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Exhibit 10(z)
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("AGREEMENT") is made as of November 30,
2000, between Avatar Holdings Inc., a Delaware corporation (the "COMPANY") and
Xxxxxx X. Xxxxxx (the "EMPLOYEE").
W I T N E S S E T H
WHEREAS, the Employee is currently employed as President and Chief
Executive Officer of the Company pursuant to the employment agreement dated
February 13, 1997 between the Company and the Employee (the "ORIGINAL
AGREEMENT"); and
WHEREAS, the Company and the Employee wish to terminate the Original
Agreement and enter into the 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. The Company agrees to employ Employee and Employee
agrees to be employed by the Company commencing on the date hereof (the
"COMMENCEMENT DATE") and ending on December 31, 2005 (unless sooner terminated
as hereinafter provided), on the terms and subject to the conditions set forth
in this Agreement.
2. DUTIES. (a) Employee shall continue to be nominated as a director
of the Company and, subject to Employee's election thereto by the Board of
Directors or the stockholders of the Company, Employee shall be employed as the
President and Chief Executive Officer of the Company. In such capacities,
Employee shall serve as the senior executive officer of the Company and shall
have the duties and responsibilities prescribed for such positions by the
By-Laws of the Company, and shall have such other duties and responsibilities
as may from time to time be prescribed by the Board of Directors of the Company
or the Executive Committee of the Board of Directors, provided that such duties
and responsibilities are consistent with Employee's position as the senior
executive officer. In the event that during the term of Employee's employment
hereunder Employee's duties and responsibilities are expanded or Employee's
title is changed (without reduction in status), then in either or both events
the rights and obligations under this Agreement shall not be affected. In the
performance of Employee's duties, Employee shall be subject to the supervision
and direction of the Board of Directors of the Company and the Executive
Committee of the Board of Directors.
(b) Subject to the term of Employee's employment hereunder, Employee
shall devote Employee's full working time and effort to the proper performance
of Employee's duties and responsibilities as President and Chief Executive
Officer. Employee hereby represents and warrants to the Company that Employee
has no obligations under any existing employment or service agreement other
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than the Original Agreement and that Employee's performance of the services
required of Employee hereunder will not conflict with any other existing
obligations or commitments. Nothing in this Agreement shall preclude Employee
from engaging, consistent with Employee's duties and responsibilities
hereunder, in charitable and community affairs.
(c) Employee shall perform the services contemplated hereunder at the
principal executive office of the Company and at such other locations as may be
reasonably necessary to the performance of such services.
3. COMPENSATION.
(a) BASE SALARY. During the term of Employee's employment hereunder,
the Company shall pay Employee, and Employee shall accept from the Company for
Employee's services, a salary at the rate of $500,000 per year ("BASE SALARY").
Such Base Salary shall be payable in accordance with the Company's policy with
respect to the compensation of executives. Notwithstanding anything contained
in this Agreement or any other agreement between Employee and the Company, for
calendar year 2000 Employee's Base Salary shall not exceed $500,000.
(b) ANNUAL BONUS. During the term of Employee's employment hereunder,
the Company shall pay Employee, and Employee shall accept from the Company for
Employee's services, in addition to Employee's Base Salary, a calendar year
annual cash bonus of $500,000 ("ANNUAL BONUS"). Such Annual Bonus shall be
payable in accordance with the Company's policy with respect to the
compensation of executives, but no later than 30 days after the end of each
calendar year in respect of which the bonus is earned. Notwithstanding the
foregoing, the Annual Bonus in respect of calendar year 2000 shall be $439,726.
(c) DEFERRED COMPENSATION. Employee shall have the right to defer
receipt of some or all of the compensation which Employee is entitled to
receive hereunder by written notice to the Company, which notice shall set
forth the date to which Employee wishes to defer receipt of such compensation.
