason. The occurrence of any of the following shall be deemed to be grounds for the Executive to terminate employment for Good Reason:. (a) any action taken by the Company to materially diminish, or attempt to materially diminish, the duties, responsibilities or authority of the Executive if, within sixty (60) days after the Executive becomes aware of such action, the Executive notifies the Company in writing and the Company does not immediately correct such action(s); or (b) any action taken by the Company to materially change, or attempt to materially change the Executive's title or his position in the hierarchy of the Company if, within sixty (60) days after the Executive becomes aware of such action, the Executive notifies the Company in writing and the Company does not immediately correct such action(s); or (c) any breach of this Agreement by the Company.
Failure of the Executive to timely terminate his employment upon the occurrence of an event described in subsections (a), (b), or (c) above shall not result in a waiver of any right the Executive may have to terminate his employment based upon any future occurrence.
7.Payments After Termination. If this Agreement or the Executive's employment hereunder are terminated for the reasons set forth in Section 6.1 hereof, then the Executive's estate shall receive the annual Base Salary through the date of termination in accordance with the terms of this Agreement, a death benefit equal to one (1) times the Executive’s Annual Base Salary, and the prorated portion of the Annual Bonus, to be calculated based on the average bonus paid over the prior two (2) years , through the date of termination in accordance with the terms of this Agreement. If this Agreement or the Executive's employment hereunder are terminated for the reasons set forth in Sections 6.2 hereof, then the Executive shall receive the Base Salary through the date of termination in accordance with the terms of this Agreement. If this Agreement is terminated pursuant to Section 6.3 or 6.4 hereof, then the Executive shall receive:
(a) the Base Salary through the date of termination in accordance with the terms of this Agreement, and the prorated portion of the Annual Bonus, to be calculated based on the average bonus paid over the prior two (2) years, during the fiscal year and through the date of termination plus;
(b) a severance payment in an amount that equals 2.00 (or 2.99 times if within 2 years of a Change in Control) times the Executive’s annual Base Salary and 2.00 (or 2.99 times if within 2 years of a Change in Control) times Annual Bonus opportunity at the time of the termination; plus
(c) accelerated vesting of granted but not vested Incentive Stock Options and Restricted Shares subject to the definitions, terms, and conditions of the Plan or plan by which their award is authorized; plus
(d) continuation of health insurance, life insurance, dental insurance and other benefits received at the time of separation from the Company through the two (2) years (or three (3) years if within 2 years of a Change in Control) following the year in which termination occurs.
Subsequent to Termination, the Executive shall not be entitled to receive any further compensation or benefits from the Company, except as expressly provided by this Agreement. A condition to the Company’s obligation to provide the severance payments and benefits provided by this Agreement is that Executive complies with the obligations of non-competition, non-solicitation of customers, confidentiality and non-disclosure referenced in Section 8 of this Agreement and provided for by Florida law and execute a general release in a form acceptable to the Board.
8.Non-Competition; Non-Disclosure, Confidentiality and Non-Solicitation of Customers. Subsequent to the execution of this Agreement, Executive and Compensation Committee agree to sign a Non-Competition, Non-Disclosure, Confidentiality, and Non-Solicitation of Customers in term and scope acceptable to both parties.
9. Withholding. Anything to the contrary notwithstanding, all payments required to be made by the Company hereunder to the Executive or the Executive's estate or beneficiaries shall be subject to the withholding of such amounts, if any, relating to tax and other payroll deductions as the Company may reasonably determine it should withhold pursuant to any applicable law or regulation.
10.Notices. All notices, requests, demands or other communications by the terms hereof required or permitted to be given by one party to another shall be given in writing by personal delivery, by facsimile or by regular mail, postage prepaid, addressed to such other party or delivered to such other party as follows:
If to the Company:
BBX Capital Inc.
c/o Compensation Committee Chair
P.O. Box 39001
Fort Lauderdale, FL 33303
Telephone: (954) 940-5020
If to the Executive:
Alan B. Levan
P.O. Box 39002
Fort Lauderdale, FL 33303
or at such other address or facsimile number as may be given by any of them to the others in writing from time to time and such notices, requests, demands or other communication shall be deemed to
have been received when hand delivered, on the day after the date sent by facsimile (with receipt confirmed) or, if mailed, the fourth day following the day of the mailing thereof; provided that if any such notice, request, demand or other communication shall have been mailed and if regular mail service shall be interrupted by strikes or other irregularities, such notice, request, demand or other communication shall be deemed to have been received on the fourth business day following the resumption of normal mail service.
11.Prevailing Party. In the event of any dispute with regard to this Agreement, the prevailing party shall be entitled to receive from the non-prevailing party and the non-prevailing party shall pay upon demand all reasonable fees and expenses of counsel for the prevailing party.
12.Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties, and merge and supersede all prior discussions, agreements and understandings of every kind and nature among them as to the subject matter hereof.
13.Amendments to Agreement. This Agreement shall not be amended except by a writing signed by each party to the Agreement, and this Agreement may not be discharged except by performance in accordance with its terms or by a writing signed by each party to the Agreement.
14.U.S. Dollars. All dollar amounts in this Agreement are stated in United States Dollars.
15.Governing Law. This Agreement and its validity, construction and performance shall be governed in all respects by the law of the State of Florida, without giving effect to principles of conflicts of laws. Any controversies of any nature whatsoever arising under this Agreement shall be subject to the exclusive jurisdiction of the courts of Broward County, Florida, which shall be the exclusive jurisdiction and venue for any disputes, actions or lawsuits arising out of or relating to this Agreement. The parties to this Agreement irrevocably waive to the fullest extent permitted by law, any objection which they may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement, or any judgment entered by any court in respect hereof, brought in Broward County, Florida and further irrevocably waive any claim that any suit, action or proceeding brought in Broward County, Florida, has been brought in an inconvenient forum.
16.Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned by the Executive without the prior written consent of the Company. This Agreement may be assigned by the Company in connection with the sale, transfer or other disposition of all or substantially all of the Company's assets or business.
17.Pronouns. Whenever the context requires, the use in this Agreement of a pronoun of any gender shall be deemed to refer also to any other gender, and the use of the singular shall be deemed to refer also to the plural.
18.Headings. The headings of this Agreement are inserted for convenience of reference only and shall not constitute a part hereof.
19.Calculation of Time Periods. When calculating the period of time within which or following which any act is to be done or step taken pursuant to this Agreement, the date which is the reference date in calculating such period shall be excluded.
20.Execution in Counterparts. This Agreement may be executed in several counterparts, by original, digital or facsimile signature, each of which so executed shall be deemed to be an original and such counterparts together shall be deemed to be one and the same instrument, which shall be deemed to be executed as of the date first above written.
21.Further Assurances. The parties hereto shall sign such further documents and do and perform and cause to be done and performed such further and other acts and things as may be necessary or desirable in order to give full effect to this Agreement and every party thereof.
22.Survival. Any termination of this Agreement shall not affect the ongoing provisions of this Agreement, which shall survive such termination in accordance with their terms.
23.Severability. The invalidity or unenforceability, in whole or in part, or any covenant, promise or undertaking, or any section, subsection, paragraph, sentence, clause, phrase or word or of any provision of this Agreement shall not affect the validity or enforceability of the remaining portions thereof.
24.Participation of Parties; Construction. The parties hereto acknowledge that this Agreement and all matters contemplated herein have been negotiated between both of the parties hereto and their respective legal counsel and that both parties have participated in the drafting and preparation of this Agreement from the commencement of negotiations at all times through the execution hereof. The parties hereto acknowledge that they have each read this Agreement and understand the effect of its provisions. Accordingly, this Agreement shall be interpreted and construed without reference to any rule requiring that this Agreement be interpreted or construed against the party causing it to be drafted.
25.Independent Counsel. The Executive acknowledges that counsel to the Company has not represented him nor provided him with legal or other advice in connection with the transactions contemplated by this Agreement and that he has been urged to seek independent legal, tax and financial advice in order to analyze the risks and merits of the transactions contemplated by this Agreement.
26.Director and Officer Insurance; Indemnification. The Company shall indemnify the Executive to the same extent as it indemnifies its other Named Executive Officers, and the Company shall provide coverage for the Executive under its policies of Director’s and Officer’s insurance as the same may be in effect from time to time.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth in the first paragraph of this Agreement.
THE COMPANY:
BBX CAPITAL INC.,
a Florida corporation
By:/s/Neil Sterling
Neil Sterling,
Compensation Committee Chairman
THE EXECUTIVE:
By:/s/ Alan B. Levan
Alan B. Levan
Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”), is signed as of May 21, 2021, by and between BBX Capital Inc, a Florida corporation (the “Company”) and John E. Abdo (the “Executive”) but effective as of May 20, 2021 (the “Effective Date”).
