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Exhibit 10(q)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of December 4, 1997, between
Avatar Properties Inc., a Florida corporation (the "Company"), and Xxxxxxx Xxxx
(the "Employee").
W I T N E S S E T H :
WHEREAS, the Company desires to employ the Employee as its
Chief Operating Officer and Executive Vice President and the Employee desires to
accept such employment, all on the terms and conditions specified herein; and
WHEREAS, the Employee and the Company desire to set forth in
writing all of their respective duties, rights and obligations with respect to
the Employee's employment by the Company; and
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and obligations hereinafter set forth, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT AND TERM. The Company hereby employs the
Employee, and the Employee hereby accepts employment by the Company, in the
capacity and upon the terms and conditions hereinafter set forth. The term of
employment under this Agreement shall be for the period commencing as of
December 5, 1997 (the "Commencement Date") and ending on the fifth anniversary
thereof, unless earlier terminated as herein provided (the "Term of
Employment"). The last day of the Employee's Term of Employment shall be
referred to in this Agreement as the "Date of Termination."
2. DUTIES. During the Term of Employment, the Employee shall
serve as the Company's Chief Operating Officer and Executive Vice President, and
shall perform such duties, functions and responsibilities as are customarily
associated with and incident to the position of Chief Operating Officer and
Executive Vice President and as the Company may, from time to time, require of
him, subject to the direction of the Company's President. The Employee shall
serve the Company faithfully, conscientiously and to the best of the Employee's
ability and shall promote the interests and reputation of the Company. Unless
prevented by sickness or disability, the Employee shall devote all of his time,
attention, knowledge, energy and skills, during
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normal working hours, and at such other times as the Employee's duties may
reasonably require, to the duties of the Employee's employment; PROVIDED,
HOWEVER, that nothing contained herein shall prevent the Employee from engaging
in Permitted Activities (as defined below). The principal place of employment of
the Employee shall be the current principal executive offices of the Company
and/or such other location within 50 miles of Company's current principal place
of business as shall be necessary for the Employee to discharge his duties
hereunder and the Permitted Activities. For purposes of this Agreement,
"Permitted Activities" shall mean an ownership interest in, or the provision of
services in connection with the design, development, construction, sales and
marketing, operation and management, solely to or in connection with, the
existing Xxxxxxxx-Xxxx projects conducted by the companies set forth on SCHEDULE
I hereto and the Harbor Islands Joint Venture between Avatar Harbor Islands,
Inc. and Xxxxxxxx-Xxxx at Harbor Island, Inc. The Employee acknowledges that in
the course of his employment he may be required, from time to time, to travel on
behalf of the Company; PROVIDED, HOWEVER, that the Employee shall not be
required to spend more than 25% of his business time on overnight travel.
3. COMPENSATION AND BENEFITS. As full and complete
compensation for the Employee's execution and delivery of this Agreement and
performance of any services hereunder, the Company shall pay, grant or provide
the Employee, and the Employee agrees to accept, the following compensation and
benefits:
(a) BASE SALARY. The Company shall pay the Employee a
base salary at an annual rate of $300,000 payable at such times and in
accordance with the standard payroll practices of Avatar Holdings Inc., a
Delaware corporation ("Avatar"). Upon completion by the Employee of one year of
employment with the Company, the Employee's base salary shall be reviewed, and
in the sole discretion of the Board of Directors of the Company, the Company may
increase (but not decrease) the Employee's base salary.
(b) EMPLOYEE BENEFITS. The Company shall afford the
Employee the opportunity to participate during the Term of Employment in any
medical, dental, disability insurance, retirement, savings and any other
employee benefits plans or programs (including perquisites) which Avatar
maintains for its senior executives. Nothing in this Agreement shall require the
Company, Avatar or their affiliates to establish, maintain or continue any
benefit programs already in existence or hereafter adopted for senior executives
of Avatar, and nothing in the Agreement
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shall restrict the right of Avatar or any of its affiliates to amend, modify or
terminate any such benefit program.
(c) EXPENSES. The Employee shall be entitled to
reimbursement or payment of reasonable business expenses (in accordance with
Avatar's policies for its senior executives, as the same may be amended from
time to time in Avatar's sole discretion), following the Employee's submission
of appropriate receipts and/or vouchers to the Company.
(d) "CARRIED INTEREST" IN CERTAIN INVESTMENTS.