If Employee elects to defer receipt of all or any portion of the Base Salary
and/or Annual Bonus ("DEFERRED COMPENSATION"), the amount due Employee shall be
adjusted periodically to reflect any interest that would be realized with
respect to the Deferred Compensation had it been invested at the rate of
interest announced publicly by Citibank, N.A. in New York, New York, from time
to time, as Citibank's base rate. No specific assets of the Company shall be
allocated or segregated with respect to the Deferred Compensation and the
foregoing shall not be construed to create a trust of any kind or a fiduciary
relationship between the Company and Employee, the executor or administrator of
Employee's estate or any other person. Employee's right, or the right of
Employee's estate, to receive the Deferred Compensation, as adjusted in
accordance with this paragraph 3(c), shall be no greater than the right of an
unsecured general creditor of the Company.
(d) EXPENSES. During Employee's employment, Employee will be entitled
to receive prompt reimbursement for all reasonable expenses incurred by
Employee in performing Employee's services hereunder, provided that Employee
properly accounts therefor in accordance with Company policy.
4. CASH COMPENSATION CAP. Notwithstanding anything contained above or
in any other agreement between Employee and the Company, the "cash
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compensation" paid to Employee from January 1, 2001 through and including
December 31, 2005 may not exceed ten million dollars ($10,000,000). "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 amount paid pursuant to paragraph 9(f) below). It is understood that "cash
compensation" shall not include any securities of the Company granted to
Employee (e.g., stock options and restricted stock units granted pursuant to
the Company's Incentive and Capital Accumulation Plan). For purposes of this
paragraph 4, amounts paid pursuant to paragraph 9(f) below shall be deemed to
have been made on December 31, 2005.
5. VACATIONS. During Employee's employment, Employee shall be entitled
to four weeks paid vacation per year plus any additional time, if any, as the
Board of Directors or a committee of the Board of Directors may determine, in
its sole discretion, to be taken at times consistent with the proper
performance of Employee's duties on behalf of the Company. Employee shall also
be entitled to all paid holidays given by the Company to its senior executives.
6. PARTICIPATION IN BENEFIT PLANS. Employee shall be entitled to
participate in and to receive benefits under all the Company's employee benefit
plans and arrangements (other than plans relating to stock options, restricted
stock, stock appreciation rights, "phantom stock" or similar plans) in effect
on the date hereof, and Employee shall also be entitled to participate in or
receive benefits under any pension or retirement plan, savings plan, or
health-and-accident plan made available by the Company in the future to its
senior executives and other key management employees, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and arrangements and provided that Employee meets the eligibility requirements
thereof.
7. OTHER OFFICES. Employee further agrees to serve without additional
compensation, if elected or appointed thereto, as an officer or director of any
of the Company's subsidiaries or affiliates or as any other officer of the
Company.
8. TERMINATION.
(a) DEATH. Employee's employment hereunder shall terminate upon
Employee's death.
(b) DISABILITY. In the event of Employee's permanent disability (as
hereinafter defined) during the term of Employee's employment hereunder, the
Company shall have the right, upon written notice to Employee, to terminate
Employee's employment hereunder, effective upon the giving of such notice. For
the purposes hereof, "PERMANENT DISABILITY" shall be defined as any physical or
mental disability or incapacity which renders Employee incapable of fully
performing the services required of Employee in accordance with Employee's
obligations hereunder for a period of 120 consecutive days or for shorter
periods aggregating 120 days during any period of twelve (12) consecutive
months.
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(c) CAUSE. The Company may terminate Employee's employment hereunder
for "Cause". For the purposes hereof, termination for "CAUSE" shall mean
termination after:
(i) Employee's commission of a material act of fraud against
the Company or its affiliates;
(ii) Employee's conviction of (or pleading by Employee of
NOLO CONTENDERE to) any crime which constitutes a felony in the
jurisdiction involved; or
(iii) the willful, repeated and demonstrable failure by
Employee substantially to perform Employee's duties over a period of
not less than 30 days, other than any such failure resulting from
Employee's incapacity due to physical or mental illness, or material
breach of any of Employee's obligations under this Agreement, and
Employee's failure to cure such failure or breach within 30 days after
receipt of written notice from the Chairman of the Board of Directors
of the Company.