WHEREAS, the Company desires to employ the Executive as Vice Chairman and the Executive desires to accept such employment, all upon the terms and conditions set forth in this Agreement;
WHEREAS, the Executive has experience and expertise in the Company’s business (the “Business”). By virtue of his employment with Company, and the predecessors from which it emerged, the Executive has become familiar with and possesses knowledge of the manner, methods, trade secrets and other confidential information pertaining to the Business.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set forth in this Agreement, the Company and the Executive agree as follows:
1.Recitals; Defined Terms. The above recitals are true and correct and are incorporated herein by reference. When used in this Agreement, a “Change in Control” shall be deemed to occur if:
|
|
1.1 any “person” (as such term is utilized in Section 13(d) and Section 14(d)(2) of the Securities and Exchange Act), including without limitation any “group” (as such term is utilized in Section 13(d)(3) of the Exchange Act), who is not, on the date of this Agreement, either (1) an affiliate of the Company, or (2) the beneficial owner of 10% or more of the Company’s issued and outstanding common stock, shall become the “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act) of securities of the Company (or any successor thereto) representing more than 33% of the votes that may be cast for the election of directors of the Company, or any successor company as the case may be; or |
|
|
1.2 any person who is not, on the date of this Agreement an affiliate of the Company, shall become a shareholder of the Company holding fifty percent or more of the outstanding stock of any class of the Company; or |
|
|
1.3 as the result of, or in connection with, any cash or other tender offer, or exchange offer, merger, consolidation or other business combination, or any combination of any one or more of the foregoing transactions, the persons who were directors of the Company immediately prior to the consummation of any such transaction or combination of transactions shall cease to constitute a majority of the directors of the Company, or any successor thereto; or as a result of a sale of all or substantially all of the assets of the Company, or any liquidation, dissolution, bankruptcy, assignment for the benefit of creditors (whether such action is voluntary or involuntary by the Company), or any similar transaction or any combination of any one or more of the foregoing or similar transactions, the persons who were directors of the Company immediately prior to the consummation of any such transaction or combination of transactions shall cease to constitute a majority of the directors of the successor to the Company. |
2.Employment Term. The term of the Executive's employment (the "Term") begins on the Effective Date and concludes three (3) years from the Effective Date; provided, however, that the Term shall be automatically renewed for successive one-year periods commencing on the third anniversary of the Effective Date unless: (i) either the Company or the Executive, not fewer than six (6) months prior to the expiration of the initial three year term, provides notice of intention not to renew the Agreement for a one year term or, during any one year extension of the initial term, provides notice of intention not to renew not fewer than ninety (90) days prior to the expiration of any such one year term, (ii) the Executive terminates this Agreement for Good Reason (defined below), (iii) the Company terminates this Agreement for Cause (defined below) or (iv) this Agreement is otherwise terminated in accordance with its provisions.
3. Services.
3.1 Office and Duties. During the Term, the Executive shall serve as Vice Chairman of the Company, subject to the terms of this Agreement, with such duties, authority and responsibility as are commensurate with such position, subject to oversight and direction of the Company’s board of directors (the “Board”). In exercising his duties and responsibilities, the Executive shall have all the power and authority necessary to fulfill and discharge his duties and responsibilities and shall abide by lawful directions given by the Board. The Executive shall be responsible for such additional duties commensurate with his position not materially inconsistent with the foregoing as may be reasonably determined by the Board from time to time.
3.2Best Efforts. During the Term, the Executive shall diligently and competently devote his best efforts and energies to the Business and affairs of the Company, and shall use his best efforts, skills and abilities to promote the interests of the Company and otherwise to discharge his obligations under this Agreement; provided, however, that nothing in this Agreement shall restrict the Executive from serving in executive capacities with any affiliated companies or pursuing interests in accordance with historical practice.
4.Compensation.
4.1Annual Base Salary. During the Term, the Executive shall receive a base salary at the initial annual rate of Four Hundred Thousand Dollars ($400,000) (“Base Salary”), payable in accordance with the Company's normal payroll practices or at such other reasonable intervals as may from time to time be used by the Company for paying its other employees. The Executive will be entitled to annual salary reviews and as such the Executive’s Base Salary may be increased by the Company’s compensation committee (the “Compensation Committee”) from time to time during the term of this Agreement but shall not be reduced without his written consent.
4.2Annual Bonus. An annual bonus (the “Annual Bonus”) may be paid to the Executive of up to 200% of Base Salary in the discretion of the Compensation Committee. Such Annual Bonus amount shall include consideration of certain performance factors as determined by the Compensation Committee. Payments of Annual Bonus amounts to the Executive shall be made by March 15 of each year for the prior year’s performance. The Executive’s Annual Bonus opportunity shall commence in 2021, payable in cash by March 15, 2022 for 2021 performance.
4.3Long Term Incentive Compensation.
4.3.1 The Executive shall be entitled to participate in the Company’s stock plans for granting equity (e.g., future grants of restricted stock awards (“RSAs”) or other stock awards) as may subsequently be approved by the Compensation Committee.
These Restricted Shares are granted on the conditions that Executive remains employed by the Company through and including the respective vesting periods and that the Board has not terminated the employment of the Executive for “Cause,” as the term is defined in Section 6.2, below.
5.Reimbursement of Expenses; Benefits.
5.1Reimbursement of Expenses. Upon submission of appropriate documentation in accordance with the Company’s policy, the Executive shall be entitled to reimbursement for all reasonable, out-of-pocket expenses incurred by him during the Term in connection with the proper and efficient discharge of his duties hereunder, including, without limitation, all reasonable expenses incurred by the Executive for travel to promote the interests of the Company, as well as reasonable expenses for meals, hotels or other accommodations, and other customary items during any such trips, including existing expense reimbursement arrangements and practices.
5.2Employee Benefit Plans and Programs. During the Term, the Executive shall be entitled to participate in the Company’s employee benefit plans and programs, including such 401(k) plans, health insurance and welfare plans as the Company may adopt for employees generally or for the Company’s executives, including existing plans and programs under existing practices.
5.3Vacations. The Executive shall be entitled to paid vacation during each calendar year in such amounts as are commensurate with his position and company policy, however, no less than existing practices.
6.Termination. The Executive's employment under this Agreement may be terminated by the Company or the Executive without any breach of this Agreement only under the circumstances set forth in ensuing Sections 6.1 through 6.4 and upon provision of the applicable compensation set forth in Section 7:
6.1Death. This Agreement and the Executive's employment under this Agreement shall terminate immediately and automatically upon the Executive's death.
6.2By Company for Cause. The Company may terminate the Executive's employment under this Agreement for Cause (as hereinafter defined). “Cause,” as to the Executive, shall mean: (a) committing fraud against the Company or embezzlement of Company property; (b) being convicted of a felony or any other crime that involves moral turpitude under applicable laws of the United States or any state thereof; (c) an action or omission of the Executive which constitutes a willful and material breach of this Agreement which is not the result of the Executive's death or disability and which is not cured within fifteen (15) days after receipt by the Executive of written notice of the same from the Board.
6.3By Company Without Cause. The occurrence of any of the following shall be deemed to be a termination by the Company of the Executive's employment under this Agreement “Without Cause:” (a) any action taken by the Company to terminate the Executive's employment other than for Cause, including providing notice of intention not to renew this Agreement, which termination shall only be effective upon written notice to the Executive; (b) any breach of this Agreement by the Company; or (c) upon the Disability (defined below) of the Executive. Failure of the Executive to timely terminate his employment upon the occurrence of an event described in subsection (b), above shall not result in a waiver of any right the Executive may have to terminate his employment based upon any future occurrence. “Disability” shall mean any incapacity or disability of the Executive which renders the Executive mentally or physically unable to perform his duties under this Agreement as determined in accordance with Company policy. ermination due to Disability shall be deemed to have occurred upon the first day of the month following the determination of Disability as defined in the preceding sentence.
6.4By Executive for Good Reason. The occurrence of any of the following shall be deemed to be grounds for the Executive to terminate employment for Good Reason:. (a) any action taken by the Company to materially diminish, or attempt to materially diminish, the duties, responsibilities or authority of the Executive if, within sixty (60) days after the Executive becomes aware of such action, the Executive notifies the Company in writing and the Company does not immediately correct such action(s); or (b) any action taken by the Company to materially change, or attempt to materially change the Executive's title or his position in the hierarchy of the Company if, within sixty (60) days after the Executive becomes aware of such action, the Executive notifies the Company in writing and the Company does not immediately correct such action(s); or (c) any breach of this Agreement by the Company.
Failure of the Executive to timely terminate his employment upon the occurrence of an event described in subsections (a), (b), or (c) above shall not result in a waiver of any right the Executive may have to terminate his employment based upon any future occurrence.
7.Payments After Termination. If this Agreement or the Executive's employment hereunder are terminated for the reasons set forth in Section 6.1 hereof, then the Executive's estate shall receive the annual Base Salary through the date of termination in accordance with the terms of this Agreement, a death benefit equal to one (1)times the Executive’s Annual Base Salary, and the prorated portion of the Annual Bonus, to be calculated based on the average bonus paid over the prior two (2) years , through the date of termination in accordance with the terms of this Agreement. If this Agreement or the Executive's employment hereunder are terminated for the reasons set forth in Sections 6.2 hereof, then the Executive shall receive the Base Salary through the date of termination in accordance with the terms of this Agreement. If this Agreement is terminated pursuant to Section 6.3 or 6.4 hereof, then the Executive shall receive:
(a) the Base Salary through the date of termination in accordance with the terms of this Agreement, and the prorated portion of the Annual Bonus, to be calculated based on the average bonus paid over the prior two (2) years, during the fiscal year and through the date of termination plus;
(b) a severance payment in an amount that equals 2.00 (or 2.99 times if within 2 years of a Change in Control) times the Executive’s annual Base Salary and 2.00 (or 2.99 times if within 2 years of a Change in Control) times Annual Bonus opportunity at the time of the termination; plus
(c) accelerated vesting of granted but not vested Incentive Stock Options and Restricted Shares subject to the definitions, terms, and conditions of the Plan or plan by which their award is authorized; plus
(d) continuation of health insurance, life insurance, dental insurance and other benefits received at the time of separation from the Company through the two (2) years (or three (3) years if within 2 years of a Change in Control) following the year in which termination occurs.
