exv10w4



 






Exhibit 10.4




EXECUTIVE EMPLOYMENT CONTRACT




     THIS AGREEMENT made as of June 15, 2005 by and between PMC Commercial Trust, a Texas Real
Estate Investment Trust with its principal places of business in Dallas, Collin County, Texas,
hereinafter referred to as the “CORPORATION”, and Barry N. Berlin, hereinafter referred to as
“EXECUTIVE”.



WITNESSETH THAT:




     In consideration of the promises herein contained, the parties hereto mutually agree as
follows:



     1. Employment: The Corporation hereby employs the Executive as its Chief Financial
Officer with such powers and duties as may be specified by the Board of Directors. The Executive
hereby accepts employment upon the terms and conditions as hereinafter set forth.



     2. Term: Subject to the provisions for termination as hereinafter provided, the term
of this Agreement shall begin immediately and shall terminate on the earlier of (i) the Executive’s
seventieth (70th) birthday or (ii) July 31, 2008 or such later date as determined by the
Board of Directors (the “Term”). The Term of this Executive Employment Contract may be extended
annually by the Board of Directors.



     3. Compensation: For all services rendered by the Executive under this contract, the
Executive shall be paid an annual salary at a minimum at the annual rate for the Executive
effective as of September 30, 2004 (the “Minimum Rate”). The Minimum Rate may be increased by the
Board at its discretion. The annual salary is payable pursuant to the normal payroll practices of
the Corporation.



     The Board of Directors may consider bonus compensation for the Executive if the performance of
the Corporation and the Executive justifies such bonus compensation.



     4. Authorized Expenses: The Executive is authorized to incur reasonable expenses for
the promotion of the business of the Corporation. The Corporation will reimburse the Executive for
all such reasonable expenses upon the presentation by the Executive, from time to time, of an
itemized account of such expenditures.



     The Executive shall be entitled to such additional and other fringe benefits as the Board of
Directors shall from time to time authorize, including but not limited to: A) health insurance
coverage for the Executive, his wife and dependent children; B) a monthly automotive allowance of
$550, which the Executive is to use to obtain an automobile to be available for company needs. All
operating expenses such as maintenance, insurance and fuel (excluding fuel for company travel) will
be the responsibility and expense of the Executive.



     5. Extent of Services: The Executive shall devote a substantial portion of business
time, attention



 









 







and energies to the business of the Corporation, and shall not, during the term of this Agreement,
engage in any other business activities, whether or not such activities are pursued for gain,
profit or other pecuniary advantage. This provision is not meant to prevent him from A) devoting
reasonable time to civic or philanthropic activities or B) investing his assets in such form or
manner providing that it does not require any substantial services on the part of the Executive
that will interfere with the Executive’s employment pursuant to this Agreement. Executive’s
employment is considered as full-time.



     6. Working Facilities: The Executive shall be furnished with such facilities and
services suitable to his position and adequate for the performance of his duties.



     7. Duties: The Executive is employed in an executive and supervisory capacity and
shall perform such duties consistent herewith as the Board of Directors of the Corporation shall
from time to time specify. Subject to the provisions of Section 14 hereof, the precise services of
the Executive may be extended or curtailed, from time to time, at the discretion of the Board of
Directors of the Corporation.



     8. Disclosure of Information: The Executive recognizes and acknowledges that the
Corporation’s operating procedures or service techniques are valuable, special and unique assets of
the Corporation’s business. The Executive will not, during or after the term of his employment,
disclose the list of the Corporation’s customer base or service techniques to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever. In the event of
breach or threatened breach by the Executive of the provisions of this paragraph, the Corporation
shall be entitled to an injunction restraining any such breach. Nothing herein shall be construed
as prohibiting the Corporation from pursuing any other remedies available to the Corporation for
such breach or threatened breach, including the recovery of damages from the Executive.



     9. Vacations: The Executive shall be entitled each year to a vacation in accordance
with the vacation contract addendum dated effective July 1, 1999.



     10. Disability: If the Executive is unable to perform his services by reason of
illness or total incapacity, based on standards similar to those utilized by the U.S. Social
Security Administration, he shall receive his full salary for one (1) year of said total incapacity
through coordination of benefits with any existing disability insurance program provided by the
Corporation ( a reduction in salary by that amount paid by any Corporation provided insurance).
Should said Executive be totally incapacitated beyond a one-year period, so that he is not able to
devote full time to his employment with said Corporation, then this Agreement shall terminate.