(d) TERMINATION BY EMPLOYEE FOR GOOD REASON. Employee may terminate
Employee's employment hereunder for Good Reason. For purposes of this
Agreement, "GOOD REASON" shall mean (A) the failure of the Board of Directors
to continue to recommend or elect, or the stockholders of the Company to
continue to elect, Employee as a director of the Company throughout the term of
Employee's employment hereunder, or the failure of the Board of Directors to
elect Employee or continue to elect Employee to the Executive Committee of the
Board, PROVIDED that if Employee is not so continued, the Company shall be
entitled to cure such failure within thirty (30) days after Employee ceases to
serve as a director or a member of the Executive Committee, as the case may be,
(B) any assignment to Employee of any material duties other than those
contemplated by, or any limitation of Employee's powers or in any respect not
contemplated by, paragraph 2 hereof, PROVIDED that Employee first deliver
written notice thereof to the Chairman of the Board of Directors of the Company
and the Company shall have failed to cure such non-permitted assignment or
limitation within thirty (30) days after receipt of such written notice, (C) a
reduction in Employee's rate of compensation, or a material reduction in
Employee's fringe benefits or any other material failure by the Company to
perform any of its material obligations hereunder, PROVIDED that Employee first
deliver written notice thereof to the Chairman of the Board of the Company and
the Company shall not have cured such reduction or failure within thirty (30)
days after receipt of such written notice, or (D) the Company relocates its
principal place of business to a place whose distance is further than a (i)
75-mile radius from Coral Gables, Florida or (ii) 75-mile radius from New York,
New York.
(e) TERMINATION BY EMPLOYEE FOLLOWING A CHANGE IN CONTROL. Employee
may terminate Employee's employment hereunder, within twelve (12) months
following a Change in Control. For purposes of this Agreement, a "CHANGE OF
CONTROL" shall mean any of the following events:
(1) a person or entity or group of persons or entities,
acting in concert, become the direct or indirect beneficial owner
(within the meaning of Rule 13d-3 of the Securities Exchange Act of
1934, as amended) of securities of the Company representing ninety
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percent (90%) or more of the combined voting power of the issued and
outstanding Common Stock (a "SIGNIFICANT OWNER"); or
(2) the Board approves any merger, consolidation or like
business combination or reorganization of Avatar, the consummation of
which would result in the occurrence of the event described in clause
(A) above, and such transaction shall have been consummated.
(f) Any termination by the Company pursuant to paragraphs (b) or (c)
above or by Employee pursuant to paragraph (d) or (e) above shall be
communicated by written Notice of Termination to the other party hereto. For
the purposes hereof, a "NOTICE OF TERMINATION" shall mean a notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Employee's employment under the provision so
indicated.
(g) "DATE OF TERMINATION" shall mean (i) if Employee's employment is
terminated by Employee's death, the date of Employee's death, (ii) if
Employee's employment is terminated for any other reason, the date on which a
Notice of Termination is given.
9. COMPENSATION UPON TERMINATION OR DURING DISABILITY.
(a) If Employee's employment shall be terminated by reason of
Employee's death, the Company shall pay, to such person as Employee shall
designate in a notice filed with the Company, or, if no such person shall be
designated, to Employee's estate as a lump sum death benefit, an amount equal
to any accrued but unpaid Base Salary and a prorated Annual Bonus at the time
of Employee's death. This amount shall be exclusive of and in addition to any
payments Employee's widow, beneficiaries or estate may be entitled to receive
pursuant to any pension or employee benefit plan maintained by the Company.
Employee's designated beneficiary or the executor of Employee's estate, as the
case may be, shall accept the payment provided for in this paragraph 9 in full
discharge and release of the Company of and from any further obligations under
this Agreement, subject to payments, if any, provided for in paragraph 9(f)
below.
(b) During any period that Employee fails to perform Employee's duties
hereunder as a result of incapacity due to physical or mental illness, Employee
shall continue to receive Employee's full Base Salary and a prorated Annual
Bonus until, if applicable, Employee's employment is terminated pursuant to
paragraph 8(b) hereof. If Employee's employment is terminated by the Company
pursuant to paragraph 8(b), the Company shall be discharged and released of and
from any further obligations under this Agreement, subject to payments, if any,
provided for in paragraph 9(f) below. During any such period and thereafter
Employee shall continue to bear the obligations provided for in paragraph 10
below in accordance with the terms of such paragraph 10.