Subsequent to Termination, the Executive shall not be entitled to receive any further compensation or benefits from the Company, except as expressly provided by this Agreement. A condition to the Company’s obligation to provide the severance payments and benefits provided by this Agreement is that Executive complies with the obligations of non-competition, non-solicitation of customers, confidentiality and non-disclosure referenced in Section 8 of this Agreement and provided for by Florida law and execute a general release in a form acceptable to the Board.
8.Non-Competition; Non-Disclosure, Confidentiality and Non-Solicitation of Customers. Subsequent to the execution of this Agreement, Executive and Compensation Committee agree to sign a Non-Competition, Non-Disclosure, Confidentiality, and Non-Solicitation of Customers in term and scope acceptable to both parties.
9. Withholding. Anything to the contrary notwithstanding, all payments required to be made by the Company hereunder to the Executive or the Executive's estate or beneficiaries shall be subject to the withholding of such amounts, if any, relating to tax and other payroll deductions as the Company may reasonably determine it should withhold pursuant to any applicable law or regulation.
10.Notices. All notices, requests, demands or other communications by the terms hereof required or permitted to be given by one party to another shall be given in writing by personal
delivery, by facsimile or by regular mail, postage prepaid, addressed to such other party or delivered to such other party as follows:
If to the Company:
BBX Capital Inc.
c/o Compensation Committee Chair
P.O. Box 39001
Fort Lauderdale, FL 33303
Telephone: (954) 940-5020
If to the Executive:
John E. Abdo
1350 NE 56th St.
Suite 200
Ft. Lauderdale, FL 33334
or at such other address or facsimile number as may be given by any of them to the others in writing from time to time and such notices, requests, demands or other communication shall be deemed to have been received when hand delivered, on the day after the date sent by facsimile (with receipt confirmed) or, if mailed, the fourth day following the day of the mailing thereof; provided that if any such notice, request, demand or other communication shall have been mailed and if regular mail service shall be interrupted by strikes or other irregularities, such notice, request, demand or other communication shall be deemed to have been received on the fourth business day following the resumption of normal mail service.
11.Prevailing Party. In the event of any dispute with regard to this Agreement, the prevailing party shall be entitled to receive from the non-prevailing party and the non-prevailing party shall pay upon demand all reasonable fees and expenses of counsel for the prevailing party.
12.Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties, and merge and supersede all prior discussions, agreements and understandings of every kind and nature among them as to the subject matter hereof.
13.Amendments to Agreement. This Agreement shall not be amended except by a writing signed by each party to the Agreement, and this Agreement may not be discharged except by performance in accordance with its terms or by a writing signed by each party to the Agreement.
14.U.S. Dollars. All dollar amounts in this Agreement are stated in United States Dollars.
15.Governing Law. This Agreement and its validity, construction and performance shall be governed in all respects by the law of the State of Florida, without giving effect to principles of conflicts of laws. Any controversies of any nature whatsoever arising under this Agreement shall be subject to the exclusive jurisdiction of the courts of Broward County, Florida, which shall be the exclusive jurisdiction and venue for any disputes, actions or lawsuits arising out of or relating to this
Agreement. The parties to this Agreement irrevocably waive to the fullest extent permitted by law, any objection which they may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement, or any judgment entered by any court in respect hereof, brought in Broward County, Florida and further irrevocably waive any claim that any suit, action or proceeding brought in Broward County, Florida, has been brought in an inconvenient forum.
16.Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned by the Executive without the prior written consent of the Company. This Agreement may be assigned by the Company in connection with the sale, transfer or other disposition of all or substantially all of the Company's assets or business.
17.Pronouns. Whenever the context requires, the use in this Agreement of a pronoun of any gender shall be deemed to refer also to any other gender, and the use of the singular shall be deemed to refer also to the plural.
18.Headings. The headings of this Agreement are inserted for convenience of reference only and shall not constitute a part hereof.
19.Calculation of Time Periods. When calculating the period of time within which or following which any act is to be done or step taken pursuant to this Agreement, the date which is the reference date in calculating such period shall be excluded.
20.Execution in Counterparts. This Agreement may be executed in several counterparts, by original, digital or facsimile signature, each of which so executed shall be deemed to be an original and such counterparts together shall be deemed to be one and the same instrument, which shall be deemed to be executed as of the date first above written.
21.Further Assurances. The parties hereto shall sign such further documents and do and perform and cause to be done and performed such further and other acts and things as may be necessary or desirable in order to give full effect to this Agreement and every party thereof.
22.Survival. Any termination of this Agreement shall not affect the ongoing provisions of this Agreement, which shall survive such termination in accordance with their terms.
23.Severability. The invalidity or unenforceability, in whole or in part, or any covenant, promise or undertaking, or any section, subsection, paragraph, sentence, clause, phrase or word or of any provision of this Agreement shall not affect the validity or enforceability of the remaining portions thereof.
24.Participation of Parties; Construction. The parties hereto acknowledge that this Agreement and all matters contemplated herein have been negotiated between both of the parties hereto and their respective legal counsel and that both parties have participated in the drafting and preparation of this Agreement from the commencement of negotiations at all times through the execution hereof. The parties hereto acknowledge that they have each read this Agreement and understand the effect of its provisions. Accordingly, this Agreement shall be interpreted and construed without reference to any rule requiring that this Agreement be interpreted or construed against the party causing it to be drafted.
25.Independent Counsel. The Executive acknowledges that counsel to the Company has not represented him nor provided him with legal or other advice in connection with the transactions contemplated by this Agreement and that he has been urged to seek independent legal, tax and financial advice in order to analyze the risks and merits of the transactions contemplated by this Agreement.
26.Director and Officer Insurance; Indemnification. The Company shall indemnify the Executive to the same extent as it indemnifies its other Named Executive Officers, and the Company shall provide coverage for the Executive under its policies of Director’s and Officer’s insurance as the same may be in effect from time to time.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth in the first paragraph of this Agreement.
THE COMPANY:
BBX CAPITAL INC.,
a Florida corporation
By: /s/ Neil Sterling
Neil Sterling,
Compensation Committee Chairman
THE EXECUTIVE:
By:/s/ John E. Abdo
John E. Abdo
Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”), is signed as of May 21, 2021, by and between BBX Capital Inc., a Florida corporation (the “Company”) and Jarett Levan (the “Executive”) but effective as of May 20, 2021 (the “Effective Date”).
WHEREAS, the Company desires to employ the Executive as President and Chief Executive Officer and the Executive desires to accept such employment, all upon the terms and conditions set forth in this Agreement;
WHEREAS, the Executive has experience and expertise in the Company’s business (the “Business”). By virtue of his employment with Company, and the predecessors from which it emerged, the Executive has become familiar with and possesses knowledge of the manner, methods, trade secrets and other confidential information pertaining to the Business.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set forth in this Agreement, the Company and the Executive agree as follows:
1.Recitals; Defined Terms. The above recitals are true and correct and are incorporated herein by reference. When used in this Agreement, a “Change in Control” shall be deemed to occur if:
|
|
1.1 any “person” (as such term is utilized in Section 13(d) and Section 14(d)(2) of the Securities and Exchange Act), including without limitation any “group” (as such term is utilized in Section 13(d)(3) of the Exchange Act), who is not, on the date of this Agreement, either (1) an affiliate of the Company, or (2) the beneficial owner of 10% or more of the Company’s issued and outstanding common stock, shall become the “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act) of securities of the Company (or any successor thereto) representing more than 33% of the votes that may be cast for the election of directors of the Company, or any successor company as the case may be; or |
|
|
1.2 any person who is not, on the date of this Agreement an affiliate of the Company, shall become a shareholder of the Company holding fifty percent or more of the outstanding stock of any class of the Company; or |
|
|
1.3 as the result of, or in connection with, any cash or other tender offer, or exchange offer, merger, consolidation or other business combination, or any combination of any one or more of the foregoing transactions, the persons who were directors of the Company immediately prior to the consummation of any such transaction or combination of transactions shall cease to constitute a majority of the directors of the Company, or any successor thereto; or as a result of a sale of all or substantially all of the assets of the Company, or any liquidation, dissolution, bankruptcy, assignment for the benefit of creditors (whether such action is voluntary or involuntary by the Company), or any similar transaction or any combination of any one or more of the foregoing or similar transactions, the persons who were directors of the Company immediately prior to the consummation of any such transaction or combination of transactions shall cease to constitute a majority of the directors of the successor to the Company. |
2.Employment Term. The term of the Executive's employment (the "Term") begins on the Effective Date and concludes three (3) years from the Effective Date; provided, however, that the Term shall be automatically renewed for successive one-year periods commencing on the third anniversary of the Effective Date unless: (i) either the Company or the Executive, not fewer than six (6) months prior to the expiration of the initial three year term, provides notice of intention not to renew the Agreement for a one year term or, during any one year extension of the initial term, provides notice of intention not to renew not fewer than ninety (90) days prior to the expiration of any such one year term, (ii) the Executive terminates this Agreement for Good Reason (defined below), (iii) the Company terminates this Agreement for Cause (defined below) or (iv) this Agreement is otherwise terminated in accordance with its provisions.
