Exhibit 10.137
EMPLOYMENT AGREEMENT
This Agreement (the "Agreement") is made as of June 28, 2006 (the
"Effective Date"), by and between Bluegreen Corporation, a Massachusetts
corporation with its headquarters located in Boca Raton, Florida (the
"Company"), and Xxxxxx X. Xxxxxxx (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company desires to employ Executive, and Executive desires to
accept such employment, upon the terms and conditions set forth herein;
WHEREAS, Executive has through his previous employment with the Company,
and will continue to, develop and acquire knowledge and information pertaining
to the Company's business and the business of its Related Entities (defined
below), primarily including, but not limited to, the Company's real estate
development, finances, management, operations, and sales and marketing, and
Executive acknowledges that such information is valuable, confidential and
proprietary;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, receipt of which is hereby acknowledged, Executive and
the Company agree as follows:
1. Employment of Executive.
1.1. Term. Subject to the terms of Section 3 below, Executive's
employment under this Agreement will begin on the Effective Date
and, unless otherwise sooner terminated, will expire on December 31,
2014 (the "Term"). The Term shall be divided into an "Initial Term"
and a "Transition Term" (each as defined below).
1.2. Duties and Responsibilities. Executive's duties and responsibilities
under this Employment Agreement shall be as follows:
1.2.1. Initial Term. From the Effective Date of this Agreement
through December 31, 2007 (the "Initial Term"), Executive
shall be employed by the Company as the Chief Executive
Officer ("CEO") of the Company or such other senior executive
position as may be designated to Executive from time to time
by the Board of Directors of the Company (the "Board") and,
subject to the Articles of Organization and By-Laws of the
Company and his re-election from time to time by the
Company's stockholders, Executive shall also serve as a
member of the Board. In addition to performing the regular
and customary duties and responsibilities of a CEO, and the
specific duties and responsibilities assigned to Executive by
the Board or any Committee thereof, Executive shall, during
this Initial Term assist the Board in identifying, developing
and mentoring a successor to assume the position of CEO
following the Initial Term.
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1.2.2. Transition Term. From January 1, 2008 through December 31,
2014 (the "Transition Term"), Executive will be employed by
the Company as a Strategic Advisor and, subject to the
Articles of Organization and By-Laws of the Company and his
re-election from time to time by the Company's stockholders,
if requested by the Board, Executive shall also serve as a
member of the Board. During the Transition Term, Executive
will cooperate and assist in the transition of the
responsibilities of the CEO to the new CEO selected by the
Board and shall mentor such new CEO and other executives of
the Company. During the Transition Term, Executive shall also
assist the Board with strategic planning and product
planning, serve as a general advisor to senior management and
the Board, assist in opening new markets, lead acquisitions,
and engage in such other activities commensurate with his
position as may be requested by the Company's executive
officers or the Board. It is understood that Executive's
services during the Transition Term are expected to require
Executive's entire business time unless otherwise agreed to
by the Board. As the Company's Strategic Advisor, Executive
will no longer serve in the capacity of CEO; provided,
however, that if at any time during the Transition Term the
Company shall not have a CEO, the Company may request that
Executive resume the position of CEO. Executive shall
determine in his sole discretion whether to resume his
position as CEO, provided that his refusal to resume such
position will not affect his right to continued payments
under this Agreement nor will it constitute a breach of this
Agreement.