(c) If Employee's employment shall be terminated for Cause or Employee
shall terminate Employee's employment other than for Good Reason, the Company
shall pay Employee Employee's full Base Salary and a prorated Annual Bonus
through the Date of Termination or the date on which Employee terminates
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Employee's employment at the rate in effect at the time Notice of Termination
is given or the date on which Employee terminates Employee's employment. The
Company shall be discharged and released of and from any further obligations
under this Agreement. Thereafter, Employee shall continue to have the
obligations provided for in paragraphs 9 and 10 below. Nothing contained herein
shall be deemed to be a waiver by the Company of any rights that it may have
against Employee in respect of Employee's actions which gave rise to the
termination of Employee's employment for Cause.
(d) If the Company shall terminate Employee's employment other than
pursuant to paragraphs 8(b) or 8(c) hereof or if Employee shall terminate
Employee's employment for Good Reason, then
(i) The Company shall continue to pay Employee Employee's
full Base Salary in accordance with normal payroll practices and
without interest through December 31, 2005 at the rate in effect at
the time Notice of Termination is given in accordance with paragraph
8(f) hereof;
(ii) The Company shall continue to pay Employee Employee's
Annual Bonus in accordance with normal payroll practices and without
interest through December 31, 2005;
(iii) The Company shall pay Employee the severance payment in
paragraph 9(f) below; and
(iv) The Company shall maintain in full force and effect, for
Employee's continued benefit for the full term of this Agreement, all
employee benefit plans and programs in which Employee was entitled to
participate immediately prior to the Date of Termination provided that
Employee's continued participation is possible under the general terms
and provisions of such plans and programs. In the event that
Employee's participation in any such plan or program is barred,
Employee shall be entitled to receive an amount equal to the annual
contributions, payments, credits or allocations made by the Company to
Employee, to Employee's account or on Employee's behalf under such
plans and programs from which Employee's continued participation is
barred.
(e) If Employee shall terminate Employee's employment hereunder
pursuant to paragraph 8(e) hereof, then Employee shall continue to receive
Employee's Base Salary and Annual Bonus for a period of the lesser of (i) one
year from the Date of Termination or (ii) the remainder of the employment term.
(f) SEVERANCE PAYMENT. If the Employee's employment terminates on
December 31, 2005 pursuant to Section 1 of this Agreement, the Employee
terminates his employment for Good Reason or Employee is terminated by the
Company without Cause, the Company shall pay or provide to the Employee
beginning in the calendar year following the Date of Termination an annual
payment of $200,000 for four (4) years, payable within thirty (30) days
following the beginning of each such calendar year. If Employee's employment
with the Company is terminated by Employee's death or Permanent Disability
prior to December 31, 2005 or Employee terminates his employment pursuant to
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paragraph 8(e) hereof, the Employee (or the executor or administrator of the
deceased Employee's estate or the person or persons to whom the deceased
Employee's rights shall pass by will or the laws of descent or distribution, as
applicable) shall be entitled to receive, beginning in the calendar year
following the Date of Termination, an annual payment for four (4) years,
payable within thirty (30) days following the beginning of each such calendar
year, equal to the product of (x) a fraction the numerator of which is the
number of completed whole months elapsed from the Commencement Date to the date
of death, Permanent Disability or termination of employment, as the case may be
(whichever is sooner), and the denominator of which is the number of whole
months from the date hereof until December 31, 2005 and (y) $200,000.
(g) If the Company shall terminate Employee's employment hereunder
other than pursuant to paragraphs 8(b) or 8(c) hereof, or if Employee shall
terminate Employee's employment pursuant to paragraph 8(d) hereof, Employee
agrees, during the entire period of time that Employee is entitled to receive
any benefits pursuant to paragraph 9(d) above, to make known Employee's
availability for employment involving services of a nature substantially
similar and of a comparable stature to those performed by Employee on behalf of
the Company in a manner customary for executives holding positions
substantially similar and of a comparable stature to Employee's position with
the Company. Employee agrees to keep the Chairman of the Board of the Company
(or his designee) apprised of Employee's employment status during such period
and, if requested, Employee will provide appropriate supporting documentation
with respect to the salary, bonuses or other compensation earned by and
benefits made available to Employee in respect of such employment. In the event
Employee secures employment as described in this paragraph (e), the Company
shall be entitled to (i) deduct from the amounts payable to Employee pursuant
to paragraphs 9(d)(i) and 9(d)(ii) above (excluding any accrued but unpaid
Annual Bonus through the date of termination) any salary, bonuses or other
compensation paid to Employee in connection with such employment and (ii)
terminate Employee's participation in (and shall not be required to pay
Employee any sums in respect of) any employee benefit plans and programs
described in paragraph 9(d)(iii) that are substantially similar to any employee
benefit plans and programs in which Employee participates in connection with
such new or existing employment. Employee agrees promptly to repay to the
Company any amounts paid to Employee by the Company pursuant to paragraphs
9(d)(i) and 9(d)(ii) which the Company was entitled to deduct from such amounts
pursuant to this paragraph (e).