3. Services.
3.1 Office and Duties. During the Term, the Executive shall serve as President and Chief Executive Officer of the Company, subject to the terms of this Agreement, with such duties, authority and responsibility as are commensurate with such position, subject to oversight and direction of the Company’s Chairman. In exercising his duties and responsibilities, the Executive shall have all the power and authority necessary to fulfill and discharge his duties and responsibilities and shall abide by lawful directions given by the Board. The Executive shall be responsible for such additional duties commensurate with his position not materially inconsistent with the foregoing as may be reasonably determined by the Board from time to time.
3.2Best Efforts. During the Term, the Executive shall diligently and competently devote his best efforts and energies to the Business and affairs of the Company, and shall use his best efforts, skills and abilities to promote the interests of the Company and otherwise to discharge his obligations under this Agreement; provided, however, that nothing in this Agreement shall restrict the Executive from serving in executive capacities with any affiliated companies or pursuing interests in accordance with historical practice.
4.Compensation.
4.1Annual Base Salary. During the Term, the Executive shall receive a base salary at the initial annual rate of Nine Hundred Thousand Dollars ($900,000)(“Base Salary”), payable in accordance with the Company's normal payroll practices or at such other reasonable intervals as may from time to time be used by the Company for paying its other employees. The Executive will be entitled to annual salary reviews and as such the Executive’s Base Salary may be increased by the Company’s compensation committee (the “Compensation Committee”) from time to time during the term of this Agreement but shall not be reduced without his written consent.
4.2Annual Bonus. An annual bonus (the “Annual Bonus”) may be paid to the Executive of up to 60% of Base Salary in the discretion of the Compensation Committee. Such Annual Bonus amount shall include consideration of certain performance factors as determined by the Compensation Committee. Payments of Annual Bonus amounts to the Executive shall be made by March 15 of each year for the prior year’s performance. The Executive’s Annual Bonus opportunity shall commence in 2021, payable in cash by March 15, 2022 for 2021 performance.
4.3Long Term Incentive Compensation.
4.3.1 The Executive shall be entitled to participate in the Company’s stock plans for granting equity (e.g., future grants of restricted stock awards (“RSAs”) or other stock awards) as may subsequently be approved by the Compensation Committee.
These Restricted Shares are granted on the conditions that Executive remains employed by the Company through and including the respective vesting periods and that the Board has not terminated the employment of the Executive for “Cause,” as the term is defined in Section 6.2, below.
5.Reimbursement of Expenses; Benefits.
5.1Reimbursement of Expenses. Upon submission of appropriate documentation in accordance with the Company’s policy, the Executive shall be entitled to reimbursement for all reasonable, out-of-pocket expenses incurred by him during the Term in connection with the proper and efficient discharge of his duties hereunder, including, without limitation, all reasonable expenses incurred by the Executive for travel to promote the interests of the Company, as well as reasonable expenses for meals, hotels or other accommodations, and other customary items during any such trips, including existing expense reimbursement arrangements and practices.
5.2Employee Benefit Plans and Programs. During the Term, the Executive shall be entitled to participate in the Company’s employee benefit plans and programs, including such 401(k) plans, health insurance and welfare plans as the Company may adopt for employees generally or for the Company’s executives, including existing plans and programs under existing practices.
5.3Vacations. The Executive shall be entitled to paid vacation during each calendar year in such amounts as are commensurate with his position and company policy, however, no less than existing practices.
6.Termination. The Executive's employment under this Agreement may be terminated by the Company or the Executive without any breach of this Agreement only under the circumstances set forth in ensuing Sections 6.1 through 6.4 and upon provision of the applicable compensation set forth in Section 7:
6.1Death. This Agreement and the Executive's employment under this Agreement shall terminate immediately and automatically upon the Executive's death.
6.2By Company for Cause. The Company may terminate the Executive's employment under this Agreement for Cause (as hereinafter defined). “Cause,” as to the Executive, shall mean: (a) committing fraud against the Company or embezzlement of Company property; (b) being convicted of a felony or any other crime that involves moral turpitude under applicable laws of the United States or any state thereof; (c) an action or omission of the Executive which constitutes a willful and material breach of this Agreement which is not the result of the Executive's death or disability and which is not cured within fifteen (15) days after receipt by the Executive of written notice of the same from the Board.
6.3By Company Without Cause. The occurrence of any of the following shall be deemed to be a termination by the Company of the Executive's employment under this Agreement “Without Cause:” (a) any action taken by the Company to terminate the Executive's employment other
than for Cause, including providing notice of intention not to renew this Agreement, which termination shall only be effective upon written notice to the Executive; (b) any breach of this Agreement by the Company; or (c) upon the Disability (defined below) of the Executive. Failure of the Executive to timely terminate his employment upon the occurrence of an event described in subsection (b), above shall not result in a waiver of any right the Executive may have to terminate his employment based upon any future occurrence. “Disability” shall mean any incapacity or disability of the Executive which renders the Executive mentally or physically unable to perform his duties under this Agreement as determined in accordance with Company policy. ermination due to Disability shall be deemed to have occurred upon the first day of the month following the determination of Disability as defined in the preceding sentence.
6.4By Executive for Good Reason. The occurrence of any of the following shall be deemed to be grounds for the Executive to terminate employment for Good Reason:. (a) any action taken by the Company to materially diminish, or attempt to materially diminish, the duties, responsibilities or authority of the Executive if, within sixty (60) days after the Executive becomes aware of such action, the Executive notifies the Company in writing and the Company does not immediately correct such action(s); or (b) any action taken by the Company to materially change, or attempt to materially change the Executive's title or his position in the hierarchy of the Company if, within sixty (60) days after the Executive becomes aware of such action, the Executive notifies the Company in writing and the Company does not immediately correct such action(s); or (c) any breach of this Agreement by the Company.
Failure of the Executive to timely terminate his employment upon the occurrence of an event described in subsections (a), (b), or (c) above shall not result in a waiver of any right the Executive may have to terminate his employment based upon any future occurrence.
7.Payments After Termination. If this Agreement or the Executive's employment hereunder are terminated for the reasons set forth in Section 6.1 hereof, then the Executive's estate shall receive the annual Base Salary through the date of termination in accordance with the terms of this Agreement, a death benefit equal to one (1) times the Executive’s Annual Base Salary, and the prorated portion of the Annual Bonus, to be calculated based on the average bonus paid over the prior two (2) years , through the date of termination in accordance with the terms of this Agreement. If this Agreement or the Executive's employment hereunder are terminated for the reasons set forth in Sections 6.2 hereof, then the Executive shall receive the Base Salary through the date of termination in accordance with the terms of this Agreement. If this Agreement is terminated pursuant to Section 6.3 or 6.4 hereof, then the Executive shall receive:
(a) the Base Salary through the date of termination in accordance with the terms of this Agreement, and the prorated portion of the Annual Bonus, to be calculated based on the average bonus paid over the prior two (2) years, during the fiscal year and through the date of termination plus;
(b) a severance payment in an amount that equals 1.50 (or 2.00 times if within 2 years of a Change in Control) times the Executive’s annual Base Salary and 1.50 (or 2.00 times if within 2 years of a Change in Control) times Annual Bonus opportunity at the time of the termination; plus
(c) accelerated vesting of granted but not vested Incentive Stock Options and Restricted Shares subject to the definitions, terms, and conditions of the Plan or plan by which their award is authorized; plus
(d) continuation of health insurance, life insurance, dental insurance and other benefits received at the time of separation from the Company through the 18 months (or two (2) years if within 2 years of a Change in Control) following the year in which termination occurs.
Subsequent to Termination, the Executive shall not be entitled to receive any further compensation or benefits from the Company, except as expressly provided by this Agreement. A condition to the Company’s obligation to provide the severance payments and benefits provided by this Agreement is that Executive complies with the obligations of non-competition, non-solicitation of customers, confidentiality and non-disclosure referenced in Section 8 of this Agreement and provided for by Florida law and execute a general release in a form acceptable to the Board.
8.Non-Competition; Non-Disclosure, Confidentiality and Non-Solicitation of Customers. Subsequent to the execution of this Agreement, Executive and Compensation Committee agree to sign a Non-Competition, Non-Disclosure, Confidentiality, and Non-Solicitation of Customers in term and scope acceptable to both parties.
9. Withholding. Anything to the contrary notwithstanding, all payments required to be made by the Company hereunder to the Executive or the Executive's estate or beneficiaries shall be subject to the withholding of such amounts, if any, relating to tax and other payroll deductions as the Company may reasonably determine it should withhold pursuant to any applicable law or regulation.