1.3. Best Efforts. During the Term, Executive shall devote his best
efforts and all of his business time to the performance of his
duties under this Agreement and shall perform them faithfully,
diligently, and competently and in a manner consistent with the
policies of the Company and the directions of the Board; provided,
however, that the foregoing shall not be deemed to prohibit
Executive from: (a) subject to the terms of Section 4 of this
Agreement and the policies of the Company as in effect from time to
time, including the Company's Code of Business Conduct and Ethics as
the same may exist from time to time, investing his assets in any
form or manner that shall not require any material activities on
Executive's part in connection with the operations or affairs of the
companies or other entities in which such investments are made; or
(b) engaging in religious, charitable or other community or
non-profit activities that do not impair Executive's ability to
fulfill Executive's duties and responsibilities under this
Agreement. At all times Executive shall comply with any employee
handbooks, policies, or practices that the Company may have with
respect to its senior executive employees from time to time. During
the Term, Executive shall not engage in any activities outside the
scope of his employment if such activities could reasonably be
expected to detract from or interfere with the fulfillment of his
responsibilities or duties under this Agreement. Executive may,
however, continue his service on the boards on which he currently
serves; provided the entities do not compete with the Company. Upon
execution of this Agreement, Executive will provide a list of all
the boards on which he currently serves. Without the prior written
consent of the Board, Executive shall not serve as a director,
employee, consultant or agent (or any equivalent position) of any
company or other business entity and shall not receive any fees or
other remuneration for work performed for or on behalf of any other
organization either within or outside the scope of his employment.
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2. Compensation. As full compensation for his services hereunder and in
consideration for Executive's covenants contained in this Agreement, the
Company shall pay Executive the following compensation:
2.1. Initial Term. During the Initial Term, the Company shall pay
Executive a salary (the "Salary") at the annual rate of $500,000,
subject to increase from time to time in the discretion of the Board
or the Compensation Committee of the Board (the "Compensation
Committee"). The Salary shall be payable in periodic installments in
accordance with the Company's usual practice for its senior
executives. If during the Term the Company shall have an annual
incentive bonus plan for its senior executive employees, Executive
shall be eligible to participate in such plan and, if earned, to
receive a bonus thereunder (the "Bonus").
2.2. Transition Term. During the Transition Term, Executive will be paid
for his services to the Company in the manner described in this
paragraph. During the period commencing on January 1, 2008 and
ending on December 31, 2012, Executive will be paid a Salary at the
annual rate of Five Hundred Thousand Dollars ($500,000), and during
the period commencing on January 1, 2013 and ending on December 31,
2014, Executive will be paid a Salary at the annual rate of Two
Hundred Fifty Thousand Dollars ($250,000). The Salary shall be
payable in periodic installments in accordance with the Company's
usual practice for its senior executives. During the Transition
Term, Executive will be provided with office space on the Company's
premises or comparable office space off-premises, as the Company may
determine in its sole discretion.
2.3. Benefits. During the Term, Executive shall also be eligible to
participate in any employee benefit plans, medical insurance plans,
life insurance plans, disability income plans, retirement plans,
vacation plans, expense reimbursement plans, stock option and other
benefit plans which the Company may from time to time have in effect
for its senior executives. Such participation shall be subject to
the terms of the applicable plan documents, generally applicable
policies of the Company, applicable law and the discretion of the
Board, the Compensation Committee or any administrative or other
committee provided for in or contemplated by any such plan. Nothing
contained in this Agreement shall be construed to create any
obligation on the part of the Company to establish any such plan or
to maintain the effectiveness of any such plan which may be in
effect from time to time or to grant any bonuses or stock options
under such plans after the Initial Term.
2.4. Golf Club. During the Initial Term, the Company shall pay
Executive's annual membership dues in a golf club of Executive's
choice.
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2.5. Taxation of Payments and Benefits. The Company shall undertake to
make deductions, withholdings and tax reports with respect to
payments and benefits under this Agreement to the extent that it
reasonably and in good faith believes that it is required to make
such deductions, withholdings and tax reports. Payments under this
Agreement shall be in amounts net of any such deductions or
withholdings. Nothing in this Agreement shall be construed to
require the Company to make any payments to compensate Executive for
any adverse tax effect associated with any payments or benefits or
for any deduction or withholding from any payment or benefit.
2.6. Indemnification. The Company shall indemnify Executive for acts
taken in good faith in the performance of his duties under this
Agreement throughout the Term and to the extent available, the
Company will include Executive in its directors' and officers'
liability insurance. Such indemnification shall be in accordance
with the Company's Articles of Organization and shall be the same as
the indemnification provided by the Company to its other directors
and officers.
