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EXHIBIT 10(a)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of March 31, 2001, between
Avatar Holdings Inc., a Delaware corporation (the "Company"), and Xxxxxx X.
Xxxxxx (the "Employee").
W I T N E S S E T H :
WHEREAS, the Company desires to employ the Employee as its
Executive Vice President and General Counsel and the Employee desires to accept
such employment, all on the terms and conditions specified herein; and
WHEREAS, the Employee and the Company desire to set forth in
writing all of their respective duties, rights and obligations with respect to
the Employee's employment by the Company; and
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and obligations hereinafter set forth, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT AND TERM. The Company hereby employs the Employee, and the
Employee hereby accepts employment by the Company, in the capacity and upon the
terms and conditions hereinafter set forth. The term of employment under this
Agreement shall be for the period commencing on the date hereof (the
"Commencement Date") and ending on the second anniversary thereof, unless
earlier terminated as herein provided (the "Term of Employment"). The last day
of the Employee's Term of Employment shall be referred to in this Agreement as
the "Date of Termination."
2. DUTIES. During the Term of Employment, the Employee shall serve as the
Company's Executive Vice President and General Counsel, and shall perform such
duties, functions and responsibilities as are associated with and incident to
the positions of Executive Vice President and General Counsel and as the Company
may, from time to time, require of the Employee, including, but not limited to,
the performance of such functions and duties for the Company's subsidiaries and
affiliates as the Company may require, subject to the direction of the Company's
Board of Directors. The Employee shall serve the Company faithfully,
conscientiously and to the best of the Employee's ability and shall promote the
interests and reputation of the Company. Unless prevented by sickness or
disability, the Employee shall devote all of the Employee's time, attention,
knowledge, energy and skills, during normal working hours, and at such other
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times as the Employee's duties may require, to the duties of the Employee's
employment. The principal place of employment of the Employee shall be the
principal executive offices of the Company and/or such other location in the
state of Florida as shall be necessary for the Employee to discharge the
Employee's duties hereunder. The Employee acknowledges that in the course of
employment the Employee may be required, from time to time, to travel on behalf
of the Company.
3. COMPENSATION AND BENEFITS. As full and complete compensation for the
Employee's execution and delivery of this Agreement and performance of any
services hereunder, the Company shall pay, grant or provide the Employee, and
the Employee agrees to accept, the following compensation and benefits:
(a) BASE SALARY. The Company shall pay the Employee a base salary at an
annual rate of $250,000 payable at such times and in accordance with the
Company's customary payroll practices as they may be adopted or modified from
time to time. On an annual basis or at such other times as the Company may
determine, the Company may review the Employee's performance and determine
whether, in its sole discretion, the Company will increase (but not decrease)
the Employee's base salary.
(b) EMPLOYEE BENEFITS. The Company shall afford the Employee the
opportunity to participate during the Term of Employment in any medical, dental,
disability insurance, retirement, savings and any other employee benefits plans,
policies or arrangements which the Company maintains for its senior executives
in accordance with the written terms of such plans, policies or arrangements.
Nothing in this Agreement shall require the Company or its affiliates to
establish, maintain or continue any benefit plan, policy or arrangement or
restrict the right of the Company or any of its affiliates to amend, modify or
terminate any such benefit plan, policy or arrangement.
(c) EXPENSES. The Employee shall be entitled to reimbursement or
payment of reasonable business expenses (in accordance with the Company's
policies for its senior executives, as the same may be amended from time to time
in the Company's sole discretion), following the Employee's submission of
appropriate receipts and/or vouchers to the Company.
(d) VACATIONS, HOLIDAYS OR TEMPORARY LEAVE. The Employee shall be
entitled to take four (4) weeks of vacation per year, without loss or diminution
of compensation. Such vacation shall be taken at such time or times, and as a
whole or in increments, as the Employee shall elect, consistent with the
reasonable needs of the Company's business. The Employee shall further be
entitled to the number of paid holidays, and leaves for illness or temporary
disability in accordance with the policies of the Company for its senior
executives (as such policies may be amended from time to time or terminated in
the Company's sole discretion).
(e) STOCK OPTIONS. In the Company's sole discretion, the Employee also
may be granted options for the purchase of shares of common stock issued by the
Company, in accordance with the written terms and conditions of such stock
option plan as the Company from time to time may adopt; PROVIDED, HOWEVER, that
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nothing in this Agreement shall require the Company or its affiliates to adopt
or continue any stock option plan or restrict the right of the Company or any of
its affiliates to amend, modify or terminate any such stock option plan.
4. PROTECTION OF CONFIDENTIAL INFORMATION.
(a) TRADE SECRETS AND KNOW-HOW.
