EX-10.2 Executive Services Agreement



 





Exhibit 10.2









Executive Services Agreement




December 5, 2007




Mr. Alan B. Levan

BFC Corporation

2100 W. Cypress Creek Road

Ft. Lauderdale, FL 33309




Dear Alan:



Tatum, LLC (“Tatum,” “we,” or “us”) is pleased that BFC Corporation (the “Company,” “you” or
“your”) desires to employ John Grelle, a member of Tatum (the “Employee”), to serve as a part of
the office of the CFO of the Company, with a title to be determined as the role is more fully
defined. The Employee’s status shall be at-will, and nothing in this Agreement shall alter the
Company’s ability to terminate the Employee, with or without cause or notice; provided, however, if
termination of this Agreement is under Section 4(a) of Exhibit A the Company shall continue to pay
Tatum and the Employee during the 30 day notice period. This letter along with the terms and
conditions attached as Exhibit A and any other exhibits or schedules attached hereto (collectively,
the “Agreement”) confirms our mutual understanding of the terms and conditions upon which we will
make available to you the Employee and Tatum’s intellectual capital to the Employee for use in
connection with the Employee’s employment relationship with you.



Effective as of December 10, 2007, the Employee will become your employee serving in the capacity
set forth above. The Employee will work on a full-time basis and be subject to the Company’s
policies and supervision, direction and control of and report directly to the Company’s management.
While the Employee will remain a member of Tatum and have access to Tatum’s intellectual capital
to be used in connection with the Employee’s employment relationship with you, we will have no
supervision, direction or control over the Employee with respect to the services provided by the
Employee to you.



You will pay directly to the Employee a salary of $28,000 a month (“Salary”). In addition, you
will reimburse the Employee for reasonable out-of-pocket expenses, as determined by the Company,
incurred by the Employee to the same extent that you reimburse other senior managers for such
expenses. In addition, you will pay directly to Tatum a fee of $12,000 pre month (“Fees”).



Seventy percent of any cash or equity incentive bonus shall be paid directly to the Employee and
the remaining 30% shall be paid/granted directly to Tatum.



Payments to the Employee shall be made in accordance with the Company’s standard payroll and
expense reimbursement policies. Payments to Tatum should be made in accordance with the
instructions set forth on Exhibit A at the same time payments are made to the Employee.



In lieu of the Employee participating in the Company-sponsored employee health insurance plans, the
Employee will remain on his or her current health insurance plans. You will reimburse the Employee
for amounts paid by the Employee for health insurance for himself and his family of up to the
lesser of the amount provided to other similar senior management level employees or actual amounts
paid by the employee which will be based upon presentation of reasonable documentation of premiums
paid by the Employee. In accordance with the U.S. federal tax law, such amount will not be
considered reportable W-2 income, but instead, non-taxable benefits expense.







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As an employee, the Employee will be eligible to participate in the Company’s 401(k) Plan upon
completion of the eligibility requirements set forth in the Plan document. The Employee will be
eligible for vacation and holidays consistent with the Company’s policy as it applies to senior
management. The Employee will be exempt from any delay periods otherwise required for vacation and
holiday eligibility.



You will have the opportunity to make the Employee a full-time member of Company management at any
time during the term of this Agreement by entering into another form of Tatum agreement, the terms
of which will be negotiated at such time.



As a condition to providing the services hereunder, we require a security deposit in an amount
equal to $25,000 (the “Deposit”), which will only be used by us under the limited circumstances
described on Exhibit A. The Deposit is due upon the execution of this Agreement.



The Company will provide Tatum or the Employee with written evidence that the Company maintains
reasonable directors’ and officers’ insurance covering the Employee at no additional cost to the
Employee, and the Company will maintain such insurance at all times while this Agreement remains in
effect. Furthermore, the Company will maintain such insurance coverage with respect to occurrences
arising during the term of this Agreement for at least three years following the termination or
expiration of this Agreement or will purchase a directors’ and officers’ extended reporting period
or “tail” policy to cover the Employee.