(i) In addition to any other compensation hereunder and
subject to Section 3(d)(ii) below, the Employee shall have a 9% "carried
interest" (to be defined by the parties at the time) in any new investment that
(A) the Employee is responsible (together with Xxxxxxxx Xxxx and Xxxxxxx
Xxxxxxxxx) for identifying as a prospect and/or opportunity for Avatar or the
Company to acquire or develop and (B) that Avatar or the Company, in its sole
discretion, elects to acquire or develop.
(ii) Notwithstanding anything to the contrary in Section
3(d)(i) hereof, if the Employee's employment with the Company shall be
terminated pursuant to Section 5(a)(ii), Section 5(a)(iii), Section 5(a)(iv) or
Section 5(a)vii) hereof, the Employee's "carried interest" shall thereupon be
reduced by one-fifth in respect of each year of the Term of Employment (or
portion thereof) during which the Employee shall not have remained in the
Company's employ (E.G., if the Employee's employment shall be validly terminated
by the Company for Cause after the first anniversary of the Commencement Date
but prior to the second anniversary thereof, then the Employee's "carried
interest" shall be reduced by four-fifths, with the forfeited amount inuring to
the benefit of the Company. The Employee shall promptly repay to the Company the
portion of any distributions or other payments received in respect of his
"carried interest" which exceeds the percentage representing his carried
interest as so reduced (E.G., if the Employee had received a $100 distribution
in respect of his "carried interest" during the first year of his employment and
such employment shall be terminated after the first anniversary of the
Commencement Date but prior to the second anniversary thereof, the Employee
shall, promptly after the Termination Date, repay $80 to the Company). If the
Employee shall fail to make any such prompt repayment when due, then the Company
shall have the right to offset the aggregate amount due from the Employee
against any other payments due from the Company to the Employee hereunder or
otherwise.
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(iii) Employee agrees to make a timely election pursuant to
Section 83(b) of the Internal Revenue Code of 1986, as amended, upon Employee's
acquisition of his interest in the Joint Venture.
(e) VACATIONS, HOLIDAYS OR TEMPORARY LEAVE: The
Employee shall be entitled to take three (3) weeks of vacation per year, without
loss or diminution of compensation. Such vacation shall be taken at such time or
times, and as a whole or in increments, as the Employee shall elect, consistent
with the reasonable needs of the Company's business. The Employee shall further
be entitled to the number of paid holidays, and leaves for illness or temporary
disability in accordance with the policies of Avatar for its senior executives
(as such policies may be amended from time to time or terminated in Avatar's
sole discretion).
4. NON-COMPETITION AND PROTECTION OF CONFIDENTIAL INFORMATION:
(a) RESTRICTIVE COVENANTS:
(i) During the Term of Employment the Employee shall
not directly or indirectly engage, participate, own or make any financial
investments in, or become employed by or render (whether or not for
compensation) any consulting, advisory or other services to or for the benefit
of, any person, firm or corporation, or otherwise engage in any business
activity which directly or indirectly competes with any of the business
operations or activities of the Company or Avatar consisting of the design,
development, construction, sales and marketing, operation and management of real
estate; PROVIDED, HOWEVER, that nothing herein shall restrict the Employee from
engaging in Permitted Activities; PROVIDED, FURTHER, HOWEVER, that it shall not
be a violation of this Agreement for the Employee 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.
(ii) During the Term of Employment the Employee shall
not, directly or indirectly, (A) solicit, in competition with the Company or
Avatar, any person who is a customer of any business conducted by the Company or
Avatar or (B) in any manner whatsoever induce, or assist others to induce, any
supplier of the Company to terminate its
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association with such entity or do anything, directly or indirectly, to
interfere with the business relationship between the Company, Avatar and any of
their respective current or prospective suppliers.
(iii) During the Term of Employment the Employee
shall not, directly or indirectly, solicit or induce any employee of the Company
or Avatar to terminate his or her employment for any purpose, including without
limitation, in order to enter into employment with any entity which competes
with any business conducted by the Company or Avatar.
(iv) The Employee recognizes and acknowledges that
certain confidential business and technical information used by the Employee in
connection with the Permitted Activities that includes, without limitation,
certain confidential and proprietary information relating to the designing,
development, construction and marketing of real estate, is a valuable, special
and unique asset of the Company, such information, subject to Section 4(a)(vi)
below, collectively being referred to as the "Confidential Information." During
the Term of Employment the Employee shall not (A) use Confidential Information,
or any part thereof other than in connection with his duties hereunder or
Permitted Activities, nor (B) disclose such information to any person, firm,
corporation, association or other entity for any purpose or reason whatsoever.
