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Exhibit 10(p)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of February 16, 2000, by and between
Lennar Corporation, a Delaware corporation (the "Company"), and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ (the "Executive").
WHEREAS, the Company wishes to employ the Executive and the Executive
is willing to serve in the employ of the Company for the period and upon the
terms and conditions specified herein.
NOW, THEREFORE, in consideration of the mutual promises set forth
below, the Company and the Executive agree as follows:
1. Effectiveness. This Agreement shall be effective, and the Company shall
employ the Executive, and the Executive shall be employed by the Company, as of
the Effective Time (the "Effective Time"), as such term is defined in the Merger
Agreement among the Company, LEN Acquisition Corporation and U.S. Home
Corporation, dated as of February 16, 2000 (the "Merger Agreement"). If the
Effective Time does not occur, this Agreement shall be null and void and of no
effect.
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2. Employment and Duties. The Executive shall be employed by the Company as
Co-Chief Operating Officer in Houston, Texas and Vice-Chairman of the Company's
board of directors (the "Board") for the term of this Agreement. The Executive
shall have such duties, responsibilities and authority as may from time to time
be assigned by the Company's Chief Executive Officer and the Board that are
consistent with and normally associated with such position. The Executive shall
report only to the Company's Chief Executive Officer. In these capacities, the
Executive shall devote substantially all of his business time and energies to
the business of the Company and shall perform such services as shall from time
to time be assigned to him, provided that the Executive may serve as a director
or officer of any trade association, civic, educational, religious or charitable
organization he deems appropriate, to the extent that such efforts do not
interfere with his duties hereunder to any material extent. Until the Company's
2003 Annual Meeting of Stockholders or until termination of the Employment Term,
if earlier, the Company shall nominate the Executive for election to the Board
and shall use its best efforts to cause Executive to be elected as a member of
the Board, and to be appointed Vice-Chairman thereof.
3. Term. Except as otherwise provided herein, the term of the Executive's
employment hereunder shall begin on the Effective Time (the "Commencement Date")
and shall continue until the third anniversary thereof (the "Employment Term"),
unless earlier terminated pursuant to the terms hereof.
4. Compensation and Benefits.
(a) As an inducement to enter into this Agreement and for other good and
valuable consideration, the Executive shall be entitled to receive a cash
payment of $10,000,000. Such payment shall be made at the Effective Time, unless
the Executive and the Company agree to a different method and/or timing of
payment prior to the Effective Time.
(b) Annual Compensation. During each calendar year of the Employment Term, the
Company shall pay the Executive: (i) a base salary (the "Base Salary") at a rate
of at least $800,000 per year, payable in accordance with the Company's normal
payroll practices, but no
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less often than monthly, and (ii) a cash bonus (the "Bonus") of $1,200,000 with
respect to calendar year 2000, and of at least $1,000,000 with respect to each
of 2001 and 2002. Notwithstanding the foregoing, the Executive's Base Salary and
Bonus shall be subject to review by the Board each year and may be increased
(but not decreased) at any time. If Base Salary is increased at any time, in any
subsequent year Base Salary shall be the increased amount. Any Bonus shall be
payable as promptly as practicable after the end of the period for which it is
being paid, but in any event by April 15th of the following year.
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(c) Stock Options. As of the Effective Time, the Executive shall be granted an
option (the "Option") to purchase 100,000 shares of the Company's common stock
(the "Common Stock") at the closing price per share of the Common Stock on such
date. Such Option shall be granted under a Company stock option plan, and shall
be an "incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986 (the "Code") to the extent permitted by Section 422(d) of
the Code; to the extent not permitted by Section 422(d), the remaining portion
of the Option shall be a nonqualified stock option. The Option shall vest and
become exercisable at the rate of 33 1/3% per year, beginning on the first
anniversary of the Commencement Date, and, except as otherwise provided herein,
shall remain exercisable for ninety (90) days following the Executive's
termination of employment for any reason (other than for Cause, in which event
the Option shall terminate on the termination of employment date) or, if less,
the remaining term of the Option. The Option shall have a term of five (5) years
from the date on which it is granted.
