EXHIBIT 10.11
AMENDED AND RESTATED CONSULTING AGREEMENT
(Don E. Ackerman)
THIS AGREEMENT is made as of March 31, 2003 and between WCI COMMUNITIES,
INC., a Delaware corporation and successor of WCI COMMUNITIES LIMITED
PARTNERSHIP, a Delaware limited partnership ("WCI") and DON E. ACKERMAN
("Consultant").
RECITALS
WHEREAS, WCI and its affiliated entities are in the business of acquiring,
improving, developing, leasing and selling land and operating businesses related
to or arising out of the land activities. WCI desires to retain Consultant and
Consultant desires to accept such retention on the terms and conditions provided
in this Agreement, and
WHEREAS, WCI is desirous of retaining the professional services of Consultant,
on an independent contractor basis.
NOW, THEREFORE, in consideration of the agreements set forth herein, the parties
agree as follows:
1. Definitions.
1.1 Affiliate - Each subsidiary, joint venture or other entity in which
WCI now has or hereafter has a direct or indirect controlling
interest.
1.2 Retainer - Six Hundred Sixty Thousand Dollars ($660,000) per year,
to be paid in equal monthly installments.
1.3 Board - the Board of Directors of WCI.
1.4 Cause
(a) gross negligence or willful or criminal misconduct in the
performance by Consultant of his duties and responsibilities
hereunder; or
(b) negligence in the performance of his duties; or
(c) conviction of Consultant of the commission of any act which is
a felony.
1.5 Disabled - Consultant shall be deemed Disabled if he is unable to
perform his duties hereunder for a period in excess of one hundred
eighty (180)
consecutive days, and in such case the date on which he shall be
deemed Disabled shall be the 181st day.
1.6 Pre-Disability Period - A period beginning on the date when the
Board determines, in good faith, that as a result of illness,
impairment or other disability, Consultant is unable to perform
substantially all of the material duties hereunder, and ending on
the first to occur of (a) the 181st day after such date of
determination (b) the date Consultant is Disabled (c) the date when
a court or competent jurisdiction shall finally determine that
Consultant is able to perform all of the duties hereunder and (d)
the date that the Board determines that the Pre-Disability Period
has ended.
1.7 Severance Payment - the net present value of the unpaid Retainer
for the period from the date of termination under Section 4.1 to
July 24, 2005 determined on the date of termination at a discount
rate of eight percent (8%) per annum.
1.8 Term - a period beginning on the date hereof and ending on July 24,
2005.
2. Retention.
Subject to all of the terms and conditions herein provided, WCI hereby
retains Consultant as an independent contractor in such capacities and with such
appropriate duties with respect to financial consultation as the Board may
determined from time to time. If elected to the position of Chairman of the
Board of the WCI, Consultant shall also serve in that position (provided,
however, that Consultant's election to the position of Chairman of the Board,
and subsequent removal of the Consultant from that position shall not constitute
termination of this Agreement). The Board shall not appoint any individual to
whom Consultant shall report, or who shall have the right to supervise
Consultant, provided, however, that this provision shall not limit the right of
the Board to designate a person or persons (who shall be a member of or members
of the Board) to coordinate the reporting relationship. WCI will provide
Consultant with written notice specifying the extent to which his duties or
authority is modified. Notwithstanding the foregoing, if the Board changes
Consultant's working conditions or specifies duties so that Consultant's powers
and duties are materially inconsistent with a Consultant who reports directly to
the Board of Directors, or if the Board changes the reporting relationship so
that Consultant reports to another person, other than to the Board as a whole,
then at any time thereafter at Consultant's option and upon thirty (30) days
notice and provided that such changes shall not have been rescinded or corrected
to the reasonable satisfaction of Consultant within such thirty (30) day period,
Consultant shall have the right to terminate this Agreement , and in such event,
this Agreement shall be deemed to have been terminated by WCI under Section 4.1,
without Cause; provided, however, that nothing in this sentence shall restrict
the Board from changing duties and reporting relationships during the pendency
of a Pre-Disability Period, and during such period, Consultant shall not have
the right to terminate this Agreement under this sentence.
