THIS
EMPLOYMENT AGREEMENT (“Agreement”), is dated as of
April ___, 2004, by and among Bowden Building Corporation, a
Tennessee corporation (the “Company”) and John
Laguardia (the “Executive”).
WHEREAS,
the Company, Levitt Corporation, a Florida corporation
(“Levitt”), ALH Tennessee Acquisition, Inc., a Delaware
corporation (“Seller”), and ALH II, Inc., a Delaware
corporation (“ALH”), have entered into that certain
stock purchase agreement, of even date herewith (the
“Purchase Agreement”), whereby the Seller sold one
hundred percent (100%) of the issued and outstanding capital stock
of the Company to Levitt, subject to the terms and conditions of
the Purchase Agreement;
WHEREAS,
the Company desires to employ the Executive in an executive
capacity and the Executive desires to accept such employment, all
upon the terms and subject to the conditions set forth in this
Agreement;
WHEREAS,
the Executive is a party to an Employment Agreement with the
Company dated July 1, 2000 (the “Former
Agreement”), which will be terminated as of the date of this
Agreement; and
WHEREAS,
the Company is engaged in the business of construction of homes
(the “Business”), and the Executive has experience and
expertise in the Business and, by virtue of his employment with
Company, the Executive shall become familiar with and possess the
manner, methods, trade secrets and other confidential information
pertaining to the Business, including the Company’s client
base.
NOW,
THEREFORE, in consideration of the foregoing and the mutual
covenants set forth in this Agreement, the Company and the
Executive agree as follows:
1.
Recitals; Former Agreement . The above recitals are true and
correct and are incorporated herein by reference. Effective as of
the date of this Agreement, the Former Agreement is terminated and
no further payments are due to the Executive from the Company
thereunder.
2.
Employment; Term . Notwithstanding anything in the NDA (as
defined in Section 8.3) to the contrary, the Company shall
employ the Executive, and the Executive accepts such employment, on
the terms and subject to the conditions set forth in this
Agreement, for a term commencing as of the date hereof (the
“Effective Date”) and ending on the fifth (5
th ) anniversary of the Effective Date (the
“Term”). The Company and the Executive may, prior to
the expiration of the Term, agree to renew the Agreement and extend
the Term, and all provisions of this Agreement shall remain in
effect during any renewals and extensions of the Term.
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3.1
Office and Duties . The Executive shall report to the Board
of Directors (the “Board”) of the Company and the
President of Levitt (the “Levitt President”). During
the Term, the Executive shall serve as Chairman and Chief Executive
Officer of the Company, subject to the terms of this Agreement,
with such duties, authority and responsibility as are commensurate
with such position, subject to oversight and direction of the Board
and the Levitt President. In exercising his duties and
responsibilities hereunder, the Executive shall have all the power
and authority necessary to fulfill and discharge his duties and
responsibilities hereunder and shall abide by any lawful directions
given by the Board or the Levitt President. Notwithstanding the
foregoing, the Executive shall not, in connection with his
employment hereunder, cause or permit the Company or any of its
subsidiaries to enter into any agreement, commitment or arrangement
with, or pay any fees or other amounts to any person not dealing at
arm’s length with the Executive without first disclosing the
nature of such relationship to the Board and obtaining the prior
written approval of the Levitt President to any such agreement,
commitment, arrangement or payment. The Executive shall be
responsible for such additional duties commensurate with his
position not materially inconsistent with the foregoing as may be
reasonably determined by the Levitt President from time to
time.
3.2
Best Efforts . During the Term, the Executive shall
diligently and competently devote the Executive’s best
efforts, full business time and energies to the business and
affairs of the Company, and shall use his best efforts, skills and
abilities to promote the interests of the Company and otherwise to
discharge his obligations under this Agreement. Notwithstanding the
foregoing or anything else in this Agreement to the contrary, the
parties acknowledge and agree that the Executive does not live in
the area in which the Company’s executive offices or Business
is located and that he will not be required to change his residency
from Central Florida or anywhere else the Executive elects to
live.
4.1
Annual Salary . During the Term, the Executive shall receive
a base salary at the annual rate of Four Hundred Thousand Dollars
($400,000) (“Base Salary”), payable in accordance with
the Company’s normal payroll practices or at such other
reasonable intervals as may from time to time be used by the
Company for paying its employees generally. In addition to the
foregoing, within five (5) business days after the execution
of this Agreement, the Company shall pay the Executive the sum of
$274 for each day from January 1, 2004 until the date of this
Agreement.
