Exhibit 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made
as of April 15, 2005, by and between Avatar Holdings Inc., a Delaware
corporation (the "Company") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Employee").
W I T N E S S E T H
WHEREAS, Employee is currently employed as President and Chief
Executive Officer of the Company pursuant to the amended and restated employment
agreement dated March 27, 2003 between the Company and Employee (the "Original
Agreement"); and
WHEREAS, the Company and Employee wish to provide for certain
modifications to the Original Agreement and wish to amend, restate and supersede
the Original Agreement, all upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. Employment. The Company agrees to employ Employee and Employee
agrees to be employed by the Company commencing as of the date hereof and ending
on June 30, 2011 (unless sooner terminated as hereinafter provided), on the
terms and subject to the conditions set forth in this Agreement.
2. Duties. (a) Employee shall continue to be nominated as a director
of the Company and, subject to Employee's election thereto by the Board of
Directors or the stockholders of the Company, Employee shall be employed as the
President and Chief Executive Officer of the Company. In such capacities,
Employee shall serve as the senior executive officer of the Company and shall
have the duties and responsibilities prescribed for such positions by the
By-Laws of the Company, and shall have such other duties and responsibilities as
may from time to time be prescribed by the Board of Directors of the Company or
the Executive Committee of the Board of Directors, provided that such duties and
responsibilities are consistent with Employee's position as the senior executive
officer. In the event that during the term of Employee's employment hereunder
Employee's duties and responsibilities are expanded or Employee's title is
changed (without reduction in status), then in either or both events the rights
and obligations under this Agreement shall not be affected. In the performance
of Employee's duties, Employee shall be subject to the supervision and direction
of the Board of Directors of the Company and the Executive Committee of the
Board of Directors.
(b) Subject to the term of Employee's employment hereunder, Employee
shall devote Employee's full working time and effort to the proper performance
of Employee's duties and responsibilities as President and Chief Executive
Officer. Employee hereby represents and warrants to the Company that Employee
has no obligations under any existing employment or service agreement other than
the Original Agreement and that Employee's performance of the services required
of Employee hereunder will not conflict with any other existing obligations or
commitments. Nothing in this Agreement shall preclude Employee from engaging,
consistent with Employee's duties and responsibilities hereunder, in charitable
and community affairs.
(c) Employee shall perform the services contemplated hereunder at the
principal executive office of the Company and at such other locations as may be
reasonably necessary to the performance of such services.
3. Compensation.
(a) Base Salary. During the term of Employee's employment hereunder,
the Company shall pay Employee, and Employee shall accept from the Company for
Employee's services, a salary at the rate of $500,000 per year ("Base Salary").
Such Base Salary shall be payable in accordance with the Company's policy with
respect to the compensation of executives.
(b) Annual Bonus. During the term of Employee's employment hereunder,
the Company shall pay Employee, and Employee shall accept from the Company for
Employee's services, in addition to Employee's Base Salary, a calendar year
annual cash bonus of $500,000 ("Annual Bonus"). Such Annual Bonus shall be
payable in accordance with the Company's policy with respect to the compensation
of executives, but no later than thirty (30) days after the end of each calendar
year in respect of which the bonus is earned.
(c) Expenses. During Employee's employment, Employee will be entitled
to receive prompt reimbursement for all reasonable expenses incurred by Employee
in performing Employee's services hereunder, provided that Employee properly
accounts therefor in accordance with Company policy.
4. Vacations. During Employee's employment, Employee shall be
entitled to take such amount of vacation per year as is permitted pursuant to
and in accordance with the Company's policies for its senior executives (as such
policies may be amended from time to time or terminated in Avatar's sole
discretion), without loss or diminution of compensation. Employee shall also be
entitled to all paid holidays given by the Company to its senior executives.
5. Participation in Benefit Plans. Employee shall be entitled to
participate in and to receive benefits under all the Company's employee benefit
plans and arrangements in effect on the date hereof, and Employee shall also be
entitled to participate in or receive benefits under any pension or retirement
plan, savings plan, or health-and-accident plan made available by the Company in
the future to its senior executives and other key management employees, subject
to and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements and provided that Employee meets
the eligibility requirements thereof.
6. Other Offices. Employee further agrees to serve without additional
compensation, if elected or appointed thereto, as an officer or director of any
of the Company's subsidiaries or affiliates or as any other officer of the
Company.
7. Termination.
(a) Death. Employee's employment hereunder shall terminate upon
Employee's death.
