Exhibit 10.11
EARNINGS PARTICIPATION AWARD AGREEMENT
THIS EARNINGS PARTICIPATION AWARD AGREEMENT, dated March 6, 2003 (the
"Agreement"), is made between Avatar Holdings Inc., a Delaware corporation (the
"Company") and Xxxxxxxx Xxxx (the "Participant").
1. AWARD. Pursuant to the provisions of the (i) Avatar Holdings Inc. Executive
Incentive Compensation Plan, as the same may be amended, modified and
supplemented from time to time (the "Executive Plan") the Committee (with
respect to the Cash Award (as defined below) such term shall have the meaning
set forth in the Executive Plan) hereby awards to the Participant, on the date
hereof, subject to the terms and conditions of the Executive Plan and subject
further to the other provisions herein set forth, the Cash Award and (ii)
Amended and Restated Avatar Holdings Inc. 1997 Incentive and Capital
Accumulation Plan, as the same may be amended, modified and supplemented from
time to time (the "1997 Plan" and together with the Executive Plan, collectively
the Plans) the Committee (with respect to the Stock Award (as defined below)
such term shall have the meaning set forth in the 1997 Plan) hereby awards to
the Participant, on the date hereof, subject to the terms and conditions of the
1997 Plan and subject further to the terms and conditions and other provisions
herein set forth, the Stock Award if, as of an applicable Performance Goal Test
Date (as defined below), the Performance Goal (as defined below) applicable to a
Cash Award or the Stock Award, as the case may be, is satisfied.
2. CERTAIN DEFINITIONS.
(a) Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Plans.
(b) Each reference contained in this Agreement to:
"Actual Gross Profit Amount" shall mean the Company's
cumulative Gross Profit during the Performance Period.
"Business Plan" shall mean the Company's business plan for the
period commencing on January 1, 2003 and ending on December 31, 2007,
in such form that the Compensation Committee approved on or prior to
the date hereof.
"Common Stock" shall mean common stock, par value $1.00 per
share, of the Company.
"Cash Award" shall mean, with respect to each fiscal year
during the Performance Period ending on a Performance Goal Test Date, a
cash payment equal to, the excess, if any, of (x) two percent (2%) of
the Gross Profit earned by the Company for such fiscal year, over (y)
the Minimum Gross Profit Level for such fiscal year.
"Excluded Amounts" shall mean, with respect to a fiscal year
of the Company, as at any date of determination, an amount equal to the
dollar amount of any Gross Profit attributable to Harbor Islands and
the Rio Rico Excluded Properties for such fiscal year.
"Fair Market Value" shall mean the average of the closing
prices of the Common Stock for the fifteen trading days ending with and
including the measuring date if the Common Stock is readily tradeable
on a national securities exchange, the National Association of
Securities Dealers Automated Quotation System or other national market
system, provided, however, if such exchange or system is not open for
business on any day during such period or the Common Stock was not
traded on any day during such period, the Fair Market Value shall be
determined as of the most recent fifteen trading days ending with and
including the measuring date on which such exchange or system shall
have been open for business and the Common Stock was traded, and if the
Common Stock is not readily tradable as set forth above, Fair Market
Value shall mean the amount determined in good faith by the Committee
as the fair market value of the Common Stock of the Company.
"Gross Profit" shall mean, with respect to a fiscal year of
the Company, the excess, if any, of (x) the sum of (i) the amount set
forth in the Company's audited Consolidated Statements of Operations as
set forth in the Company's annual report on Form 10-K (the "Income
Statement") for such fiscal year with respect to the line item "Net
income (loss)" plus (ii) the amount, if any, set forth in the Company's
Income Statement for such fiscal year with respect to the line item
"Income tax expense (benefit)", to the extent that there is "Income tax
expense" less (iii) the amount, if any, set forth in the Company's
Income Statement for such fiscal year with respect to the line item
"Income tax expense (benefit)", to the extent that there is "Income tax
(benefit)" plus (iv) the amount(s), if any, set forth in the Company's
Income Statement for such fiscal year relating to any income tax
expense included in any income or (loss) attributable to the
discontinued operations and/or extraordinary items set forth in the
Income Statement less (v) the amount(s), if any, set forth in the
Company's Income Statement for such fiscal year relating to any income
tax (benefit) included in any income or (loss) attributable to such
discontinued operations and/or extraordinary items set forth in the
Income Statement, over (y) the Excluded Amounts for such fiscal year.