(i) During the Term of Employment and for all time following
the Date of Termination, the Employee shall not, directly or indirectly, use,
furnish or make accessible to any person, firm or corporation or other business
entity, whether or not he, she, or it competes with the business of the Company,
its subsidiaries and/or affiliates (each of the foregoing entities being
referred to herein, collectively and individually, as the "Avatar Entities"),
(x) any trade secret or know-how acquired by the Employee during the Employee's
employment by the Company which relates to the business practices, methods,
processes or other confidential or secret aspects of the business of any of the
Avatar Entities, (y) any information concerning the business and affairs of the
Avatar Entities and (z) any notes, analysis, compilations, studies, summaries
and other material prepared by or for the Company continuing or based, in whole
or in part, on any information included in clause (x) or (y) above, without the
prior written consent of the Company (such information, subject to Section
4(a)(ii) below, being referred to as the "Confidential Information").
(ii) Confidential Information shall not include any
information or documents that (A) are or become publicly available without
breach by the Employee of Section 4(a)(i) hereof, (B) the Employee receives from
any third party who, to the best of the Employee's knowledge upon reasonable
inquiry, is not in breach of an obligation of confidence with any of the Avatar
Entities, or (C) is required to be disclosed by law, statute, governmental or
judicial proceeding; PROVIDED, HOWEVER, that in the event that the Employee is
requested by any governmental or judicial authority to disclose any Confidential
Information, the Employee shall give the Company prompt notice of such request,
such that the Company may seek a protective order or other appropriate relief,
and in any such proceeding the Employee shall disclose only so much of the
Confidential Information as is required to be disclosed.
(b) REMEDIES. The Employee acknowledges that the Employee's position
with the Company places the Employee in a position of confidence and trust with
the clients and employees of the Avatar Entities, and that in connection with
the Employee's services to the Company, the Employee will have access to
confidential information vital to the Avatar Entities' businesses. The Employee
further acknowledges that in view of the nature of the businesses in which the
Avatar Entities are engaged, the foregoing restrictive covenants in this Section
4 hereof are reasonable and necessary in order to protect the legitimate
interests of the Avatar Entities and that violation thereof would result in
irreparable injury to the Avatar Entities. Accordingly, the Employee consents
and agrees that if the Employee violates or threatens to violate any of the
provisions of this Section 4 hereof the Avatar Entities would sustain
irreparable harm and, therefore, one or more of the Avatar Entities shall be
entitled to obtain from any court of competent jurisdiction, without posting any
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bond or other security, preliminary and permanent injunctive relief as well as
damages and an equitable accounting of all earnings, profits and other benefits
arising from such violation, which rights shall be cumulative and in addition to
any other rights or remedies in law or equity to which any of the Avatar
Entities may be entitled.
(c) RETURN OF CONFIDENTIAL INFORMATION. Upon termination of the
Employee's employment, the Employee shall promptly return all Confidential
Information in tangible form, and shall not make or retain any copies thereof.
5. TERMINATION OF EMPLOYMENT.
(a) The Employee's employment with the Company shall terminate upon the
occurrence of any of the following events:
(i) the termination of the Employee's employment upon and at
any time following the Date of Termination and absent the parties having entered
into a written agreement for the renewal of this Agreement;
(ii) the death of the Employee during the Term of Employment;
(iii) the Disability (as defined below) of the Employee during
the Term of Employment;
(iv) at any time upon written notice to the Employee from the
Company of termination of the Employee's employment for Cause (as defined
below);
(v) at any time upon written notice to the Employee from the
Company of termination of the Employee's employment Without Cause (as defined
below);
(vi) the resignation by the Employee for Good Reason (as
defined below) during the Term of Employment; or
(vii) the resignation by the Employee Without Good Reason (as
defined below) during the Term of Employment.
(b) For purposes of this Agreement, the "Disability" of the Employee
shall mean the Employee's inability, because of mental or physical illness or
incapacity, whether total or partial, to perform one or more of the material
functions of the Employee's employment under this Agreement with or without
reasonable accommodation and which entitles the Employee to receive benefits
under a disability plan, policy or arrangement that is provided to the Employee
by the Company.
(c) For purposes of this Agreement, the term "Cause" shall mean the
Employee's (i) conviction or entry of a plea of guilty or nolo contendere, with
respect to any felony; (ii) commission of any act of willful misconduct, gross
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negligence, fraud or dishonesty; or (iii) violation of any material term of this
Agreement or any material written policy of the Company, PROVIDED that the
Company first deliver written notice thereof to the Employee and the Employee
shall not have cured such violation within thirty (30) days after receipt of
such written notice.
(d) For purposes of this Agreement, "Without Cause" shall mean any
reason other than the reasons described in Sections 5(a)(i), 5(a)(ii),
5(a)(iii), 5(a)(iv) and 5(a)(vi) hereof. The parties expressly agree that a
termination of employment Without Cause pursuant to Section 5(a)(v) hereof may
be for any reason whatsoever, or for no reason, in the sole discretion of the
Company.
