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EXHIBIT 10.26
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is
made as of the 1st day of January, 1998, between WESTBROOKE COMMUNITIES, INC.,
a Florida corporation (the "Company"), and XXXXX XXXX, an individual resident
of the State of Florida ("Executive").
RECITALS:
1. The Company considers it essential and in the best interest of
its stockholders to xxxxxx the continuous employment of key management
personnel and desires to continue the services of Executive on the terms and
conditions provided in this Agreement;
2. This Agreement amends and restates that certain Employment
Agreement between Company and Executive dated as of January 1, 1995 (the "1995
Agreement"); and
3. Executive desires to continue employment by the Company and to
render services to the Company on the terms and conditions provided in this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the Company and Executive hereby
agree as follows:
1. Employment
(a) Employment and Duties. The Company hereby agrees to
employ Executive for the Term (as hereinafter defined) as President and Chief
Executive Officer. Executive shall have the rights and shall perform the duties
customary for the position of president and chief executive officer, subject to
the oversight of the Board of Directors of the Company (the "Board"). It is
the intention of Company and Executive that Executive have complete flexibility
in managing the day to day operations of the Company, subject to major
decisions which require the approval of the Board. The major decisions are
set forth in Item 1 of Schedule 1 hereto. However, the Company and Executive
do not intend to and the provisions contained in Schedule 1 hereto shall not
operate to remove the Board's ability to exercise its fiduciary
responsibilities which include, without limitation, the Board's oversight
responsibilities. Executive shall report to and consult with the Board at
regularly scheduled (or any special) board meetings and provide sufficient
information to the Board to enable it to comply with its fiduciary
responsibilities which include, without limitation, the Board's oversight
responsibilities. Executive's title and duties shall not be modified without
Executive's written consent. In performing his duties hereunder, Executive
shall give the Company the benefit of his special knowledge, skills, contacts
and business experience; shall perform his duties and carry out his
responsibilities hereunder in a diligent manner; shall be diligent in the
performance of his duties and in carrying out his
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responsibilities; and shall devote (except as provided herein) all of his
business time, attention, ability and energy exclusively to the performance of
his duties and responsibilities hereunder. Subject to the fiduciary
responsibilities of the Board, Executive shall report to the Chairman of
Newmark Homes Corp. Executive hereby accepts such employment and agrees to
render such services.
(b) The Westbrooke Partnership. The Company is the
Managing General Partner of The Westbrooke Partnership, a Florida general
partnership and will be acting as General Contractor and/or manager for certain
residential home building projects of The Westbrooke Partnership, a Florida
general partnership (the "Partnership"), The Xxxxx Companies, Inc., and its
subsidiaries and any other entity that is a member of the Pacific USA or
Newmark Consolidated Group for financial accounting purposes and that is placed
under the Partnership's operational control (all of such entities referred to
as the "Subject Entities"). Those projects currently are comprised of
Oakridge, Keystone Lake, Sunset Lakes, West Lake Village, and Winston Trails.
Additional home building projects may be planned by the Subject Entities or may
be participated in by the Company through an operating agreement with other
entities. Executive's duties shall apply to all such projects, whether or not
the items of expense, income, gain or loss of such projects are considered for
purposes of determining the Additional Consideration pursuant to that certain
Stock Purchase Agreement dated January ___, 1998 between Executive, the
Company, Westbrooke Acquisition Corp., a Florida corporation ("Buyer"),
Westbrooke at West Lake, Inc., Westbrooke at Winston Trails, Inc., Westbrooke
at Pembroke Pines, Inc., Westbrooke at Oak Ridge, Inc., Xxxxxx X. Xxxxxxxxxx,
Xxxxxxx X. Xxxxxxx and Xxxxx Xxxxxxx, the Partnership, Pacific USA Holdings
Corp., and Newmark Homes Corp. (the "Stock Purchase Agreement").
(c) Other Offices. Executive may, with the approval of
the Board, from time to time, serve, or continue to serve, on boards of
directors of, and hold any other offices or positions in, companies or
organizations, which, in the Board's judgment, will not present any conflict of
interest with the Company or any member of the "PUSA Consolidated Group", or
adversely affect the performance of Executive's duties pursuant to this
Agreement. The "PUSA Consolidated Group" shall mean Pacific USA Holdings Corp.
and each other entity that is consolidated with Pacific USA for financial
accounting purposes.