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(d) Retirement Benefit. The Company acknowledges (a) that, under all
circumstances (including, but not limited to, termination for Cause hereunder),
the Executive is entitled to the retirement benefit described in his employment
agreement with U.S. Home Corporation as in effect as of the day immediately
preceding the date hereof (the "USH Employment Agreement"), provided that, after
the Effective Time, such benefit shall be calculated on the basis of a Base
Salary of $800,000, per annum, (b) the existence of a trust fund created
pursuant to a Trust Agreement, dated as of December 18, 1986 between U.S. Home
Corporation, as grantor, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as successor trustee (the
"1986 Trust") and certain annuity contracts purchased pursuant thereto, and (c)
that it consents to an additional contribution by U.S. Home Corporation or the
Company to the 1986 Trust at or prior to the Effective Time sufficient to
provide the full retirement benefit payable to the Executive under such prior
employment agreement and hereunder, provided that such amount shall not exceed
$1,000,000 in the aggregate. The Company and the Executive agree that the
retirement benefit will be payable in all cases in the first instance from the
1986 Trust.
(e) Transportation. For the Employment Term, the Executive shall be entitled to
the use of a bus for business travel, and the Company shall make available for
such travel either the bus used by the Executive immediately prior to the
Effective Time or a new bus comparable to such bus and acceptable to the
Executive at the Effective Time and through the end of the Employment Term. The
Company shall be responsible for all costs of operating and maintaining such
bus, and shall do so in a manner that is at least consistent with and comparable
to the manner in which it was maintained immediately prior to the Effective
Time. The Company agrees that the Executive shall be entitled to a driver at all
times and agrees to employ the Executive's current driver if the Effective Time
occurs; in the event such individual does not accept employment with the Company
or terminates employment during the Employment Term, the Company shall
immediately make available another driver acceptable to the Executive.
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(f) Expense Reimbursement. The Company shall promptly pay, or reimburse the
Executive for, all ordinary and necessary business expenses incurred by him in
the performance of his duties hereunder, provided that the Executive properly
accounts for them in accordance with Company policy.
(g) Other Benefit Plans, Fringe Benefits, and Vacations. Effective as of the
Effective Time, the Executive shall, upon satisfying the eligibility
requirements therefor (which shall be waived in the case of plans, policies and
arrangements which are not tax-qualified), immediately become a participant in
each of the Company's present employee benefit plans, policies or arrangements
in which the Company's senior executive officers of similar status ("Executive
Officers") participate (or, if the terms are more favorable, in the medical
plans in which the Executive participated immediately prior to the Effective
Time). The Executive shall be granted full credit for his service with U.S. Home
Corporation immediately prior to the Effective Time with respect to all such
present plans, policies and arrangements, to the extent consistent with all
applicable tax-qualification requirements (without the need to provide any
benefits or other improved provisions to any other employee), and any such
plans, policies or arrangements that the Company may maintain or establish
during the Employment Term and receive all fringe benefits and vacations for
which his position makes him eligible in accordance with the Company's usual
policies and the terms and provisions of such plans, policies or arrangements.
The Company shall not terminate or change, in such a way as to adversely affect
the Executive's rights or reduce his benefits (unless any such decrease is
required by law to maintain tax-qualified status, or is generally applicable to
employees eligible to participate in any such plan, policy or arrangement), any
employee benefit plan, policy or arrangement in effect as of the date hereof or
which may hereafter be established and in which the Executive is eligible to
participate.
