1
CONFIDENTIAL
SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT is made and entered into this
22nd day of July, 1994, by and between LAWRENCE WILKOV
("Wilkov"), AVATAR HOLDINGS INC., a Delaware Corporation
("Avatar"), ODYSSEY PARTNERS, L.P., a Delaware limited
partnership ("Odyssey"), and EDWIN JACOBSON ("Jacobson").
WHEREAS, WILKOV as plaintiff commenced an action in the
Circuit Court of the Eleventh Judicial Circuit in and for Dade
County, Florida against AVATAR, ODYSSEY and JACOBSON
("Defendants"), entitled Lawrence Wilkov v. Avatar Holdings,
Inc.; Odyssey Partners, L.P.; and Edwin Jacobson, Case No. 943779
(the "Action");
WHEREAS, DEFENDANTS denied liability under the
complaint and raised affirmative defenses and counterclaims; and
WHEREAS, the undersigned parties for themselves and
their respective heirs, successors, legal representatives,
subsidiaries, affiliates, agents and permitted assigns (the
"Parties"), have resolved amicably to settle all of the claims
that have been or might have been stated in the Action;
NOW, THEREFORE, the Parties agree as follows:
1. Compromise and Settlement. For good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereby compromise and settle their
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differences and dismiss and discontinue this Action, including
all claims and counterclaims, with prejudice in accordance with
the terms of this Settlement Agreement. The PARTIES hereto
understand and agree that this Settlement Agreement is a
compromise of disputed claims and counterclaims, and neither the
Settlement Agreement nor any of the terms of the Settlement
Agreement shall be construed as an admission of liability on the
part of any of the PARTIES hereby released, and that said PARTIES
deny liability, and intend merely to avoid litigation and buy
their peace.
2. Consideration.
2.1 In consideration for this Settlement Agreement,
AVATAR agrees to pay WILKOV One Million and 00/100 Dollars
($1,000,000.00), less any required withholding taxes, through
check subject to collection simultaneously with the execution of
this Agreement. WILKOV and DEFENDANTS shall bear their own fees
and costs with respect to the Action.
2.2 WILKOV shall be responsible for payment of his own
taxes with respect to this Settlement Agreement. AVATAR shall be
entitled to withhold any required withholding taxes from any
amounts payable under this Settlement Agreement.
3. Mutual Releases.
3.1 Effective on the date this Settlement Agreement is
executed, DEFENDANTS release, acquit and forever discharge
WILKOV, his heirs, legal representatives and attorneys from any
and all claims and causes of action of any nature whatsoever,
whether known or unknown, relating to WILKOV's prior
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relationships with AVATAR; provided, however, that this Paragraph
3.1 shall not release any claims or causes of action arising
under this Settlement Agreement, or any claims or causes of
action for fraud or willful misconduct arising out of WILKOV's
employment by AVATAR outside of the subject matter of the
counterclaims asserted in the Action.
3.2 Effective on the date this Settlement Agreement is
executed, WILKOV, on behalf of himself and his heirs and legal
representatives, hereby releases, acquits and forever discharges
DEFENDANTS and their respective directors, general partners,
limited partners, officers, employees, affiliates, subsidiaries,
agents, stockholders, and attorneys from any and all claims and
causes of action of any nature whatsoever, whether known or
unknown; provided, however, that this Paragraph 3.2 shall not
release any claims or causes of action arising under this
Settlement Agreement.
4. Indemnification. AVATAR shall provide WILKOV with
indemnification relating to his past services to AVATAR and its
subsidiaries as an officer and director as allowed pursuant to
the General Corporation Law of Delaware, to the extent provided
in Article Sixth of AVATAR's Certificate of Incorporation, as
amended, and under AVATAR's Director and Officer Liability
Policy. In this connection, AVATAR intends, in accordance with
the regular practices of its Board of Directors, to pay in
advance the costs, expenses and attorney fees of a defense of
WILKOV arising from any third party action (including any action
for fraud or willful misconduct) against WILKOV in his capacity
as a former officer or a former director of AVATAR and any of its
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subsidiaries, subject to Wilkov's entering into and fully
performing his obligations under a refunding agreement in the
form attached as Exhibit A to this Settlement Agreement.
