Exhibit 10.1
SETTLEMENT
AGREEMENT
This Settlement Agreement
(hereinafter “Agreement”), entered into as of this
30 th
day of September, 2009, is by and
between Richard Wickett on the one hand, and Post, Buckley,
Schuh & Jernigan, Inc. and The PBSJ Corporation
(collectively “PBSJ”) on the other hand. The Agreement
between the parties is as follows:
I. DEFINITIONS
A. Post, Buckley, Schuh &
Jernigan, Inc. (“PBS&J Inc.”) shall mean and
include for purposes of this Agreement Post, Buckley,
Schuh & Jernigan, Inc., a Florida corporation, and its
predecessors, successors, parents, subsidiaries or
affiliates.
B. The PBSJ Corporation (“PBSJ
Corp.”) shall mean and include for purposes of this Agreement
The PBSJ Corporation, a Florida corporation, and its predecessors,
successors, parents, subsidiaries or affiliates.
C. Richard Wickett
(“Wickett”) shall mean and include for purposes of this
Agreement the individual known as Richard Wickett, including his
heirs, beneficiaries, executors, administrators, successors and
assigns, all in their capacity as such.
II. RECITALS
A. WHEREAS, Wickett was employed by
PBSJ until on or about 2005 and served as its Chief Financial
Officer and Chairman;
B. WHEREAS, Wickett entered into a
Buy/Sell Agreement (“Wickett Buy/Sell Agreement”) dated
February 28, 2005, with PBSJ;
C. WHEREAS, after Wickett was no
longer employed by PBSJ, disputes arose regarding outstanding
financial obligations between the parties, including with respect
to the Wickett Buy/Sell Agreement, and PBSJ’s claims of
set-off;
D. WHEREAS, pursuant to its bylaws,
PBSJ repurchased Wickett’s common stock when Wickett
terminated employment with PBSJ and issued promissory notes
(“Notes”) to Wickett in partial payment therefor at a
price that was later adjusted and disclosed to Wickett and which
reflected the fair market value of the stock at the time of its
redemption;
E. WHEREAS, the Notes include the
following (i) a note dated February 23, 2006, in the
original principal amount of $1,242,000 bearing interest thereon at
the rate of 7.5% per annum, payable in full on
February 28, 2011, subject to certain conditions including
PBSJ’s right to set-off against that amount in whole or in
part based upon any claim it may have against Wickett, including
any claims arising from any loss, liability, damage, expense
(including costs of investigation and defense and reasonable
attorneys’ fees and expenses) or diminution of value
sustained by PBSJ, and (ii) a note dated February 13,
2007, in the original principal amount of $1,043,996.80 bearing
interest thereon at the rate of 8.25% per annum, payable in
full on February 28, 2012, subject to certain conditions
including PBSJ’s right to set-off against that amount in
whole or in part based upon any claim it may have against Wickett,
including any claims arising from any loss, liability, damage,
expense (including costs of investigation and defense and
reasonable attorneys’ fees and expenses) or diminution of
value sustained by PBSJ;
F. WHEREAS, certain controversies
have arisen with respect to Wickett’s actions or inactions in
the performance of his duties at PBSJ in connection with which PBSJ
has claimed the right of set-off against amounts owed to
Wickett;
G. WHEREAS, unless the disputes
among the parties are resolved, substantial, expensive and lengthy
litigation between the parties will occur;
H. WHEREAS, PBSJ and Wickett desire
(i) to avoid the burden and expense of prolonged litigation,
and (ii) to resolve amicably and in good faith all of the
matters and issues potentially in dispute; and
2
I. WHEREAS, PBSJ and Wickett agree
that by entering into an amicable resolution of such disputes, they
are doing so without admitting any liability or wrongdoing of any
nature whatsoever;
J. NOW, THEREFORE, for and in
consideration of the acts, covenants, representations, payments,
warranties and releases described and agreed to herein, the parties
reach this Agreement, as set forth below.
III. TERMS
On and subject to the terms and
conditions of this Agreement, and in full and final satisfaction
and settlement of any disputes between PBSJ and Wickett concerning
the Buy/Sell Agreement and any other agreements entered into
between the parties, and all amounts owed by any party to the
other, the parties agree to the following:
A. PBSJ shall, on or before
September 30, 2009, pay Wickett the sum of $1,250,000 (the
“Settlement Payment” for his stock notes) by wire
transfer to Richard A. Wickett, Bank of America, ACH R/T
, account number #
. PBSJ and Wickett agree and acknowledge that the Settlement
Payment is in full and complete satisfaction of all amounts owed to
Wickett, including without limitation, the balance of the Notes
(together with interest thereon) entered into between PBSJ and
Wickett.
B. The parties agree to the releases
set forth below.
C. Notwithstanding anything else set
forth in this Agreement, the parties to this Agreement retain the
right to enforce this Agreement.
IV. RELEASES
A. PBSJ’s Release of
Wickett
With the exception of the rights and
obligations of the parties specifically set forth in this
Agreement, PBSJ hereby unconditionally and irrevocably releases and
forever discharges fro