10.Notices. All notices, requests, demands or other communications by the terms hereof required or permitted to be given by one party to another shall be given in writing by personal delivery, by facsimile or by regular mail, postage prepaid, addressed to such other party or delivered to such other party as follows:
If to the Company:
BBX Capital Inc.
c/o Compensation Committee Chair
P.O. Box 39001
Fort Lauderdale, FL 33303
Telephone: (954) 940-5020
If to the Executive:
Jarett Levan
P.O. Box 39002
Fort Lauderdale, FL 33303
or at such other address or facsimile number as may be given by any of them to the others in writing from time to time and such notices, requests, demands or other communication shall be deemed to have been received when hand delivered, on the day after the date sent by facsimile (with receipt confirmed) or, if mailed, the fourth day following the day of the mailing thereof; provided that if any such notice, request, demand or other communication shall have been mailed and if regular mail service shall be interrupted by strikes or other irregularities, such notice, request, demand or other communication shall be deemed to have been received on the fourth business day following the resumption of normal mail service.
11.Prevailing Party. In the event of any dispute with regard to this Agreement, the prevailing party shall be entitled to receive from the non-prevailing party and the non-prevailing party shall pay upon demand all reasonable fees and expenses of counsel for the prevailing party.
12.Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties, and merge and supersede all prior discussions, agreements and understandings of every kind and nature among them as to the subject matter hereof.
13.Amendments to Agreement. This Agreement shall not be amended except by a writing signed by each party to the Agreement, and this Agreement may not be discharged except by performance in accordance with its terms or by a writing signed by each party to the Agreement.
14.U.S. Dollars. All dollar amounts in this Agreement are stated in United States Dollars.
15.Governing Law. This Agreement and its validity, construction and performance shall be governed in all respects by the law of the State of Florida, without giving effect to principles of conflicts of laws. Any controversies of any nature whatsoever arising under this Agreement shall be subject to the exclusive jurisdiction of the courts of Broward County, Florida, which shall be the exclusive jurisdiction and venue for any disputes, actions or lawsuits arising out of or relating to this Agreement. The parties to this Agreement irrevocably waive to the fullest extent permitted by law, any objection which they may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement, or any judgment entered by any court in respect hereof, brought in Broward County, Florida and further irrevocably waive any claim that any suit, action or proceeding brought in Broward County, Florida, has been brought in an inconvenient forum.
16.Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned by the Executive without the prior written consent of the Company. This Agreement may be assigned by the Company in connection with the sale, transfer or other disposition of all or substantially all of the Company's assets or business.
17.Pronouns. Whenever the context requires, the use in this Agreement of a pronoun of any gender shall be deemed to refer also to any other gender, and the use of the singular shall be deemed to refer also to the plural.
18.Headings. The headings of this Agreement are inserted for convenience of reference only and shall not constitute a part hereof.
19.Calculation of Time Periods. When calculating the period of time within which or following which any act is to be done or step taken pursuant to this Agreement, the date which is the reference date in calculating such period shall be excluded.
20.Execution in Counterparts. This Agreement may be executed in several counterparts, by original, digital or facsimile signature, each of which so executed shall be deemed to be an original and such counterparts together shall be deemed to be one and the same instrument, which shall be deemed to be executed as of the date first above written.
21.Further Assurances. The parties hereto shall sign such further documents and do and perform and cause to be done and performed such further and other acts and things as may be necessary or desirable in order to give full effect to this Agreement and every party thereof.
22.Survival. Any termination of this Agreement shall not affect the ongoing provisions of this Agreement, which shall survive such termination in accordance with their terms.
23.Severability. The invalidity or unenforceability, in whole or in part, or any covenant, promise or undertaking, or any section, subsection, paragraph, sentence, clause, phrase or word or of any provision of this Agreement shall not affect the validity or enforceability of the remaining portions thereof.
24.Participation of Parties; Construction. The parties hereto acknowledge that this Agreement and all matters contemplated herein have been negotiated between both of the parties hereto and their respective legal counsel and that both parties have participated in the drafting and preparation of this Agreement from the commencement of negotiations at all times through the execution hereof. The parties hereto acknowledge that they have each read this Agreement and understand the effect of its provisions. Accordingly, this Agreement shall be interpreted and construed without reference to any rule requiring that this Agreement be interpreted or construed against the party causing it to be drafted.
25.Independent Counsel. The Executive acknowledges that counsel to the Company has not represented him nor provided him with legal or other advice in connection with the transactions contemplated by this Agreement and that he has been urged to seek independent legal, tax and financial advice in order to analyze the risks and merits of the transactions contemplated by this Agreement.
26.Director and Officer Insurance; Indemnification. The Company shall indemnify the Executive to the same extent as it indemnifies its other Named Executive Officers, and the Company shall provide coverage for the Executive under its policies of Director’s and Officer’s insurance as the same may be in effect from time to time.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth in the first paragraph of this Agreement.
THE COMPANY:
BBX CAPITAL INC.,
a Florida corporation
By:/s/ Neil Sterling
Neil Sterling,
Compensation Committee Chairman
THE EXECUTIVE:
By:/s/ Jarett Levan
Jarett Levan
Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”), is signed as of May 21, 2021, by and between BBX Capital Inc., a Florida corporation (the “Company”) and Seth Wise (the “Executive”) but effective as of May 20, 2021 (the “Effective Date”).
WHEREAS, the Company desires to employ the Executive as Executive Vice President and Co-CEO Altman Companies and the Executive desires to accept such employment, all upon the terms and conditions set forth in this Agreement;
WHEREAS, the Executive has experience and expertise in the Company’s business (the “Business”). By virtue of his employment with Company, and the predecessors from which it emerged, the Executive has become familiar with and possesses knowledge of the manner, methods, trade secrets and other confidential information pertaining to the Business.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set forth in this Agreement, the Company and the Executive agree as follows:
1.Recitals; Defined Terms. The above recitals are true and correct and are incorporated herein by reference. When used in this Agreement, a “Change in Control” shall be deemed to occur if:
|
|
1.1 any “person” (as such term is utilized in Section 13(d) and Section 14(d)(2) of the Securities and Exchange Act), including without limitation any “group” (as such term is utilized in Section 13(d)(3) of the Exchange Act), who is not, on the date of this Agreement, either (1) an affiliate of the Company, or (2) the beneficial owner of 10% or more of the Company’s issued and outstanding common stock, shall become the “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act) of securities of the Company (or any successor thereto) representing more than 33% of the votes that may be cast for the election of directors of the Company, or any successor company as the case may be; or |
|
|
1.2 any person who is not, on the date of this Agreement an affiliate of the Company, shall become a shareholder of the Company holding fifty percent or more of the outstanding stock of any class of the Company; or |
|
|
1.3 as the result of, or in connection with, any cash or other tender offer, or exchange offer, merger, consolidation or other business combination, or any combination of any one or more of the foregoing transactions, the persons who were directors of the Company immediately prior to the consummation of any such transaction or combination of transactions shall cease to constitute a majority of the directors of the Company, or any successor thereto; or as a result of a sale of all or substantially all of the assets of the Company, or any liquidation, dissolution, bankruptcy, assignment for the benefit of creditors (whether such action is voluntary or involuntary by the Company), or any similar transaction or any combination of any one or more of the foregoing or similar transactions, the persons who were directors of the Company immediately prior to the consummation of any such transaction or combination of transactions shall cease to constitute a majority of the directors of the successor to the Company. |
2.Employment Term. The term of the Executive's employment (the "Term") begins on the Effective Date and concludes three (3) years from the Effective Date; provided, however, that the Term shall be automatically renewed for successive one-year periods commencing on the third anniversary of the Effective Date unless: (i) either the Company or the Executive, not fewer than six (6) months prior to the expiration of the initial three year term, provides notice of intention not to renew the Agreement for a one year term or, during any one year extension of the initial term, provides notice of intention not to renew not fewer than ninety (90) days prior to the expiration of any such one year term, (ii) the Executive terminates this Agreement for Good Reason (defined below), (iii) the Company terminates this Agreement for Cause (defined below) or (iv) this Agreement is otherwise terminated in accordance with its provisions.
3. Services.
3.1 Office and Duties. During the Term, the Executive shall serve as Executive Vice President and Co-CEO, Altman Companies of the Company, subject to the terms of this Agreement, with such duties, authority and responsibility as are commensurate with such position, subject to oversight and direction of the Company’s President and Chief Executive Officer. In exercising his duties and responsibilities, the Executive shall have all the power and authority necessary to fulfill and discharge his duties and responsibilities and shall abide by lawful directions given by the Board. The Executive shall be responsible for such additional duties commensurate with his position not materially inconsistent with the foregoing as may be reasonably determined by the Board from time to time.
3.2Best Efforts. During the Term, the Executive shall diligently and competently devote his best efforts and energies to the Business and affairs of the Company, and shall use his best efforts, skills and abilities to promote the interests of the Company and otherwise to discharge his obligations under this Agreement; provided, however, that nothing in this Agreement shall restrict the Executive from serving in executive capacities with any affiliated companies or pursuing interests in accordance with historical practice.
4.Compensation.
4.1Annual Base Salary. During the Term, the Executive shall receive a base salary at the initial annual rate of Nine Hundred Thousand Dollars ($900,000)(“Base Salary”), payable in accordance with the Company's normal payroll practices or at such other reasonable intervals as may from time to time be used by the Company for paying its other employees. The Executive will be entitled to annual salary reviews and as such the Executive’s Base Salary may be increased by the Company’s compensation committee (the “Compensation Committee”) from time to time during the term of this Agreement but shall not be reduced without his written consent.