(h) Continued Medical Coverage. From and after the last day of the Employment
Term, the Executive, his spouse and eligible dependents shall be entitled to
participate in each of
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the Company's employee benefit plans, policies or arrangements which provide
medical coverage and similar benefits to the Company's Executive Officers (the
"Company Medical Plan") on the same basis as the Company's other Executive
Officers until the last day of the month on which the Executive becomes eligible
for Medicare or other applicable law, provided that, if such coverage may be
obtained through a medical plan maintained by U.S. Home Corporation, the
Executive may determine that such coverage should be obtained (and the Company
or U.S. Home Corporation shall bear the expense of such additional coverage, up
to $5,000 per year). The Executive will pay to the Company the premium charged
the Company for such coverage by the time the Company is required to make
payment or such premium, or through any arrangement mutually acceptable to the
Company and the Executive. If continued coverage under the Company's Medical
Plan is not possible under the terms of any insurance policy or applicable law
following the Employment Term, the Company will use its best efforts to provide
the Executive with coverage equivalent to that provided to the Company's other
Executive Officers under an insurance policy or arrangement acceptable to the
Executive, and the Executive shall reimburse the Company for the cost of such
coverage. With respect to any type of benefit covered by this Section 4(h), such
benefit shall not be required to be provided if the Executive obtains subsequent
employment (including acting as an independent contractor) and such type of
benefit is made available in connection therewith.
(i) Office Space. For a period of three (3) years from the end of the Employment
Term or, if earlier, the date of the Executive's termination of employment for
any reason other than Cause, Total Disability or death, the Company shall
provide the Executive with (i) an office (at a location at which the Company
then maintains offices) that is comparable in size and stature to the office he
maintained at the Commencement Date, and (ii) a full-time secretary. The cost of
such office and secretary shall be borne entirely by the Company.
(j) Deferred Compensation. The Executive has deferred certain amounts (the
"Deferred Compensation") while employed in his prior position in order that the
payment of
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such amounts would not be nondeductible under Section 162(m) of the Code by his
prior employer. The Deferred Compensation shall continue to be so deferred until
such time as its payment will not result in such a loss of deduction by the
Company, which determination may be evidenced by an opinion of ▇▇▇▇, Scholer,
Fierman, ▇▇▇▇ & Handler, LLP or other law firm reasonably acceptable to the
Company. Upon the receipt and acceptance of such opinion, the Company shall pay
the Executive the amount of such Deferred Compensation in a single lump sum in
cash as promptly as possible (but in no event more than thirty (30) days after
receipt of the opinion).
5. Termination.
(a) Compensation and Benefits. Upon termination of the Executive's employment,
in addition to any other benefits he or his estate, as applicable, shall be
entitled to receive hereunder (i) any Base Salary or other benefit that has
accrued but not been paid up to the date of his termination of employment or for
the period required by law, (ii) unless such termination is for Cause, or is by
the Executive other than for Good Reason, a pro rata portion of the Bonus
payable with respect to the calendar year of termination, determined by
multiplying the Bonus for such year as set forth in Section 4(b) hereof by a
fraction, the numerator of which is the number of calendar days in such year up
to the termination of employment date and the denominator of which is 365, (iii)
a lump sum in cash for any accrued but unpaid vacation days, and (iv) any unpaid
expense reimbursements. In addition, in the event of the Executive's death
during the Employment Term, his estate or beneficiary shall be entitled to
exercise any then exercisable Option until the earlier of twelve (12) months
following his date of death or the end of the Option term. The provisions of
Section 4 expressly applicable after termination of employment and the
provisions of this Section 5 shall be the Executive's exclusive rights hereunder
in the event of termination.
(b) Termination on Death and Disability.
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(i) The Executive's employment hereunder shall terminate upon his death or upon
a finding that he has become Totally Disabled. For purposes of this Agreement,
the Executive shall be "Totally Disabled" if he is physically or mentally
incapacitated so as to render him incapable of performing his usual and
customary duties hereunder for a period of six (6) consecutive months or for
shorter periods aggregating six (6) months in any period of twelve (12)
consecutive months. The Executive's receipt of Social Security disability
benefits shall be deemed conclusive evidence of Total Disability for purposes of
this Agreement, provided, however, that in the absence of such Social Security
benefits, Total Disability shall be evidenced by the written determination of a
physician, licensed in the State of Texas, mutually selected by the Board and
the Executive.
(ii) In the event that the Executive is Totally Disabled or dies before his
retirement benefit pursuant to Section 4(d) hereof has commenced to be
distributed (whether or not he is in the employ of the Company at the time he
dies or is so Totally Disabled), such retirement benefit shall commence to be
distributed to him or his designated beneficiary to the extent and in the manner
provided under the terms of the Executive's USH Employment Agreement and/or the
other documents governing the payment of such retirement benefit as in effect on
the day before the date hereof.