2.7. Expenses. During the Term, the Company agrees to pay or reimburse
Executive for all reasonable vouchered business expenses incurred by
him in the performance of his duties hereunder, which have been
submitted in accordance with any expense reimbursement policy or
practice of the Company
3. Termination and Termination Benefits. Notwithstanding the provisions of
Section 1 above, this Section 3 shall govern the termination of
Executive's employment with the Company under this Agreement during the
Term. Upon termination of the employment of Executive for any reason, the
Company shall pay to Executive any accrued but unpaid Salary and, if
applicable, any accrued but unpaid Bonus. Benefits under any employee
benefit plans of the Company shall be as described in such plans. Any
stock options granted to Executive by the Company shall be governed by the
terms of each individual stock option agreement and the plan under which
each such grant was made, except that for purposes of the length of time
to exercise options following the termination of employment, Executive's
continued service as a member of the Board shall be deemed to constitute
employment or the provision of services, as required; provided, however,
that the foregoing shall not be construed as to provide for any right of
Executive to continue to serve as a member of the Board following the
termination of his employment.
3.1. Termination by the Company for Cause. The Executive's employment
under this Agreement may be terminated for Cause (as defined below)
after written notice to Executive as provided herein. In the event
of a termination for Cause, the Company shall be responsible under
this Agreement only for accrued and unpaid compensation and
benefits. For purposes of this Agreement the following shall
constitute "Cause" for such termination: (i) conviction of or plea
of nolo contendere by Executive for (A) a felony or (B) any
misdemeanor involving moral turpitude, deceit, dishonesty or fraud;
(ii) material violation of the policies and procedures of the
Company, including the Company's policies on sexual harassment and
transactions in the Company's securities, as in effect from time to
time; (iii) gross negligence, willful misconduct, fraud,
misappropriation of assets, or insubordination of Executive with
respect to the Company or any parent or direct or indirect
subsidiary of the Company; or (iv) material breach by Executive of
any of
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Executive's obligations under this Agreement. Prior to terminating
this Agreement for Cause pursuant to subsections (ii), (iii) or (iv)
above, the Company shall provide Executive written notice of any
violation or breach. Executive will have 30 days from the date of
receipt of written notice to cure any such violation or breach,
during which time Executive's compensation and benefits shall
continue. In the event the Company reasonably determines that the
nature of such violation or breach is such that it cannot be cured
by Executive, it shall so state in the notice to Executive and such
termination shall be effective immediately upon receipt of such
notice.
3.2. Termination by the Company Without Cause. Subject to the payment of
Termination Benefits (as hereinafter defined) pursuant to Section
3.5 below, Executive's employment under this Agreement may be
terminated by the Company without Cause at any time by a vote of the
Board. Such termination without Cause shall be effective immediately
upon written notice to Executive of such a vote by the Board.
3.3. Death. The employment of Executive shall terminate upon the death of
Executive. The Executive's estate shall be entitled to receive any
Salary accrued but unpaid as of the date of death and a payment in
lieu of any Bonus, pro-rated for the period between the beginning of
the applicable Bonus period and the date of death and determined by
substituting for any annual target described in the annual incentive
program the target established for the quarter in which the date of
death occurs, as determined in good faith by the Compensation
Committee. Any such Bonus payment shall be made at such time as
Executive's Bonus would normally be paid. In addition, the
Executive's estate shall be entitled to the Termination Benefits set
forth in Section 3.5 below.
3.4. Disability. If Executive shall become disabled and is substantially
unable to perform the essential functions of Executive's then
existing position of employment under this Agreement, the Board may,
upon 30 days written notice to Executive and in the discretion of
the Company, remove Executive from any responsibilities, reassign
Executive to another position with the Company or terminate this
Agreement and Executive's employment with the Company. In the event
of re-assignment, the Company will continue to pay Executive under
this Agreement as if there had been no change in duties. In the
event of Executive's removal, Executive shall be entitled to receive
any Salary accrued but unpaid as of the date of disability, any
other amounts due, and a payment in lieu of any Bonus, pro-rated for
the period between the beginning of the applicable Bonus period and
the date of disability and determined by substituting for any annual
target described in the annual incentive program the target
established for the quarter in which the date of disability occurs,
as determined in good faith by the Compensation Committee. In
addition, the Executive shall be entitled to the Termination
Benefits set forth in Section 3.5 below.