(v) During the Term of Employment and for all time
following the Date of Termination, the Employee shall not, directly or
indirectly, furnish or make accessible to any person, firm, or corporation or
other business entity, whether or not he, she, or it competes with the business
of the Company, any trade secret or know-how acquired by the Employee during his
employment by the Company which relates to the business practices, methods,
processes or other confidential or secret aspects of the business of the Company
or Avatar without the prior written consent from the Company (such information,
subject to Section 4(a)(vi) below, being referred to as the "Company
Confidential Information").
(vi) Confidential Information and Company
Confidential Information shall not include any information or documents that (A)
are or become publicly available without breach by the Employee of Sections
4(a)(iv) and (v) hereof, respectively, (B) the Employee receives from any third
party who, to the best of the Employee's knowledge upon reasonable inquiry, is
not in breach of an obligation of confidence with the Company, Avatar or their
respective
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affiliates, or (C) is required to be disclosed by law, statute, governmental or
judicial proceeding; PROVIDED, HOWEVER, that in the event that the Employee is
requested by any governmental or judicial authority to disclose any Confidential
Information, the Employee shall give the Company and Avatar prompt notice of
such request, such that the Company and Avatar may seek a protective order or
other appropriate relief, and in any such proceeding the Employee shall disclose
only so much of the Confidential Information as is required to be disclosed.
(vii) Notwithstanding the foregoing, the Employee acknowledges
that during the Term of Employment and for all time following the Date of
Termination, the Employee shall not, and shall not cause or permit any of its
affiliates to, use the name "Xxxxxxxx-Xxxx" (or any derivative thereof) except
as expressly permitted by those certain License Agreements, each dated as of
December 4, 1997, by and between Xxxxxxxx-Xxxx Xxxx Xxx, Inc., as licensor and
the companies listed on SCHEDULE I hereto, each as a licensee, or except as
otherwise permitted in writing by Avatar.
(b) GEOGRAPHIC SCOPE. The provisions of this Section 4 (other
than Sections 4(a)(iii), (iv), (v) and (vi), which shall be in full force and
effect without regard to the geographic limitations set forth in this Section
4(b)) shall be in full force and effect (i) in the state of Florida, (ii) within
a 000-xxxx xxxxxx xx Xxxxxx, Xxxxxxx and (iii) within a 150-mile radius of a
site for which the Company or Avatar has commenced development or has a binding
commitment therefor.
(c) REMEDIES. The Employee acknowledges that his services are
of a special, unique and extraordinary character and, his position with the
Company and Avatar places him in a position of confidence and trust with the
clients and employees of the Company and Avatar, and that in connection with his
services to the Company, the Employee will have access to confidential
information vital to the Company's and Avatar's businesses. The Employee further
acknowledges that in view of the nature of the business in which the Company and
Avatar are engaged, the foregoing restrictive covenants in this Section 4 hereof
are reasonable and necessary in order to protect the legitimate interests of the
Company and Avatar and that violation thereof would result in irreparable injury
to the Company and Avatar. Accordingly, the Employee consents and agrees that if
the Employee violates or threatens to violate any of the provisions of this
Section 4 hereof the Company and Avatar would sustain irreparable harm and,
therefore, the Company and Avatar shall be entitled to obtain from any
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court of competent jurisdiction, without posting any bond or other security,
preliminary and permanent injunctive relief as well as damages 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 Company or Avatar may be entitled.
5. TERMINATION OF EMPLOYMENT:
(a) The Employee's employment with the Company shall
terminate upon the occurrence of any of the following events:
(i) the termination of the Employee's
employment upon and at any time following the Date of Termination and absent the
parties having entered into a written agreement for the renewal of this
Agreement;
(ii) the death of the Employee during the
Term of Employment;
(iii) the Disability (as defined below) of
Employee during the Term of Employment;
(iv) at any time upon written notice to the
Employee from the Company of termination of his employment for Cause (as defined
below);
(v) at any time upon written notice to the
Employee from the Company of termination of his employment Without Cause (as
defined below);
(vi) the resignation by the Employee for
Good Reason (as defined below) during the Term of Employment; or
(vii) the resignation by the Employee
Without Good Reason (as defined below) during the Term of Employment.
