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Exhibit 10 (ad)
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("AGREEMENT")
is made as of November 30, 2000, between Avatar Properties Inc., a Florida
corporation (the "COMPANY") and Xxxxxxxx Xxxx (the "EMPLOYEE") and amends and
restates in its entirety, the employment agreement dated December 4, 1997
between the Company and Employee (the "ORIGINAL AGREEMENT").
W I T N E S S E T H
WHEREAS, the Employee is currently employed as President of
the Company pursuant to the Original Agreement; and
WHEREAS, the Company and the Employee wish to provide for
certain modifications to the Original Agreement, all upon the terms hereinafter
set forth;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT AND TERM. The Company hereby employs the
Employee, and the Employee hereby accepts employment by the Company, in the
capacity and upon the terms and conditions hereinafter set forth. The term of
employment under this Agreement shall be for the period commencing as of
December 5, 1997 (the "COMMENCEMENT DATE") and ending on December 31, 2004,
unless earlier terminated as herein provided (the "TERM OF EMPLOYMENT"). The
last day of the Employee's Term of Employment shall be referred to in this
Agreement as the "DATE OF TERMINATION."
2. DUTIES. During the Term of Employment, the Employee shall
serve as the Company's President, and shall perform such duties, functions and
responsibilities as are customarily associated with and incident to the
position of President and as the Company may, from time to time, require of
him, including, but not limited to, the performance of such functions and
duties for the Company's subsidiaries and affiliates as the Company may
require, subject to the direction of the Company's Board of Directors. The
Employee shall serve the Company faithfully, conscientiously and to the best of
the Employee's ability and shall promote the interests and reputation of the
Company. Unless prevented by sickness or disability, the Employee shall devote
all of his time, attention, knowledge, energy and skills, during normal working
hours, and at such other times as the Employee's duties may reasonably require,
to the duties of the Employee's employment; PROVIDED, HOWEVER, that nothing
contained herein shall prevent the Employee from engaging in Permitted
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Activities (as defined below). The principal place of employment of the
Employee shall be the current principal executive offices of the Company and/or
such other location within 50 miles of Company's current principal place of
business as shall be necessary for the Employee to discharge his duties
hereunder and the Permitted Activities. For purposes of this Agreement,
"PERMITTED ACTIVITIES" shall mean an ownership interest in, or the provision of
services in connection with the design, development, construction, sales and
marketing, operation and management, solely to or in connection with, the
existing Xxxxxxxx-Xxxx projects conducted by the companies set forth on
SCHEDULE I hereto, the Harbor Islands Joint Venture between Avatar Harbor
Islands, Inc. and Xxxxxxxx-Xxxx at Harbor Islands, Inc., and the Presidential
Estate Joint Venture between Avatar at Presidential Estates, Inc. and
Xxxxxxxx-Xxxx at Presidential Estates, Inc. The Employee acknowledges that in
the course of his employment he may be required, from time to time, to travel
on behalf of the Company; PROVIDED, HOWEVER, that the Employee shall not be
required to spend more than 25% of his business time on overnight travel.
3. COMPENSATION AND BENEFITS. As full and complete compensation for
the Employee's execution and delivery of this Agreement and performance of any
services hereunder, the Company shall pay, grant or provide the Employee, and
the Employee agrees to accept, the following compensation and benefits:
(a) BASE SALARY. The Company shall pay the Employee a base
salary at an annual rate of $400,000 payable at such times and in accordance
with the standard payroll practices of Avatar Holdings Inc., a Delaware
corporation ("AVATAR"). On an annual basis or at such other times as the
Company may determine, the Employee's base salary shall be reviewed, and in the
sole discretion of the Board of Directors of the Company, the Company may
increase (but not decrease) the Employee's base salary.
(b) EMPLOYEE BENEFITS. The Company shall afford the Employee
the opportunity to participate during the Term of Employment in any medical,
dental, disability insurance, retirement, savings and any other employee
benefits plans or programs (including perquisites) which Avatar maintains for
its senior executives. Nothing in this Agreement shall require the Company,
Avatar or their affiliates to establish, maintain or continue any benefit
programs already in existence or hereafter adopted for senior executives of
Avatar, and nothing in the Agreement shall restrict the right of Avatar or any
of its affiliates to amend, modify or terminate any such benefit program.
(c) EXPENSES. The Employee shall be entitled to reimbursement
or payment of reasonable business expenses (in accordance with Avatar's
policies for its senior executives, as the same may be amended from time to
time in Avatar's sole discretion), following the Employee's submission of
appropriate receipts and/or vouchers to the Company.
