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EXHIBIT 10.44
SEPARATION AGREEMENT AND
RELEASE
This Separation Agreement and Release (referred to hereinafter
as "Agreement"), effective September 2, 2008, is entered into
by and between The PBSJ Corporation, a Florida corporation (the
"Parent"), Post, Buckley, Schuh & Jernigan, Inc., a
Florida corporation d/b/a PBS&J (the "Subsidiary") (hereinafter
the Parent and the Subsidiary are referred to collectively,
together with their affiliates and subsidiaries as "PBS&J"),
and Todd J. Kenner, P.E., individually and on behalf of his heirs,
executors, administrators, legal representatives, and assigns
(referred to hereinafter as "Kenner").
WHEREAS, Kenner has been employed by the Subsidiary as its
President; and,
WHEREAS, Kenner has elected to voluntarily resign his employment
with PBS&J and PBS&J has accepted Kenner’s voluntary
resignation; and,
WHEREAS, the parties desire to formalize the future obligations
of each party and to fully and completely resolve any and all
claims, known and unknown, which the parties had, have or may have
between them;
THEREFORE, in consideration of the promises and mutual covenants
herein contained, the sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
1. Kenner confirms his decision to voluntarily resign his
employment with PBS&J, effective August 22, 2008. Kenner
understands and acknowledges that his resignation will also serve
as his resignation from any committees, boards, and any other
office or positions that he holds with PBS&J.
2. In recognition for his services to PBS&J and as
consideration for Kenner’s agreement to the terms of this
Agreement, PBS&J agrees as follows:
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(a)
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PBS&J agrees to pay to Kenner a
cash severance benefit of One Hundred Sixty-Two Thousand Five
Hundred Dollars and Zero Cents ($162,500.00), less all applicable
tax withholdings. This benefit shall be paid out in monthly
installments over a six month period;
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(b)
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With respect to Kenner’s
participation in the Supplemental Income Program ("SIP"), PBS&J
agrees to pay to Kenner a cash lump sum benefit in the amount of
Two Hundred Thirty-Four Thousand One Hundred and Fifty
Dollars and Zero Cents ($234,150.00), less all applicable tax
withholdings . PBS&J shall have no further obligation
to Kenner with respect to any SIP agreement between PBS&J and
Kenner, all of which shall be
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Initials :
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1 of 9
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Kenner
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PBS&J
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terminated and of no further force
and effect. For purposes of this Agreement "SIP" shall include
(i) that certain Supplemental Income Agreement dated as of the
23 rd day of
August 1996, by and between the Parent, the Subsidiary and Kenner,
(ii) that certain Amendment to Supplemental Income Retirement
Agreement dated the 1 st
day of January 2000, by and between the Parent and
Subsidiaries (as defined therein) and Kenner, and (iii) that
certain Key Employee Supplemental Income Program Agreement dated
the 1 st day
of January, 2004, by and between the Parent, the Subsidiary and
Kenner;
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(c)
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PBS&J will redeem common stock
owned or held by Kenner as follows for $29.68 per share:
(i) 7830 shares of common stock held in a 401(k) Trust
(amounts deposited into Kenner’s 401(k) account),
(ii) 7752.61 shares of common stock held in an ESOP (amounts
deposited into Kenner’s account), (iii) 79,859.78 shares
of common stock owned or held directly. Shares identified in items
(i) and (ii) above will be redeemed for cash, and shares
identified in (iii) above will be paid in the form of cash in
the amount of $370,238.27, and promissory note (the "Note") in the
amount of $2,000,000, a copy of which is attached as Addendum 1 to
this Agreement. With respect to common stock redeemed as described
in this paragraph, total cash received equals $832,730.13,
from which all applicable taxes will be withheld
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(d)
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PBS&J will redeem common stock
in the form of (i) restricted stock of 6580 shares issued to
Kenner in 1996 (adjusted for a split) pursuant to your SIP, and
(ii) restricted stock of 6528 shares which was issued to
Kenner on October 31, 2000 (adjusted for a split and pro-rated
through August 31, 2008). Any restricted stock which has not
vested as of the effective date of his resignation will be
considered unvested and will be deemed canceled. With respect to
restricted stock redeemed as described in this paragraph,
total cash received equals $389,045.44, from which all
applicable taxes will be withheld ; and
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(e)
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In accordance with the Consolidated
Omnibus Budget Reconciliation Act ("COBRA"), Kenner will be
provided the option of electing continuing health insurance
coverage in the same manner and at the same cost as is provided to
other separating employees.
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3. Kenner acknowledges and agrees that, with the
exception of those benefits set forth in this Agreement, he is not
entitled to any other compensation or benefit of any kind or
nature, from PBS&J or any of its affiliates.
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Initials :
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2 of 9
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Kenner
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PBS&J
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4. Kenner agrees that he will not disparage,
encourage or induce others to disparage or otherwise cast
PBS&J, its affiliates or any of their respective officers,
directors or employees in a negative light
5. For a period of six months following the effective date this
Agreement, Kenner agrees to fully and promptly cooperate and to
make himself available to PBS&J and its officers, directors or
employees with respect to any inquiries which may arise concerning
matters which he was handling on behalf of PBS&J or its
affiliates.