(b) For purposes of this Agreement, the "Disability" of the
Employee shall mean his inability, because of mental or physical illness or
incapacity, whether total or partial, to perform his full time duties under this
Agreement with reasonable accommodation for a period aggregating 90 days out of
any 12-month period under circumstances where in the opinion of a qualified
physician reasonably acceptable to the Company it is reasonably certain that the
Employee will not be able to resume his duties on a regular full time basis
within 30 days of the
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date the Employee receives notice of termination for Disability.
(c) For purposes of this Agreement, the term "Cause" shall
mean the Employee's (i) conviction or entry of a plea of guilty or nolo
contendere, with respect to any felony; (ii) commission of any act of wilful
misconduct, gross negligence, fraud or dishonesty; or (iii) violation of any
material term of this Agreement or any material written policy of the Company,
PROVIDED that the Company first deliver written notice thereof to the Employee
and the Employee shall not have cured such violation within thirty (30) days
after receipt of such written notice.
(d) For purposes of this Agreement, "Without Cause" shall mean
any reason other than the reasons described in Sections 5(a)(i), 5(a)(ii),
5(a)(iii) and 5(a)(iv) hereof. The parties expressly agree that a termination of
employment Without Cause pursuant to Section 5(a)(v) hereof may be for any
reason whatsoever, or for no reason, in the sole discretion of the Company.
(e) For purposes of this Agreement, "Good Reason" shall mean
(i) a willful and material breach of the provisions of this Agreement by the
Company or (ii) the termination by the Company of the employment of either
Xxxxxxxx Xxxx or Xxxxxxx Xxxxxxxxx Without Cause pursuant to their respective
employment agreements; PROVIDED that the Employee first deliver written notice
thereof to the Chairman of the Board of the Company and the Company shall not
have cured such breach within thirty (30) days after receipt of such written
notice.
(f) For purposes of this Agreement, "Without Good Reason"
shall mean any reason other than that defined in this Agreement as constituting
Good Reason.
6. PAYMENTS UPON TERMINATION OF EMPLOYMENT:
(a) DEATH OR DISABILITY: If the Employee's employment
hereunder is terminated due to the Employee's death or Disability pursuant to
Sections 5(a)(ii) or (iii) hereof, the Company shall pay or provide to the
Employee, his designated beneficiary or to his estate (i) all base salary
pursuant to Section 3(a) hereof and any vacation pay pursuant to Section 3(e)
hereof, in each case which has been earned but unpaid as of the Date of
Termination; and (ii) any benefits to which the Employee may be entitled under
any employee benefits plan or program pursuant to Section 3(b) hereof in which
he is a participant in accordance with the terms of such plan or program up to
and including the Date
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of Termination. Should the Company wish to purchase insurance to cover the costs
associated with the Employee's termination of employment pursuant to Sections
5(a)(ii) or (iii), the Employee agrees to execute any and all necessary
documents necessary to effectuate said insurance. Upon termination of the
Employee's employment due to the Employee's Disability, the Employee shall
continue to have the obligations provided for in Section 4 hereof.
(b) TERMINATION FOR CAUSE, RESIGNATION WITHOUT GOOD REASON, OR
EXPIRATION OF TERM OF EMPLOYMENT: If the Employee's employment hereunder is
terminated due to the termination of the Employee's employment by the Company
for Cause pursuant to Section 5(a)(iv) or due to the Employee's resignation
Without Good Reason pursuant to Section 5(a)(vii), the Company shall pay or
provide to the Employee (i) all base salary pursuant to Section 3(a) hereof and
any vacation pay pursuant to Section 3(e) hereof, in each case which has been
earned but unpaid as of the Date of Termination and (ii) any benefits to which
the Employee may be entitled under any employee benefits plan or program
pursuant to Section 3(b) hereof in which he is a participant in accordance with
the terms of such plan or program up to and including the Date of Termination.