5. Confidentiality. This Settlement Agreement is
deemed confidential. Disclosure of this Settlement Agreement
shall be limited to counsel for the PARTIES, including their
associates, clerks, and secretarial and stenographic personnel,
and the PARTIES and their directors, officers, partners and those
of their salaried employees that are required to know of this
Settlement Agreement to perform their own duties. This
Settlement Agreement may be disclosed to the extent required by
applicable tax, corporate or securities laws or regulations, as
determined in the reasonable judgment of counsel, or as otherwise
required by judicial order. In the event that a Party is
requested or becomes legally compelled (by oral questions,
interrogatories, requests for information or documents, subpoena,
civil investigative demand or similar process) to disclose any of
the terms of this Settlement Agreement, such Party will provide
all other PARTIES with prompt written notice so that they may
seek a protective order or other appropriate remedy. In the
event that such protective order or other remedy is not obtained,
or that the PARTIES waive compliance with the confidentiality
provisions of this Agreement, the disclosing Party will furnish
only that portion of the Settlement Agreement or take only such
action that is legally required and will exercise best efforts to
obtain reliable assurance that confidential treatment will be
accorded any information so furnished.
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6. Stipulations of Dismissal With Prejudice. The
PARTIES shall cause their attorneys to execute and file with the
court a Stipulated Order of Dismissal of the Action with
Prejudice. The Stipulated Order of Dismissal of the Action with
Prejudice shall be in the form as attached hereto as Exhibit B.
7. Continuing Obligations.
7.1 The PARTIES hereby agree that any and all
obligations contained in any employment agreements between AVATAR
and WILKOV are terminated except for certain confidentiality
obligations set forth in Paragraph 9 of the Employment Agreement
dated "As of June 15th, 1992" between AVATAR and WILKOV (the
"Wilkov Employment Agreement") as specifically set forth in
Paragraphs 7.2 and 7.3, herein.
7.2 Through and until December 31, 1997, WILKOV shall
not directly or indirectly through any other person, firm or
corporation:
(a) Solicit or raid any person, firm or
corporation that presently is or at any time
during the term of WILKOV's employment was a
customer of AVATAR or any of its subsidiary
companies to cease being a customer of
AVATAR or any of its subsidiary companies or
to become a customer of any competing
person, firm or corporation, nor approach
any such person, firm or corporation for
such purpose or authorize or knowingly
approve the taking of such actions by any
other person, except that WILKOV may solicit
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business from customers that he introduced
to AVATAR so long as such solicitation does
not cause such customers to cease their
existing business relationship with AVATAR;
or
(b) Solicit or raid any person that presently is
an employee of AVATAR or any of its
subsidiary companies to become employed by
any person, firm or corporation, nor
approach any such employee for such purpose
or authorize or knowingly approve the taking
of such action by any other person.
7.3 Recognizing that the knowledge, information and
relationships with AVATAR's customers, suppliers, and agents, and
the knowledge of AVATAR's business methods, systems, plans and
policies which WILKOV has established, received or obtained as an
employee, officer or director of AVATAR are valuable and unique
assets of the respective businesses of AVATAR, WILKOV agrees not
to disclose to any third party, or use for the benefit of himself
or any third party, any confidential information, proprietary
information, or trade secrets relating to the business of AVATAR
which he obtained as an employee, officer or director of AVATAR.
The provisions of this Paragraph shall not apply to information
that is or shall become generally known to the public or the
trade (except by reason of a breach of obligations hereunder),
information that is or shall become available in trade or other
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publications, information known to WILKOV prior to entering the
employ of AVATAR, and information that WILKOV is required to
disclose by order of a court of competent jurisdiction (provided
that prior to disclosure of any such information WILKOV shall
provide AVATAR with reasonable notice and a reasonable
opportunity to seek a protective order to prevent such
disclosure). The provisions of this Paragraph shall remain in
full force and effect through and until December 31, 1997.
7.4 WILKOV shall, within three (3) business days of
the execution of this Agreement, return to AVATAR all documents,
computer data and software, and any other tangible items within
his possession, custody or control constituting, containing or
relating to non-public information pertaining to any aspect of
the business of AVATAR.
7.5 WILKOV expressly agrees that upon a breach or
violation of any of the covenants contained in Paragraphs 7.1,
7.2, 7.3 or 7.4 of this Settlement Agreement, AVATAR shall be
entitled, as a matter of right and in addition to any other
remedies which may be available to it, to injunctive relief in
any court of competent jurisdiction.
8. Cooperation.
8.1 WILKOV shall assist AVATAR in good faith, when
reasonably requested by AVATAR, for a reasonable period of time
and without unreasonable interference to WILKOV's employment, in
connection with AVATAR's investigation, prosecution and/or
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defense of any pending or threatened litigation or dispute
arising out of or relating to any activity, event or situation
that occurred or arose during his employ with AVATAR (which
assistance may include his participation in depositions and/or
his appearance in court if requested by AVATAR).