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3. Compensation.
3.1 During the Term, WCI shall pay to Consultant the Retainer.
3.2 During the Term, WCI shall pay to or reimburse Consultant for the
cost and expense to Consultant for:
(a) reasonable expenses incurred in the performance of
Consultant's duties for travel, room and board and
entertainment related to the business of WCI and its
Affiliates.
No amounts shall be paid under this Section 3.2 following termination of this
Agreement for any reason, except to the extent incurred by Consultant prior to
the date of termination.
4. Termination of Consultant.
4.1 Termination without Cause. The Board may at its election and
without Cause terminate Consultant, upon not less than thirty- (30)
days notice to Consultant. Termination shall be effective at the
end of the notice period. If Consultant is terminated under this
Section 4.1, on the date such termination of employment is
effective, WCI shall at its option, either pay Consultant the
Severance Payment, or continue to pay to Consultant the Retainer
for the balance of the Term, on a monthly basis, as though no
termination had occurred.
4.2 Voluntary Resignation, Disability or Death.
If Consultant voluntarily terminates this Agreement, becomes Disabled or
dies during the Term (any of which are referred to herein as an "Terminating
Event"), Consultant shall continue to receive the Retainer, reduced as follows:
(a) If the Terminating Event occurs after the date hereof, each
payment of Retainer thereafter will be reduced by 25%; and
WCI shall have the right and option to accelerate and prepay
the entire amount to be paid under Section 4.2(a) within
thirty (30) days after the Terminating Event, in which case
the amount to be paid will be discounted at the rate of eight
percent (8%) per annum.
4.3 Termination for Cause.
(a) The Board may at its election and at any time terminate
Consultant for Cause under Section 1.4(a), 1.4(b) or 1.4(c),
which termination shall be effective on notice.
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(b) Upon termination for Cause, WCI shall have no further
obligations to Consultant for payment of the Retainer and all
payments and obligations of WCI to Consultant under this
Agreement (except those incurred or accrued prior to
termination and for indemnification under Section 10) shall
cease as of the date of such termination.
5. Non-Competition.
Consultant agrees that during the period of this Agreement and for a
period of three (3) years after termination of this Agreement, he will not be a
shareholder, partner, joint venturer or other equity owner in, or sole
proprietor of, or officer, director, employee, consultant, agent or
representative of, or otherwise engage, directly or indirectly, in any business
which is competitive with the business conducted by WCI and its Affiliates at
the date of termination of employment; provided, however, that this provision
shall not apply to (i) Consultant ownership of equity and debt interests in and
investing in WCI and Affiliates thereof and (ii) the ownership of not more than
ten percent (10%) of any publicly traded entity. After termination of this
Agreement, and during the three (3) year non-compete period, Consultant shall
not be actively involved in any new business which is in direct competition with
WCI's business on the date of termination, unless Consultant shall first offer
the business opportunity to WCI and WCI shall elect to not pursue such
opportunity.
6. Nonsolicitation.
Consultant agrees that during the term of this Agreement and for a period
of three (3) years after termination of this Agreement, he shall not solicit any
employee of WCI to accept employment with Consultant or with any other person;
provided, however, that this provision shall not apply to any person who shall
have been an employee of Consultant, WCI or any WCI Affiliate prior to July 24,
1995 and whose employment was in the nature of executive assistant or executive
secretary to Consultant.
7. Confidentiality.
Consultant agrees that during the period of this Agreement and for the
three- (3) year period following termination thereof, he shall not use or
disclose to third parties any confidential information of WCI or any Affiliate.
All files, records documents, data and similar items relating to WCI and
Affiliates, as well as all copies thereof, whether prepared by Consultant or
otherwise coming into his possession, shall remain the exclusive property of the
WCI and shall immediately be returned to WCI upon termination of this Agreement,
except for material received in his capacity as a member of the Board of
Directors.
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8. Remedy.