For purposes of this Agreement, Executive shall be deemed to be
"disabled" if, due to Executive's physical or mental disability, he
has been substantially unable to perform his duties for three
continuous and consecutive months during the Term. Executive shall
be considered to have been substantially unable to perform his
duties hereunder if he is either (i) unable to reasonably and
effectively carry out his duties with reasonable accommodations by
the Company or (ii) unable to reasonably and effectively carry out
his
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duties because any reasonable accommodation that may be required
would cause the Company undue hardship. If Executive's employment is
terminated because of a disability in accordance with the terms of
this Section 3.4, the Company will continue to provide Executive
with any long-term disability benefits, if any, in accordance with
the then-existing long-term disability plan of the Company, if any.
3.5. Certain Termination Benefits. Unless otherwise specifically provided
in this Agreement or the terms of any applicable benefit plan or
otherwise required by law, all compensation and benefits payable to
Executive under this Agreement shall terminate on the date of
termination of Executive's employment under this Agreement.
Notwithstanding the foregoing, in the event Executive (a) is
terminated or removed by the Company without Cause in accordance
with Section 3.2 hereof, (b) dies or (c) is terminated by the
Company as a result of his disability in accordance with Section
3.4, the Company shall provide to Executive (collectively, the
"Termination Benefits") all Salary and benefits due under the
Agreement for the remainder of the Term, including payment for
Executive's and his spouse's health insurance premiums whether
through COBRA continuation coverage (to be provided on terms
substantially identical to active employee coverage provided to
senior executive employees of the Company) or replacement health
care insurance (the "Health Insurance Benefits") of up to $1,000.00
per month during the remainder of the Term; provided, however, that
in no event will the Executive be entitled to receive any Bonus or
stock options after his termination. Unless Executive was terminated
for cause (in which case such options will expire pursuant to their
terms), the Compensation Committee of the Company shall take such
actions as may be required to provide that any stock option issued
to and held by the Executive at the time of termination of
employment may be exercised by him for a period of the lesser of (i)
twelve (12) months after the date of termination of employment or
(ii) ten (10) years from the date such stock option was granted.
Executive acknowledges and agrees that in the event such options are
not exercised within the ninety (90) day period set forth in Code
ss.422(a)(2), such options will not constitute incentive stock
options.
With respect to Termination Benefits, the Executive's Salary shall
be paid in periodic installments in accordance with the Company's
usual practices for its senior executives, provided, however, that
if Section 409A(a)(2)(B) would apply to Executive at the date of
termination of employment, no such payments of Salary shall be made
during the six month period following the effective date of
Executive's termination; provided, further, that such payment which
would have otherwise been made during such six month period shall be
paid in one lump sum payment upon the expiration of such six month
period. Notwithstanding the foregoing sentence, in the event of the
death of Executive any unpaid Termination Benefits shall continue
and be paid to the estate of Executive at the same time and in the
same manner as would have been paid to Executive if he were alive
and the payment of Health Insurance Benefits shall continue for
Executive's spouse. The Termination Benefits shall be offset by any
amounts owed to the Company by Executive ratably over the
anticipated period during which Termination Benefits will be paid.
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Notwithstanding anything to the contrary in this Agreement, Executive
shall not be entitled to any Termination Benefits under this Agreement
unless first: (i) Executive and the Company enter into mutually acceptable
general releases substantially in the form attached to this Agreement as
Exhibit A and (ii) Executive resigns from any and all positions,
including, without implication of limitation, as a director, trustee, and
officer, that Executive then holds with the Company, except that, at the
request of the Board, Executive may continue to serve as a director of the
Company.