8.2 AVATAR shall have no obligation to provide WILKOV
with any additional compensation for any services WILKOV may
provide to AVATAR pursuant to Paragraph 8.1; however, AVATAR
shall reimburse WILKOV for reasonable out-of-pocket expenses
incurred in providing such services upon timely submission to
AVATAR of invoices for such out-of-pocket expenses.
8.3 Neither WILKOV nor his heirs, legal
representatives or attorneys shall take any action, directly or
indirectly, or make any written or oral statements, directly or
indirectly, which:
(a) disparages or demeans, or is likely to
disparage or demean, DEFENDANTS or any of
their products or services, or in any way
adversely affects DEFENDANTS' businesses,
directors, officers, partners, employees,
affiliates, subsidiaries, agents, successors
or stockholders;
(b) aids, abets, or in any way assists, or is
likely to aid, abet or in any way assist,
any third person not a party to this
Agreement in the bringing of any action or
the prosecution of any claim or demand of
whatever kind or nature against DEFENDANTS,
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or their directors, officers, partners,
employees, affiliates, subsidiaries, agents
or stockholders; or
(c) injures, or is likely to injure, DEFENDANTS'
businesses or impugns or is likely to
impugn, the integrity of the goodwill or
reputation of DEFENDANTS or their directors,
officers, partners, employees, affiliates,
subsidiaries, agents or stockholders.
8.4 AVATAR shall not knowingly and willfully take any
action, directly or indirectly, or make any written or oral
statements, directly or indirectly, which:
(a) disparages or demeans, or is likely to
disparage or demean, WILKOV's personal or
business reputation; or
(b) aids, abets, or in any way assists, or is
likely to aid, abet or in any way assist,
any third person not a party to this
Agreement in the bringing of any action or
the prosecution of any claim or demand of
whatever kind or nature, except as is
expressly excluded by the release set forth
in Section 3.1 of this Settlement Agreement,
against WILKOV.
9. Representations and Warranties. DEFENDANTS
represent and warrant that this Settlement Agreement has been
duly authorized, executed, and delivered, and constitutes a valid
and binding obligation. WILKOV represents and warrants that he
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understands the terms of the Settlement Agreement, has been
represented by counsel in connection with negotiating and
entering into this Agreement, and that this Settlement Agreement
constitutes a valid and binding obligation.
10. Assignability; Binding Effect. No party hereto
shall be permitted to assign rights hereunder without the prior
written consent of all other parties, and any such assignment
shall be void and of no force or effect. This Settlement
Agreement shall be binding on the PARTIES and shall inure to the
benefit of their respective directors, general partners, limited
partners, officers, employees, affiliates, subsidiaries, agents,
stockholders, heirs and legal representatives.
11. Headings. The paragraph headings contained herein
are included solely for convenience of reference and shall not
control or affect the meaning or interpretation of any of the
provisions of this Settlement Agreement.
12. Entire Agreement; Amendments. This Settlement
Agreement including the exhibits hereto constitutes the entire
agreement between the PARTIES with respect to the subject matter
hereof, and supersedes all prior agreements between the PARTIES
with respect thereto, including, but not limited to, any
Employment Agreement(s) between WILKOV and AVATAR, whether oral,
written, or implied. This Settlement Agreement shall not be
amended except by written instrument executed by all of the
PARTIES.
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13. Counterparts. This Settlement Agreement may be
executed in any number of counterparts, each of which so executed
shall be deemed an original; such counterparts shall, together,
constitute a single agreement.
14. Use of Agreement. If this Settlement Agreement is
not fully executed, the PARTIES agree that it shall be null and
void, and this Agreement or any paragraph herein (including the
recitals), except this Paragraph 14, may not be referred to or
entered into evidence in any court, judicial or arbitration
proceeding. If this Settlement Agreement is executed, the
PARTIES agree that it shall remain confidential pursuant to the
provisions of Paragraph 5, above, except that this Settlement
Agreement may be disclosed to the extent required by applicable
tax, corporate or securities laws or regulations, as determined
in the reasonable judgment of counsel or as otherwise required by
judicial order.
15. Additional Documents. The Parties shall execute
any and all further documents necessary to effectuate this
Settlement Agreement.
16. Governing Law & Venue. The validity,
interpretation, construction and performance of this Settlement
Agreement shall be governed by the laws of the State of Florida.
Any proceedings to enforce or construe this Settlement Agreement
will be bought in the Circuit Court of the Eleventh Judicial
Circuit in and for Dade County, Florida.
17. Validity. The invalidity or unenforceability of
any provision or provisions of this Settlement Agreement shall
not affect the validity or enforceability of any other provision
of this Settlement Agreement, which shall remain in full force
and effect.