(d) Location. The principal location for performance of
Executive's services hereunder shall be at the offices of the Company, which
are currently located in Dade County, Florida, subject to reasonable travel
requirements during the course of such performance. Executive's duties require
travel between the principal office and each project on a regular basis. No
change in location of the principal office outside Dade or Broward Counties,
Florida, shall be made without Executive's prior written consent.
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2. Employment Term. The term of the Executive's employment
hereunder shall commence on the date hereof and shall end on the fourth (4th)
anniversary hereof (the "Term"), unless sooner terminated as provided herein.
3. Compensation and Benefits
(a) Base Salary. Initially, the Company shall pay
Executive an aggregate base salary at an annualized rate of FOUR HUNDRED NINE
THOUSAND FIVE HUNDRED DOLLARS ($409,500.00), payable in such equal installments
as may be customary for executive officers employed by the Company (but not
less frequently than twice per month) or such greater sum as may be agreed to
between the Company and Executive, in arrears ("Base Salary"). The Base Salary
for each year shall be prorated according to the number of days in such year
during which this Agreement is in effect. The Base Salary shall be reviewed
prior to and increased (if and as the Compensation Committee deems appropriate)
as of January 1 of each year beginning as of January 1, 1999. The Base Salary
may be increased by the Compensation Committee of the Board taking into
consideration Executive's performance, general cost of living increases, the
salaries provided by comparable businesses, the financial condition of the
Company and other similar matters.
(b) Bonuses. Executive shall be eligible to participate
in any discretionary bonus program instituted from time to time by the Board,
to the extent any such program makes the President and Chief Executive Officer
position eligible to participate.
(c) Participation in Benefit Plans. The payments
provided in Section 3 hereof are in addition to any benefits to which Executive
may be, or may become, entitled under any benefit plan or program of the
Company for which key executives are or shall become eligible. Executive's
benefits specifically include medical benefits provided by the Company,
including all dependents at a cost to Executive no greater than that paid by
employees in similar positions in the Company and its affiliates. Further,
Executive shall be eligible to receive during the period of his employment
under this Agreement, all benefits and emoluments for which key executives are
eligible under every such plan or program of the Company in effect from time to
time to the extent permissible under the general terms and provisions of such
plans or programs and in accordance with the provisions thereof.
(d) Vacation. Executive shall be entitled to twenty (20)
working days of compensated vacation in each fiscal year, to be taken at times
which do not unreasonably interfere with the performance of Executive's duties
hereunder; provided that time expended for the performance of Executive's
duties hereunder during vacation days shall not be deducted from said twenty
(20) days. Any unused vacation time from any fiscal year shall be subject to
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accumulation or forfeiture in accordance with Company policy as in effect from
time to time.
(e) Expenses. The Company will pay or reimburse
Executive for all reasonable and necessary out-of-pocket expenses incurred by
him in the performance of his duties under this Agreement. Executive shall
keep detailed and accurate records of expenses incurred in connection with the
performance of his duties hereunder and reimbursement therefor shall be in
accordance with policies and procedures to be established from time to time by
the Board.
4. Termination
(a) Termination of Executive's Employment for Cause. The
Board (acting by and through the majority of its members) may immediately
terminate Executive's employment under this Agreement by giving Executive
written notice of such termination upon or at any time following the occurrence
of any of the following events, and each such termination shall constitute a
termination for "cause":
(i) the material breach by Executive of his
agreements or obligations under this Agreement that remains uncured
thirty (30) days after written notice thereof from the Board of
Directors of the Company to Executive; provided that, with respect to
a non-monetary material breach that is curable but cannot be cured
through the exercise of reasonable efforts within such thirty (30) day
period (exclusive of any default described in subparagraphs (a)
through (d) below and any material default that causes the Company to
be or remain in violation of law subjecting it to material liability,
fines, interest or penalties), Executive shall have such additional
period of time as may be reasonably necessary to effect a cure
thereof, not to exceed an additional period of thirty (30) days, if
Executive shall so request in writing prior to expiration of the
initial thirty (30) day period. Without limiting the generality of
the foregoing, each of the following shall be deemed to be a material
breach of this Agreement:
(A) any act or failure to act (or series
or combination thereof) by Executive done with the intent to
harm in any material respect the interests of the Company or
any other Subject Entity;
(B) the perpetration by Executive of an
act of dishonesty (intended to cause, or having the effect of
causing material economic harm to the Company or any member of
the PUSA Consolidated Group) or common law fraud against the
Company or any affiliate thereof; and
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(C) a grossly negligent act or failure
to act (or series or combination thereof) by Executive
materially detrimental to the interests of the Company or any
other Subject Entity.