We appreciate the opportunity to serve you and believe this Agreement accurately reflects our
mutual understanding. We would be pleased to discuss this Agreement with you at your convenience.
If the foregoing is in accordance with your understanding, please sign a copy of this Agreement and
return it to my attention.




Sincerely,




Tatum, LLC




A. Michael McCracken




Managing Partner




Accepted and agreed:




BFC Corporation






	 	 	 
	By:
	 	 
	 

	 	 





	 	 	 
	Name:
	 	 
	 

	 	 





	 	 	 
	Title:
	 	 
	 

	 	 










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Exhibit A




 Terms and Conditions



1. Relationship of the Parties. The parties agree that Tatum will be serving the Company as an
independent contractor for all purposes and not as an employee, agent, partner of, or joint
venturer with the Company and that the Employee will be serving the Company as an employee of the
Company for all purposes and not as an independent contractor.



2. Payment Terms. Payments to Tatum should be made by electronic transfer in accordance with the
instructions set forth below or such alternative instructions as provided by Tatum from time to
time. Any amounts not paid when due may be subject to a periodic service charge equal to the
lesser of 1.5% per month and the maximum amount allowed under applicable law, until such amounts
are paid in full, including assessed service charges. In lieu of terminating this Agreement, Tatum
may suspend the provision of services (including the Employee’s services) if amounts owed are not
paid in accordance with the terms of this Agreement.




Bank Name: Wells Fargo, N.A.

Branch: San Francisco

Account Name: Tatum, LLC

Account Number: 4121546642

Routing Number for ACH Payments: 121000248

Swift Code: WFBIUS6S

Please reference Company name in the body of the payment.



3. Deposit. If the Company breaches this Agreement and fails to cure such breach as provided for
herein, Tatum will be entitled to apply the Deposit to its or the Employee’s damages resulting from
such breach. In the event the Deposit falls below the amount required, the Company will pay Tatum
an additional amount equal to the shortfall. Upon the expiration or termination of this Agreement,
Tatum will return to the Company the balance of the Deposit remaining after application of any
amounts to damages as provided for herein, including, without limitation, unfulfilled payment
obligations of the Company to Tatum or the Employee.



4. Termination.




     (a) Either party may terminate this Agreement by providing the other party a minimum of 30
days’ advance written notice and such termination will be effective as of the date specified in
such notice, provided that such date is no earlier than 30 days after the date of delivery of the
notice. Tatum will continue to provide, and the Company will continue to pay for, the services
until the termination effective date.



     (b) Company may terminate this Agreement immediately upon written notice to Tatum if: (i) the
Employee does not successfully pass any pre-employment background, drug screening or other
pre-employment testing conducted by Company; (ii) Employee is arrested or convicted of any crime
involving moral turpitude, fraud or misrepresentation; (iii) Employee misappropriates the Company’s
assets or engages in embezzlement; (iv) Employee’s commission of any act which could reasonably be
expected to materially injure the reputation, business, or business relationships of the Company
or; (v) the Employee violates a written Company policy which in the Company’s sole discretion,
warrants immediate termination. If this Agreement is terminated under this sub paragraph, the
Company shall have no further obligations to Tatum other than for payment of any Fees incurred
through the day of termination.



     (c) Tatum may terminate this Agreement immediately upon written notice to the Company if: (i)
the Company is engaged in or asks Tatum or the Employee to engage in or ignore any illegal or
unethical activity; (ii) the Employee ceases to be a member of Tatum for any reason; (iii) the
Employee is unable for any reason to fulfill his employment responsibilities; or (iv) the Company
fails to pay any amounts due to Tatum or the Employee when due. Notwithstanding the foregoing, in
lieu of terminating this Agreement under (ii) and (iii) above, upon the mutual agreement of the
parties, the Employee may be replaced by another Tatum member reasonably acceptable to the Company.