(iii) In the event of the Executive's death (while Totally Disabled or
otherwise) after his retirement benefit has commenced to be distributed pursuant
to Section 4(d) hereof or subparagraph (ii) above, as applicable, the retirement
benefit shall be paid to his designated beneficiary to the extent and in the
manner provided under the terms of the Executive's USH Employment Agreement
and/or the other documents governing the payment of such retirement benefit as
in effect on the day before the date hereof.
(c) Termination For Cause. The Executive's employment hereunder may be
terminated for Cause. For purposes of this Agreement, the term "Cause" shall
mean (i) the Executive's continuing willful failure to perform his duties
hereunder (other than as a result of
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total or partial incapacity due to physical or mental illness), (ii) the
Executive's gross negligence or gross malfeasance by the Executive in the
performance of his duties hereunder, (iii) an act or acts on the Executive's
part constituting fraud, theft or embezzlement or act that otherwise constitutes
a felony under the laws of the United States or any state thereof which results
or was intended to result directly or indirectly in gain or personal enrichment
by the Executive at the expense of the Company, or conviction of any felony or
crime of moral turpitude, (iv) breach of the provisions of Section 6(b) hereof
or (v) any other material breach of this Agreement. In any case described in
this section, the Executive shall be given written notice of the alleged breach
in accordance with Section 8(b) hereof, and, in the case of clauses (i), (ii)
and (v) above, the Executive shall have thirty (30) days from the date of
receipt of such notice to cure such breach. Such notice shall set forth in
detail the reason or reasons for such termination, including any act or failure
to act that is the basis for the decision to terminate the Executive. Within
thirty (30) days after the aforesaid notice, the Executive shall be given an
opportunity to make a presentation to the Board (accompanied by counsel or other
representative if so desired) at a meeting of the Board. Following such meeting,
the Board shall determine whether to terminate the Executive for "Cause" and
shall notify the Executive of its determination.
(d) Good Reason. The Executive may terminate his employment hereunder for Good
Reason. For purposes of this Agreement, the term "Good Reason" shall mean and be
deemed to exist if, without the Executive's prior written consent, (i) the
Executive is assigned duties or responsibilities that are inconsistent with the
scope of the duties or responsibilities associated with his titles or position
as set forth in this Agreement (or which he may receive during the Employment
Term), (ii) the Executive's duties or responsibilities are significantly
reduced, (iii) the Executive is assigned to report to anyone other than the
Company's Chief Executive Officer or the Board, (iv) the Company fails to
perform any material term or provision of this Agreement, (v) benefits to which
the Executive is entitled under the Company's benefit plans are decreased,
unless such decrease is required by law to maintain tax-qualified status, or is
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applicable to all employees of the Company eligible to participate in any plan
so affected, (vi) the Executive's office location is relocated to one that is
more than 10 miles from the location at which the Executive was based
immediately prior to the relocation, (vii) the Executive's title, as of the
Commencement Date, is adversely changed, (viii) the Company fails to obtain a
full assumption of this Agreement by a successor entity in accordance with
Section 8(e) hereof, or (ix) the Executive is not elected (prior to the
Effective Time) or reelected to the Board and/or is not appointed Vice-Chairman
thereof, or is forced to resign therefrom or from such title for any reason not
constituting Cause. The Executive shall provide the Company with written notice
of the alleged breach in accordance with Section 8(b) hereof and, in the case of
clauses (i), (ii), (iv), (v) and (viii) above, the Company shall have thirty
(30) days from the date of receipt of such notice to cure such breach. Such
notice shall set forth in detail the reason or reasons for his termination,
including any act or failure to act that is the basis for his decision to
terminate for Good Reason.