(ii) an adjudication that Executive has committed a felony.
Upon any determination by the Board (acting through majority of its
members) of the Company that a material breach of this Agreement has occurred
under Section 4(a)(i), the Board shall cause a special meeting of the Board of
Directors to be called and held not later than ten (10) business days after
Executive's receipt of the notice described in Section 4(a)(i). Executive
shall have the right to appear before such special meeting of the Board, with
or without legal counsel, to refute the Board's determination of material
breach. Executive or the Board may have a court reporter present to record any
such special meeting. Any termination of Executive's employment by reason of
such determination shall not be effective until Executive is afforded such
opportunity to appear. At the Board's election, Executive may be immediately
suspended from the performance of his duties, without suspension of salary or
benefits, until such material breach shall have been timely cured (if so
curable), or until the later of the special meeting of the Board or expiration
of the applicable cure period without cure. In such event, termination of
Executive's employment, salary and benefits shall become effective.
Notwithstanding the foregoing, if Executive is suspended, he may continue to
make efforts, in cooperation with management of the Company (if the Company's
participation is required to cure the breach), to cure the breach.
In the event Executive shall be terminated by reason of material
breach of this Agreement pursuant to Section 4(a)(i) above and Executive shall
commence arbitration contesting such termination pursuant to the provisions of
Section 7(j) hereof, then, from the commencement of such arbitration until a
decision of the arbitrators is rendered, Executive's Base Salary shall be paid
by the Company into an interest bearing escrow account to be held by a third
party designated by the Company (which may be the Company's legal counsel).
The funds so held in escrow shall be disbursed in accordance with the decision
of the arbitrators (subject to any appeals).
(b) Incapacity of Executive. Subject to applicable law,
in the event Executive shall become "disabled" (as hereinafter defined), the
Board may, at any time thereafter, by giving Executive twenty (20) days' prior
written notice of termination, fully and finally terminate his employment under
this Agreement. Termination under this Section 4(b) shall be effective as of
the date provided in such notice, which date shall not be fewer than thirty
(30) days after such notice of termination is delivered to Executive or his
representative, and the Company shall pay
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Executive his Base Salary accrued to the effective date of termination at the
rate in effect at the time of such notice, payable at the time such payment is
due. Upon payment of (i) such accrued Base Salary; (ii) an amount equal to the
bonus, if any, otherwise payable to Executive on account of the fiscal year in
which such termination occurs, multiplied by a fraction, the numerator of which
shall be the number of days in the fiscal year preceding the effective date of
termination and the denominator of which shall be 365; and (iii) all other
amounts to which Executive may be entitled hereunder, including, without
limitation, (A) any expense reimbursement amounts accrued to the effective date
of termination, and (B) any accrued amounts under any other benefit plan of the
Company, in each case at the time such payments are due, and the Company shall
have no further obligation to Executive under this Agreement. In the event of
such termination, Executive shall remain bound by the Non-Competition Agreement
and the Stock Purchase Agreement.
Executive will be deemed to be "disabled" if, for physical or mental
reasons, Executive is unable to perform the essential functions of Executive's
duties under this Agreement with reasonable accommodation by the Company for
ninety (90) consecutive days or for one hundred eighty (180) days during any
twelve (12) month period, determined as follows: The disability of Executive
will be determined by a medical doctor selected by written agreement of the
Company and Executive upon the request of either party by notice to the other.
If the Company and Executive cannot agree on the selection of a medical doctor,
each of them will select a medical doctor and the two medical doctors will
select a third medical doctor who will determine whether Executive is disabled.
The determination of the medical doctor selected hereunder will be binding on
both parties. Executive must submit to a reasonable number of examinations by
the medical doctor making the determination of disability and Executive hereby
authorizes the disclosure and release to the Company of such determination and
all supporting medical records. If Executive is not legally competent,
Executive's legal guardian or duly authorized attorney-in-fact will act in
Executive's stead, for the purpose of submitting Executive to the examinations
and providing the authorization of disclosure required hereunder.