(d) VACATIONS, HOLIDAYS OR TEMPORARY LEAVE: The Employee
shall be entitled to take four (4) weeks of vacation per year, plus any
additional time, if any, as the Board of Directors of the Company or a
committee of the Board of Directors of the Company may determine, in its sole
discretion, without loss or diminution of compensation. Such vacation shall be
taken at such time or times, and as a whole or in increments, as the Employee
shall elect, consistent with the reasonable needs of the Company's business.
The Employee shall further be entitled to the number of paid holidays, and
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leaves for illness or temporary disability in accordance with the policies of
Avatar for its senior executives (as such policies may be amended from time to
time or terminated in Avatar's sole discretion).
4. CASH COMPENSATION CAP. Notwithstanding anything contained above or
in any other agreement between Employee and the Company or Avatar, the "cash
compensation" paid to Employee from January 1, 2001 through December 31, 2004
may not exceed seven million dollars ($7,000,000). "Cash compensation" shall
mean the cumulative sum of all cash payments made to the Employee in respect of
salary, bonus and any other incentive awards (including, but not limited to the
cash bonus award granted pursuant to the Avatar Holdings Inc. Executive
Incentive Compensation Plan (the "Executive Incentive Plan") and any other
project award granted under the Executive Incentive Plan). It is understood
that "cash compensation" shall not include any securities of Avatar granted to
Employee (e.g., stock options granted pursuant to the Avatar Holdings Inc.
Incentive and Capital Accumulation Plan) and any cash payments made to Employee
(not in his capacity as an employee of the Company) in respect of Permitted
Activities.
5. NON-COMPETITION AND PROTECTION OF CONFIDENTIAL INFORMATION:
(a) RESTRICTIVE COVENANTS:
(i) During the Term of Employment and for one year
following the Date of Termination, the Employee shall not directly or
indirectly engage, participate, own or make any financial investments in, or
become employed by or render (whether or not for compensation) any consulting,
advisory or other services to or for the benefit of, any person, firm or
corporation, that directly or indirectly, engages primarily in, the development
of adult retirement communities and/or active adult communities; PROVIDED,
HOWEVER, that it shall not be a violation of this Agreement for the Employee
(i) to have beneficial ownership of less than 1% of the outstanding amount of
any class of securities of any enterprise (but without otherwise participating
in the activities of such enterprise) if such securities are listed on a
national securities exchange or quoted on an inter-dealer quotation system or
(ii) to have beneficial ownership of less than 20% of the outstanding amount of
any class of securities of any enterprise (but without otherwise participating
in the activities or otherwise having influence or control of such enterprise)
if such securities are not registered under Section 12 of the Securities
Exchange Act of 1934, as amended;
(ii) During the Term of Employment the Employee
shall not, directly or indirectly, (A) solicit, in competition with the Company
or Avatar (their subsidiaries and/or affiliates (each of the foregoing entities
being referred to herein, collectively and individually, as the "AVATAR
ENTITIES"), any person who is a customer of any business conducted by the
Avatar Entities or (B) in any manner whatsoever induce, or assist others to
induce, any supplier of the Company to terminate its association with such
entity or do anything, directly or indirectly, to interfere with the business
relationship between the Company, Avatar and any of their respective current or
prospective suppliers.
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(iii) During the Term of Employment the Employee
shall not, directly or indirectly, solicit or induce any employee of the Avatar
Entities to terminate his or her employment for any purpose, including without
limitation, in order to enter into employment with any entity which competes
with any business conducted by the Avatar Entities.
(iv) The Employee recognizes and acknowledges that
certain confidential business and technical information used by the Employee in
connection with the Permitted Activities that includes, without limitation,
certain confidential and proprietary information relating to the designing,
development, construction and marketing of real estate, is a valuable, special
and unique asset of the Company, such information, subject to Section 5(a)(vi)
below, collectively being referred to as the "CONFIDENTIAL INFORMATION." During
the Term of Employment the Employee shall not (A) use Confidential Information,
or any part thereof other than in connection with his duties hereunder or
Permitted Activities, nor (B) disclose such information to any person, firm,
corporation, association or other entity for any purpose or reason whatsoever.