4.2Annual Bonus. An annual bonus (the “Annual Bonus”) may be paid to the Executive of up to 60% of Base Salary in the discretion of the Compensation Committee. Such Annual Bonus amount shall include consideration of certain performance factors as determined by the Compensation Committee. Payments of Annual Bonus amounts to the Executive shall be made by March 15 of each year for the prior year’s performance. The Executive’s Annual Bonus opportunity shall commence in 2021, payable in cash by March 15, 2022 for 2021 performance.
4.3Long Term Incentive Compensation.
4.3.1 The Executive shall be entitled to participate in the Company’s stock plans for granting equity (e.g., future grants of restricted stock awards (“RSAs”) or other stock awards) as may subsequently be approved by the Compensation Committee.
These Restricted Shares are granted on the conditions that Executive remains employed by the Company through and including the respective vesting periods and that the Board has not terminated the employment of the Executive for “Cause,” as the term is defined in Section 6.2, below.
5.Reimbursement of Expenses; Benefits.
5.1Reimbursement of Expenses. Upon submission of appropriate documentation in accordance with the Company’s policy, the Executive shall be entitled to reimbursement for all reasonable, out-of-pocket expenses incurred by him during the Term in connection with the proper and efficient discharge of his duties hereunder, including, without limitation, all reasonable expenses incurred by the Executive for travel to promote the interests of the Company, as well as reasonable expenses for meals, hotels or other accommodations, and other customary items during any such trips, including existing expense reimbursement arrangements and practices.
5.2Employee Benefit Plans and Programs. During the Term, the Executive shall be entitled to participate in the Company’s employee benefit plans and programs, including such 401(k) plans, health insurance and welfare plans as the Company may adopt for employees generally or for the Company’s executives, including existing plans and programs under existing practices.
5.3Vacations. The Executive shall be entitled to paid vacation during each calendar year in such amounts as are commensurate with his position and company policy, however, no less than existing practices.
6.Termination. The Executive's employment under this Agreement may be terminated by the Company or the Executive without any breach of this Agreement only under the circumstances set forth in ensuing Sections 6.1 through 6.4 and upon provision of the applicable compensation set forth in Section 7:
6.1Death. This Agreement and the Executive's employment under this Agreement shall terminate immediately and automatically upon the Executive's death.
6.2By Company for Cause. The Company may terminate the Executive's employment under this Agreement for Cause (as hereinafter defined). “Cause,” as to the Executive, shall mean: (a) committing fraud against the Company or embezzlement of Company property; (b) being convicted of a felony or any other crime that involves moral turpitude under applicable laws of the United States or any state thereof; (c) an action or omission of the Executive which constitutes a willful and material breach of this Agreement which is not the result of the Executive's death or disability and which is not cured within fifteen (15) days after receipt by the Executive of written notice of the same from the Board.
6.3By Company Without Cause. The occurrence of any of the following shall be deemed to be a termination by the Company of the Executive's employment under this Agreement “Without Cause:” (a) any action taken by the Company to terminate the Executive's employment other
than for Cause, including providing notice of intention not to renew this Agreement, which termination shall only be effective upon written notice to the Executive; (b) any breach of this Agreement by the Company; or (c) upon the Disability (defined below) of the Executive. Failure of the Executive to timely terminate his employment upon the occurrence of an event described in subsection (b), above shall not result in a waiver of any right the Executive may have to terminate his employment based upon any future occurrence. “Disability” shall mean any incapacity or disability of the Executive which renders the Executive mentally or physically unable to perform his duties under this Agreement as determined in accordance with Company policy. ermination due to Disability shall be deemed to have occurred upon the first day of the month following the determination of Disability as defined in the preceding sentence.
6.4By Executive for Good Reason. The occurrence of any of the following shall be deemed to be grounds for the Executive to terminate employment for Good Reason:. (a) any action taken by the Company to materially diminish, or attempt to materially diminish, the duties, responsibilities or authority of the Executive if, within sixty (60) days after the Executive becomes aware of such action, the Executive notifies the Company in writing and the Company does not immediately correct such action(s); or (b) any action taken by the Company to materially change, or attempt to materially change the Executive's title or his position in the hierarchy of the Company if, within sixty (60) days after the Executive becomes aware of such action, the Executive notifies the Company in writing and the Company does not immediately correct such action(s); or (c) any breach of this Agreement by the Company.
Failure of the Executive to timely terminate his employment upon the occurrence of an event described in subsections (a), (b), or (c) above shall not result in a waiver of any right the Executive may have to terminate his employment based upon any future occurrence.
7.Payments After Termination. If this Agreement or the Executive's employment hereunder are terminated for the reasons set forth in Section 6.1 hereof, then the Executive's estate shall receive the annual Base Salary through the date of termination in accordance with the terms of this Agreement, a death benefit equal to one (1) times the Executive’s Annual Base Salary, and the prorated portion of the Annual Bonus, to be calculated based on the average bonus paid over the prior two (2) years, through the date of termination in accordance with the terms of this Agreement. If this Agreement or the Executive's employment hereunder are terminated for the reasons set forth in Sections 6.2 hereof, then the Executive shall receive the Base Salary through the date of termination in accordance with the terms of this Agreement. If this Agreement is terminated pursuant to Section 6.3 or 6.4 hereof, then the Executive shall receive:
(a) the Base Salary through the date of termination in accordance with the terms of this Agreement, and the prorated portion of the Annual Bonus, to be calculated based on the average bonus paid over the prior two (2) years, during the fiscal year and through the date of termination plus;
(b) a severance payment in an amount that equals 1.50 (or 2.00 times if within 2 years of a Change in Control) times the Executive’s annual Base Salary and 1.50 (or 2.00 times if within 2 years of a Change in Control) times Annual Bonus opportunity at the time of the termination; plus
(c) accelerated vesting of granted but not vested Incentive Stock Options and Restricted Shares subject to the definitions, terms, and conditions of the Plan or plan by which their award is authorized; plus
(d) continuation of health insurance, life insurance, dental insurance and other benefits received at the time of separation from the Company through the 18 months (or two (2) years if within 2 years of a Change in Control) following the year in which termination occurs.
Subsequent to Termination, the Executive shall not be entitled to receive any further compensation or benefits from the Company, except as expressly provided by this Agreement. A condition to the Company’s obligation to provide the severance payments and benefits provided by this Agreement is that Executive complies with the obligations of non-competition, non-solicitation of customers, confidentiality and non-disclosure referenced in Section 8 of this Agreement and provided for by Florida law and execute a general release in a form acceptable to the Board.
8.Non-Competition; Non-Disclosure, Confidentiality and Non-Solicitation of Customers. Subsequent to the execution of this Agreement, Executive and Compensation Committee agree to sign a Non-Competition, Non-Disclosure, Confidentiality, and Non-Solicitation of Customers in term and scope acceptable to both parties.
9. Withholding. Anything to the contrary notwithstanding, all payments required to be made by the Company hereunder to the Executive or the Executive's estate or beneficiaries shall be subject to the withholding of such amounts, if any, relating to tax and other payroll deductions as the Company may reasonably determine it should withhold pursuant to any applicable law or regulation.
10.Notices. All notices, requests, demands or other communications by the terms hereof required or permitted to be given by one party to another shall be given in writing by personal delivery, by facsimile or by regular mail, postage prepaid, addressed to such other party or delivered to such other party as follows:
If to the Company:
BBX Capital Inc.
c/o Compensation Committee Chair
P.O. Box 39001
Fort Lauderdale, FL 33303
Telephone: (954) 940-5020
If to the Executive:
Seth Wise
2719 Juniper Lane
Davie, FL 33330
or at such other address or facsimile number as may be given by any of them to the others in writing from time to time and such notices, requests, demands or other communication shall be deemed to have been received when hand delivered, on the day after the date sent by facsimile (with receipt confirmed) or, if mailed, the fourth day following the day of the mailing thereof; provided that if any such notice, request, demand or other communication shall have been mailed and if regular mail service shall be interrupted by strikes or other irregularities, such notice, request, demand or other communication shall be deemed to have been received on the fourth business day following the resumption of normal mail service.
11.Prevailing Party. In the event of any dispute with regard to this Agreement, the prevailing party shall be entitled to receive from the non-prevailing party and the non-prevailing party shall pay upon demand all reasonable fees and expenses of counsel for the prevailing party.
12.Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties, and merge and supersede all prior discussions, agreements and understandings of every kind and nature among them as to the subject matter hereof.
13.Amendments to Agreement. This Agreement shall not be amended except by a writing signed by each party to the Agreement, and this Agreement may not be discharged except by performance in accordance with its terms or by a writing signed by each party to the Agreement.
14.U.S. Dollars. All dollar amounts in this Agreement are stated in United States Dollars.
15.Governing Law. This Agreement and its validity, construction and performance shall be governed in all respects by the law of the State of Florida, without giving effect to principles of conflicts of laws. Any controversies of any nature whatsoever arising under this Agreement shall be subject to the exclusive jurisdiction of the courts of Broward County, Florida, which shall be the exclusive jurisdiction and venue for any disputes, actions or lawsuits arising out of or relating to this Agreement. The parties to this Agreement irrevocably waive to the fullest extent permitted by law, any objection which they may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement, or any judgment entered by any court in respect hereof, brought in Broward County, Florida and further irrevocably waive any claim that any suit, action or proceeding brought in Broward County, Florida, has been brought in an inconvenient forum.