(e) For purposes of this Agreement, "Good Reason" shall mean a material
breach of the provisions of this Agreement by the Company which remains uncured
for a period of at least 30 days after the Employee has provided written notice
to the Company in accordance with Section 15 of the existence of such breach and
the Employee's intention to terminate this Agreement (it being understood that
no such termination shall be effective if such breach is cured during such
period).
(f) For purposes of this Agreement, "Without Good Reason" shall mean
any reason other than that defined in this Agreement as constituting Good
Reason.
6. PAYMENTS UPON TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. If the Employee's employment hereunder is
terminated due to the Employee's death or Disability pursuant to Sections
5(a)(ii) or (iii) hereof, the Company shall pay or provide to the Employee, the
Employee's designated beneficiary or to the Employee's estate: (i) all base
salary pursuant to Section 3(a) hereof and any vacation pay pursuant to Section
3(d) hereof, in each case which has been earned but unpaid as of the Date of
Termination; and (ii) any benefits to which the Employee may be entitled under
any employee benefits plan, policy or arrangement pursuant to Section 3(b)
hereof in which the Employee is a participant in accordance with the written
terms of such plan, policy or arrangement up to and including the Date of
Termination. Should the Company wish to purchase insurance to cover the costs
associated with the Employee's termination of employment pursuant to Sections
5(a)(ii) or (iii), the Employee agrees to execute any and all necessary
documents required in connection with such insurance. Upon termination of the
Employee's employment due to the Employee's Disability, the Employee shall
continue to have the obligations provided for in Section 4 hereof.
(b) TERMINATION FOR CAUSE OR RESIGNATION WITHOUT GOOD REASON. If the
Employee's employment hereunder is terminated by the Company for Cause pursuant
to Section 5(a)(iv) or due to the Employee's resignation Without Good Reason
pursuant to Section 5(a)(vii), the Company shall pay or provide to the Employee:
(i) all base salary pursuant to Section 3(a) hereof and any vacation pay
pursuant to Section 3(d) hereof, in each case which has been earned but unpaid
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as of the Date of Termination; and (ii) any benefits to which the Employee may
be entitled under any employee benefits plan, policy or arrangement pursuant to
Section 3(b) hereof in which the Employee is a participant in accordance with
the written terms of such plan, policy or arrangement up to and including the
Date of Termination.
(c) TERMINATION WITHOUT CAUSE; RESIGNATION FOR GOOD REASON.
(i) If the Employee's employment hereunder is terminated by
the Company Without Cause pursuant to Section 5(a)(v) or due to the Employee's
resignation for Good Reason pursuant to Section 5(a)(vi), the Company shall
continue to pay to the Employee, in lieu of any other payments or benefits and
on the regular payroll dates of the Company for a period of one (1) year
following the Date of Termination, the Employee's current base salary, at the
rate provided in Section 3(a) hereof. The Company's obligation to make the
payment pursuant to this Section 6(c)(i) shall be subject to the provisions of
Section 6(c)(ii) and conditioned upon the Company's prior receipt of an executed
general release of claims that the Employee may have against the Company, its
affiliates and their respective shareholders, directors, officers, employees and
agents, to the maximum extent permitted by law.
(ii) In addition, the Employee agrees to keep the Chief
Executive Officer of the Company or his designee apprised of the Employee's
status during the entire period of time that the Employee shall be entitled to
receive salary continuation pursuant to Section 6(c)(i) above, and, if
requested, to provide appropriate supporting documentation with respect to the
salary, bonuses or other income earned by and benefits made available to the
Employee in respect of any employment or other engagement secured by the
Employee. In the event the Employee secures employment or any other engagement,
the Company shall be entitled to deduct from the amounts payable to the Employee
pursuant to Section 6(c)(i), any salary, bonuses or other income earned by the
Employee in connection with such employment, and the Employee shall promptly
repay to the Company any amounts paid to him by the Company pursuant to Section
6(c)(i) which the Company was entitled to deduct from such amounts pursuant to
this Section 6(c)(ii).
(d) NO OTHER PAYMENTS. Except as provided in this Section 6, the
Employee shall not be entitled to receive any other payments or benefits from
the Company due to the termination of the Employee's employment, including but
not limited to, any employee benefits under any of the Company's employee
benefits plans or programs (other than at the Employee's expense under the
Consolidated Omnibus Budget Reconciliation Act of 1985 or pursuant to the terms
of any pension benefit plan which the Company may have in effect from time to
time) or any right to be paid severance pay. If the Employee is entitled to any
notice or payment in lieu of any notice of termination required by Federal,
State or local law, including but not limited to the Worker Adjustment and
Retraining Notification Act, the Company's obligation to make payments pursuant
to Section 6(c)(i) shall be reduced by the amount of any such payment in lieu of
notice.