(v) During the Term of Employment and for all time
following the Date of Termination, the Employee shall not, directly or
indirectly, furnish or make accessible to any person, firm, or corporation or
other business entity, whether or not he, she, or it competes with the business
of the Company, any trade secret or know-how acquired by the Employee during
his employment by the Company which relates to the business practices, methods,
processes or other confidential or secret aspects of the business of the Avatar
Entities without the prior written consent from the Company (such information,
subject to Section 5(a)(vi) below, being referred to as the "COMPANY
CONFIDENTIAL INFORMATION").
(vi) Confidential Information and Company
Confidential Information shall not include any information or documents that
(A) are or become publicly available without breach by the Employee of Sections
5(a)(iv) and (v) hereof, respectively, (B) the Employee receives from any third
party who, to the best of the Employee's knowledge upon reasonable inquiry, is
not in breach of an obligation of confidence with the Company, Avatar or their
respective affiliates, or (C) is required to be disclosed by law, statute,
governmental or judicial proceeding; PROVIDED, HOWEVER, that in the event that
the Employee is requested by any governmental or judicial authority to disclose
any Confidential Information, the Employee shall give the Company and Avatar
prompt notice of such request, such that the Company and Avatar may seek a
protective order or other appropriate relief, and in any such proceeding the
Employee shall disclose only so much of the Confidential Information as is
required to be disclosed.
(vii) Notwithstanding the foregoing, the Employee
acknowledges that during the Term of Employment and for all time following the
Date of Termination, the Employee shall not, and shall not cause or permit any
of its affiliates to, use the name "XXXXXXXX-XXXX" (or any derivative thereof)
except as expressly permitted by those certain License Agreements, each dated
as of December 4, 1997, by and between Xxxxxxxx-Xxxx Xxxx Ian, Inc., as
licensor and the companies listed on SCHEDULE I hereto, each as a licensee, or
except as otherwise permitted in writing by Avatar.
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(b) GEOGRAPHIC SCOPE. The provisions of this Section 5 (other
than Sections 5(a)(iii), (iv), (v), and (vi), which shall be in full force and
effect without regard to the geographic limitations set forth in this Section
5(b)) shall be in full force and effect within a 100-mile radius of a site for
which the Avatar Entities has commenced development or has a binding commitment
therefor.
(c) REMEDIES. The Employee acknowledges that his services are
of a special, unique and extraordinary character and, his position with the
Company and Avatar places him in a substantial relationship and a position of
confidence and trust with specific prospective or existing customers, suppliers
and employees of the Company and Avatar, and that in connection with his
services to the Company, the Employee will have access to confidential business
or professional information vital to the Company's and Avatar's businesses. The
Employee further acknowledges that in view of the nature of the business in
which the Company and Avatar are engaged, the foregoing restrictive covenants
in this Section 5 hereof are reasonable and necessary in order to protect the
legitimate business interests of the Company and Avatar and that violation
thereof would result in irreparable injury to the Company and Avatar.
Accordingly, the Employee consents and agrees that if the Employee violates or
threatens to violate any of the provisions of this Section 5 hereof the Company
and Avatar would sustain irreparable harm and, therefore, the Company and
Avatar shall be entitled to obtain from any court of competent jurisdiction,
temporary, preliminary and/or permanent injunctive relief as well as damages,
attorneys fees and costs, and an equitable accounting of all earnings, profits
and other benefits arising from such violation, which rights shall be
cumulative and in addition to any other rights or remedies in law or equity to
which the Avatar Entities may be entitled.
6. TERMINATION OF EMPLOYMENT:
(a) The Employee's employment with the Company shall
terminate upon the occurrence of any of the following events:
(i) the termination of the Employee's employment
upon and at any time following the Date of Termination and absent the parties
having entered into a written agreement for the renewal of this Agreement;
(ii) the death of the Employee during the Term of
Employment;
(iii) the Disability (as defined below) of Employee
during the Term of Employment;
(iv) at any time upon written notice to the Employee
from the Company of termination of his employment for Cause (as defined below);
(v) at any time upon written notice to the Employee
from the Company of termination of his employment Without Cause (as defined
below);
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(vi) the resignation by the Employee for Good Reason
(as defined below) during the Term of Employment; or
(vii) the resignation by the Employee Without Good
Reason (as defined below) during the Term of Employment.
(b) For purposes of this Agreement, the "DISABILITY" of the
Employee shall mean the Employee's inability, because of mental or physical
illness or incapacity, whether total or partial, to perform one or more
material functions of the Employee's employment under this Agreement with or
without reasonable accommodation and which entitles the Employee to receive
benefits under a disability plan or program that is provided to the Employee
pursuant to Section 3(b).