"Harbor Islands" shall mean the development and/or sale of the
Company's property in Hollywood, Florida, generally known by the
Company as parcels 1, 8 and 9 at "Harbor Islands."
"Minimum Cumulative Gross Profit Level" shall mean that as of
the Last Day of the Performance Period (x) the Actual Gross Profit
Amount is greater than (y) the Target Gross Profit Amount.
"Minimum Gross Profit Level" shall mean the Gross Profit set
forth opposite each fiscal year ending on the dates set forth below:
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FISCAL YEAR END GROSS PROFIT
--------------- ------------
December 31, 2003 $10,000,000
December 31, 2004 $12,000,000
December 31, 2005 $14,400,000
December 31, 2006 $17,280,000
December 31, 2007 $20,736,000
"Payment Date" shall have the meaning ascribed to such term in
Section 3(c).
"Performance Goal" shall mean (i) in the case of the Cash
Award, the achievement of the Minimum Gross Profit Level in any fiscal
year, ending on December 31, during the Performance Period and (ii) in
the case of the Stock Award, the achievement of the Minimum Cumulative
Gross Profit Level for the entire Performance Period.
"Performance Goal Test Date" shall mean with respect to the
Cash Award, December 31 of each year within the Performance Period and
with respect to the Stock Award, the Last Day of the Performance
Period.
"Performance Period" shall mean the period commencing January
1, 2003 and ending on December 31, 2007 (December 31, 2007, being the
"Last Day of the Performance Period").
"Rio Rico Excluded Properties" shall mean those parcels of
land not suitable for development in accordance with the Company's
current Business Plan due to environmental factors located in the
Company's property in Rio Rico, Arizona, generally known by the Company
as "Rio Rico".
"Stock Award" shall mean a grant of a number of shares of
Common Stock having a Fair Market Value on the Payment Date equal to
two percent (2%) of the excess, if any, of (x) the Actual Gross Profit
Amount over (y) the Target Gross Profit Amount.
"Target Gross Profit Amount" shall mean $186,956,000.
3. TERMS AND CONDITIONS. The Cash Award and the Stock Award (together the
"Awards") evidenced by this Agreement are subject to the following terms and
conditions:
(a) The payment of performance based compensation described herein is
contingent upon the achievement of the Performance Goal applicable to a Cash
Award or the Stock Award, as the case may be.
(b) Subject to Section 4 hereof (i) the Participant shall be entitled
to receive a payment pursuant to the Cash Award, if the applicable Performance
Goal is satisfied on the applicable Performance Goal Test Date on the related
Payment Date and (ii) the Participant shall be entitled to receive the Common
Stock pursuant to the Stock Award, if the applicable Performance Goal is
satisfied on the applicable Performance Goal Test Date on the related Payment
Date.
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(c) The applicable Committee shall determine whether a Performance Goal
has been met as of the applicable Performance Goal Test Date and, (i) if it has,
shall so certify in writing and ascertain the amount of cash to be paid, if any,
or Common Stock to be issued, if any, to the Participant and (ii) if it has not,
shall so certify in writing with a brief explanation as to why the Committee has
determined that such Performance Goal has not been met. Payments of cash, if
any, or the issuance of Common Stock, if any, pursuant to the Awards shall be
made to the Participant, in each case within 30 days following the filing with
the Securities and Exchange Commission of an annual report on Form 10-K (which
contains audited financial statements) for the year ended as of the applicable
Performance Goal Test Date (each such date being a "Payment Date").
(d) Notwithstanding anything to the contrary contained in this
Agreement, in the event of a Change in Control (as defined in the 1997 Plan) of
the Company, this Agreement shall terminate and be of no further force and
effect and the Participant shall no longer be entitled to receive (i) any cash
payments pursuant to the Cash Award for any period after the end of the previous
Performance Period or (ii) an issuance of shares of Common Stock pursuant to the
Stock Award, provided, however, that with respect to the fiscal year in which
such Change in Control occurs, the Committee shall have the discretion to award
in an equitable manner, based on the financial results of the Company to the
date of the consummation of the Change in Control (as determined by the
Committee in its sole discretion in consultation with the Company's advisors), a
pro rata portion of the Cash Award for the fiscal year in which the Change in
Control is consummated. The determination of the Committee as to any partial
award shall be final and binding on all parties, including the Participant and
the Company.