4. Non-Competition; Protection of Confidential Information; Etc.
4.1. Rationale for Restrictions. Executive agrees that his services
hereunder are of a special, unique, extraordinary and intellectual
character, and his position with the Company places him in a
position of confidence and trust with the clients, customers,
suppliers, vendors, contractors and employees of the Company and/or
of any joint venture, partnership, trust or other entity in which
the Company has a direct or indirect interest (collectively "Related
Entities"). Executive further acknowledges that the rendering of
services under this Agreement necessarily requires the disclosure to
Executive of Confidential Information (defined below) of the Company
and/or Related Entities. Executive and the Company agree that in the
course of employment hereunder, Executive has and will continue to
develop a personal relationship with the Company's clients, and a
knowledge of these clients' affairs and requirements which may
constitute the Company's primary and only contact with such clients.
Executive acknowledges that the Company's relationships with its
established clientele may therefore be placed in Executive's hands
in confidence and trust. Executive consequently agrees that it is
reasonable and necessary for the protection of the goodwill and
business of the Company and/or Related Entities that Executive make
the covenants contained herein, that the covenants are a material
inducement for the Company to employ or continue to employ Executive
and to enter into this Agreement, and that the covenants are given
as an integral part of and incident to this Agreement.
4.2. Non-Competition In Related Business. Provided that the Company
performs in all material respects its obligations under the terms of
this Agreement, Executive shall not, directly or indirectly, while
employed by the Company or receiving Termination Benefits and, in
each case, for a period of two years thereafter, directly or
indirectly enter into the employment of, render any services to,
engage, manage, operate, join, or own, lend money or otherwise offer
other assistance to or participate in or be connected with, as an
officer, director, employee, principal, agent, creditor, proprietor,
representative, stockholder, partner, associate, consultant or
otherwise, any person or entity that, at any time during Executive's
employment with the Company, directly or indirectly competes with or
is in any similar business to that of the Company and/or Related
Entities. The geographic scope of this covenant is limited those
geographic markets in which the Company and/or Related Entities had
conducted business or had taken steps to commence conducting
business while Executive was employed by the Company.
4.3. Solicitation of Employees and Customers. Provided that the Company
performs in all material respects its obligations under the terms of
this Agreement, Executive shall not,
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while employed by the Company and at all times thereafter, whether
for his own account or for the account of any person or entity,
attempt to solicit, endeavor to entice away from the Company or
Related Entities, or otherwise interfere with any relationship of
the Company or Related Entities with (i) any person (including, but
not limited to, any independent contractor or representative) who is
or was employed by or otherwise engaged to perform services for the
Company and/or Related Entities, while Executive is or was employed
by the Company, or (ii) any person who is or was a customer or
client of the Company and/or Related Entities while Executive is or
was employed by the Company.
As used in this Agreement, "Confidential Information" shall mean
financial information, reports and forecasts, studies, plans,
reports, designs, surveys, and analyses, sketches, drawings, notes,
records, memoranda, computer-generated data, or documents, and all
other nonpublic information relating to the business activities of
the Company and/or Related Entities, including, without limitation,
all methods, processes, formulas, techniques, equipment, research
data, experiments, technical, commercial, marketing and sales
information, personnel data, computer software, contracting systems,
sources of supply, patentable or unpatentable inventions, methods of
operation, customer lists, employee lists, supplier lists, financial
data, trade secrets, and the like which presently or, in the future,
are in the possession of the Company and/or Related Entities. Said
Confidential Information may be in either human or computer readable
form, including, but not limited to, software, source code, hex
code, or any other form.
4.4. Rights to Intellectual Property. While employed by the Company,
Executive will disclose to the Company any ideas, inventions, or
business plans ("Intellectual Property") developed by him which
relate directly or indirectly to the business or a similar business
of the Company or Related Entities, including without limitation,
any process, operation, product or improvement which may be
patentable or copyrightable. Executive agrees that the Intellectual
Property is or will be the property of the Company and that he will,
at the Company's request and cost, do whatever is necessary to
obtain the rights thereto, by patent, copyright or otherwise, for
the Company. Executive further agrees that, whether or not he is in
the employ of the Company, he will cooperate in good faith to the
extent and in the manner requested by the Company in the prosecution
or defense of any patent or copyright claims or any litigation or
other proceedings involving any Intellectual Property. The Company
will pay for all expenses associated with Executive's compliance
with this provision.
