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EXHIBIT 10.7 (b)
AMENDED AND RESTATED NON-COMPETITION AGREEMENT
This AMENDED AND RESTATED NON-COMPETITION AGREEMENT (this "Agreement")
is made as of this 15th day of December, 1999, between WESTBROOKE COMMUNITIES,
INC., a Florida corporation ("Communities"), WESTBROOKE AT WEST LAKE, INC., a
Florida corporation, WESTBROOKE AT WINSTON TRAILS, INC., a Florida corporation,
WESTBROOKE AT PEMBROKE PINES, INC., a Florida corporation, and WESTBROOKE AT OAK
RIDGE, INC., a Florida corporation (collectively with Communities, the "Acquired
Companies"), THE WESTBROOKE PARTNERSHIP, a Florida general partnership
("Partnership") , WESTBROOKE ACQUISITION CORP., a Florida corporation
("Acquisition"), and XXXXX XXXX, an individual resident of the State of Florida
("Xxxx").
RECITALS:
1. All of the parties" hereto (and other individuals and entities not a
party hereto) are parties to that certain Stock Purchase Agreement dated January
15, 1998 (the "Stock Purchase Agreement");
2. Communities and Xxxx are employer and employee respectively under
that certain Amended and Restated Employment Agreement of even date herewith
(the "Employment Agreement");
3. This Agreement amends and restates that certain Non-Competition
Agreement between the parties hereto dated as of January 15, 1998.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged the
parties hereto agree as follows, intending to be legally bound:
1. Recitals: The foregoing recitals are true and are incorporated
herein by this reference.
2. Definitions: All capitalized terms not defined herein shall have the
meaning set forth in the Stock Purchase Agreement.
3. Acknowledgements: Xxxx acknowledges that:
(a) Xxxx has occupied a position of trust and confidence with
the Acquired Companies and the Partnership prior to the date hereof and has
become familiar with the following, any and all of which constitute confidential
information of the Acquired Companies and the Partnership, (collectively the
"Confidential Information"):
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(i) any and all trade secrets concerning the business
and affairs of the Acquired Companies and the Partnership, including
without limitation product specifications, data, know-how, formulae,
compositions, processes, designs, sketches, photographs, graphs,
drawings, samples, inventions and ideas, past, current and planned
research and development, current and planned construction methods and
processes, customer lists, current and anticipated customer
requirements, price lists, market studies, business plans, computer
software and programs (including object code and source code), computer
software and database technologies, systems, structures and
architectures and related processes., formulae, compositions,
improvements, devices, know-how, inventions, discoveries, concepts,
ideas, designs, methods and information, of the Acquired Companies and
the Partnership and any other information, however documented, of the
Acquired Companies and the Partnership that is proprietary information
or a trade secret under applicable law;
(ii) any and all information concerning the business
and affairs of the Acquired Companies and the Partnership (which
includes historical financial statements, financial projections and
budgets, historical and projected sales, capital spending budgets and
plans, the names and backgrounds of key personnel, personnel training
and techniques and materials, however documented); and
(iii) any and all notes, analyses, compilations,
studies, summaries, and other material prepared by or for the Acquired
Companies and the Partnership containing or based, in whole or in part,
on any information included in the foregoing;
(b) the Acquired Companies and the Partnership compete with
other businesses that are or could be located in Miami-Dade, Broward and Palm
Beach Counties, Florida, and may be expanded into other portions of the State of
Florida south of Hillsborough, Polk, Osceola and Brevard Counties, Florida (all
of such geographic areas being collectively referred to herein as "South
Florida");
(c) the provisions of this Agreement are reasonable and
necessary to protect and preserve the Acquired Companies, and the Partnership's
business. This Agreement is not made for the purpose of eliminating competition
per se and is reasonably related to a protectable, legitimate business interest
of Acquisition to wit: protection of Acquisition's goodwill;
(d) because of his varied skill and abilities, he does not
need to compete with the Acquired Companies or the Partnership and this
Agreement will not prevent him from earning a livelihood; and
(e) the Acquired Companies and the Partnership would be
irreparably damaged if Xxxx were to breach the covenants in this Agreement.
4. Confidential Information: Xxxx acknowledges and agrees that all
Confidential Information known or obtained by Xxxx, whether before or after the
date hereof, is the property of the Acquired Companies and the Partnership.