(c) Death of Executive. This Agreement shall
automatically terminate upon the death of Executive. Upon the termination of
this Agreement as a result of death, the Company shall pay to Executive's
estate in a single installment: (i) an amount equal to Executive's Base Salary
accrued through the effective date of termination at the rate in effect at the
effective date of termination, payable at the time such payment is due; (ii) an
amount equal to the bonus, if any, otherwise payable to Executive on account of
the fiscal year in which such termination occurs, multiplied by a fraction, the
numerator of which shall be the number of days in the fiscal year preceding the
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effective date of termination and the denominator of which shall be 365; and
(iii) all other amounts to which Executive is entitled hereunder, including,
without limitation, (A) any expense reimbursement amounts accrued to the
effective date of termination, and (B) any accrued amounts under any other
benefit plan of the Company, in each case at the time such payments are due,
and the Company shall have no further obligations to Executive under this
Agreement.
(d) Termination in the Event of Breach under the Stock
Purchase Agreement. In addition to any other remedies which the Company (or
any other parties) may have under the Stock Purchase Agreement, the Board may
terminate Executive's employment under this Agreement by giving Executive
written notice of termination if a material breach by Executive occurs (or is
alleged to have occurred) and is not cured (or is disputed by Executive and an
Arbitrator determines that such material breach has in fact occurred (the
"Breach"), subject to the following:
(i) if the Arbitrator has determined that the Breach was
not an intentional breach and is capable of being cured by the payment of money
by Executive, and there are amounts owing to Executive available to offset
against under Section 11.8 of the Stock Purchase Agreement (or if such amounts
are not available, Executive has paid such amount within 90 days following the
arbitrator award); then there shall be no right to terminate under this Section
4(d);
(ii) if the Arbitrator has determined that the Breach was
not an intentional breach, and is not capable of being cured by the payment of
money by Executive but has not caused and is not expected to cause a material
adverse effect to the Company, then there shall be no right to terminate under
this Section 4(d);
(iii) if the Arbitrator has determined that the Breach was
not an intentional breach but is not capable of being cured by the payment of
money and has caused or is expected to cause a material adverse effect to the
Company, then the Board shall have the right to terminate Executive (which
termination shall not be deemed a "for cause" termination hereunder) and the
Company shall pay Executive in a single installment (i) an amount equal to
Executive's Base Salary accrued and unpaid through the effective date of
termination at the rate in effect at the effective date of termination; (ii) an
amount equal to the bonus, if any, otherwise payable to Executive on account of
the fiscal year in which such termination occurs, multiplied by a fraction, the
numerator of which shall be the number of days in the fiscal year preceding the
effective date of termination and the denominator of which shall be 365; and
(iii) all other amounts to which Executive is entitled hereunder, including,
without limitation, (A) any expense reimbursement amounts accrued to the
effective date of termination, and (B) any accrued and unpaid
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amounts under any other benefit plan of the Company, and the Company shall have
no further obligations to Executive under this Agreement;
(iv) if the Arbitrator has determined that the Breach was
an intentional breach by Executive (regardless of whether the Breach is capable
of being cured by the payment of money or is in fact cured by Executive) and
has caused material economic harm to the Company (without consideration of the
curing of such Breach), Company may terminate Executive and such termination
shall be treated as a "for cause" termination under this Agreement for all
purposes, including the last paragraph of Section 4(a) hereof;
(e) Termination Without Cause by Company. In addition to
any termination right or event provided in Sections 4(a), 4(b), 4(c) or 4(d),
Executive's employment under this Agreement may be terminated by the Company by
giving Executive written notice thereof, effective as of the date provided in
such notice. Upon such termination of the employment of Executive, the Company
shall pay in a single installment to Executive: (i) an amount equal to
Executive's Base Salary payable for the remainder of the Term at the rate in
effect on the date of termination, (ii) an amount equal to the bonus, if any,
otherwise payable to Executive on account of the fiscal year in which such
termination occurs, multiplied by a fraction, the numerator of which shall be
the number of days in the fiscal year preceding the effective date of
termination and the denominator of which shall be 365, and (iii) all other
amounts to which Executive is entitled hereunder, including (A) any expense
reimbursement amounts accrued to the effective date of termination, and (B) any
accrued and unpaid amounts under any other benefit plan of the Company, and the
Company shall have no further obligations to Executive or Executive's estate
under this Agreement. Notwithstanding the foregoing, the Company may elect to
pay the amount under Section 4(e)(i) in installments over the remainder of the
Term as and when such payments would otherwise have been due if Executive
remained employed, provided that the Company shall provide to Executive an
irrevocable letter of credit in the amount of the remaining installments, which
letter of credit shall be issued by Bank United of Texas, FSB, or any other
bank acceptable to Seller, such acceptance not to be unreasonably withheld. In
the event such termination without cause occurs in connection with an
assignment of this Agreement by the Company not permitted by Section 7(h)
below, then the only amount payable by the Company under Subsection 4(e)(i)
shall be an amount equal to double the annual rate of Executive's Base Salary
in effect on the date of termination, which shall be paid in a single
installment within sixty (60) days after such termination. In the event of
such a termination without cause, the Non-Competition Agreement shall be
terminated. All provisions of the Stock Purchase Agreement shall remain in
effect.