4.5. Scope of Covenant. If any covenant contained in this Section 4 is
unenforceable because of the duration or geographic scope of such
provision, the parties agree that the court, making such
determination, shall have the power to reduce the duration and/or
geographic scope to the maximum enforceable by law and, in its
reduced form, such provision shall be enforceable.
4.6. Executive Representations. Executive represents and warrants to the
Company (i) that this Agreement constitutes his valid and binding
obligation, enforceable against him in accordance with its terms;
(ii) that neither the execution nor delivery of this Agreement or
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the performance by him of any of his covenants hereunder will
constitute a default under any contract, agreement or obligation to
which he is a party or by which he or any of his properties is
bound; (iii) that there are no lawsuits, arbitration actions or
other proceedings (equitable, legal, administrative or otherwise)
pending or (to the best of his knowledge) threatened which could
adversely affect the validity or enforceability of this Agreement or
his obligation or ability to perform his obligations hereunder; and
(iv) that no consent, approval or authorization of, or notification
to, any governmental entity or any other person or entity is
required in connection with the execution, delivery or performance
of this Agreement by him.
5. Miscellaneous Provisions.
5.1. Litigation and Regulatory Cooperation. During and after Executive's
employment, Executive shall cooperate fully with the Company in the
defense or prosecution of any claims or actions now in existence or
which may be brought in the future against or on behalf of the
Company which relate to events or occurrences that transpired while,
or relate to periods during which, Executive was employed by the
Company. The Executive's full cooperation in connection with such
claims or actions shall include, but not be limited to, being
available to meet with counsel to prepare for discovery or trial and
to act as a witness on behalf of the Company at mutually convenient
times. During and after Executive's employment, Executive also shall
cooperate fully with the Company in connection with any
investigation or review or any federal, state or local regulatory
authority as any such investigation or review relates to events or
occurrences that transpired while Executive was employed by the
Company. The Company shall reimburse Executive for any reasonable
out of pocket expenses incurred in connection with Executive's
performance of obligations pursuant to this Section 5.1. However, in
the event that Executive is terminated "for cause" pursuant to
Section 3.1 of this Agreement and Executive is no longer receiving
benefits hereunder, this Section shall no longer apply and continued
cooperation with the Company shall no longer be required.
5.2. Integration, Waiver and Severability. This Agreement sets forth the
entire agreement between the parties with respect to the matters
covered herein and supersedes all prior agreements, whether oral or
written, including without limitation the Employment Agreement
between the Company and Executive dated December 19, 2001. No waiver
or modification of this Agreement or of any part contained herein
shall be valid unless in writing and duly executed by Executive and
approved by the Board. No evidence of any waiver or modification
shall be offered or received in evidence of any proceeding,
arbitration, or litigation between the parties hereto arising out of
or affecting this Agreement, or the rights or obligations of the
parties hereunder, unless such waiver or modification is in writing,
duly executed as aforesaid. The failure of either party at any time
to require performance by the other party of any provision hereunder
shall in no way affect the right of that party thereafter to enforce
the same, or to enforce any of the other provisions in this
Agreement; nor shall the waiver by either party of the breach of any
provision hereof be taken or held to be a waiver of any subsequent
breach of such provision or as a waiver of the provision itself. All
agreements and covenants contained herein are
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severable and in the event any of them shall be held to be invalid
by a court of competent jurisdiction, this Agreement shall be
interpreted as if such invalid terms or covenants were not contained
herein.