     (d) In the event that a party commits a breach of this Agreement, other than for the reasons
described in the above Section, and fails to cure the same within 10 days following delivery by the
non-breaching party of written notice specifying the nature of the breach, the non-breaching party
may terminate this Agreement effective upon written notice of such termination.



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     (e) The expiration or termination of this Agreement will not destroy or diminish the binding
force and effect of any of the provisions of this Agreement that expressly, or by reasonable
implication, come into or continue in effect on or after such expiration or termination, including,
without limitation, provisions relating to payment of fees and expenses (including witness fees and
expenses), hiring the Employee, governing law, arbitration, limitation of liability, and indemnity.


5. Hiring the Employee Outside of a Tatum Agreement. During the term of this Agreement and for the
12-month period following the termination or expiration of this Agreement, other than in connection
with this Agreement or another Tatum agreement, the Company will not employ the Employee, or engage
the Employee as an independent contractor. The parties recognize and agree that a breach by the
Company of this provision would result in the loss to Tatum of the Employee’s valuable expertise
and revenue potential and that such injury will be impossible or very difficult to ascertain.
Therefore, in the event this provision is breached, Tatum will be entitled to receive as liquidated
damages an amount equal to 45% of the Annualized Compensation (as defined below), which amount the
parties agree is reasonably proportionate to the probable loss to Tatum and is not intended as a
penalty. The amount will be due and payable to Tatum upon written demand to the Company. If a
court or arbitrator determines that liquidated damages are not appropriate for such breach, Tatum
will have the right to seek actual damages and/or injunctive relief. “Annualized Compensation”
means the equivalent of the Employee’s Salary calculated on a full-time annual basis plus the
maximum amount of any bonus for which the Employee was eligible with respect to the then-current
bonus year.



6. Warranties and Disclaimers. It is understood that Tatum does not have a contractual obligation
to the Company other than to provide the Employee to the Company and to provide the Employee access
to Tatum’s intellectual capital to be used in connection with the Employee’s employment
relationship with the Company. The Company acknowledges that any information, including any
resources delivered through Tatum’s proprietary information and technology system, will be provided
by Tatum as a tool to be used in the discretion of the Company. Tatum will not be responsible for
any action taken by the Company in following or declining to follow any of Tatum’s or the
Employee’s advice or recommendations. Tatum represents to the Company that Tatum has conducted its
standard screening and investigation procedures with respect to the Employee becoming a member of
Tatum, and the results of the same were satisfactory to Tatum. Tatum disclaims all other
warranties, whether express, implied or statutory. Without limiting the foregoing, Tatum makes no
representation or warranty as to the services provided by the Employee, or the accuracy or
reliability of reports, projections, certifications, opinions, representations, or any other
information prepared or made by Tatum or the Employee (collectively, the “Information”) even if
derived from Tatum’s intellectual capital, and Tatum will not be liable for any claims of reliance
on the Information or that the Information does not comply with federal, state or local laws or
regulations. The services provided by Tatum hereunder are for the sole benefit of the Company and
not any unnamed third parties. The services will not constitute an audit, review, or compilation,
or any other type of financial statement reporting or attestation engagement that is subject to the
rules of the AICPA or other similar state or national professional bodies and will not result in an
opinion or any form of assurance on internal controls.



7. Limitation of Liability; Indemnity.



     (a) the liability of Tatum in any and all categories and for any and all causes arising out of
this Agreement, whether based in contract, tort, negligence, strict liability or otherwise will, in
the aggregate, not exceed the actual Fees paid by the Company to Tatum pursuant to this Agreement.
In no event will Tatum be liable for incidental, consequential, punitive, indirect or special
damages, including, without limitation, any interruption or loss of business, profit or goodwill.
As a condition for recovery of any liability, the Company must assert any claim against Tatum
within three months after discovery or 60 days after the termination or expiration of this
Agreement, whichever is earlier.