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(e) Termination for Good Reason or Without Cause. If the Executive's employment
hereunder is terminated without Cause or the Executive terminates for Good
Reason, as soon as practicable (but not later than 30 days) after such
termination, (i) he shall receive a lump sum cash payment equal to the sum of an
amount equal to his highest monthly Base Salary ($66,666 per month for the first
year hereof) and one-twelfth (1/12) of the Bonus paid in the preceding calendar
year (or $100,000 per month if termination occurs in the first year hereof)
multiplied by the number of full or partial months remaining in the Employment
Term, and (ii) any Option held by the Executive shall become immediately
exercisable and shall remain exercisable until the earlier of the end of the
Option term or three (3) months following the date of the Executive's
termination. In addition to the foregoing benefits, if the Executive is
terminated without Cause or he terminates for Good Reason, he shall continue to
be entitled to reimbursement for expenses and other benefits following
termination of employment, in the amounts and in the manner set forth in
Sections 4(f) and 4(g) hereof.
(f) Termination Following a Change in Control.
(i) In the event the Executive's employment terminates for any reason other than
death, Total Disability or Cause prior to the first anniversary of a Change in
Control of the Company, he shall be entitled to a lump sum cash payment within
ten (10) days of his termination of employment in an amount equal to the
remaining Base Salary and Bonus he would have been paid hereunder for the
remainder of the Employment Term. In addition, Section 6(b) hereof shall not be
applicable to the Executive from and after the date of his termination of
employment.
(ii) For purposes of this Agreement, a Change in Control shall mean the
happening of any of the following:
(1) any "person," as such term is used in Section 13(d) and 14(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") (other than the Company or
any subsidiary of the Company, or any trustee or other fiduciary holding
securities under an
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employee benefit plan of the Company or any subsidiary) becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing more than fifty percent
(50%) of the combined voting power of the Company's then outstanding securities;
(2) during any period of two consecutive years beginning on or after the
Commencement Date, individuals who at the beginning of such period constitute
the Board, and any new director (other than a director designated by a person
who has entered into an agreement with the Company to effect a transaction
described in clause (1), (3) or (4)) whose election by the Board or nomination
for election by the Company's shareholders was approved by a vote of at least
one-half (1/2) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election was
previously so approved (unless the approval of the election or nomination for
election of such new directors was in connection with an actual or threatened
election or proxy contest), cease for any reason to constitute at least a
majority thereof;
(3) the shareholders of the Company approve a merger or consolidation of the
Company with any other corporation, other than (x) a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than fifty percent (50%) of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation or (y) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
"person" (as defined above in clause (1)) acquires more than fifty percent (50%)
of the combined voting power of the Company's then outstanding securities; or
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(4) the shareholders of the Company approve a plan of complete liquidation of
the Company or an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets or any transaction having a similar
effect. (5)Notwithstanding the foregoing, no transfer of a security to a
"Permitted Holder" shall give rise to, or otherwise be taken into account for
purposes of determining whether there has occurred, a Change in Control. For
these purposes, a "Permitted Holder" shall mean any holder of the Company's
Class B Common Stock as of the Effective Time and any permitted transferee of
the Company's Class B Common Stock under the terms of the Company's Certificate
of Incorporation, as it exists as of the Effective Time.
(g) No Mitigation, No Offset. In the event of any termination of the Executive's
employment under this Section 5, the Executive shall be under no obligation to
seek other employment and there shall be no offset against any amounts due the
Executive under this Agreement on account of any remuneration the Executive may
obtain from any subsequent employment. Any amounts due under this Section 5 are
in the nature of liquidated damages, and not in the nature of a penalty.
6. Covenants.
(a) Confidentiality. The Executive acknowledges that he has acquired and will
acquire confidential information respecting the business of the Company.
Accordingly, the Executive agrees that, without the written consent of the
Company as authorized by the Board, he will not, at any time, willfully disclose
any such confidential information to any unauthorized third party. For this
purpose, information shall be considered confidential only if such information
is uniquely proprietary to the Company and has not been made publicly available
prior to its disclosure by the Executive.
(b) Competitive Activity. Until the end of the Employment Term, the Executive
shall not, without the consent of the Board, directly or indirectly, knowingly
engage or be interested in (as owner, partner, shareholder, employee, director,
officer, agent, consultant or
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otherwise), with or without compensation, any business which (i) is in
competition with any line of business that U.S. Home Corporation or any of its
affiliates or subsidiaries conducted immediately prior to the Effective Time, or
(ii) shall hire any person who was employed by the Company or any of its
affiliates or subsidiaries within the six-month period preceding such hiring,
except for any employee whose annual rate of compensation is not in excess of
$55,000. Nothing herein, however, shall prohibit the Executive from acquiring or
holding not more than one percent of any class of publicly traded securities of
any such business.