(c) TERMINATION WITHOUT CAUSE; RESIGNATION FOR GOOD REASON: If
the Employee's employment hereunder is terminated by the Company Without Cause
pursuant to Section 5(a)(v), or due to the Employee's resignation for Good
Reason pursuant to Section 5(a)(vi), the Company shall continue to pay to the
Employee, in lieu of any other payments or benefits and on the regular payroll
dates of the Company for a period of six (6) months following Date of
Termination his current base salary, at the rate provided in Section 3(a)
hereof; PROVIDED, HOWEVER, if the Employee's employment hereunder is terminated
by the Company Without Cause pursuant to Section 5(a)(v) or due to Employee's
resignation for Good Reason pursuant to Section 5(a)(vi) prior to the second
anniversary of the Commencement Date, the Company shall continue to pay to the
Employee, through the second anniversary of the Commencement Date and for a
period of six (6) months following such second anniversary, his current base
salary, at the rate provided in Section 3(a) hereof, in lieu of any other
payments or benefits, and on the regular payment dates of the Company. The
Company's obligation to make the payment pursuant to this Section 6(c) shall be
conditioned upon the Company's prior receipt of an executed general release of
claims which the Employee may have against the Company, its affiliates and their
respective shareholders, directors, officers, employees and agents, to the
maximum extent permitted by law.
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(d) NO OTHER PAYMENTS. Except as provided in this Section 6,
the Employee shall not be entitled to receive any other payments or benefits
from the Company due to the termination of his employment, including but not
limited to, any employee benefits under any of the Company's or Avatar's
employee benefits plans or programs (other than at the Employee's expense under
the Consolidated Omnibus Budget Reconciliation Act of 1985 or pursuant to the
terms of any pension plan which the Company or Avatar may have in effect from
time to time) or any right to be paid severance pay. If the Employee is entitled
to any notice or payment in lieu of any notice of termination required by
Federal, State or local law, including but not limited to the Worker Adjustment
and Retraining Notification Act, the Company's obligation to make payments
pursuant to Section 6(c) shall be reduced by the amount of any such payment in
lieu of notice.
7. NO CONFLICTING AGREEMENTS; INDEMNIFICATION:
(a) The Employee hereby represents and warrants that he is not
a party to any agreement, or non-competition or other covenant or restriction
contained in any agreement, commitment, arrangement or understanding (whether
oral or written), which would in any way conflict with or limit his ability to
commence work on the first day of the Term of Employment or would otherwise
limit his ability to perform all responsibilities in accordance with the terms
and subject to the conditions of this Agreement.
(b) The Employee agrees that the compensation provided for in
Section 3 represents the sole compensation to be paid to Employee in respect of
the services performed or to be performed for the Company and/or its affiliates
by such Employee. The Employee further agrees that should there be a
determination that for federal, state, local and/or other tax purposes,
Employee's compensation for services performed for the Company and its
affiliates is greater than the amounts payable hereunder, Employee will
indemnify and hold harmless the Company and its affiliates against any and all
liabilities, losses, and expenses including, but not limited to, any additional
taxes, penalties and interest, and attorneys' and accountants' fees arising out
of, resulting from or relating to such determination.
8. DEDUCTIONS AND WITHHOLDING. The Employee agrees that the
Company shall withhold from any and all compensation required to be paid to the
Employee pursuant to this Agreement all federal, state, local and/or other taxes
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which the Company determines are required to be withheld in accordance with
applicable statutes and/or regulations from time to time in effect and all
amounts required to be deducted in respect of the Employee's coverage under
applicable employee benefit plans.
9. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement of the parties with respect to the Employee's employment and
supersedes any other prior oral or written agreements between the Employee and
the Company and its affiliates. This Agreement may not be changed or terminated
orally but only by an agreement in writing signed by the parties hereto.
10. WAIVER. The waiver by the Company of a breach of any
provision of this Agreement by the Employee shall not operate or be construed as
a waiver of any subsequent breach by the Employee. The waiver by the Employee of
a breach of any provision of this Agreement by the Company shall not operate or
be construed as a waiver of any subsequent breach by the Company.
11. GOVERNING LAW. This Agreement shall be subject to, and
governed by, the laws of the State of Florida applicable to contracts made and
to be performed in the State of Florida, regardless of where the Employee is in
fact required to work.
12. JURISDICTION. Any legal suit, action or proceeding against
any party hereto arising out of or relating to this Agreement shall be
instituted in a federal or state court in the State of Florida, and each party
hereto waives any objection which it may now or hereafter have to the laying of
venue of any such suit, action or proceeding and each party hereto irrevocably
submits to the jurisdiction of any such court in any suit, action or proceeding.
13. ASSIGNABILITY. The obligations of the Employee may not be
delegated and, except as expressly provided in Section 6(a) relating to the
designation of beneficiaries, the Employee may not, without the Company's
written consent thereto, assign, transfer, convey, pledge, encumber, hypothecate
or otherwise dispose of this Agreement or any interest therein. Any such
attempted delegation or disposition shall be null and void and without effect.