 









 





     11. Death During Employment: If the Executive dies during the term of employment and
has not attained the age of seventy years, the Corporation and/or any third party insurance
provided by the Corporation, through a coordination of benefits, shall pay the estate of the
Executive a death benefit equal to two times the Executive’s annual salary. In the event the
Executive receives death benefits payable under any group life insurance policy issued to the
Corporation, the Corporation’s liability under this clause will be reduced by the amount of the
death benefit paid under such policy. The Corporation shall pay any remaining death benefits to
the estate of the Executive over the course of twelve (12) months in the same manner and under the
same terms as the Executive would have been paid if he had still been working for the Corporation.
No later than one (1) month from the date of death, the estate of the Executive will also be paid
any accumulated vacation pay. Such payments pursuant to this paragraph shall constitute the full
compensation of said Executive and he and his estate shall have no further claim for compensation
by reason of his employment by the Corporation.



     12. Assignment: The acts and obligations of the Corporation under this Agreement
shall inure to the benefit of and be binding upon the successors and assigns of the Corporation.



     13. Invalidity: If any paragraph or part of this Agreement is invalid, it shall not
affect the remainder of this Agreement but the remainder shall be binding and effective against all
parties.



     14. Additional Compensation: If during the Term, this Agreement is terminated by the
Corporation (other than pursuant to the provisions of Section 15 hereof) or by the Executive due to
“Constructive Discharge” then the Executive shall receive termination pay in an amount equal to
2.99 times the average of the last three years compensation. For purposes of this Agreement,
“Constructive Discharge” shall mean:




	 	•	 	Any reduction in salary below the Minimum Rate;
	 
	 	•	 	A material change diminishing the Executive’s job function, authority, duties
or responsibilities, or a similar change deteriorating Executive’s working
conditions that would not be in accordance with the spirit of this Agreement;
	 
	 	•	 	A required relocation of Executive of more than 100 miles from Executive’s
current job location; or requires Executive to travel away from Executive’s office
in the course of discharging Executive’s responsibilities in excess of that
typically required of executives in similar positions.
	 
	 	•	 	Any breach of any of the terms of this Agreement by the Corporation which is
not cured within 14 days following written notice thereof by Executive to the
Corporation.




 









 








     The amount payable by the Corporation pursuant to this Section 14 shall be made in one lump sum
cash payment payable to the Executive no later than 30 days following termination of this
Agreement.



     15. Termination: The Corporation cannot terminate this agreement except for: 1) the
intentional, unapproved material misuse of corporate funds, 2a) professional incompetence (i.e. the
intentional refusal to perform or the inability to perform the duties associated with Executive’s
position with the Corporation in a competent manner, which is not cured within 15 days following
written notice to Executive) or 2b) willful neglect of duties or responsibilities in either case
not otherwise related to or triggered by the occurrence of any event or events described in or
prescribed by Section 14 hereof.



     16. Indemnification: The Corporation hereby agrees to indemnify and hold the
Executive harmless from any loss for any corporate undertaking, as contemplated in Section 7
hereof, whereby a claim, allegation or cause of action shall be made against the Executive in the
performance of his contractual duties except for willful illegal misconduct. Said indemnification
shall include but not be limited to reasonable cost incurred in defending the Executive in his
faithful performance of contractual duties.



     17. Entire Agreement: This contract may not be changed except in writing and embodies
the whole Agreement between the parties hereto and there are no inducements, promises, terms,
conditions or obligations made or entered into by the Corporation or the Executive other than
contained herein. This Executive Employment Contract supercedes and replaces that certain Executive
Employment Contract dated September 17, 2004 between the Corporation and the Executive.



     IN WITNESS WHEREOF, the parties here hereunto signed and sealed this Agreement the date first
above written.



	 	 	 	 	 
	Signed, Sealed and Delivered

In the presence of:	 	“Corporation”

PMC Commercial Trust
	 
	 	 	 	 
	/s/ Angela Sparks	 	/s/ Lance B. Rosemore
	 

	 	By:
	 	Lance B. Rosemore
	 

	 	 	 	President
	 
	 	 	 	 
	 

	 	 	 	“EXECUTIVE”
	 
	 	 	 	 
	/s/ Jan F. Salit	 	/s/ Barry N. Berlin
	 

	 	By:
	 	Barry N. Berlin,
	 

	 	 	 	Chief Financial Officer
	 
	 	 	 	 
	 

	 	(CORPORATE SEAL)