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18. Notice. Any notice or other communication
provided for under this Settlement Agreement 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:
LAWRENCE WILKOV
4510 Fillmore Street
Hollywood, Florida 33021
AVATAR HOLDINGS, INC.
255 Alhambra Circle
Coral Gables, Florida 33134
Attention: Juanita Kerrigan
ODYSSEY PARTNERS, L.P.
31 West 52nd Street
New York, New York 10019
Attention: Martin Byman
EDWIN JACOBSON
Avatar Holdings Inc.
255 Alhambra Circle
Coral Gables, Florida 33134
or to such other address as any PARTY may have furnished to the
others in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
IN WITNESS WHEREOF, each of the PARTIES hereto has
caused this Agreement to be executed on its behalf by its
officers thereunto duly authorized, all as of the day and year
first above written.
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/s/ Edwin Jacobson
________________________________________
AVATAR HOLDINGS INC.
By: Edwin Jacobson
Title: President
/s/ Jack Nash
________________________________________
ODYSSEY PARTNERS, L.P.
By: Jack Nash
Title: General Partner
/s/ Edwin Jacobson
________________________________________
EDWIN JACOBSON
/s/ Lawrence Wilkov
________________________________________
LAWRENCE WILKOV
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EXHIBIT A
FORM OF REFUNDING AGREEMENT
AVATAR HOLDINGS INC.
255 Alhambra Circle
Coral Gables, Florida 33134
________ __, 199_
Lawrence Wilkov
4510 Fillmore St.
Hollywood, Florida 33021
Dear Mr. Wilkov:
Pursuant to the Settlement Agreement dated July 22,
1994, by and between you (WILKOV), Avatar Holdings Inc., a
Delaware corporation (AVATAR), Odyssey Partners, L.P. and Edwin
Jacobson, AVATAR agreed to provide WILKOV with indemnification
relating to his past services to AVATAR and its subsidiaries as
an officer and a director as allowed pursuant to the General
Corporation Law of Delaware (the "GCL"), to the extent provided
in Article Six of AVATAR's Certificate of Incorporation, as
amended, and under AVATAR's Director and Officer Liability
Insurance Policy. You have advised us that you have been named
as a defendant in connection with [insert description of lawsuit]
(the "Litigation"). AVATAR hereby agrees to pay in advance the
costs, expenses and attorney fees (the "Advanced Legal Expenses")
of a defense of WILKOV in the Litigation, provided that AVATAR's
obligation to do so shall be subject to the terms and conditions
of this Refunding Agreement and conditioned on WILKOV's full
performance of his obligations hereunder.
1. Repayment Undertaking. WILKOV undertakes and agrees to
repay to AVATAR or its insurer, as the case may be, all Advanced
Legal Expenses relating to any such defense promptly following an
ultimate determination (after all applicable appeals have been
exhausted) that either (i) WILKOV committed fraud or willful
misconduct or (ii) WILKOV is not entitled to be indemnified by
AVATAR pursuant to the GCL. Such repayment shall be made by
WILKOV within ten days after his receipt of an invoice therefor
from AVATAR.
2. Procedures. In connection with the Litigation, AVATAR and
WILKOV shall abide by the following procedures:
(a) AVATAR shall have the sole right to select and
retain counsel to defend WILKOV. At AVATAR's option, such
counsel may also represent AVATAR and/or any other present or
former director or officer of AVATAR or its subsidiaries that is
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named as a defendant in the Litigation. AVATAR also shall have
the sole right to determine whether the legal defenses of WILKOV
are in conflict with its own legal defenses or those of any other
individual for whom AVATAR is providing indemnification, and in
the event of any such conflict as determined by AVATAR, AVATAR
shall have the sole right to retain and select separate counsel
for WILKOV.
(b) AVATAR shall have the sole right to control the
Litigation and to direct the defense of WILKOV and the sole right
to settle the Litigation on behalf of itself, WILKOV and/or any
other individual for whom AVATAR is providing indemnification, on
such terms and conditions as AVATAR, in its sole discretion,
shall determine.
(c) WILKOV agrees fully to cooperate with AVATAR and
its counsel in connection with all aspects of the Litigation
(including any appeals thereof). Such cooperation shall include,
without limitation, as requested by AVATAR or its counsel,
WILKOV's participation in depositions and/or his appearances in
court.
3. Miscellaneous. This Refunding Agreement, together with the
applicable provisions of the Settlement Agreement, constitutes
the entire understanding and agreement between AVATAR and WILKOV
covering the Advanced Legal Expenses in connection with the
Litigation. This Refunding Agreement may not be amended or
terminated except by written instrument signed be each of AVATAR
and WILKOV, shall be governed by the laws of the State of
Delaware, and shall be binding on AVATAR and its successors and
on WILKOV and his heirs, executors and legal representatives.