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(f) Termination With Cause by Executive. Executive may
terminate his employment under this Agreement by giving the Company written
notice of such termination upon or at any time following the occurrence of any
of the following events, and each such termination shall constitute a
termination for "cause":
(i) a material breach by the Company of its
agreements or obligations under this Agreement that remains uncured
more than thirty (30) days after written notice thereof from the
Executive to Company; provided that, with respect to a non-monetary
material breach that is curable but cannot be cured through the
exercise of reasonable efforts within such thirty (30) day period, the
Company shall have such additional period of time as may be reasonably
necessary to effect a cure thereof, not to exceed an additional period
of thirty (30) days, if the Company shall so request in writing prior
to expiration of the initial thirty (30) day period.
(ii) a default of monetary obligations owed to
Executive by Buyer, Newmark Homes Corp. or Pacific USA under the Stock
Purchase Agreement that remains uncured more than ninety (90) days
after written notice thereof from Executive to Company. For purposes
of this Subsection (ii), the term "monetary obligations" shall include
the failure to make any payment under any promissory note delivered to
Executive pursuant to the Stock Purchase Agreement and the failure to
deliver any letter of credit securing the same, in accordance with the
terms of the Stock Purchase Agreement.
The cure periods set forth in subsection (i) and (ii) above are
alternative and not cumulative. All such cure periods may be waived by the
Company in writing. In either of such events, Executive shall have the same
rights as provided in Section 4(e) above as to compensation and termination of
the Agreement and the Non-Competition Agreement shall immediately terminate.
5. Employment Covenants.
(a) Covenant Not to Compete. The provisions of that
certain Non-Competition Agreement by and between Executive, and the Company,
Westbrooke at West Lake, Inc., Westbrooke at Winston Trails, Inc., Westbrooke
at Pembroke Pines, Inc., Westbrooke at Oak Ridge, Inc. and the Partnership, of
even date herewith (the "Non-Competition Agreement"), are incorporated herein
by this reference. Executive acknowledges and agrees that the Non-Competition
Agreement is a material inducement for the Company to enter into this Agreement
and is additional consideration for the consideration to be paid to Executive
hereunder.
(b) Breach. Executive hereby recognizes and acknowledges
that irreparable injury or damage shall result to the
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Company in the event of a breach or threatened breach by Executive of any of
the terms of provisions of this Section 5, and Executive therefore agrees that
the Company shall be entitled to an injunction restraining Executive from
engaging in any activity constituting such breach or threatened breach.
Nothing contained herein shall be construed as prohibiting the Company from
pursuing any other remedies available to the Company at law or in equity for
such breach or threatened breach, including, but not limited to, the recovery
of damages from Executive and, if Executive is an employee of the Company, the
termination of his employment with the Company in accordance with the terms and
provisions of this Agreement.
6. Indemnification. The Company shall indemnify, defend and hold
Executive harmless from and against all liability, loss, cost and damage
arising out of Executive's performance of his duties and obligations in
accordance with this Agreement; provided that in no event shall Executive be
indemnified, defended or held harmless from any matter arising out of his gross
negligence or intentional misconduct.