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(c) Remedy for Breach. The Executive acknowledges that the provisions of this
Section 6 are reasonable and necessary for the protection of the Company and
that the Company will be irrevocably damaged if such covenants are not
specifically enforced. Accordingly, the Executive agrees that, in addition to
any other relief to which the Company may be entitled, the Company shall be
entitled to seek and obtain injunctive relief (without the requirement of any
bond) from a court of competent jurisdiction for the purposes of restraining the
Executive from any actual or threatened breach of such covenants.
7. Change in Control Payments
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(a) Gross-Up Payment. Notwithstanding anything herein to the contrary, in the
event that any payments to the Executive pursuant to this Agreement or under any
other agreement, plan or arrangement of the Company (the "Change in Control
Payments") become subject to the tax imposed by Section 4999 of the Code (the
"Excise Tax"), the Company shall pay to the Executive at the time specified
below, an additional cash amount (the "Gross-Up Payment") such that the net
amount retained by the Executive after deduction of any Excise Tax on the Change
in Control Payments and any federal, state and local income tax and Excise Tax
upon the payment provided by this paragraph, shall be equal to the Change in
Control Payments. For purposes of determining whether any of the Change in
Control Payments will be subject to the Excise Tax and the amount of such Excise
Tax, (a) any other payments or benefits received or to be received by the
Executive in connection with a Change in Control of the Company or U.S. Home
Corporation shall be treated as "parachute payments" within the meaning of
Section 280G of the Code, and all "excess parachute payments" within the meaning
of such Section 280G shall be treated as subject to the Excise Tax, unless in
the opinion of tax counsel selected by the Company's independent auditors and
acceptable to the Executive, such other payments or benefits (in whole or in
part) do not constitute parachute payments, or such excess parachute payments
(in whole or in part) represent reasonable compensation for services actually
rendered within the meaning of Section 280G of the Code, and (b) the value of
any non-cash benefits or any deferred payment or benefits shall be determined by
such independent auditors in accordance with the principles of Section 280G of
the Code. For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income taxes at the highest marginal
rate of federal income taxation in the calendar year in which the Gross-Up
Payment is to be made and state and local income taxes at the highest marginal
rates of taxation in the state and locality of his residence on the date of his
termination of employment net of the maximum reduction in federal income taxes
which could be obtained from deduction of such state and local taxes.
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(b) Overpayment of Gross-Up Payment. In the event that the Company furnishes the
Executive with a written opinion of its independent accountants (reasonably
satisfactory to the Executive) that the Excise Tax due has been subsequently
determined to be less than the amount taken into account hereunder at the time a
Gross-Up Payment was paid, the Executive shall repay to the Company at the time
that the amount of such reduction in Excise Tax is finally determined, the
portion of the Gross-Up Payment attributable to such reduction plus interest on
the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of
the Code. Notwithstanding the foregoing, if any portion of the Gross-Up Payment
to be refunded to the Company has been paid to any federal, state or local tax
authority, repayment thereof shall not be required until an actual refund or
credit of such portion has been made to or obtained by the Executive from such
tax authority, and any interest payable to the Company shall not exceed the
interest received or credited to the Executive by any such tax authority. The
Executive shall be fully indemnified by the Company for any out-of-pocket costs,
expenses or fees attributable to the filing of any refund or other claim.
(c) Underpayment of Gross-Up Payment. In the event the Executive notifies the
Company that the Excise Tax has been determined (by the Internal Revenue
Service) to exceed the amount taken into account hereunder at the time a
Gross-Up Payment was made (including by reason of any payment the existence or
amount of which cannot be determined at the time of the Gross-Up Payment), the
Company shall make an additional Gross-Up Payment in respect of such excess
Excise Tax (plus any interest payable with respect to such excess) at the time
that the amount of such excess is finally determined.