4. CAP ON COMPENSATION. Notwithstanding anything to the contrary herein, the
maximum payment of cash pursuant to the Cash Award or the issuance of Common
Stock pursuant to the Stock Award to the Participant hereunder shall be subject
to the limitations in the Plans and the Participant's employment agreement with
the Company or a subsidiary thereof, each as may be amended from time to time.
5. TERMINATION OF EMPLOYMENT.
(a) Subject to Section 3 hereof:
(i) if the Participant's employment with the Company is
terminated by the Company for "cause" (as defined below) or by the Participant,
prior to any Performance Goal Test Date, for other than "good reason" (as
defined below), in addition to any other consequences of such termination
provided for by this Agreement or any other agreement, notwithstanding Section 3
hereof, Participant shall forfeit any right to cash payments or Common Stock
issuances pursuant to this Agreement from and after the date of such
termination;
(ii) if the Participant's employment with the Company is
terminated by the Company other than for "cause" or by the Participant for "good
reason," the Participant shall be entitled to continue to receive such cash
payments or Common Stock
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issuances as would otherwise be made pursuant to this Agreement as though the
Participant's employment had not been terminated; and
(iii) if the Participant dies while employed by the Company
or in the event the Participant's employment with the Company is terminated by
the Company by reason of the Participant's "disability" (as defined below),
notwithstanding Section 3 hereof:
(A) the Participant shall be entitled to receive only
that portion of any cash payments or Common Stock issuances otherwise payable
pursuant to Section 3(c) hereof following such termination, equal to the product
of (x) a fraction (which in no event shall exceed one (1)) the numerator of
which is the number of completed whole months elapsed after the first day of the
Performance Period to the date of death or disability, as the case may be, and
the denominator of which is the number of whole months from the first day of the
Performance Period until the applicable Performance Goal Test Date and (y) the
amount of any cash payments or Common Stock issuances that would have been
payable pursuant to Section 3(c) hereof if the Participant remained an employee
of the Company through and including the Last Day of the Performance Period;
provided, however, that with respect to cash payments pursuant to the Cash
Award, the Participant shall only be eligible to receive a cash payment for the
fiscal year in which the Participant's employment was terminated for death or
disability, as the case may be, and the Participant shall not be eligible for
any additional cash payments; and
(B) the Participant will have no right to any other
payments hereunder.
Any payments shall be made to the Participant (or the executor
or administrator of the deceased Participant's estate or the person or persons
to whom the deceased Participant's rights shall pass by will or the laws of
descent or distribution, as applicable) no later than the relevant Payment Date.
(b) For purposes of Section 5(a) hereof, the terms "cause", "good
reason" and "permanent disability", shall have the meanings ascribed to such
terms in the Participant's employment agreement with the Company or a subsidiary
thereof, as the case may be, as amended from time to time; provided, however, if
the Participant is no longer employed pursuant to an employment agreement but is
continuing in employ, such terms shall have the meanings ascribed to such terms
in the employment agreement last in effect.
6. FORFEITURE UPON BREACH OF RESTRICTIVE COVENANTS. Notwithstanding anything to
the contrary set forth in this Agreement, if the Participant breaches any
provision relating to the Participant's covenant to keep information
confidential, not to compete, not to solicit or similar restrictive covenant
contained in the Participant's employment or other agreement with the Company or
any of its subsidiaries (after the expiration of any notice and cure period),
then in addition to any other rights or remedies arising from or relating to
such breach the Participant shall forfeit any right to
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any cash payments or Common Stock issuances pursuant to this Agreement from and
after the date of such breach.
7. TAXES. Any cash payment pursuant to a Cash Award or Common Stock issuance
pursuant to the Stock Award shall be net of any amounts required to be withheld
pursuant to applicable federal, state, local and foreign tax withholding
requirements. The Company shall have the right to withhold the amount of such
taxes from any other sums due or to become due from the Company to the
Participant as the Committee shall prescribe.
8. NO RIGHT TO CONTINUED EMPLOYMENT. This Agreement does not confer upon the
Participant any right to continued employment by the Company or any of its
subsidiaries or affiliated companies, nor shall it interfere in any way with the
right of the Participant's employer to terminate the Participant's employment at
any time for any reason or no reason.