7. Miscellaneous
(a) Notices. Any notices to be given hereunder by either
party to the other may be effected either by personal delivery in writing, via
facsimile transmission or by mail, registered or certified, postage prepaid
with return receipt requested. Notices shall be addressed to the parties as
follows:
If to the Company: c/o Xxxx XxXxxx
Pacific USA Holdings Corp.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
With a copy to: Xxxxxxx X. Xxxxxx, Esquire
Chief General Counsel
Pacific USA Holdings Corp.
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
If to Executive: Xxxxx X. Xxxx
00 Xxxxx Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
With a copy to: Xxxxxxx Xxxxxxxxx, Esq.
Xxxx Xxxxxxxxx, P.A.
Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxx 0000
000 X.X. 0xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
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Any party may change his or its address by written notice in
accordance with Section 7(a). Notices delivered personally shall be deemed
communicated as of actual receipt notices sent via facsimile transmission shall
be deemed communicated as of receipt by the sender of written confirmation of
transmission thereof; mailed notices shall be deemed communicated as of three
days after proper mailing.
(b) Inclusion of Entire Agreement Herein. This Agreement
supersedes any and all other prior or contemporaneous agreements, either oral
or in writing, between the parties hereto with respect to the subject matter
hereof (including without limitation the 1995 Agreement) and contains all of
the covenants and agreements between the parties with respect to employment of
Executive by the Company.
(c) Law Governing Agreement. This Agreement shall be
governed by and construed in accordance with the laws of the State of Florida.
(d) Waivers. No waiver at any time of any term or
provision of this Agreement shall be construed as a waiver of any other term or
provision of this Agreement and a waiver at any time of any term of provisions
of this Agreement shall not be construed as a waiver at any subsequent time of
the same term or provision.
(e) Amendments. Except as otherwise provided in Section
7(f) hereof, no amendment or modification of this Agreement shall be deemed
effective unless and until executed in writing by each party hereto.
(f) Severability and Limitation. All agreements and
covenants contained herein are severable and in the event any of them shall be
held to be invalid by competent authority, this Agreement shall be interpreted
as if such invalid agreements or covenants were not contained herein. Without
limiting the generality of the foregoing, in the event that the provisions of
this Agreement should ever be deemed to exceed the scope of business, time or
geographic limitations permitted by applicable law, then such provisions shall
be and are hereby reformed to the maximum scope, time or geographic limitations
permitted by such applicable law.
(g) Headings. All headings set forth in this Agreement
are intended for convenience only and shall not control or affect the meaning,
construction or effect of this Agreement or of any of the provisions hereof.
(h) Assignment. The Company shall have the right to
assign this Agreement and to delegate all of its rights, duties and obligations
hereunder to any entity which controls the Company, which the Company controls
or which may be the result of the
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merger, consolidation, acquisition or reorganization of the Company and another
entity; provided that, a sale of assets or merger by Westbrooke Acquisition
Corp. or Newmark Homes Corp. of the kind described in Section 2.2(b)(6)(ii) of
the Stock Purchase Agreement shall not be a permitted assignment hereunder and
shall constitute a termination of Executive without cause pursuant to Section
4(d) hereof; provided that Executive shall deliver to the Company written
notice declaring such termination within sixty (60) day after the effective
date of such sale or merger, time being strictly of the essence; failing which,
the same shall be deemed a permitted assignment hereunder. Executive agrees
that this Agreement is personal to him and his rights and interests hereunder
may not be assigned, nor may his obligations and duties hereunder be delegated
(except as to delegation in the normal course of operation of the Company), and
any attempted assignment or delegation in violation of this provision shall be
void.
(i) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
(j) Arbitration; Jurisdiction and Venue.
(i) THE PARTIES HAVE AGREED TO THE RESOLUTION BY
ARBITRATION OF ALL CLAIMS PURSUANT TO THE ARBITRATION COVENANT AS SET FORTH IN
THE STOCK PURCHASE AGREEMENT, WHICH IS INCORPORATED HEREIN BY THIS REFERENCE.
(ii) IN THE EVENT THE ARBITRATION COVENANT IS
FOUND UNENFORCEABLE OR INAPPLICABLE TO ANY LEGAL ACTION WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN
CONNECTION WITH THIS AGREEMENT, SUCH LEGAL ACTION SHALL BE BROUGHT EXCLUSIVELY
IN THE COURTS OF THE STATE OF FLORIDA, COUNTY OF DADE, OR, IF IT HAS OR CAN
ACQUIRE JURISDICTION, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA, AND THE PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS
(AND THE APPROPRIATE APPELLATE COURTS) IN ANY SUCH LEGAL ACTION AND WAIVE ANY
OBJECTION TO VENUE LAID THEREIN.