8. The Company agrees to indemnify the Employee to the same extent it would indemnify a current
employee in a similar position, to the full extent permitted by law for any losses, costs,
damages, and expenses (including reasonable attorneys’ fees), as they are incurred, in connection
with any cause of action. Suit, or other proceeding arising in connection with the Employee’s
services to the Company. Governing Law, Arbitration, and Witness Fees.




     (a) This Agreement will be governed by and construed in accordance with the laws of the State
of Florida, without regard to conflicts of laws provisions.



     (b) If the parties are unable to resolve any dispute arising out of or in connection with this
Agreement,






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the parties agree and stipulate that any such disputes will be settled by binding arbitration
in accordance with the Commercial Arbitration Rules of the American Arbitration Association
(“AAA”). The arbitration will be conducted in Broward County, Florida by a single arbitrator
selected by the parties according to the rules of the AAA, and the decision of the arbitrator will
be final and binding on both parties. In the event that the parties fail to agree on the selection
of the arbitrator within 30 days after either party’s request for arbitration under this Section,
the arbitrator will be chosen by the AAA. The arbitrator may in his or her discretion order
documentary discovery but will not allow depositions without a showing of compelling need. The
arbitrator will render his or her decision within 90 days after the call for arbitration. Judgment
on the award of the arbitrator may be entered in and enforced by any court of competent
jurisdiction. The arbitrator will have no authority to award damages in excess or in contravention
of this Agreement and may not amend or disregard any provision of this Agreement, including this
Section. Notwithstanding the foregoing, either party may seek appropriate injunctive relief from
any court of competent jurisdiction, and Tatum may pursue payment of undisputed amounts through any
court of competent jurisdiction.




     (c) In the event any member or employee of Tatum (including, without limitation, the Employee
to the extent not otherwise entitled in his or her capacity as an employee of the Company) is
requested or authorized by the Company or is required by government regulation, subpoena, or other
legal process to produce documents or appear as witnesses in connection with any action, suit or
other proceeding initiated by a third party against the Company or by the Company against a third
party, the Company will, so long as Tatum is not a party to the proceeding in which the information
is sought, reimburse Tatum for its member’s or employee’s professional time (based on customary
rates) and expenses, as well as the fees and expenses of its counsel (including the allocable cost
of in-house counsel), incurred in responding to such requests.



9. Miscellaneous.




     (a) This Agreement constitutes the entire agreement between the parties with regard to the
subject matter hereof and supersede any and all agreements, whether oral or written, between the
parties with respect to its subject matter. No amendment or modification to this Agreement will be
valid unless in writing and signed by both parties.



     (b) If any portion of this Agreement is found to be invalid or unenforceable, such provision
will be deemed severable from the remainder of this Agreement and will not cause the invalidity or
unenforceability of the remainder of this Agreement, except to the extent that the severed
provision deprives either party of a substantial portion of its bargain.



     (c) Neither the Company nor Tatum will be deemed to have waived any rights or remedies
accruing under this Agreement unless such waiver is in writing and signed by the party electing to
waive the right or remedy. The waiver by any party of a breach or violation of any provision of
this Agreement will not operate or be construed as a waiver of any subsequent breach of such
provision or any other provision of this Agreement.



     (d) Neither party will be liable for any delay or failure to perform under this Agreement
(other than with respect to payment obligations) to the extent such delay or failure is a result of
an act of God, war, earthquake, civil disobedience, court order, labor dispute, or other cause
beyond such party’s reasonable control.



     (e) Neither party may assign its rights or obligations under this Agreement without the
express written consent of the other party. Nothing in this Agreement will confer any rights upon
any person or entity other than the parties hereto and their respective successors and permitted
assigns and the Employee.



     (f) The Company agrees to reimburse Tatum for all costs and expenses incurred by Tatum in
enforcing collection of any monies due under this Agreement, including, without limitation,
reasonable attorneys’ fees.






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