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(b) Disability. In the event of Employee's Disability (as defined
below) during the term of Employee's employment hereunder, the Company shall
have the right, upon written notice to Employee, to terminate Employee's
employment hereunder, effective upon the giving of such notice. For the purposes
hereof, "Disability" shall be defined as any physical or mental disability or
incapacity which renders Employee incapable of fully performing the services
required of Employee in accordance with Employee's obligations hereunder for a
period of 120 consecutive days or for shorter periods aggregating 120 days
during any period of twelve (12) consecutive months.
(c) Cause. The Company may terminate Employee's employment hereunder
for "Cause". For the purposes hereof, termination for "Cause" shall mean
termination after:
(i) Employee's commission of a material act of fraud
against the Company or its affiliates;
(ii) Employee's conviction of (or pleading by Employee of
nolo contendere to) any crime which constitutes a felony that the
Board of Directors of the Company determines in good faith is or may
become materially harmful to the Company, any of its subsidiaries
and/or affiliates (the foregoing entities being referred to herein
collectively as the "Avatar Entities" and each as an "Avatar
Entity"), either financially or with respect to such Avatar Entity's
business reputation; or
(iii) the willful, repeated and demonstrable failure by
Employee substantially to perform Employee's duties over a period of
not less than 30 days, other than any such failure resulting from
Employee's incapacity due to physical or mental illness, or material
breach of any of Employee's obligations under this Agreement, and
Employee's failure to cure such failure or breach within 30 days
after receipt of written notice from the Chairman of the Board of
Directors of the Company.
(d) Termination by Employee for Good Reason. Employee may terminate
Employee's employment hereunder for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean (A) the failure of the Board of Directors to continue
to recommend or elect, or the stockholders of the Company to continue to elect,
Employee as a director of the Company throughout the term of Employee's
employment hereunder, or the failure of the Board of Directors to elect Employee
or continue to elect Employee to the Executive Committee of the Board, provided
that if Employee is not so continued, the Company shall be entitled to cure such
failure within thirty (30) days after Employee ceases to serve as a director or
a member of the Executive Committee, as the case may be, (B) any assignment to
Employee of any material duties other than those contemplated by, or any
limitation of Employee's powers or in any respect not contemplated by, paragraph
2 hereof, provided that Employee first deliver written notice thereof to the
Chairman of the Board of Directors of the Company and the Company shall have
failed to cure such non-permitted assignment or limitation within thirty (30)
days after receipt of such written notice, (C) a reduction in Employee's rate of
compensation, or a material reduction in Employee's fringe benefits (other than
a material reduction in fringe benefits generally applicable to senior
executives of the Company) or any other material failure by the Company to
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perform any of its material obligations hereunder, provided that Employee first
deliver written notice thereof to the Chairman of the Board of the Company and
the Company shall not have cured such reduction or failure within thirty (30)
days after receipt of such written notice, or (D) the Company relocates its
principal place of business to a place whose distance is further than a (i)
75-mile radius from Coral Gables, Florida or (ii) 75-mile radius from New York,
New York.
(e) Termination by Employee Following a Change in Control. Employee
may terminate Employee's employment hereunder at any time during the period
beginning on the date of the consummation of a Change in Control (the "Change in
Control Date") and ending on the first Anniversary of the Change in Control
Date. For purposes of this Agreement, a "Change of Control" shall mean any of
the following events:
(1) a person or entity or group of persons or entities,
acting in concert, become the direct or indirect beneficial owner
(within the meaning of Rule 13d-3 of the Securities Exchange Act of
1934, as amended) of securities of the Company representing ninety
percent (90%) or more of the combined voting power of the issued and
outstanding Common Stock; or
(2) the Board approves any merger, consolidation or like
business combination or reorganization of Avatar, the consummation of
which would result in the occurrence of the event described in clause
(1) above, and such transaction shall have been consummated.
(f) Any termination by the Company pursuant to paragraphs (b) or (c)
above or by Employee pursuant to paragraph (d) or (e) above shall be
communicated by written Notice of Termination to the other party hereto. For the
purposes hereof, a "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Employee's employment under the provision so
indicated.
(g) "Date of Termination" shall mean (i) if Employee's employment is
terminated by Employee's death, the date of Employee's death, (ii) if Employee's
employment is terminated for any other reason, the date on which a Notice of
Termination is given, or (iii) absent a termination pursuant to clause (i) or
(ii) above, June 30, 2011.
(h) With respect to any date referred to in this Agreement, the term
"Anniversary" shall mean the annual recurrence of such date.