Accordingly, Xxxx agrees that he will not disclose any Confidential Information
to any person, firm, corporation, association or other entity for any
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reason or purpose whatsoever or make use to his personal advantage or to the
advantage of any third party, of any Confidential Information, without the prior
written consent of the Board. Xxxx shall, upon termination or expiration of this
Agreement or at any other time specified by Acquisition, deliver to Acquisition
all documents which reflect Confidential Information (including copies thereof).
Notwithstanding anything heretofore stated in this Section 4, Xxxx'x obligations
under this Section 4 shall not, after termination or expiration of this
Agreement, apply to:
(a) information which has become generally available to the
public without any action or omission of Xxxx (except that any Confidential
Information which is disclosed to any third party by an employee or
representative of the Acquired Companies or the Partnership who is not
authorized to make such disclosure shall be deemed to remain confidential and
protectable by Xxxx under this Section 4); or
(b) general know-how, ideas, current and planned construction
methods, processes and concepts, and Xxxx'x general knowledge and experience
pertaining to the business of development and construction of residences, to the
extent the same were first known or obtained by Xxxx prior to the date hereof.
5. Non-Competition: As an inducement for Acquisition to enter into the
Stock Purchase Agreement and for Communities to enter into the Employment
Agreement between Xxxx and Communities of even date herewith and as additional
consideration for the consideration to be paid to Xxxx under the Stock Purchase
Agreement and Employment Agreement, Xxxx agrees that:
(a) For the Applicable Non-Compete Period (as hereinafter
defined):
(i) Xxxx will not, directly or indirectly, engage or
invest in, own, manage, operate, finance, control, or participate in
the ownership, management, operation, or control of, be employed by,
associated with, or in any manner connected with, lend his name or any
similar name to, lend his credit to, or render services or advice to,
any business whose products or activities compete in whole or in part
with the products or activities of the Acquired Companies or the
Partnership, including but not limited to, the purchase of land (or
options therefor) for development and the construction of residences
within South Florida; provided, however, that Xxxx may purchase or
otherwise acquire up to (but not more than) one percent of any class of
securities of any enterprise (but without otherwise participating in
the activities of such enterprise) if such securities are listed on any
national or regional securities exchange or have been registered under
Section 12 (g) of the Securities Exchange Act of 1934; and further
provided however that the direct or indirect ownership and/or
participation in the management of Active Investments (as hereafter
defined) shall not be included in the foregoing prohibited activities.
Active Investments shall mean interests in closely held businesses of
all types specifically including businesses which are engaged in
residential and commercial real estate ownership and/or development in
South Florida; provided that (i) such businesses may not develop
residential units of product types that are competitive with product
types then being developed or planned to be developed by any of the
Acquired Companies, (ii) such
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residential development does not materially compete with the Acquired
Company's projects regardless of product type or (iii) such activities
do not materially interfere with Xxxx'x performance of his duties
under the Employment Agreement. Xxxx agrees that this covenant is
reasonable with respect to its duration, geographical area, and scope.
(ii) Xxxx will not, directly or indirectly, either
for himself or any other Person, (A) induce or attempt to induce any
employee of an Acquired Company or the Partnership to leave the employ
of such Acquired Company or the Partnership, (B) in any way interfere
with the relationship between an Acquired Company or the Partnership
and any employee of such Acquired Company or the Partnership, (C)
employ, or otherwise engage as an employee, independent contractor, or
otherwise, any employee of an Acquired Company or the Partnership, or
(D) induce or attempt to induce any customer, supplier, licensee, or
business relation of an Acquired Company or the Partnership to cease
doing business with such Acquired Company or the Partnership, or in any
way interfere with the relationship between any customer, supplier,
licensee, or business relation of an Acquired Company or the
Partnership.
(iii) Xxxx will not, directly or indirectly, either
for himself or any other Person, solicit the business of any Person
known to Xxxx to be a customer of an Acquired Company or the
Partnership, whether or not Xxxx had personal contact with such Person;
(b) The term "Applicable Non-Compete Period" shall mean:
(i) the period beginning on the date hereof and
ending on December 31, 2002;
(ii) if Xxxx'x employment under the Employment
Agreement is terminated pursuant to Section 4(a) or 4(b) thereof, or
for any other reason other than as set forth in Section 5(b) (iii)
hereof, the period beginning on the date hereof and ending on December
31, 2002;
(iii) if Xxxx'x employment under the Employment
Agreement is terminated pursuant to Section 4(d) or 4(e) thereof, the
period beginning on the date hereof and ending on the date of
termination of employment.