The Company and the Employee agree that this Agreement and all of the Company's
rights and obligations hereunder may be assigned or transferred by the Company
to and may be assumed by and become binding upon and may inure to the benefit of
any affiliate of or successor to the Company. The term
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"successor" shall mean, with respect to the Company or any of its subsidiaries,
and any other corporation or other business entity which, by merger,
consolidation, purchase of the assets, or otherwise, acquires all or a material
part of the assets of the Company. Any assignment by the Company of its rights
and obligations hereunder to any affiliate of or successor shall not be
considered a termination of employment for purposes of this Agreement.
14. SEVERABILITY. If any provision of this Agreement as
applied to either party or to any circumstances shall be adjudged by a court of
competent jurisdiction to be void or unenforceable, the same shall in no way
affect any other provision of this Agreement or the validity or enforceability
of this Agreement. If any court construes any of the provisions of Section 4
hereof, or any part thereof, to be unreasonable because of the duration of such
provision or the geographic or other scope thereof, such court may reduce the
duration or restrict the geographic or other scope of such provision and enforce
such provision as so reduced or restricted.
15. NOTICES. All notices to the Employee hereunder shall be in
writing and shall be delivered personally or sent by registered or certified
mail, return receipt requested, to:
Xxxxxxx Xxxx
0000 Xxxxx Xxxxx Xxxxx
Xxxxx X-0
Xxxxxxxxx, Xxxxxxx 00000
with a copy to:
Kluger, Peretz, Xxxxxx & Berlin, P.A.
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
All notices to the Company hereunder shall be in writing and shall be delivered
personally or sent by registered or certified mail, return receipt requested,
to:
Xxxxxxxx-Xxxx Communities, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
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with a copy to:
Xxxxxxxx-Xxxx Communities, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
and with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Simeon Gold, Esq.
Facsimile: (000) 000-0000
Either party may change the address to which notices shall be sent by sending
written notice of such change of address to the other party.
16. SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
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 taken together shall constitute one and the same instrument.
18. ATTORNEYS' FEES. In the event that either party hereto
commences litigation against the other to enforce such party's rights hereunder,
the prevailing party shall be entitled to recover all costs, expenses and fees,
including reasonable attorneys' fees (including in-house counsel), paralegals'
fees, and legal assistants' fees through all appeals.
19. NEUTRAL CONSTRUCTION. Each party to this Agreement was
represented by counsel, or had the opportunity to consult with counsel. No party
may rely on any drafts of this Agreement in any interpretation of the Agreement.
Each party to this Agreement has reviewed this Agreement and has participated in
its drafting and, accordingly, no party shall attempt to invoke the normal rule
of construction to the effect that ambiguities are to be resolved against the
drafting party in any interpretation of this Agreement.
(signature page follows)
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
AVATAR PROPERTIES INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board
/s/ Xxxxxxx Xxxx
---------------------------------
Xxxxxxx Xxxx
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SCHEDULE I
EXISTING XXXXXXXX-XXXX PROJECTS AND LICENSEES
(_) Xxxxxxxx-Xxxx at Harbor Islands, Inc.
1. Xxxxxxxx-Xxxx Organization, Inc.
2. Xxxxxxxx-Xxxx and Associates, Inc.
3. Xxxxxxxx-Xxxx at Treasure Trove, Inc.
4. Xxxxxxxx-Xxxx at Country Club Estates, Inc.
5. Xxxxxxxx and Xxxx at the Sanctuary, Inc.
6. Xxxxxxxx-Xxxx of South Florida, Inc.
7. Xxxxxxxx-Xxxx Custom Builders, Inc.
8. Xxxxxxxx-Xxxx Home and Design, Inc.
9. Xxxxxxxx-Xxxx Management Corporation
10. Xxxxxxxx-Xxxx at Presidential Estates, Inc.
11. Xxxxxxxx-Xxxx Construction Corp.
12. Xxxxxxxx-Xxxx Builders, Inc.
13. Sunset Point at Silver Lakes, Ltd. (d/b/a
Xxxxxxxx-Xxxx - Xxxxxxxxx Group)
14. Parkland Communities, Inc. (d/b/a
Xxxxxxxx-Xxxx - Xxxxxxxxx Group)
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