8. Compensation Upon Termination or During Disability.
(a) If Employee's employment shall be terminated by reason of
Employee's death, the Company shall pay, to such person as Employee shall
designate in a notice filed with the Company, or, if no such person shall be
designated, to Employee's estate as a lump sum death benefit, an amount equal to
any accrued but unpaid Base Salary and a prorated Annual Bonus at the time of
Employee's death. This amount shall be exclusive of and in addition to any
payments that Employee's widow, beneficiaries or estate may be entitled to
receive pursuant to any pension or employee benefit plan maintained by the
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Company. Employee's designated beneficiary or the executor of Employee's estate,
as the case may be, shall accept the payment provided for in this paragraph 8 in
full discharge and release of the Company of and from any further obligations
under this Agreement, subject to payments, if any, provided for in paragraph
8(f) below.
(b) During any period that Employee fails to perform Employee's
duties hereunder as a result of incapacity due to physical or mental illness,
Employee shall continue to receive Employee's full Base Salary and a prorated
Annual Bonus until, if applicable, Employee's employment is terminated pursuant
to paragraph 7(b) hereof. If Employee's employment is terminated by the Company
pursuant to paragraph 7(b), the Company shall be discharged and released of and
from any further obligations under this Agreement, subject to payments, if any,
provided for in paragraph 8(f) below. During any such period and thereafter
Employee shall continue to bear the obligations provided for in paragraph 9
below in accordance with the terms of such paragraph 9.
(c) If Employee's employment shall be terminated for Cause or
Employee shall terminate Employee's employment other than for Good Reason, the
Company shall pay Employee Employee's full Base Salary and a prorated Annual
Bonus through the Date of Termination at the rate in effect at the time Notice
of Termination is given. The Company shall be discharged and released of and
from any further obligations under this Agreement. Thereafter, Employee shall
continue to have the obligations provided for in paragraph 9 below. Nothing
contained herein shall be deemed to be a waiver by the Company of any rights
that it may have against Employee in respect of Employee's actions which gave
rise to the termination of Employee's employment for Cause.
(d) If the Company shall terminate Employee's employment other than
pursuant to paragraphs 7(b) or 7(c) hereof or if Employee shall terminate
Employee's employment for Good Reason, then
(i) The Company shall continue to pay Employee Employee's
full Base Salary in accordance with normal payroll practices and
without interest through the earlier of (x) June 30, 2011 and (y) the
second Anniversary of the Date of Termination at the rate in effect
at the time Notice of Termination is given in accordance with
paragraph 7(f) hereof;
(ii) The Company shall continue to pay Employee Employee's
Annual Bonus in accordance with normal payroll practices and without
interest through the earlier of (x) June 30, 2011 and (y) the second
Anniversary of the Date of Termination;
(iii) The Company shall pay Employee the severance
payments described in paragraph 8(f) below; and
(iv) The Company shall maintain in full force and effect,
for Employee's continued benefit, all employee benefit plans and
programs to the extent applicable to other senior executives of the
Company (provided that Employee's continued participation is
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permissible under the general terms and provisions of such plans and
programs) through the earlier of (x) June 30, 2011 and (y) the second
Anniversary of the Date of Termination. In the event that Employee's
participation in any such plan or program is not permitted, Employee
shall be entitled to receive an amount equal to the annual
contributions, payments, credits or allocations made by the Company
to Employee's account or on Employee's behalf under such plans and
programs.
(e) If Employee shall terminate Employee's employment hereunder
pursuant to paragraph 7(e) hereof, then Employee shall continue to receive
Employee's Base Salary and Annual Bonus through the earlier of (i) the first
Anniversary of the Date of Termination or (ii) June 30, 2011.
(f) Severance Payments. If Employee's employment terminates on June
30, 2011 pursuant to paragraph 1 of this Agreement, Employee terminates his
employment for Good Reason or Employee is terminated by the Company without
Cause, the Company shall pay or provide to Employee beginning in the calendar
year following the Date of Termination an annual payment of $250,000 for four
(4) years, payable within thirty (30) days following the beginning of each such
calendar year. If Employee's employment with the Company is terminated by
Employee's death or Disability prior to June 30, 2011 or Employee terminates his
employment pursuant to paragraph 7(e) hereof, Employee (or the executor or
administrator of the deceased Employee's estate or the person or persons to whom
the deceased Employee's rights shall pass by will or the laws of descent or
distribution, as applicable) shall be entitled to receive, beginning in the
calendar year following the Date of Termination, an annual payment for four (4)
years, payable within thirty (30) days following the beginning of each such
calendar year, 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 from November 30, 2000 to the date of death, Disability or termination
of employment, as the case may be (whichever is earliest), and the denominator
of which is ninety-seven (97) and (y) $250,000.