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(d) Timing of Payment. Any Gross-Up Payment shall be paid to or on behalf of the
Executive not later than ten (10) business days following the payment of any
Change in Control Payments which are subject to Section 4999 of the Code.
8. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed in that State.
(b) Notices. Any notice, consent or other communication made or given in
connection with this Agreement shall be in writing and shall be deemed to have
been duly given when delivered by United States registered or certified mail,
return receipt requested, to the parties at the following addresses or at such
other address as a party may specify by notice to the other.
To the Executive:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
To the Company:
Lennar Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
General Counsel
with a copy to:
▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(c) Entire Agreement; Amendment. This Agreement shall supersede any and all
existing agreements between the Executive and the Company or any of its
affiliates or subsidiaries relating to the terms of his employment; provided
however, that, this Agreement shall not supersede, or adversely impair in any
way the right of the Executive and his designated beneficiary to receive the
retirement benefit as described in his USH Employment Agreement and/or the other
documents governing the payment of such retirement benefit as in effect on the
day before the date hereof. It may not be amended except by a written agreement
signed by both parties.
(d) Waiver. The failure of a party to insist upon strict adherence to any term
of this Agreement on any occasion shall not be considered a waiver thereof or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
(e) Assignment. Except as otherwise provided in this paragraph, this Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective heirs, representatives, successors and assigns. This Agreement shall
not be assignable by the Executive, and shall be assignable by the Company only
to any corporation or other entity resulting from the reorganization, merger or
consolidation of the Company with any other corporation or entity or any
corporation or entity to which the Company may sell all or substantially all of
its assets, and it must be so assigned by the Company to, and accepted as
binding upon it by, such other corporation or entity in connection with any such
reorganization, merger, consolidation or sale.
(f) Litigation Costs. In the event that the Executive shall successfully
prosecute a judicial proceeding to enforce any provision of this Agreement, in
addition to any other relief awarded the Executive by the court in such action,
the parties agree that the judgment rendered shall award the Executive all of
his attorneys' fees, disbursements and other costs incurred by the Executive in
prosecuting such suit.
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(g) Separability. If any provision of this Agreement is invalid or
unenforceable, the balance of the Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
(h) Employment. The Company agrees that it shall employ ▇▇▇▇ ▇▇▇▇▇▇▇▇ upon the
Effective Time on at least the same terms and conditions as he was employed at
U.S. Home Corporation immediately prior to the Effective Time, and shall
continue to employ ▇▇▇▇ ▇▇▇▇▇▇▇▇ in at the same position at least so long as the
Executive is employed by the Company. The Company further agrees that ▇▇▇▇
▇▇▇▇▇▇▇▇ shall report to the Executive, or such other person as the Executive
shall direct.
(i) Arbitration. Any and all disputes or controversies arising out of or
relating to this Agreement, other than injunctive relief pursuant to Section
6(c), shall be resolved by arbitration at the American Arbitration Association
at its Houston, Texas offices before a panel of three arbitrators under the then
existing rules and regulations of the American Arbitration Association. The
parties agree that in any such arbitration, the arbitrators shall not have the
power to reform or modify this Agreement in any way and to that extent their
powers are so limited. The determination of the arbitrators shall be final and
binding on the parties hereto and judgment on it may be entered in any court of
competent jurisdiction. In the event Executive prevails in such proceedings, as
determined by the arbitrators, the Company shall reimburse Executive for all
expenses incurred by Executive in connection with such proceeding or any other
proceeding in which Executive prevails in contesting or defending any claim or
controversy arising out of or relating to this Agreement. All such amounts shall
be paid promptly, but in any event within ten (10) business days after Executive
provides the Company with a statement of such amounts to be recovered. In the
event Executive does not prevail in such proceedings, as determined by the
arbitrators, each party hereto shall be responsible for their own expenses
(including, without
22
limitation, legal fees and expenses) incurred in connection with such
proceedings.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Employment Agreement as evidence of their adoption this ____ of _______, 2000.
LENNAR CORPORATION
By:
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Name:
Title:
EXECUTIVE
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