10. NON-COMPETITION AND PROTECTION OF CONFIDENTIAL INFORMATION.
(a) RESTRICTIVE COVENANTS. Employee agrees, as a condition to the
performance by the Company of its obligations hereunder, particularly its
obligations under paragraph 3 hereof, that during the term of Employee's
employment hereunder and during the further period of one (1) year after the
termination of such employment, Employee shall not, without the prior written
approval of the Board of Directors of the Company, directly or indirectly
through any other person, firm or corporation:
(i) 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
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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) Solicit, raid, entice or induce any person, firm or
corporation that presently is or at any time during the term of
Employee's employment hereunder a customer of the Company, or any of
its subsidiary companies, to become a customer of any other person,
firm or corporation, and Employee shall not approach any such person,
firm or corporation for such purpose or authorize or knowingly approve
the taking of such actions by any other person; or
(iii) Solicit, raid, entice or induce any person that
presently is or at any time during the term of Employee's employment
hereunder an employee of the Company, or any of its subsidiary
companies, to become employed by any person, firm or corporation, and
Employee shall not approach any such employee for such purpose or
authorize or knowingly approve the taking of such actions by any other
person.
(b) CONFIDENTIAL INFORMATION. Recognizing that the knowledge,
information and relationship with customers, suppliers, and agents, and the
knowledge of the Company's and its subsidiary companies' business methods,
systems, plans and policies which Employee shall hereafter establish, receive
or obtain as an employee of the Company or its subsidiary companies, are
valuable and unique assets of the respective businesses of the Company and its
subsidiary companies, Employee agrees that, during and after the term of
Employee's employment hereunder, Employee shall not (otherwise than pursuant to
Employee's duties hereunder) disclose, without the prior written approval of
the Board of Directors of the Company, any such knowledge or information
pertaining to the Company or any of its subsidiary companies, their business,
personnel or policies, to any person, firm, corporation or other entity, for
any reason or purpose whatsoever. The provisions of this paragraph 10 shall not
apply to information which is or shall become generally known to the public or
the trade (except by reason of Employee's breach of Employee's obligations
hereunder), information which is or shall become available in trade or other
publications, information known to Employee prior to entering the employ of the
Company, and information which Employee is required to disclose by order of a
court of competent jurisdiction (provided that prior to Employee's disclosure
of any such information Employee shall provide the Company with reasonable
notice and a reasonable opportunity to seek a protective order to prevent such
disclosure).
(c) GEOGRAPHIC SCOPE. The provisions of this Section 10 (other than
Sections 10(a)(iii) and (b), which shall be in full force and effect without
regard to the geographic limitations set forth in this Section 10(d)) shall be
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in full force and effect within a 100-mile radius of a site for which the
Company or any Avatar Entity has commenced development or has a binding
commitment therefor. The Employee and the Company expressly agree that the
prohibitions set forth in Sections 10(a)(i) and (ii) shall be in full force and
effect with respect to any services or business activity which competes in the
above mentioned geographic area with the business operations or activities of
the Company, its subsidiaries and/or affiliates (each of the foregoing entities
being referred to herein, collectively and individually, as the "AVATAR
ENTITIES"), regardless of the geographic location of the Employee in rendering
such services or engaging in such business activity.
(d) SURVIVAL. The provisions of this paragraph 10 shall survive the
termination of Employee's employment hereunder, irrespective of the reason
therefor.