(c) In the event of a breach by Xxxx of any covenant set
forth in Section 5(a) hereof, the term of such covenant will be extended by the
period of the duration of such breach;
(d) (i) Xxxx will not, at any time during or after the
Applicable Non-Compete Period, disparage Acquisition, the Acquired Companies, or
the Partnership, or any of their shareholders, directors, officers, employees,
or agents;
(ii) The Acquired Companies and the Partnership
will not, nor will they permit their respective shareholders, directors,
officers, employees, or agents, at any time during or after the Applicable
Non-Compete Period to disparage Xxxx; and
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(e) Xxxx will, for the Applicable Non-Compete Period, within
ten days after accepting any employment, advise Acquisition of the identity of
any employer of Xxxx. Acquisition, any Acquired Company or the Partnership may
serve notice upon each such employer that Xxxx is bound by this Agreement and
furnish each such employer with a copy of this Agreement or relevant portions
thereof.
(f) The parties acknowledge and agree that the restrictions
provided under this Section 5 are reasonably necessary to protect the legitimate
business interests of Acquisition, the Acquired Companies, the Partnership and
Communities. Such legitimate business interests include the items referenced in
Section 3 (a) hereof.
6. Remedies: If Xxxx breaches any of the covenants set forth in this
Agreement, Acquisition, the Acquired Companies and the Partnership will be
entitled to the following remedies:
(a) To obtain injunctive or other equitable relief to
restrain any breach or threatened breach or otherwise to specifically enforce
the provisions of this Agreement, it being agreed that money damages alone would
be inadequate to compensate the Acquisition, the Acquired Companies and the
Partnership and would be an inadequate remedy for such breach.
(b) In addition to such equitable relief, to recover from Xxxx
any and all supplemental damages suffered as a result of such breach in order to
afford Acquisition, the Acquired Companies and the Partnership complete relief;
(c) Any and all other damages and remedies available at law
or in equity;
(d) The rights and remedies of the parties to this Agreement
are cumulative and not alternative.
7. GENERAL PROVISIONS
(a) Attorneys' Fees: Should any party employ an attorney or
attorneys to enforce any of the provisions hereof, the party prevailing shall be
entitled to payment by the non-prevailing party(ies) of all reasonable costs,
charges and expenses, expended or incurred by the prevailing party, including
reasonable attorneys' fees through all levels of proceedings, whether suit be
brought or not.
(b) Notices: All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a) delivered by hand (with written confirmation of
receipt), (b) sent by telecopier (with written confirmation of receipt) ,
provided that a copy is mailed by registered mail, return receipt requested, or
(c) when received by the addressee, if sent by a nationally recognized overnight
delivery service (receipt requested), in each case to the appropriate addresses
and telecopier numbers set forth below (or to such other addresses and
telecopier numbers as a party may designate by notice to the other parties):
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Xxxx:
---------------------------------
---------------------------------
Facsimile No.:
------------------
With a copy to: K. Xxxxxxxx Xxxxx
White & Case LLP
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Acquisition, Acquired
Companies,
Partnership: c/o Newmark Homes Corp.
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxx Xxxx, Xxxxx 00000
Attn: Xxxxx Xxxxx
Facsimile No.: 000-000-0000
Copy to: Xxxxx Xxxxxxx
Xxxxxx & Xxxxxx LLP
2300 First City Tower, 0000 Xxxxxx Xx.
Xxxxxxx, Xxxxx 00000-0000
Facsimile No.: 000-000-0000
(c) Further Assurances: The parties agree (a) to furnish upon
request to each other such further information, (b) to execute and deliver to
each other such other documents, and (c) to do such other acts and things, all
as the other party may reasonably request for the purpose of carrying out the
intent of this Agreement and the documents referred to in this Agreement.