(c) For purposes of this Agreement, the term "CAUSE" shall
mean the Employee's (i) conviction or entry of a plea of guilty or nolo
contendere, with respect to any felony; (ii) commission of any act of willful
misconduct, gross negligence, fraud or dishonesty; or (iii) violation of any
material term of this Agreement or any material written policy of the Company,
PROVIDED that the Company first deliver written notice thereof to the Employee
and the Employee shall not have cured such violation within thirty (30) days
after receipt of such written notice.
(d) For purposes of this Agreement, "WITHOUT CAUSE" shall
mean any reason other than the reasons described in Sections 6(a)(i), 6(a)(ii),
6(a)(iii) and 6(a)(iv) hereof. The parties expressly agree that a termination
of employment Without Cause pursuant to Section 6(a)(v) hereof may be for any
reason whatsoever, or for no reason, in the sole discretion of the Company.
(e) For purposes of this Agreement, "GOOD REASON" shall mean
a willful and material breach of the provisions of this Agreement by the
Company.
(f) For purposes of this Agreement, "WITHOUT GOOD REASON"
shall mean any reason other than that defined in this Agreement as constituting
Good Reason.
7. PAYMENTS UPON TERMINATION OF EMPLOYMENT:
(a) DEATH OR DISABILITY: If the Employee's employment
hereunder is terminated due to the Employee's death or Disability pursuant to
Sections 6(a)(ii) or (iii) hereof, the Company shall pay or provide to the
Employee, his designated beneficiary or to his estate (i) all base salary
pursuant to Section 3(a) hereof and any vacation pay pursuant to Section 3(e)
hereof, in each case which has been earned but unpaid as of the Date of
Termination; and (ii) any benefits to which the Employee may be entitled under
any employee benefits plan or program pursuant to Section 3(b) hereof in which
he is a participant in accordance with the terms of such plan or program up to
and including the Date of Termination. Should the Company wish to purchase
insurance to cover the costs associated with the Employee's termination of
employment pursuant to Sections 6(a)(ii) or (iii), the Employee agrees to
execute any and all necessary documents necessary to effectuate said insurance.
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Upon termination of the Employee's employment due to the Employee's Disability,
the Employee shall continue to have the obligations provided for in Section 4
hereof.
(b) TERMINATION FOR CAUSE, RESIGNATION WITHOUT GOOD REASON,
OR EXPIRATION OF TERM OF EMPLOYMENT: If the Employee's employment hereunder is
terminated due to the termination of the Employee's employment by the Company
for Cause pursuant to Section 6(a)(iv) or due to the Employee's resignation
Without Good Reason pursuant to Section 6(a)(vii), the Company shall pay or
provide to the Employee (i) all base salary pursuant to Section 3(a) hereof and
any vacation pay pursuant to Section 3(e) hereof, in each case which has been
earned but unpaid as of the Date of Termination and (ii) any benefits to which
the Employee may be entitled under any employee benefits plan or program
pursuant to Section 3(b) hereof in which he is a participant in accordance with
the terms of such plan or program up to and including the Date of Termination.
(c) TERMINATION WITHOUT CAUSE; RESIGNATION FOR GOOD REASON:
If the Employee's employment hereunder is terminated by the Company Without
Cause pursuant to Section 6(a)(v), or due to the Employee's resignation for
Good Reason pursuant to Section 6(a)(vi), the Company shall continue to pay to
the Employee, in lieu of any other payments or benefits and on the regular
payroll dates of the Company for a period of six (6) months following Date of
Termination his current base salary, at the rate provided in Section 3(a)
hereof; PROVIDED, HOWEVER, if the Employee's employment hereunder is terminated
by the Company Without Cause pursuant to Section 6(a)(v) or due to Employee's
resignation for Good Reason pursuant to Section 6(a)(vi) prior to the second
anniversary of the Commencement Date, the Company shall continue to pay to the
Employee, through the second anniversary of the Commencement Date and for a
period of six (6) months following such second anniversary, his current base
salary, at the rate provided in Section 3(a) hereof, in lieu of any other
payments or benefits, and on the regular payment dates of the Company. The
Company's obligation to make the payment pursuant to this Section 7(c) shall be
conditioned upon the Company's prior receipt of an executed general release of
claims which the Employee may have against the Company, its affiliates and
their respective shareholders, directors, officers, employees and agents, to
the maximum extent permitted by law.