6. In consideration of the provisions, promises, terms and
conditions of this Agreement, the parties agree to the following
restrictive covenants:
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(a)
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Confidentiality and
Nondisclosure . Kenner agrees to treat all information
received, acquired, maintained, prepared or used during the course
of his employment with PBS&J on a strictly confidential basis
and not to disclose, use, give, loan, sell or otherwise dispose of,
or make available to any person, firm or other entity, directly or
indirectly, such information at any time in the future without the
express written authorization of the Chief Executive Officer of
PBS&J.
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(b)
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Return of Property .
Kenner agrees to return all PBS&J property in his possession
(including any and all copies) including, but not limited to,
credit cards, keys, computers, computer software, files, manuals,
letters, notes, records, drawings, art, notebooks, reports,
documents, disks, and any other information, which he obtained,
prepared, acquired, maintained or used during his employment with
PBS&J. Kenner’s obligation pursuant to this paragraph
shall apply to all PBS&J property without regard to the form of
the information and without regard to whether the property was
maintained in his office, home or other location.
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(c)
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Noncompetition : For a
period six (6) months from the effective date of this
Agreement, Kenner agrees not to, directly or indirectly, engage in,
be employed by, or to consult with, any business in competition
with PBS&J or any of its affiliates. This restriction shall
apply to, but not be limited to, those entities listed in Addendum
2 attached hereto. This restriction shall extend to any and all
activities by Kenner, whether as an employee, independent
contractor, partner, joint venturer, officer, director, owner,
stockholder or agent on behalf of himself or for any person, firm,
partnership, corporation or other entity.
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Initials :
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3 of 9
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Kenner
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PBS&J
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(d)
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Nonsolicitation of
Employees . For a period of two years from the effective
date of this Agreement, Kenner agrees not to, directly or
indirectly, solicit or otherwise induce or encourage any employee
of PBS&J or any of its affiliates to separate his or her
employment with PBS&J or its affiliates. During this two year
period, Kenner agrees not to directly or indirectly hire, on behalf
of himself or any other individual or entity, any employee
currently employed by PBS&J or any of its affiliates.
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(e)
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Nonsolicitation of Clients
. For a period of two years from the effective date of this
Agreement, Kenner agrees not to, directly or indirectly, solicit,
divert or alienate any current or prospective client of PBS&J
or any of its affiliates.
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7. Enforcement of Restrictive Covenants .
Kenner acknowledges and agrees that damages at law alone will be an
insufficient remedy to PBS&J and/or its affiliates in the event
of a violation of any of the restrictive covenants set forth in
paragraph 6. Accordingly, the parties agree that PBS&J and/or
its affiliates shall be entitled to obtain injunctive relief to
enforce the provisions of paragraph 6. Kenner acknowledges and
agrees that injunctive relief shall be in addition to any other
rights or remedies available to PBS&J, or its affiliates, at
law or in equity, including, but not limited to, the recovery of
actual damages. In the event of a breach of paragraph 6 by Kenner,
in addition to any other equitable or legal relief available,
Kenner agrees that he will be obligated to repay the severance
payment received pursuant to paragraph 2(a). The parties agree that
no waiver by PBS&J of any breach of paragraph 6 by Kenner
unless PBS&J expressly consents to the breach in a writing
signed by the Chief Executive Officer of PBS&J. Any such waiver
of any breach of paragraph 6 by Kenner shall not be construed as a
waiver of any subsequent breach by Kenner. Kenner acknowledges and
agrees that the existence of any claim against PBS&J or its
affiliates, whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement of paragraph 6 by
PBS&J or its affiliates.
8. In consideration of the provisions, promises, terms and
conditions of this Agreement, Kenner hereby UNCONDITIONALLY, FULLY
AND FINALLY RELEASES AND FOREVER DISCHARGES PBS&J from any and
all duties, claims, rights, complaints, charges, damages, costs,
expenses, attorneys’ fees, debts, demands, actions,
obligations, liabilities, and causes of action, of any and every
kind, nature, and character whatsoever, whether known or unknown,
whether arising out of contract, tort, statute, settlement, equity
or otherwise, whether foreseen or unforeseen, whether past,
present, or future, whether fixed, liquidated, or contingent, which
they have, had, or may in the future claim to have based on any act
or omission concerning any matter, cause, or thing arising prior to
the date of this Agreement and up to the time of execution of this
Agreement (all of the foregoing are hereinafter referred to
collectively as the "Released Claims"); provided ,
however , that nothing contained in this paragraph shall
release PBS&J from its obligations to Kenner under this
Agreement or the Note.
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Initials :
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4 of 9
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Kenner
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PBS&J
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9. The Released Claims include, but are not
limited to, those directly or indirectly arising out of, or in any
way pertaining to, claims arising under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 1981, 1983, the Fair
Labor Standards Act, the Americans with Disabilities Act, the
Sarbanes-Oxley Act, the Florida Civil Rights Act, the Florida
Whistleblower Act, the Family
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