(e) REMEDIES. The Employee acknowledges that his services are of a
special, unique and extraordinary character and, his position with the Avatar
Entities places him in a substantial relationship and a position of confidence
and trust with specific prospective or existing customers, suppliers and
employees of the Avatar Entities, and that in connection with his services to
the Company, the Employee will have access to confidential business or
professional information vital to the Avatar Entities' businesses. The Employee
further acknowledges that in view of the nature of the business in which the
Avatar Entities are engaged, the foregoing restrictive covenants in this
Section 10 hereof are reasonable and necessary in order to protect the
legitimate business interests of the Avatar Entities and that violation thereof
would result in irreparable injury to the Avatar Entities. Accordingly, the
Employee consents and agrees that if the Employee violates or threatens to
violate any of the provisions of this Section 10 hereof the Avatar Entities
would sustain irreparable harm and, therefore, the Avatar Entities 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.
11. DEDUCTIONS AND WITHHOLDINGS. The Company shall be entitled to
withhold any amounts payable under this Agreement on account of payroll taxes
and similar matters as are required by applicable law, rule or regulation of
appropriate governmental authorities.
12. SUCCESSORS; BINDING AGREEMENT.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance reasonably satisfactory to Employee, to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken
place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
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shall entitle Employee to compensation from the Company in the same amount and
on the same terms as Employee would be entitled to hereunder if Employee
terminated Employee's employment for Good Reason, except that for purposes of
implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination. As used in this Agreement,
"COMPANY" shall include any successor to the Company's business and/or assets
as aforesaid which executes and delivers the agreement provided for in this
paragraph 12 or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law. Except as set forth above, the Company
may not assign this Agreement or any of its rights or obligations hereunder,
without Employee's prior written consent.
(b) This Agreement and all Employee's rights hereunder shall inure to
the benefit of and be enforceable by Employee's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Employee should die while any amounts would still be
payable to Employee hereunder if Employee had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to Employee's devisee, legatee, or other designee or,
if there be no such designee, to Employee's estate. Employee's obligations
hereunder may not be delegated and except as otherwise provided herein relating
to the designation of a devisee, legatee or other designee, Employee may not
assign, transfer, pledge, encumber, hypothecate or otherwise dispose of this
Agreement or any of Employee's rights hereunder, and any such attempted
delegation or disposition shall be null and void and without effect.
(c) This Agreement has been duly authorized by the Company, and
constitutes the legal, valid and binding obligation of the Company, enforceable
against it in accordance with its terms. Employee agrees that this Agreement
constitutes Employee's legal, valid and binding obligation and is enforceable
against Employee in accordance with its terms.
13. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for shall be in writing and shall be deemed to have
been duly given when delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to Employee:
Xx. Xxxxxx X. Xxxxxx
0000 X.X. 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
If to the Company:
Avatar Holdings Inc.
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: Chairman of the Board
or to such other address as any party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
14. MISCELLANEOUS. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by Employee and by the Company. No waiver by either party
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hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
15. OTHER AGREEMENTS BETWEEN EMPLOYEE AND THE COMPANY. Employee and
the Company hereby acknowledge that upon execution of this Agreement, the
Original Agreement shall be terminated and the provisions thereof shall be
given no force or effect. This Agreement constitutes the complete understanding
between the parties with respect to Employee's employment and no agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Florida.
16. VALIDITY; STOCKHOLDER APPROVAL OF EXECUTIVE INCENTIVE PLAN AND
CAPITAL ACCUMULATION PLAN AMENDMENT.
(a) The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
(b) The Company hereby undertakes to submit the Executive Incentive
Plan and an amendment to the Company's Incentive and Capital Accumulation Plan
(the "CAPITAL ACCUMULATION PLAN AMENDMENT") for approval by stockholders at the
Company's next annual meeting or at a special meeting on or before December 31,
2001. Employee agrees that the failure of the Company's stockholders to approve
the Executive Incentive Plan and the Capital Accumulation Plan Amendment (and
any adverse financial consequences to Employee resulting therefrom) shall not
constitute a "Good Reason" as defined in paragraph 8(d) hereof.
17. 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
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first written above.
AVATAR HOLDINGS INC.
By: /s/ XXXX XXXX
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Xxxx Xxxx
Chairman of the Board
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
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