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7. NO CONFLICTING AGREEMENTS.
(a) The Employee hereby represents and warrants that the Employee is
not a party to any agreement, or non-competition or other covenant or
restriction contained in any agreement, commitment, arrangement or understanding
(whether oral or written), which would in any way conflict with or limit the
Employee's ability to commence work on the first day of the Term of Employment
or would otherwise limit the Employee's ability to perform all responsibilities
in accordance with the terms and subject to the conditions of this Agreement.
(b) The Employee agrees that the compensation provided for in Section 3
represents the sole compensation to be paid to the Employee in respect of the
services performed or to be performed for the Company and/or its affiliates by
such Employee. The Employee further agrees that should there be a determination
that for federal, state, local and/or other tax purposes, the Employee's
compensation for services performed for the Company and its affiliates is
greater than the amounts payable hereunder, the Employee will indemnify and hold
harmless the Company and its affiliates against any and all liabilities, losses
and expenses, including, but not limited to, any additional taxes, penalties and
interest, and attorneys' and accountants' fees arising out of, resulting from or
relating to such determination.
8. DEDUCTIONS AND WITHHOLDING. The Employee agrees that the Company
shall withhold from any and all compensation required to be paid to the Employee
pursuant to this Agreement all federal, state, local and/or other taxes which
the Company determines are required to be withheld in accordance with applicable
statutes and/or regulations from time to time in effect and all amounts required
to be deducted in respect of the Employee's coverage under applicable employee
benefit plans.
9. ENTIRE AGREEMENT. This Agreement embodies the entire agreement of
the parties with respect to the Employee's employment and supersedes any other
prior oral or written agreements between the Employee and the Company and its
affiliates. This Agreement may not be changed or terminated orally but only by
an agreement in writing signed by the parties hereto.
10. WAIVER. The waiver by the Company of a breach of any provision of
this Agreement by the Employee shall not operate or be construed as a waiver of
any subsequent breach by the Employee. The waiver by the Employee of a breach of
any provision of this Agreement by the Company shall not operate or be construed
as a waiver of any subsequent breach by the Company.
11. GOVERNING LAW. This Agreement shall be subject to, and governed by,
the laws of the State of Florida applicable to contracts made and to be
performed in the State of Florida, regardless of where the Employee is in fact
required to work.
12. JURISDICTION. Any legal suit, action or proceeding against any
party hereto arising out of or relating to this Agreement shall be instituted in
a federal or state court in the State of Florida, and each party hereto waives
any objection
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which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding and each party hereto irrevocably submits to the
jurisdiction of any such court in any suit, action or proceeding.
13. ASSIGNABILITY. The obligations of the Employee may not be delegated
and, except as expressly provided in Section 6(a) relating to the designation of
beneficiaries, the Employee may not, without the Company's written consent
thereto, assign, transfer, convey, pledge, encumber, hypothecate or otherwise
dispose of this Agreement or any interest therein. Any such attempted delegation
or disposition shall be null and void and without effect. The Company and the
Employee agree that this Agreement and all of the Company's rights and
obligations hereunder may be assigned or transferred by the Company to and may
be assumed by and become binding upon and may inure to the benefit of any
affiliate of or successor to the Company. The term "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 the assets,
or otherwise, acquires all or a material part of the assets of the Company. Any
assignment by the Company of its rights and obligations hereunder to any
affiliate of or successor to the Company shall not be considered a termination
of employment for purposes of this Agreement.
14. SEVERABILITY. If any provision of this Agreement as applied to
either party or to any circumstances shall be adjudged by a court of competent
jurisdiction to be void or unenforceable, the same shall in no way affect any
other provision of this Agreement or the validity or enforceability of this
Agreement.
15. NOTICES. All notices to the Employee hereunder shall be in writing
and shall be delivered personally or sent by registered or certified mail,
return receipt requested, to:
Xxxxxx X. Xxxxxx
00000 X.X. 00 Xxxxxx
Xxxxx, Xxxxxxx 00000
All notices to the Company hereunder shall be in writing and shall be delivered
personally or sent by registered or certified mail, return receipt requested,
to:
Avatar Holdings Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
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with a copy to:
Avatar Holdings Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: Corporate Secretary
Facsimile: (000) 000-0000
Either party may change the address to which notices shall be sent by sending
written notice of such change of address to the other party.
16. SECTION HEADINGS. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
AVATAR HOLDINGS INC.
By: /s/ XXXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & Chief Executive Officer
/s/ XXXXXX X. XXXXXX
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Employee
Name: Xxxxxx X. Xxxxxx
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