(d) Waiver: The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure nor any delay
by any party in exercising any right, power, or privilege under this Agreement
or the documents referred to in this Agreement will operate as a waiver of such
right, power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such right,
power, or privilege or the exercise of any other right, power, or privilege. To
the maximum extent permitted by applicable law, (a) no claim or right arising
out of this Agreement or the documents referred to in this Agreement can be
discharged by one party, in whole or in part, by a waiver or renunciation of the
claim or right unless in writing signed by the other party; (b) no waiver that
may be given by a party will be applicable except in the specific instance for
which it is given; and (c) no notice to or demand on one party will be deemed to
be a waiver of any obligation of such party or of the right of the party giving
such notice or demand to take further action without notice or demand as
provided in this Agreement or the documents referred to in this Agreement.
(e) Entire Agreement and Modification: This Agreement
supersedes all prior agreements between the parties with respect to its subject
matter and constitutes (along with the
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documents referred to in this Agreement) a complete and exclusive statement of
the terms of the agreement between the parties with respect to its subject
matter. This Agreement may not be amended except by a written agreement executed
by the party to be charged with the amendment.
(f) Severability: If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
Without limiting the generality of the foregoing, in the event that the
provisions of this Agreement should ever be deemed to exceed the scope of
business, time or geographic limitations permitted by applicable law, then such
provisions shall be and are hereby reformed to the maximum scope, time or
geographic limitations permitted by such applicable law.
(g) Section Headings; Construction: The headings of Sections
in this Agreement are provided for convenience only and will not affect its
construction or interpretation. All references to "Section" or "Sections" refer
to the corresponding Section or Sections of this Agreement. All words used in
this Agreement will be construed to be of such gender or number as. the
circumstances require. Unless otherwise expressly provided, the word "including"
does not limit the preceding words or terms.
(h) Governing Law: This Agreement will be governed by the
laws of the State of Florida without regard to conflicts of laws principles.
(i) Arbitration; Jurisdiction and Venue.
(1) THE PARTIES HAVE AGREED TO THE RESOLUTION BY
ARBITRATION OF ALL CLAIMS PURSUANT TO THE ARBITRATION COVENANT
AS SET FORTH IN THE STOCK PURCHASE AGREEMENT, WHICH IS
INCORPORATED HEREIN BY THIS REFERENCE.
(2) IN THE EVENT THE ARBITRATION COVENANT IS FOUND
UNENFORCEABLE OR INAPPLICABLE TO ANY LEGAL ACTION WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR IN CONNECTION WITH THIS
AGREEMENT, SUCH LEGAL ACTION SHALL BE BROUGHT EXCLUSIVELY IN
THE COURTS OF THE STATE OF FLORIDA, COUNTY OF DADE, OR,, IF IT
HAS OR CAN ACQUIRE JURISDICTION, IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, AND THE PARTIES
CONSENT TO THE JURISDICTION OF SUCH COURTS (AND THE
APPROPRIATE APPELLATE COURTS) IN ANY SUCH LEGAL ACTION AND
WAIVE ANY OBJECTION TO VENUE LAID THEREIN.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Non-Competition Agreement as of the date first written above.
/s/ Xxxxx Xxxx
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XXXXX XXXX
WESTBROOKE COMMUNITIES, INC.,
a Florida corporation
By: /s/ Xxxxx Xxxx
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Print Name: Xxxxx Xxxx
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Title: /s/ Xxxxx Xxxx
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WESTBROOKE AT WEST LAKE, INC.
a Florida corporation
By: /s/ Xxxxx Xxxx
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Print Name: /s/ Xxxxx Xxxx
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Title: President
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WESTBROOKE AT WINSTON TRAILS,
INC. a Florida corporation
By: /s/ Xxxxx Xxxx
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Print Name: Xxxxx Xxxx
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Title: President
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WESTBROOKE AT PEMBROKE PINES,
INC. a Florida corporation
By: /s/ Xxxxx Xxxx
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Print Name: Xxxxx Xxxx
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Title: President
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WESTBROOKE AT OAK RIDGE, INC.
a Florida corporation
By: /s/ Xxxxx Xxxx
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Print Name: Xxxxx Xxxx
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Title: President
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THE WESTBROOKE PARTNERSHIP, a
Florida partnership
By: Westbrooke Communities,
Inc., a Florida
corporation, its
managing general partner
By: /s/ Xxxxx Xxxx
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Print Name: Xxxxx Xxxx
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Title: President
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WESTBROOKE ACQUISITION CORP. a
Florida corporation
By: /s/ Xxxxxxx X. XxXxxx
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Print Name: Xxxxxxx X. XxXxxx
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Title: President
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