5.3. Benefit and Assignability. This Agreement shall bind Executive and
the Company and their respective successors and assigns. This
Agreement requires the personal services of Executive and cannot be
assigned by Executive. Executive agrees to provide his written
consent to the assignment of this Agreement, including the
restrictive covenants herein, to any successor or assign of the
Company provided that the transfer or assignment of this Agreement
shall not materially expand or alter the restrictive covenants
contained herein. The Executive agrees not to delegate his
obligations or duties hereunder or any portion thereof without the
prior written consent of the Board.
5.4. Remedies for Breach of the Agreement. Executive consents and agrees
that if he violates any covenants contained in this Agreement, the
Company and/or Related Entities would sustain irreparable harm and,
therefore, in addition to any other remedies which may be available
to it, the Company and/or Related Entities shall be entitled to an
injunction restraining Executive from committing or continuing any
such violation of this Agreement. Executive also agrees and
acknowledges that his use of trade secrets, client lists or
Confidential Information, or the direct solicitation of existing
clients of the Company and/or Related Entities in a manner contrary
to this Agreement will give rise to irreparable injury that may
specifically be enjoined. Nothing in this Agreement shall be
construed as prohibiting the Company and/or Related Entities from
pursuing any other remedy or remedies including, without limitation,
recovery of damages. Executive acknowledges that Related Entities
have rights under this Agreement and that they may enforce these
rights as third party beneficiaries.
5.5. Survival. The provisions of Section 4 shall survive the termination
or expiration of this Agreement or Executive's employment
irrespective of the reason for such termination or expiration. The
provisions of Section 4 shall survive after the Agreement's
expiration or termination of the Initial or Transition Term, even if
Executive continues to serve as a member of the Board or in any
capacity of employment with the Company after that point.
5.6. Notice. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and if sent by
certified mail, return receipt requested, to his residence in the
case of Executive, or to its principal office in the case of the
Company.
5.7. Section Headings; Counterparts. The headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement. This
Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which taken together shall
constitute one of the same instrument.
5.8. Applicable Law. This Agreement shall be construed in accordance
with, the laws of the State of Florida, whether substantive or
procedural. The sole and exclusive venue for any
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legal action arising out of this Agreement shall be in the Circuit
Court in and for Palm Beach County, Florida. Executive agrees and
stipulates that he waives his right to trial by jury in any action
arising under this Agreement where trial by jury would otherwise be
available.
5.9. Prevailing Party. The prevailing party to an action to enforce or
defend this Agreement is entitled to attorney's fees and reasonable
costs incurred in connection therewith, including, but not limited
to, those incurred at the pre-litigation, pre-trial, trial, and
appellate levels.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
Executive:
/s/ Xxxxxx Xxxxxxx
----------------------------------
XXXXXX XXXXXXX
The Company:
BLUEGREEN CORPORATION
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: Chairman
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Exhibit A
Form of General Release.
(a) In favor of the Company: Executive hereby releases, discharges and
acquits the Company and its subsidiaries, affiliates, representatives, agents,
employees, officers, directors, shareholders, counsel, assigns and successors
(collectively referred to as "Releasees"), of and from all claims, demands, sums
of money, actions, rights, causes of action, obligations and liabilities which
Executive has against the Releasees relating to or arising out of the Employment
Agreement of Executive's employment by the Company, including, but not limited
to, wrongful discharge, breach of contract, tort, the Civil Rights Act, Age
Discrimination in Employment Act, Employee Retirement Income Security Act or any
other federal, state or local legislation or common law relating to employment
or discrimination in employment or otherwise; provided, however, that nothing
contained herein shall release the Company from its obligations to Executive
pursuant to that certain Employment Agreement dated June 2006, including any
right he may have to indemnification thereunder.
(b) In favor of the Executive: The Company hereby releases, discharges and
acquits Executive of and from all claims, demands, sums of money, actions,
rights, causes of action, obligations and liabilities which the Company has or
which the Company or any successor or assign of the Company against Executive
relating to or arising out of by Executive's employment with the Company;
provided, however, that nothing contained herein shall release Executive from
any willful or intentional misconduct or any loan or advance made to Executive
by the Company.
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