Any notices or other communications required or permitted to be
given under this Refunding Agreement shall be given in the manner
provided by the aforementioned Settlement Agreement.
If you are in agreement with the forgoing, please sign
and return one copy of this letter, which will constitute our
legally binding agreement with respect to the subject matter of
this letter.
Very truly yours,
AVATAR HOLDINGS INC.
By:
Name:
Title:
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AGREED to and ACCEPTED this
___ day of ________, 199_
- - ---------------------------
Lawrence Wilkov
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EXHIBIT B
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN
AND FOR DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
- - ------------------------------------------------------x
LAWRENCE WILKOV, :
:
Plaintiff :
: CASE NO. 94 3779 CA 09
v. :
:
AVATAR HOLDINGS, INC., :
a Delaware corporation; :
ODYSSEY PARTNERS, L.P., :
a Delaware limited :
partnership; and :
EDWIN JACOBSON, :
:
Defendants. :
- - ------------------------------------------------------x
STIPULATION FOR ORDER OF DISMISSAL
Plaintiff LAWRENCE WILKOV and Defendants AVATAR
HOLDINGS, INC., ODYSSEY PARTNERS, L.P., and EDWIN JACOBSON,
pursuant to Fla. R. Civ. P. 1.420, hereby stipulate to the
dismissal of this action with prejudice and state as follows:
1. The parties have reached a settlement of all
claims and counterclaims brought in this action and have agreed
that this action should be dismissed with prejudice, each party
to bear its own fees and costs. While the terms of the
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settlement are to remain confidential, the parties will show a
copy of the settlement agreement to the Court before entry of an
order dismissing this action.
2. The parties further agree that the Court should
retain jurisdiction over the action for the purposes of enforcing
the terms of the settlement. A proposed Order memorializing the
terms of this Stipulation is attached as Exhibit A.
Respectfully submitted, this
____ day of July 1994,
Hugo L. Black, Jr., Esq. (Fla. Bar No. 006377) Michael A. Epstein, Esq.
Bonnie J. Losak-Jimenez, Esq. (Fla. Bar No. 366161) Holly J. Gregory, Esq.
KELLY, BLACK, BLACK, BYRNE, WEIL, GOTSHAL & MANGES
& BEASLEY, P.A. 767 Fifth Avenue
1400 Alfred I. duPont Building New York, NY 10153
169 East Flagler Street Telephone: (212) 310-8000
Miami, FL 33131
- and -
By: ______________________________
Attorneys for Plaintiff
Lawrence Wilkov Michael Nachwalter (Fla. Bar No. 09989)
Deborah A. Sampieri (Fla. Bar No. 588229)
Paul C. Huck, Jr. (Fla. Bar No. 968358)
KENNY NACHWALTER SEYMOUR
ARNOLD CRITCHLOW &
SPECTOR, P.A.
1100 Miami Center
201 South Biscayne Boulevard
Miami, FL 33131-2305
Telephone: (305) 373-1000
By: ______________________________
Attorneys for Defendants Avatar Holdings,
Inc., Odyssey Partners, L.P., and
Edwin Jacobson
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IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN
AND FOR DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
- - ------------------------------------------------------x
LAWRENCE WILKOV, :
:
Plaintiff :
: CASE NO. 94 3779 CA 09
v. :
:
AVATAR HOLDINGS, INC., :
a Delaware corporation; :
ODYSSEY PARTNERS, L.P., :
a Delaware limited :
partnership; and :
EDWIN JACOBSON, :
:
Defendants. :
- - ------------------------------------------------------x
ORDER OF DISMISSAL
THIS CAUSE came before the Court on the parties'
Stipulation of Dismissal. The parties have reached a settlement
of all claims and counterclaims in this action. The settlement
agreement is to remain confidential; however, the parties have
shown a copy of the settlement agreement to the Court. The Court
having reviewed the papers, heard the argument of counsel, and
being otherwise fully advised of the premises, it is hereby
ORDERED AND ADJUDGED as follows:
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This action, including all claims and counterclaims, is
DISMISSED WITH PREJUDICE, each party to bear its own fees and
costs. It is further ORDERED AND ADJUDGED that:
The Court shall retain jurisdiction to enforce the
terms of the settlement agreement.
DONE AND ORDERED in chambers, at Miami, Florida, this
____ day of _____________________, 1994.
____________________________________
CIRCUIT COURT JUDGE
Copies furnished to
all counsel of record.
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