16.Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned by the Executive without the prior written consent of the Company. This Agreement may be assigned by the Company in connection with the sale, transfer or other disposition of all or substantially all of the Company's assets or business.
17.Pronouns. Whenever the context requires, the use in this Agreement of a pronoun of any gender shall be deemed to refer also to any other gender, and the use of the singular shall be deemed to refer also to the plural.
18.Headings. The headings of this Agreement are inserted for convenience of reference only and shall not constitute a part hereof.
19.Calculation of Time Periods. When calculating the period of time within which or following which any act is to be done or step taken pursuant to this Agreement, the date which is the reference date in calculating such period shall be excluded.
20.Execution in Counterparts. This Agreement may be executed in several counterparts, by original, digital or facsimile signature, each of which so executed shall be deemed to be an original and such counterparts together shall be deemed to be one and the same instrument, which shall be deemed to be executed as of the date first above written.
21.Further Assurances. The parties hereto shall sign such further documents and do and perform and cause to be done and performed such further and other acts and things as may be necessary or desirable in order to give full effect to this Agreement and every party thereof.
22.Survival. Any termination of this Agreement shall not affect the ongoing provisions of this Agreement, which shall survive such termination in accordance with their terms.
23.Severability. The invalidity or unenforceability, in whole or in part, or any covenant, promise or undertaking, or any section, subsection, paragraph, sentence, clause, phrase or word or of any provision of this Agreement shall not affect the validity or enforceability of the remaining portions thereof.
24.Participation of Parties; Construction. The parties hereto acknowledge that this Agreement and all matters contemplated herein have been negotiated between both of the parties hereto and their respective legal counsel and that both parties have participated in the drafting and preparation of this Agreement from the commencement of negotiations at all times through the execution hereof. The parties hereto acknowledge that they have each read this Agreement and understand the effect of its provisions. Accordingly, this Agreement shall be interpreted and construed without reference to any rule requiring that this Agreement be interpreted or construed against the party causing it to be drafted.
25.Independent Counsel. The Executive acknowledges that counsel to the Company has not represented him nor provided him with legal or other advice in connection with the transactions contemplated by this Agreement and that he has been urged to seek independent legal, tax and financial advice in order to analyze the risks and merits of the transactions contemplated by this Agreement.
26.Director and Officer Insurance; Indemnification. The Company shall indemnify the Executive to the same extent as it indemnifies its other Named Executive Officers, and the Company shall provide coverage for the Executive under its policies of Director’s and Officer’s insurance as the same may be in effect from time to time.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth in the first paragraph of this Agreement.
THE COMPANY:
BBX CAPITAL, INC.,
a Florida corporation
By:/s/ Neil Sterling
Neil Sterling,
Compensation Committee Chairman
THE EXECUTIVE:
By:/s/ Seth Wise
Seth Wise
Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”), is signed as of May 21, 2021, by and between BBX Capital Inc., a Florida corporation (the “Company”) and Brett Sheppard (the “Executive”) but effective as of May 20, 2021 (the “Effective Date”).
WHEREAS, the Company desires to employ the Executive as Chief Financial Officer and the Executive desires to accept such employment, all upon the terms and conditions set forth in this Agreement;
WHEREAS, the Executive has experience and expertise in the Company’s business (the “Business”). By virtue of his employment with Company, and the predecessors from which it emerged, the Executive has become familiar with and possesses knowledge of the manner, methods, trade secrets and other confidential information pertaining to the Business.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set forth in this Agreement, the Company and the Executive agree as follows:
1.Recitals; Defined Terms. The above recitals are true and correct and are incorporated herein by reference. When used in this Agreement, a “Change in Control” shall be deemed to occur if:
|
|
1.1 any “person” (as such term is utilized in Section 13(d) and Section 14(d)(2) of the Securities and Exchange Act), including without limitation any “group” (as such term is utilized in Section 13(d)(3) of the Exchange Act), who is not, on the date of this Agreement, either (1) an affiliate of the Company, or (2) the beneficial owner of 10% or more of the Company’s issued and outstanding common stock, shall become the “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act) of securities of the Company (or any successor thereto) representing more than 33% of the votes that may be cast for the election of directors of the Company, or any successor company as the case may be; or |
|
|
1.2 any person who is not, on the date of this Agreement an affiliate of the Company, shall become a shareholder of the Company holding fifty percent or more of the outstanding stock of any class of the Company; or |
|
|
1.3 as the result of, or in connection with, any cash or other tender offer, or exchange offer, merger, consolidation or other business combination, or any combination of any one or more of the foregoing transactions, the persons who were directors of the Company immediately prior to the consummation of any such transaction or combination of transactions shall cease to constitute a majority of the directors of the Company, or any successor thereto; or as a result of a sale of all or substantially all of the assets of the Company, or any liquidation, dissolution, bankruptcy, assignment for the benefit of creditors (whether such action is voluntary or involuntary by the Company), or any similar transaction or any combination of any one or more of the foregoing or similar transactions, the persons who were directors of the Company immediately prior to the consummation of any such transaction or combination of transactions shall cease to constitute a majority of the directors of the successor to the Company. |
2.Employment Term. The term of the Executive's employment (the "Term") begins on the Effective Date and concludes one year from the Effective Date; provided, however, that the Term shall be automatically renewed for successive one-year periods unless: (i) either the Company or the Executive, not fewer than three (3) months prior to the expiration of the term, provides notice of intention not to renew the Agreement for a one year term or, provides notice of intention not to renew not fewer than ninety (90) days prior to the expiration of any such one year term, (ii) the Executive terminates this Agreement for Good Reason (defined below), (iii) the Company terminates this Agreement for Cause (defined below) or (iv) this Agreement is otherwise terminated in accordance with its provisions.
3. Services.
3.1 Office and Duties. During the Term, the Executive shall serve as Chief Financial Officer of the Company, subject to the terms of this Agreement, with such duties, authority and responsibility as are commensurate with such position, subject to oversight and direction of the Company’s President and Chief Executive Officer. In exercising his duties and responsibilities, the Executive shall have all the power and authority necessary to fulfill and discharge his duties and responsibilities and shall abide by lawful directions given by the Board. The Executive shall be responsible for such additional duties commensurate with his position not materially inconsistent with the foregoing as may be reasonably determined by the Board from time to time.
3.2Best Efforts. During the Term, the Executive shall diligently and competently devote his best efforts and energies to the Business and affairs of the Company, and shall use his best efforts, skills and abilities to promote the interests of the Company and otherwise to discharge his obligations under this Agreement; provided, however, that nothing in this Agreement shall restrict the Executive from serving in executive capacities with any affiliated companies or pursuing interests in accordance with historical practice.
4.Compensation.
4.1Annual Base Salary. During the Term, the Executive shall receive a base salary at the initial annual rate of Three Hundred Twenty-Five Thousand Dollars ($325,000) (“Base Salary”), payable in accordance with the Company's normal payroll practices or at such other reasonable intervals as may from time to time be used by the Company for paying its other employees. The Executive will be entitled to annual salary reviews and as such the Executive’s Base Salary may be increased by the Company’s compensation committee (the “Compensation Committee”) from time to time during the term of this Agreement but shall not be reduced without his written consent.
4.2Annual Bonus. An annual bonus (the “Annual Bonus”) may be paid to the Executive of up to 50% of Base Salary in the discretion of the Compensation Committee. Such Annual Bonus amount shall include consideration of certain performance factors as determined by the Compensation Committee. Payments of Annual Bonus amounts to the Executive shall be made by March 15 of each year for the prior year’s performance. The Executive’s Annual Bonus opportunity shall commence in 2021, payable in cash by March 15, 2022 for 2021 performance.
4.3Long Term Incentive Compensation.
4.3.1 The Executive shall be entitled to participate in the Company’s stock plans for granting equity (e.g., future grants of restricted stock awards (“RSAs”) or other stock awards) as may subsequently be approved by the Compensation Committee.
5.Reimbursement of Expenses; Benefits.
5.1Reimbursement of Expenses. Upon submission of appropriate documentation in accordance with the Company’s policy, the Executive shall be entitled to reimbursement for all reasonable, out-of-pocket expenses incurred by him during the Term in connection with the proper and efficient discharge of his duties hereunder, including, without limitation, all reasonable expenses incurred by the Executive for travel to promote the interests of the Company, as well as reasonable expenses for meals, hotels or other accommodations, and other customary items during any such trips, including existing expense reimbursement arrangements and practices.
5.2Employee Benefit Plans and Programs. During the Term, the Executive shall be entitled to participate in the Company’s employee benefit plans and programs, including such 401(k) plans, health insurance and welfare plans as the Company may adopt for employees generally or for the Company’s executives, including existing plans and programs under existing practices.
5.3Vacations. The Executive shall be entitled to paid vacation during each calendar year in such amounts as are commensurate with his position and company policy, however, no less than existing practices.
6.Termination. The Executive's employment under this Agreement may be terminated by the Company or the Executive without any breach of this Agreement only under the circumstances set forth in ensuing Sections 6.1 through 6.4 and upon provision of the applicable compensation set forth in Section 7:
6.1Death. This Agreement and the Executive's employment under this Agreement shall terminate immediately and automatically upon the Executive's death.