(g) If the Company shall terminate Employee's employment hereunder
other than pursuant to paragraphs 7(b) or 7(c) hereof, or if Employee shall
terminate Employee's employment pursuant to paragraph 7(d) hereof, Employee
agrees, during the entire period of time that Employee is entitled to receive
any benefits pursuant to paragraph 8(d) above, to make known Employee's
availability for employment involving services of a nature substantially similar
and of a comparable stature to those performed by Employee on behalf of the
Company in a manner customary for executives holding positions substantially
similar and of a comparable stature to Employee's position with the Company.
Employee agrees to keep the Chairman of the Board of the Company (or his
designee) apprised of Employee's employment status during such period and, if
requested, Employee will provide appropriate supporting documentation with
respect to the salary, bonuses or other compensation earned by and benefits made
available to Employee in respect of such employment. In the event Employee
secures employment as described in this paragraph 7(g), the Company shall be
entitled to (i) deduct from the amounts payable to Employee pursuant to
paragraphs 8(d)(i) and 8(d)(ii) above (excluding any accrued but unpaid Annual
Bonus through the Date of Termination) any salary, bonuses or other compensation
paid to Employee in connection with such employment and (ii) terminate
Employee's participation in (and shall not be required to pay Employee any sums
in respect of) any employee benefit plans and programs described in paragraph
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8(d)(iii) that are substantially similar to any employee benefit plans and
programs in which Employee participates in connection with such new or existing
employment. Employee agrees promptly to repay to the Company any amounts paid to
Employee by the Company pursuant to paragraphs 8(d)(i) and 8(d)(ii) which the
Company was entitled to deduct from such amounts pursuant to this paragraph
8(g).
9. Non-Competition and Protection of Confidential Information.
(a) Restrictive Covenants. Employee agrees, as a condition to the
performance by the Company of its obligations hereunder, particularly its
obligations under paragraph 3 hereof, that during the term of Employee's
employment hereunder and through the first Anniversary of the Date of
Termination, Employee shall not, without the prior written approval of the Board
of Directors of the Company, directly or indirectly through any other person,
firm or corporation:
(i) Engage, participate, own or make any financial
investments in, or become employed by or render (whether or not for
compensation) any consulting, advisory or other services to or for
the benefit of, any person, firm or corporation, that directly or
indirectly, engages primarily in, the development of adult retirement
communities and/or active adult communities; provided, however, that
it shall not be a violation of this Agreement for Employee (i) to
have beneficial ownership of less than 1% of the outstanding amount
of any class of securities of any enterprise (but without otherwise
participating in the activities of such enterprise) if such
securities are registered under Section 12 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") or quoted on an
inter-dealer quotation system or (ii) to have beneficial ownership of
less than 20% of the outstanding amount of any class of securities of
any enterprise (but without otherwise participating in the activities
or otherwise having influence or control of such enterprise) if such
securities are not registered under Section 12 of the Exchange Act or
quoted on an inter-dealer quotation system;
(ii) Solicit, raid, entice or induce any person, firm or
corporation that presently is or at any time during the term of
Employee's employment hereunder a customer of any of the Avatar
Entities to become a customer of any other person, firm or
corporation, and Employee shall not approach any such person, firm or
corporation for such purpose or authorize or knowingly approve the
taking of such actions by any other person; or
(iii) Solicit, raid, entice or induce any person that
presently is or at any time during the term of Employee's employment
hereunder an employee of any of the Avatar Entities to become
employed by any person, firm or corporation, and Employee shall not
approach any such employee for such purpose or authorize or knowingly
approve the taking of such actions by any other person.
(b) Confidential Information. Recognizing that the knowledge,
information and relationship with customers, suppliers, and agents, and the
knowledge of the Avatar Entities' business methods, systems, plans and policies
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which Employee shall hereafter establish, receive or obtain as an employee of
the Company or any other Avatar Entity, are valuable and unique assets of the
respective businesses of the Avatar Entities, Employee agrees that, during and
after the term of Employee's employment hereunder, Employee shall not (other
than pursuant to Employee's duties hereunder) disclose, without the prior
written approval of the Board of Directors of the Company, any such knowledge or
information pertaining to any of the Avatar Entities, their business, personnel
or policies, to any person, firm, corporation or other entity, for any reason or
purpose whatsoever. The provisions of this paragraph 9 shall not apply to
information (i) that is or shall become generally known to the public or the
trade (except by reason of Employee's breach of Employee's obligations
hereunder), (ii) that is or shall become available in trade or other
publications, (iii) that is known to Employee prior to entering the employ of
the Company, and (iv) that Employee is required to disclose by order of a court
of competent jurisdiction (provided that prior to Employee's disclosure of any
such information Employee shall provide the Company with reasonable notice and a
reasonable opportunity to seek a protective order to prevent such disclosure).