4.2
Bonus . The annual bonus (the “Annual Bonus”)
shall be paid to the Executive from a bonus pool established by the
Company (the “Bonus Pool”), and the Executive shall be
entitled to one-half (1/2) of the amount dedicated by the Company
to the Bonus Pool. Payments of Annual Bonus amounts to the
Executive shall be made in cash within thirty (30)
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days after the
issuance by Levitt’s auditor of its audit report for the
applicable fiscal year. For purposes of the Annual Bonus for the
fiscal year ending December 31, 2004, the Bonus Pool will be
calculated for the complete fiscal year commencing as of
January 1, 2004; provided however, that the ROE (as defined
below) shall be calculated on the basis of the stockholders’
equity of the Company as of the date of this Agreement. In the
event this Agreement expires or terminates on a day other than the
last day of a fiscal year, the Executive shall be entitled to a pro
rata share of the amount that would otherwise have been payable to
him had he been an employee during the entire fiscal year based on
the number of days he was employed during such fiscal year. The
Company shall dedicate amounts to the Bonus Pool, which shall be
calculated as follows:
(a) First,
the Company shall not dedicate any amounts to the Bonus Pool unless
the actual net, after-tax income of the Company (“Net
Income”) after giving effect to the dedication by the Company
of an amount, if any, to the Bonus Pool for the fiscal year of the
Company to which the Annual Bonus relates and the
Stockholders’ Equity at the beginning of such fiscal year
(“Equity”) (Net Income and Equity to be determined in
accordance with generally accepted accounting principles as applied
by Levitt consistently with past practices (“GAAP”)) is
sufficient to provide the Company with an aggregate return on
equity (“ROE”) (calculated by dividing Net Income by
Equity) of at least twenty percent (20%) (the “Minimum
ROE”); and
(b) Second,
if the ROE is greater than the Minimum ROE, then the Company shall
next dedicate to the Bonus Pool one hundred percent (100%) of the
Net Income before all applicable taxes on income, as determined in
accordance with GAAP (“PBT”) after giving effect to the
dedication by the Company of an amount, if any, to the Bonus Pool
for the fiscal year of the Company to which the Annual Bonus
relates in excess of the PBT necessary to provide the Company with
the Minimum ROE (the “Minimum PBT”) until such time as
the amount dedicated by the Company to the Bonus Pool is equal to
twenty percent (20%) of the aggregate PBT of the Company;
and
(c) Third,
thereafter, if the ROE is greater than the Minimum ROE and the
Minimum PBT is greater than the Minimum PBT multiplied by one
hundred twenty percent (120%), then the Company shall dedicate
twenty percent (20%) of the PBT in excess of the Minimum PBT to the
Bonus Pool.
(d) For
illustration purposes only, Exhibit A sets forth
certain examples of the calculation of the Annual Bonus under the
assumptions set forth therein.
5.
Reimbursement of Expenses; Benefits .
5.1
Reimbursement of Expenses . Upon submission of appropriate
documentation and in specific accordance with such guidelines as
may be reasonably established from time to time by the Company, the
Executive shall be entitled to reimbursement for all reasonable,
out-of-pocket expenses incurred by him during the Term in
connection with the
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proper and
efficient discharge of his duties hereunder, including, without
limitation, all reasonable expenses incurred by the Executive for
travel to and from the Executive’s residence in Central
Florida to the Company’s corporate offices and locations in
which its business is conducted, as well as reasonable expenses for
meals, hotel or other accommodations, and other customary items
during any such trips.
5.2
Employee Benefit Plans and Programs . During the Term, the
Executive shall be entitled to participate in the Company’s
and Levitt’s employee benefit plans and programs. The
Executive’s service with the Company or any current or former
affiliate of the Company, including ALH and its affiliates, prior
to the Effective Date shall be counted for purposes of all
eligibility, waiting periods and vesting requirements from time to
time in effect. Nothing in this Agreement shall require the Company
at any time to create or continue any such plan or program or to
fix, amend or retain eligibility requirements so as to include the
Executive.
5.3
Vacations . The Executive shall be entitled to paid vacation
during each calendar year in such amounts as are commensurate with
his position, or such other amount of paid vacation as the Levitt
President and the Executive may mutually agree, taking into
consideration the reasonable business needs of the
Company.
6.
Termination . The Executive’s employment under this
Agreement may be terminated prior to the end of the Term by the
Company or the Executive without any breach of this Agreement only
under the following circumstances:
6.1
Death . This Agreement and the Executive’s employment
under this Agreement shall terminate immediately and automatically
upon the Executive’s death.
6.2
Disability . This Agreement and the Executive’s
employment under this Agreement may be terminated at the
Company’s option, if the Executive shall suffer a
“Disability,” which shall mean any incapacity, illness
or disability of the Executive which renders the Executive mentally
or physically unable to perform his duties under this Agreement for
a continuous period of one hundred eighty (180) days during
the Term. Termination due to Disability shall be deemed to have
occurred upon the first day of the month following the
determination of Disability as defined in the preceding
sentence.
6.3
Cause . The Company may terminate the Executive’s
employment under this Agreement for Cause (as hereinafter defined).
“Cause,” as to the Executive, shall mean:
(a) committing fraud against the Company or embezzlement of
Company property; (b) being convicted of a felony or any other
crime that involves moral turpitude under applicable laws of the
United States or any state thereof; (c) an action or omission
of the Executive which constitutes a willful and material breach of
this Agreement which is not the result of the Executive’s
death or disability and which is not cured within fifteen
(15) days after receipt by the Executive of written notice of
the same from the Board, or if su
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