(d) NO OTHER PAYMENTS. Except as provided in this Section 7,
the Employee shall not be entitled to receive any other payments or benefits
from the Company due to the termination of his employment, including but not
limited to, any employee benefits under any of the Company's or Avatar's
employee benefits plans or programs (other than at the Employee's expense under
the Consolidated Omnibus Budget Reconciliation Act of 1985 or pursuant to the
terms of any pension plan which the Company or Avatar may have in effect from
time to time) or any right to be paid severance pay. If the Employee is
entitled to any notice or payment in lieu of any notice of termination required
by Federal, State or local law, including but not limited to the Worker
Adjustment and Retraining Notification Act, the Company's obligation to make
payments pursuant to Section 7(c) shall be reduced by the amount of any such
payment in lieu of notice.
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8. NO CONFLICTING AGREEMENTS; INDEMNIFICATION:
(a) The Employee hereby represents and warrants that he is
not a party to any agreement, or non-competition or other covenant or
restriction contained in any agreement, commitment, arrangement or
understanding (whether oral or written), which would in any way conflict with
or limit his ability to commence work on the first day of the Term of
Employment or would otherwise limit his ability to perform all responsibilities
in accordance with the terms and subject to the conditions of this Agreement.
(b) The Employee agrees that the compensation provided for in
Section 3 represents the sole compensation to be paid to Employee in respect of
the services performed or to be performed for the Company and/or its affiliates
by such Employee. The Employee further agrees that should there be a
determination that for federal, state, local and/or other tax purposes,
Employee's compensation for services performed for the Company and its
affiliates is greater than the amounts payable hereunder, Employee will
indemnify and hold harmless the Company and its affiliates against any and all
liabilities, losses, and expenses including, but not limited to, any additional
taxes, penalties and interest, and attorneys' and accountants' fees arising out
of, resulting from or relating to such determination.
9. DEDUCTIONS AND WITHHOLDING. The Employee agrees that the Company
shall withhold from any and all compensation required to be paid to the
Employee pursuant to this Agreement all federal, state, local and/or other
taxes which the Company determines are required to be withheld in accordance
with applicable statutes and/or regulations from time to time in effect and all
amounts required to be deducted in respect of the Employee's coverage under
applicable employee benefit plans.
10. ENTIRE AGREEMENT. This Agreement embodies the entire agreement of
the parties with respect to the Employee's employment and supersedes any other
prior oral or written agreements between the Employee and the Company and its
affiliates. This Agreement may not be changed or terminated orally but only by
an agreement in writing signed by the parties hereto.
11. WAIVER. The waiver by the Company of a breach of any provision of
this Agreement by the Employee shall not operate or be construed as a waiver of
any subsequent breach by the Employee. The waiver by the Employee of a breach
of any provision of this Agreement by the Company shall not operate or be
construed as a waiver of any subsequent breach by the Company.
12. GOVERNING LAW. This Agreement shall be subject to, and governed
by, the laws of the State of Florida applicable to contracts made and to be
performed in the State of Florida, regardless of where the Employee is in fact
required to work.
13. JURISDICTION. Any legal suit, action or proceeding against any
party hereto arising out of or relating to this Agreement shall be instituted
in a federal or state court in the State of Florida, and each party hereto
waives any objection which it may now or hereafter have to the laying of venue
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of any such suit, action or proceeding and each party hereto irrevocably
submits to the jurisdiction of any such court in any suit, action or
proceeding.
14. ASSIGNABILITY. The obligations of the Employee may not be
delegated and, except as expressly provided in Section 7(a) relating to the
designation of beneficiaries, the Employee may not, without the Company's
written consent thereto, assign, transfer, convey, pledge, encumber,
hypothecate or otherwise dispose of this Agreement or any interest therein. Any
such attempted delegation or disposition shall be null and void and without
effect. The Company and the Employee agree that this Agreement and all of the
Company's rights and obligations hereunder may be assigned or transferred by
the Company to and may be assumed by and become binding upon and may inure to
the benefit of any affiliate of or successor to the Company. The term
"SUCCESSOR" shall mean, with respect to the Company or any of its subsidiaries,
and any other corporation or other business entity which, by merger,
consolidation, purchase of the assets, or otherwise, acquires all or a material
part of the assets of the Company. Any assignment by the Company of its rights
and obligations hereunder to any affiliate of or successor shall not be
considered a termination of employment for purposes of this Agreement.