(c) Geographic Scope. The provisions of this paragraph 9 (other than
paragraphs 9(a)(ii) and (iii) and 9(b), which shall be in full force and effect
without regard to the geographic limitations set forth in this paragraph 9(d))
shall be in full force and effect within a 100-mile radius of a site for which
any Avatar Entity is preparing to develop, has commenced development of, or has
a binding commitment or option to purchase, real estate. Employee and the
Company expressly agree that the prohibitions set forth in paragraph 9(a)(i)
shall be in full force and effect with respect to any services or business
activity which competes in the above mentioned geographic area with the business
operations or activities of any of the Avatar Entities, regardless of the
geographic location of Employee in rendering such services or engaging in such
business activity.
(d) Survival. The provisions of this paragraph 9 shall survive the
termination of Employee's employment hereunder, irrespective of the reason
therefor.
(e) Remedies. Employee acknowledges that his services are of a
special, unique and extraordinary character and, his position with the Avatar
Entities places him in a substantial relationship and a position of confidence
and trust with specific prospective or existing customers, suppliers and
employees of the Avatar Entities, and that in connection with his services to
the Company, Employee will have access to confidential business or professional
information vital to the Avatar Entities' businesses. Employee further
acknowledges that in view of the nature of the business in which the Avatar
Entities are engaged, the foregoing restrictive covenants in this paragraph 9
hereof are reasonable and necessary in order to protect the legitimate business
interests of the Avatar Entities and that violation thereof would result in
irreparable injury to the Avatar Entities. Accordingly, Employee consents and
agrees that if Employee violates or threatens to violate any of the provisions
of this paragraph 9 hereof the Avatar Entities would sustain irreparable harm
and, therefore, the Avatar Entities shall be entitled to obtain from any court
of competent jurisdiction, temporary, preliminary and/or permanent injunctive
relief as well as damages, attorneys fees and costs, and an equitable accounting
of all earnings, profits and other benefits arising from such violation, which
rights shall be cumulative and in addition to any other rights or remedies in
law or equity to which the Avatar Entities may be entitled.
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10. Deductions and Withholdings. The Company shall be entitled to
withhold any amounts payable under this Agreement on account of payroll taxes
and similar matters as are required by applicable law, rule or regulation of
appropriate governmental authorities.
11. Successors; Binding Agreement.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance reasonably satisfactory to Employee, to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken
place. Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle Employee to compensation from the Company in the same amount and
on the same terms as Employee would be entitled to hereunder if Employee
terminated Employee's employment for Good Reason, except that for purposes of
implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination. As used in this Agreement,
"Company" shall include any successor to the Company's business and/or assets as
aforesaid which executes and delivers the agreement provided for in this
paragraph 11 or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law. Except as set forth above, the Company may
not assign this Agreement or any of its rights or obligations hereunder, without
Employee's prior written consent.
(b) This Agreement and all Employee's rights hereunder shall inure to
the benefit of and be enforceable by Employee's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Employee should die while any amounts would still be
payable to Employee hereunder if Employee had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to Employee's devisee, legatee, or other designee or, if
there be no such designee, to Employee's estate. Employee's obligations
hereunder may not be delegated and except as otherwise provided herein relating
to the designation of a devisee, legatee or other designee, Employee may not
assign, transfer, pledge, encumber, hypothecate or otherwise dispose of this
Agreement or any of Employee's rights hereunder, and any such attempted
delegation or disposition shall be null and void and without effect.
(c) This Agreement has been duly authorized by the Company, and
constitutes the legal, valid and binding obligation of the Company, enforceable
against it in accordance with its terms. Employee agrees that this Agreement
constitutes Employee's legal, valid and binding obligation and is enforceable
against Employee in accordance with its terms.
12. Notice. For the purposes of this Agreement, notices and all other
communications provided for shall be in writing and shall be deemed to have been
duly given when delivered or mailed by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
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If to Employee:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company:
Avatar Holdings Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chairman of the Board
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇▇ ▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
13. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by Employee and by the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time.
14. Entire Agreement. This Agreement and the letter agreement, dated
as of the date hereof, between the Company and Employee, constitute the complete
understanding between the parties with respect to Employee's employment and no
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Florida.
15. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
16. 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
together will constitute one and the same instrument.
(signature page follows)
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