(k) Joinder by Newmark Homes Corp.
Newmark Homes Corp. joins in the execution hereof for
the sole purpose of guaranteeing all obligations of the Company hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED EMPLOYMENT AGREEMENT as of the day and year first above written.
/s/ XXXXX XXXX WESTBROOKE COMMUNITIES, INC.,
------------------------------ a Florida corporation
Xxxxx Xxxx
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By: /s/ XXXXX XXXX
---------------------------
Print Name: Xxxxx Xxxx
-------------------
Title: President
------------------------
Joined herein pursuant to Section 7(k):
NEWMARK HOMES CORP.,
a Nevada corporation
By: /s/ XXXXXXX X. XXXXXX
---------------------------
Print Name: Xxxxxxx X. XxXxxx
-------------------
Title: Chairman
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SCHEDULE "1"
RIGHTS AND DUTIES OF EXECUTIVE
1. OPERATIONAL MANAGEMENT
Executive shall manage the day to day operations of the
Company, its Subsidiaries and The Westbrooke Partnership;
provided that Executive shall not have authority to make major
operational decisions, except with written approval of the
Board of Directors of the Company. The following are the only
major decisions requiring approval of the Board of Directors:
a. acquire any real property or personal
property having a purchase price exceeding
$100,000 (tangible or intangible);
b. sell or otherwise dispose of all or any
portion of the assets other than in the
ordinary course of business;
c. modify in any material respect or refinance
any indebtedness or incur any indebtedness on
behalf of the Company or any of its
subsidiaries;
d. except for advances under purchase agreements
for real property, cause or permit the
Company or any of its subsidiaries to make
loans or advances to any person;
e. confess any judgment regardless of amount or
settle any claims in any amount greater than
$100,000; provided that Executive will
consult with the Company's counsel prior to
settling any claims regardless of amount; and
f. commence construction of any speculative
single-family residential dwelling (excluding
model homes) if the number of such dwellings,
together with the number of speculative
single-family residential dwellings already
owned by the Company and its subsidiaries
(whether or not under construction), shall
exceed fifty (50) and, except for such
speculative dwellings, shall not undertake
the construction of any residential dwelling
other than pursuant to a binding contract for
the purchase thereof entered into in the
ordinary course of business.
15
2. GENERAL PROGRAMS, POLICIES AND PROCEDURES
Executive acknowledges that Newmark Homes Corp. has
implemented and plans to implement in the future, various
programs, policies and procedures in its subsidiary companies
in order to develop a common corporate culture, centralize
certain operations in order to reduce overall expenses and
manage overall risk. The Company shall, over a reasonable
transition period, adopt programs, policies and procedures
relating to human resource matters, compensation, benefits,
insurance matters (employee related, general corporate,
property and all other types of insurance needs of the Company
and the Subject Entities) and risk management; provided that
Company shall continue to maintain its separate accounting and
reporting system unless otherwise agreed by Company and
Executive. The Board shall consult with Executive regarding
the substance of such programs and the timing of the
implementation thereof so as not to interfere with the day to
day operation of the Company. Executive agrees to support the
Board in the implementation thereof during the transition
period. In the area of human resources, Executive and the
Company agree as follows:
a. Executive shall not have the authority to
create or modify any savings, bonus, deferred
compensation, pension, profit sharing,
retirement, insurance, severance or other
fringe benefit, arrangement or practice or
any other "employee benefit plan" as defined
by ERISA, whether formal or informal, enter
into or modify any employment agreement or
commitment, enter into or engage in any
negotiations with respect to any collective
bargaining or union agreement or commitment,
or agree to do any of the foregoing; and
b. Executive shall not have the authority to
modify compensation of any employees or
officers of the Company will be subject to
the review and approval of the Company's
Compensation Committee; provided however,
that modification of compensation by
Executive for non-key employees, on a case by
case basis (and not on a Company-wide basis),
to facilitate day to day operations and
activities is permitted; provided that
Executive shall comply with the
administrative procedures of the Company
relating to increases in compensation.