9. NO OBLIGATION TO PURSUE PROJECT. This Agreement shall in no way obligate the
Company to pursue any projects, developments or sales of any assets, and the
Company may limit, abandon or change any projects, developments or sales of any
assets at any time in its sole discretion and the Company shall have no
obligation to take any action or provide any financing with respect to any
projects, developments or sales of any assets.
10. UNSECURED CREDITOR STATUS; NO PARTNERSHIP. The Participant shall rely solely
upon the unsecured promise of the Company, as set forth herein, for payment
hereunder, and nothing herein contained shall be construed to give to or vest in
the Participant or any other person now or at any time in the future, any right,
title, interest, or claim in or to any specific asset, fund, reserve, account,
insurance or annuity policy or contract, or other property of any kind
whatsoever owned by the Company, or in which the Company may have any right,
title, or interest, nor at any time in the future. This Agreement is an
agreement to pay compensation for services provided by the Participant and is
not a partnership or joint venture and is not intended to create a partnership
or joint venture between the Company and the Participant or any other person.
The Participant shall take no position inconsistent with this characterization.
11. ASSIGNMENT; SUCCESSORS.
(a) The Cash Award, Stock Award and any interest of the Participant in
any such awards may not be sold, assigned, transferred, pledged, hypothecated or
otherwise disposed of. Any attempt to transfer any such Awards in contravention
of this Section 11(a) is void ab initio. The Awards shall not be subject to
execution, attachment or other process.
(b) 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,
any other corporation or other business entity which, by merger, consolidation,
purchase of assets, or otherwise, acquires all or a material part of the assets
of the Company.
(c) In the event of the Participant's death, the Participant's rights
and obligations hereunder shall be binding upon and inure to the benefit of the
Participant's heirs and legal representatives.
12. CONSTRUCTION. The Plans and this Agreement will be construed by and
administered under the supervision of the applicable Committee in such
Committee's sole and absolute discretion, and all determinations of such
Committee will be final and binding on the Participant.
13. NOTICES. Any notice required or permitted under this Agreement shall be
deemed given when delivered personally, or when deposited in a United States
Post Office, postage prepaid, addressed, as appropriate, (i) to the Participant
at the last address specified in the Participant's employment records, or such
other address as the Participant may designate in writing to the Company, or
(ii) to the Company, Avatar Holdings Inc., 000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx,
Xxxxxxx 00000 Attention: Chief Executive Officer, with a copy to the Company's
Corporate Secretary, or such other address as the Company may designate in
writing to the Participant.
14. FAILURE TO ENFORCE NOT A WAIVER. The failure of either party hereto to
enforce at any time any provision of this Agreement shall in no way be construed
to be a waiver of such provision or of any other provision hereof.
15. GOVERNING LAW. This Agreement shall be governed by and construed according
to the laws of the State of Delaware, without regard to the conflicts of laws
provisions thereof.
16. INCORPORATION OF PLANS. Each of the Plans is hereby incorporated by
reference and made a part of this Agreement, and this Agreement shall be subject
to the terms of the Plans, as the Plans may be amended from time to time.
17. STOCKHOLDER APPROVAL OF 1997 PLAN. In the event that the requisite number of
shares of Common Stock reserved for issuance under the 1997 Plan to issue the
Common Stock pursuant to the Stock Award are not available, the Company shall
undertake to submit an amendment to the 1997 Plan (the "1997 Plan Amendment"),
which increases the number of shares available for issuance thereunder to
satisfy the Company's obligations pursuant to the Stock Award for approval by
stockholders at an annual meeting or meetings (or at a special meeting or
special meetings) after it is determined that additional shares of Common Stock
are needed for issuance pursuant to the Stock Award. The Participant agrees that
the failure of the Company's stockholders to approve the 1997 Plan Amendment
(and any adverse financial consequences to Participant resulting therefrom)
shall not constitute a "good reason" under the Participant's employment with
Company or any subsidiary of the Company.
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18. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be an original but all of which together shall represent one
and the same agreement.
19. MISCELLANEOUS. This Agreement cannot be changed or terminated orally. This
Agreement and the Plan contain the entire agreement between the parties relating
to the subject matter hereof. The section headings herein are intended for
reference only and shall not affect the interpretation hereof.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
AVATAR HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
/s/ Xxxxxxxx Xxxx
---------------------------------
Xxxxxxxx Xxxx
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