Consultant acknowledges that the restrictions contained in Sections 7 and
8 of this Agreement are reasonable and necessary to protect the legitimate
interests of WCI, do not cause Consultant undue hardship, and that violations of
those provisions of this Agreement will result in irreparable injury to WCI and
that, therefore, WCI shall be entitled to preliminary and permanent injunctive
relief without bond in any court of competent jurisdiction to enforce such
provisions, which rights shall be cumulative and in addition to any other rights
or remedies to which WCI may be entitled. The prevailing party in any litigation
to enforce the terms of this Agreement shall be entitled to recover reasonable
costs and expenses, including attorneys' fees.
9. Notices.
All notices, requests, demands and other communications required or
permitted hereunder shall be in writing and shall be delivered personally, by
courier service, or mailed by postage prepaid certified U.S. mail, return
receipt requested, to the address herein designed or such other address as may
be designated in writing by notice given in the manner provided herein, and
shall be effective if delivered or sent by courier upon personal delivery; or if
mailed, three days after the date of deposit in the U.S. mail.
Address: Address:
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Chandelle Ventures Attention: General Counsel
24311 Walden Center Drive 24301 Walden Center Drive
Bonita Springs, FL 34134 Bonita Springs, FL 34134
10. Indemnity.
WCI shall indemnify Consultant and hold him free and harmless from and
against any and all loss, liability, cost or expense resulting to Consultant, or
to which he may be or become subject, as a result of any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (but not including any action between WCI and Consultant, other
than an action in the nature of a derivative action in the right of the WCI) by
reason of any acts, omissions, or alleged acts or omissions, arising out of his
activities as a Consultant or agent of WCI, as a director or agent of WCI or of
any Affiliate, or otherwise arising out of his activities on behalf of WCI or
any Affiliate or in furtherance of the interests of WCI or any Affiliate,
against expenses for which he has not otherwise been reimbursed (including
attorney's fees, judgments, fines and amounts paid in settlement) actually and
reasonably incurred by him in connection with such action, suit or proceeding so
long as he did not act fraudulently, or in a manner which constituted willful
misconduct or gross negligence, or, with respect to any criminal action or
proceeding, had no reasonable cause to believe such conduct was unlawful. During
the course of any investigation, proceeding or other matter (other than an
investigation, proceeding or other matter brought by WCI directly against the
Consultant or brought by the Consultant directly against WCI), WCI shall pay the
legal fees and expenses of Consultant, notwithstanding that at the time of such
payment it shall
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not have been finally determined whether Consultant is actually entitled to
indemnification, provided Consultant agrees to reimburse WCI if it is finally
determined that he was not entitled to such indemnification.
11. Independent Contractor.
It is intended that Consultant shall be an independent contractor, and
nothing herein contained or implied will at any time be so construed as to
create the relationship of employer and employee, partnership, principal and
agent, or joint adventurers between WCI and Consultant. Consultant shall, at
times during the term of this Agreement, perform his duties and responsibilities
without any supervision or control by WCI.
12. Miscellaneous Provision.
12.1 Binding Effect and Assignability. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective heirs, administrators, executors, legal representatives,
successors, assigns, and transferees. Consultant shall have the
right to pledge any and all of his rights under this Agreement.
12.2 Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof. This
Agreement supersedes any and all prior or contemporaneous
agreements, either oral or in writing, with respect to the subject
matters hereof. No modification, amendment or waiver of any
provision of this Agreement shall be binding upon any party unless
it is in writing and executed by both parties or, in the case of a
waiver, by the party waiving compliance.
12.3 Severability. Whenever possible, each provision of this Agreement
shall be construed and interpreted in such a manner as to be
effective and valid. If any court determines that any provision is
prohibited by or invalid under applicable law, such provision shall
automatically be reformed to such time, territory and/or other
limitation as such court shall deem reasonable. The reformation or
invalidation of any provision shall not invalidate this Agreement
or any other provision.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
first above written.
Consultant WCI COMMUNITIES, INC.
By:
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Don E. Ackerman Paul D. Appolonia
Senior Vice President
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