6.2By Company for Cause. The Company may terminate the Executive's employment under this Agreement for Cause (as hereinafter defined). “Cause,” as to the Executive, shall mean: (a) committing fraud against the Company or embezzlement of Company property; (b) being convicted of a felony or any other crime that involves moral turpitude under applicable laws of the United States or any state thereof; (c) an action or omission of the Executive which constitutes a willful and material breach of this Agreement which is not the result of the Executive's death or disability and which is not cured within fifteen (15) days after receipt by the Executive of written notice of the same from the Board.
6.3By Company Without Cause. The occurrence of any of the following shall be deemed to be a termination by the Company of the Executive's employment under this Agreement “Without Cause:” (a) any action taken by the Company to terminate the Executive's employment other than for Cause, including providing notice of intention not to renew this Agreement, which termination shall only be effective upon written notice to the Executive; (b) any breach of this Agreement by the Company; or (c) upon the Disability (defined below) of the Executive. Failure of the Executive to timely terminate his employment upon the occurrence of an event described in subsection (b), above shall not result in a waiver of any right the Executive may have to terminate his
employment based upon any future occurrence. “Disability” shall mean any incapacity or disability of the Executive which renders the Executive mentally or physically unable to perform his duties under this Agreement as determined in accordance with Company policy. ermination due to Disability shall be deemed to have occurred upon the first day of the month following the determination of Disability as defined in the preceding sentence.
6.4By Executive for Good Reason. The occurrence of any of the following shall be deemed to be grounds for the Executive to terminate employment for Good Reason:. (a) any action taken by the Company to materially diminish, or attempt to materially diminish, the duties, responsibilities or authority of the Executive if, within sixty (60) days after the Executive becomes aware of such action, the Executive notifies the Company in writing and the Company does not immediately correct such action(s); or (b) any action taken by the Company to materially change, or attempt to materially change the Executive's title or his position in the hierarchy of the Company if, within sixty (60) days after the Executive becomes aware of such action, the Executive notifies the Company in writing and the Company does not immediately correct such action(s); or (c) any breach of this Agreement by the Company.
Failure of the Executive to timely terminate his employment upon the occurrence of an event described in subsections (a), (b), or (c) above shall not result in a waiver of any right the Executive may have to terminate his employment based upon any future occurrence.
7.Payments After Termination. If this Agreement or the Executive's employment hereunder are terminated for the reasons set forth in Sections 6.2 hereof, then the Executive shall receive the Base Salary through the date of termination in accordance with the terms of this Agreement. If this Agreement is terminated pursuant to Section 6.3 or 6.4 hereof, then the Executive shall receive:
(a) the Base Salary through the date of termination in accordance with the terms of this Agreement, and the prorated portion of the Annual Bonus, to be calculated based on the average bonus paid over the prior two (2) years, during the fiscal year and through the date of termination plus;
(b) a severance payment in an amount that equals one (1) times the Executive’s annual Base Salary; plus
(d) continuation of health insurance, life insurance, dental insurance and other benefits received at the time of separation from the Company through the 6 months following the year in which termination occurs.
Subsequent to Termination, the Executive shall not be entitled to receive any further compensation or benefits from the Company, except as expressly provided by this Agreement. A condition to the Company’s obligation to provide the severance payments and benefits provided by this Agreement is that Executive complies with the obligations of non-competition, non-solicitation of customers, confidentiality and non-disclosure referenced in Section 8 of this Agreement and provided for by Florida law and execute a general release in a form acceptable to the Board.
8.Non-Competition; Non-Disclosure, Confidentiality and Non-Solicitation of Customers. Subsequent to the execution of this Agreement, Executive and Compensation Committee agree to sign a Non-Competition, Non-Disclosure, Confidentiality, and Non-Solicitation of Customers in term and scope acceptable to both parties.
9. Withholding. Anything to the contrary notwithstanding, all payments required to be made by the Company hereunder to the Executive or the Executive's estate or beneficiaries shall be subject to the withholding of such amounts, if any, relating to tax and other payroll deductions as the Company may reasonably determine it should withhold pursuant to any applicable law or regulation.
10.Notices. All notices, requests, demands or other communications by the terms hereof required or permitted to be given by one party to another shall be given in writing by personal delivery, by facsimile or by regular mail, postage prepaid, addressed to such other party or delivered to such other party as follows:
If to the Company:
BBX Capital Inc.
c/o Compensation Committee Chair
P.O. Box 39001
Fort Lauderdale, FL 33303
Telephone: (954) 940-5020
If to the Executive:
Brett Sheppard
c/o BBX Capital, Inc.
P.O. Box 39001
Fort Lauderdale, FL 33303
or at such other address or facsimile number as may be given by any of them to the others in writing from time to time and such notices, requests, demands or other communication shall be deemed to have been received when hand delivered, on the day after the date sent by facsimile (with receipt confirmed) or, if mailed, the fourth day following the day of the mailing thereof; provided that if any such notice, request, demand or other communication shall have been mailed and if regular mail service shall be interrupted by strikes or other irregularities, such notice, request, demand or other communication shall be deemed to have been received on the fourth business day following the resumption of normal mail service.
11.Prevailing Party. In the event of any dispute with regard to this Agreement, the prevailing party shall be entitled to receive from the non-prevailing party and the non-prevailing party shall pay upon demand all reasonable fees and expenses of counsel for the prevailing party.
12.Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties, and merge and supersede all prior discussions, agreements and understandings of every kind and nature among them as to the subject matter hereof.
13.Amendments to Agreement. This Agreement shall not be amended except by a writing signed by each party to the Agreement, and this Agreement may not be discharged except by performance in accordance with its terms or by a writing signed by each party to the Agreement.
14.U.S. Dollars. All dollar amounts in this Agreement are stated in United States Dollars.
15.Governing Law. This Agreement and its validity, construction and performance shall be governed in all respects by the law of the State of Florida, without giving effect to principles of conflicts of laws. Any controversies of any nature whatsoever arising under this Agreement shall be subject to the exclusive jurisdiction of the courts of Broward County, Florida, which shall be the exclusive jurisdiction and venue for any disputes, actions or lawsuits arising out of or relating to this Agreement. The parties to this Agreement irrevocably waive to the fullest extent permitted by law, any objection which they may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement, or any judgment entered by any court in respect hereof, brought in Broward County, Florida and further irrevocably waive any claim that any suit, action or proceeding brought in Broward County, Florida, has been brought in an inconvenient forum.
16.Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned by the Executive without the prior written consent of the Company. This Agreement may be assigned by the Company in connection with the sale, transfer or other disposition of all or substantially all of the Company's assets or business.
17.Pronouns. Whenever the context requires, the use in this Agreement of a pronoun of any gender shall be deemed to refer also to any other gender, and the use of the singular shall be deemed to refer also to the plural.
18.Headings. The headings of this Agreement are inserted for convenience of reference only and shall not constitute a part hereof.
19.Calculation of Time Periods. When calculating the period of time within which or following which any act is to be done or step taken pursuant to this Agreement, the date which is the reference date in calculating such period shall be excluded.
20.Execution in Counterparts. This Agreement may be executed in several counterparts, by original, digital or facsimile signature, each of which so executed shall be deemed to be an original and such counterparts together shall be deemed to be one and the same instrument, which shall be deemed to be executed as of the date first above written.
21.Further Assurances. The parties hereto shall sign such further documents and do and perform and cause to be done and performed such further and other acts and things as may be necessary or desirable in order to give full effect to this Agreement and every party thereof.
22.Survival. Any termination of this Agreement shall not affect the ongoing provisions of this Agreement, which shall survive such termination in accordance with their terms.
23.Severability. The invalidity or unenforceability, in whole or in part, or any covenant, promise or undertaking, or any section, subsection, paragraph, sentence, clause, phrase or word or of any provision of this Agreement shall not affect the validity or enforceability of the remaining portions thereof.
24.Participation of Parties; Construction. The parties hereto acknowledge that this Agreement and all matters contemplated herein have been negotiated between both of the parties hereto and their respective legal counsel and that both parties have participated in the drafting and preparation of this Agreement from the commencement of negotiations at all times through the execution hereof. The parties hereto acknowledge that they have each read this Agreement and
understand the effect of its provisions. Accordingly, this Agreement shall be interpreted and construed without reference to any rule requiring that this Agreement be interpreted or construed against the party causing it to be drafted.
25.Independent Counsel. The Executive acknowledges that counsel to the Company has not represented him nor provided him with legal or other advice in connection with the transactions contemplated by this Agreement and that he has been urged to seek independent legal, tax and financial advice in order to analyze the risks and merits of the transactions contemplated by this Agreement.
26.Director and Officer Insurance; Indemnification. The Company shall indemnify the Executive to the same extent as it indemnifies its other Named Executive Officers, and the Company shall provide coverage for the Executive under its policies of Director’s and Officer’s insurance as the same may be in effect from time to time.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth in the first paragraph of this Agreement.
THE COMPANY:
BBX CAPITAL INC.,
a Florida corporation
By:/s/ Neil Sterling
Neil Sterling,
Compensation Committee Chairman
THE EXECUTIVE:
By: /s/ Brett Sheppard
Brett Sheppard