15. SEVERABILITY. If any provision of this Agreement as applied to
either party or to any circumstances shall be adjudged by a court of competent
jurisdiction to be void or unenforceable, the same shall in no way affect any
other provision of this Agreement or the validity or enforceability of this
Agreement. If any court construes any of the provisions of Section 5 hereof, or
any part thereof, to be unreasonable because of the duration of such provision
or the geographic or other scope thereof, such court may reduce the duration or
restrict the geographic or other scope of such provision and enforce such
provision as so reduced or restricted.
16. STOCKHOLDER APPROVAL OF INCENTIVE PLAN. Avatar hereby undertakes
to submit the Executive Incentive Plan for approval by stockholders at Avatar's
next annual meeting or at a special meeting on or before December 31, 2001. If
the stockholders fail to approve the Executive Incentive Plan at such annual
meeting or special meeting (or any adjournment thereof) on or before December
31, 2001, Employee may terminate Employee's employment hereunder by
communicating a written Notice of Termination to the Company within thirty (30)
days following such annual meeting (or any adjournment thereof) at which
stockholders failed to approve the Executive Incentive Plan. If Employee so
terminates Employee's employment, Employee will be bound by the terms of the
Original Agreement, and Employee and the Company shall be discharged and
released of and from any further obligations under this Agreement. If Employee
shall not provide a written Notice of Termination on a timely basis, then this
Agreement shall remain in full force and effect.
17. NOTICES. All notices to the Employee hereunder shall be in writing
and shall be delivered personally or sent by registered or certified mail,
return receipt requested, to:
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Xxxxxxxx Xxxx
0000 Xxxxx Xxxxx Xxxxx
Xxxxx X-0
Xxxxxxxxx, Xxxxxxx 00000
with a copy to:
Kluger, Peretz, Xxxxxx & Berlin, P.A.
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
All notices to the Company hereunder shall be in writing and shall be delivered
personally or sent by registered or certified mail, return receipt requested,
to:
Avatar Properties Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: Chairman of the Board
Facsimile: (000) 000-0000
with a copy to:
Avatar Properties Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
and with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Simeon Gold, Esq.
Facsimile: (000) 000-0000
Either party may change the address to which notices shall be sent by sending
written notice of such change of address to the other party.
18. SECTION HEADINGS. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same instrument.
20. ATTORNEYS' FEES. In the event that either party hereto commences
litigation against the other to enforce such party's rights hereunder, the
prevailing party shall be entitled to recover all costs, expenses and fees,
including reasonable attorneys' fees (including in-house counsel), paralegals'
fees, and legal assistants' fees through all appeals.
21. NEUTRAL CONSTRUCTION. Each party to this Agreement was represented
by counsel, or had the opportunity to consult with counsel. No party may rely
on any drafts of this Agreement in any interpretation of the Agreement. Each
party to this Agreement has reviewed this Agreement and has participated in its
drafting and, accordingly, no party shall attempt to invoke the normal rule of
construction to the effect that ambiguities are to be resolved against the
drafting party in any interpretation of this Agreement.
(signature page follows)
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IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the date first above written.
AVATAR PROPERTIES INC.
By: /s/ XXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board
/s/ XXXXXXXX X. XXXX
-------------------------------
Employee: Xxxxxxxx Xxxx
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SCHEDULE I
EXISTING XXXXXXXX-XXXX PROJECTS AND LICENSEES
1. Xxxxxxxx-Xxxx at Harbor Islands, Inc.
2. Xxxxxxxx-Xxxx Organization, Inc.
3. Xxxxxxxx-Xxxx and Associates, Inc.
4. Xxxxxxxx-Xxxx at Treasure Trove, Inc.
5. Xxxxxxxx-Xxxx at Country Club Estates, Inc.
6. Xxxxxxxx and Xxxx at the Sanctuary, Inc.
7. Xxxxxxxx-Xxxx of South Florida, Inc.
8. Xxxxxxxx-Xxxx Custom Builders, Inc.
9. Xxxxxxxx-Xxxx Home and Design, Inc.
10. Xxxxxxxx-Xxxx Management Corporation
11. Xxxxxxxx-Xxxx at Presidential Estates, Inc.
12. Xxxxxxxx-Xxxx Construction Corp.
13. Xxxxxxxx-Xxxx Builders, Inc.
14. Sunset Point at Silver Lakes, Ltd. (d/b/a
Xxxxxxxx-Xxxx - Xxxxxxxxx Group)
15. Parkland Communities, Inc. (d/b/a
Xxxxxxxx-Xxxx - Xxxxxxxxx Group)
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