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Exhibit
10.32
SEVERANCE AND
NONSOLICITATION AGREEMENT
THIS AGREEMENT is made
and entered into on this __ day of January, 2007, by and between
WCI COMMUNITIES, INC. (“WCI”), a Delaware corporation,
and CHRISTOPHER J. HANLON (the “Executive”).
RECITALS:
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A. |
Executive is the Chief Operating Officer (Tower Homebuilding)
and a Senior Vice President of WCI, and is an employee of WCI
and/or one or more of it subsidiaries. |
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B. |
Executive is not now a party to any employment agreement
between him and the WCI or any of its subsidiaries. |
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C. |
WCI would like to provide some assurance to Executive that if
there is a change in control of WCI and within twelve months after
such change in control, Executive’s employment is terminated,
Executive will receive certain severance payments, provided
Executive does not solicit any employees of WCI or its
subsidiaries. |
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D. |
WCI and Executive have agreed that upon such termination,
Executive will have an option to receive significant additional
payments as compensation for his agreement not to compete with WCI
and its subsidiaries, and not to work at all for any entity which
has any activities which compete with WCI or any of its
subsidiaries, which option and the agreement to not compete shall
be solely at Executive’s election. |
NOW, THEREFORE, IN
CONSIDERATION of the recitals and the mutual agreements herein set
forth, the parties agree as follows:
1. Definitions . The
following terms, which are used in this Agreement, are defined as
follows:
a. “ Base Salary
” means the amount of Executive’s base salary (without
inclusion of any bonus) in effect immediately prior to a Change in
Control.
b. “ Cause
” means: (i) any act of willful misconduct or dishonesty
by Executive in the performance of his duties; (ii) any
willful and persistent failure by Executive to attend to his
duties; or (iii) any action by Executive which would
constitute a violation of the provisions of this Agreement under
the headings “Nonsolicitation” and
“Confidentiality and Nondisclosure” if such actions
occurred during the Nonsolicitation Restricted Period; or
(iv) any action by Executive which would constitute a
violation of the provisions of the Noncompete Addendum if such
actions occurred during the Noncompete Restricted Period and
Executive had elected to execute the Noncompete Addendum; or
(v) Executive’s conviction of (or pleading guilty or
nolo contendere to) any felony, or of a criminal offense
resulting in imprisonment, or of any misdemeanor involving theft,
embezzlement, dishonesty or moral turpitude.
c. “ Change in
Control ” means:
(i) When any
“person” as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), and as used in Section 13(d) and
14(d) thereof, including a “group” as defined in
Section 13(d) of the Exchange Act, (excluding any person (or
“group” as defined in Section 13(d) of the
Exchange Act) holding securities representing 50% or more of the
combined voting power of WCI’s outstanding securities as of
the Effective Date (as such term is defined in the 1998 Stock
Purchase and Option Plan for Key Employees of WCI Communities,
Inc., as amended), excluding WCI, any Subsidiary and any employee
benefit plan sponsored or maintained by WCI or any Subsidiary
(including any trustee of such plan acting as trustee)), who
directly or indirectly, becomes the “beneficial owner”
(as defined in Rule 13d-3 under the Exchange Act), of securities of
WCI representing 50% or more of the combined voting power of
WCI’s then outstanding securities (unless the event causing
the 50% threshold to be crossed is an acquisition of securities
directly from WCI); or
(ii) the shareholders of WCI
shall approve any merger or other business combination of WCI, sale
of 50% or more of WCI’s assets, liquidation or dissolution of
WCI or combination of the foregoing transactions and a closing of
the transaction shall have occurred (the “
Transactions ”) other than a Transaction immediately
following which the shareholders of WCI and any trustee or
fiduciary of any WCI employee benefit plan immediately prior to the
Transaction who collectively owned at least 50% of the voting
power, directly or indirectly of WCI immediately prior to the
Transaction own, immediately after the Transaction, at least 50% of
the voting power, directly or indirectly, of (A) the surviving
entity in any such merger or other business combination;
(B) the purchaser of or successor to WCI’s assets;
(C) both the surviving entity and the purchaser in the event
of any combination of Transactions; or (D) the parent company
owning 100% of such surviving entity, purchaser or both the
surviving entity and the purchaser, as the case may be;
or
(iii) within any twelve month
period, the persons who were directors of WCI immediately before
the beginning of such period (the “ Incumbent
Directors ”) shall cease (for any reason other than
death) to constitute at least a majority of the board of directors
of WCI or of any successor to WCI. For this purpose, any director
who was not a director at the beginning of such period shall be
deemed to be an Incumbent Director if such director was elected to
the board of directors of WCI by, or on the recommendation of or
with the approval of, at least two-thirds of the directors who then
qualified as Incumbent Directors (so long as such director was not
nominated by a person who has entered into an agreement to effect a
Change in Control or expressed an intention to cause such a Change
in Control).
d. “ Company
” means WCI and each of its Subsidiaries.
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e. “ Good Reason
” means, following a Change in Control: (i) any material
reduction in Executive’s salary below the level of Base
Salary or (ii) any material adverse change in
Executive’s duties, title or responsibilities; provided,
however, that Good Reason shall not be deemed to have occurred
unless Executive gives WCI thirty (30) days written notice,
and within such thirty (30) day period, the Company does not
restore Executive’s Base Salary or restore Executive to the
prior position, in which event Good Reason shall be deemed to have
occurred at the time of the giving of such written
notice.
f. “ Noncompete
Addendum ” means the Noncompete Addendum, as so titled,
attached to this Agreement.
g. “ Noncompete
Compensation ” means cash payments equal to twelve
(12) months of Base Salary.
h. “Noncompete
Restricted Period” means a period of nine (9) months
which begins on the date of Termination and ends nine
(9) months after the date of Termination.
i. “ Nonsolicitation
Restricted Period ” means a period of twelve
(12) months which begins on the date of Termination and ends
twelve (12) months after the date of Termination.
j. “ Severance
” means cash payments equal to six (6) months of Base
Salary, payable monthly.
k. “ Subsidiary
” means each entity (including, without limitation, every
corporation, partnership, limited partnership, limited liability
company, trust and joint venture) in which WCI owns, or has the
right to acquire, directly or indirectly, a controlling
interest.
l. “ Termination
” means the termination of Executive’s employment with
the Company by the Company, other than for Cause, or the
termination of such employment by Executive for Good Reason, in
either case at any time within the twelve (12) months
following a Change of Control.
m. “ WCI ”
means WCI Communities, Inc., and any successor in connection with
any restructuring of WCI Communities, Inc. which does not result in
a Change in Control.
2.
Severance
a. Basis for Payment .
If, within twelve (12) months following a Change in Control,
Executive’s employment is terminated by Company, other than
for Cause, or if within such twelve (12) month period,
Executive terminates his employment with the Company for Good
Reason, Executive will be entitled to receive Severance.
b. Payment of
Severance . Severance will be paid by WCI in six (6) equal
monthly installments, beginning with the month after the month in
which Termination occurred. Severance shall terminate if, during
the Nonsolicitation Restricted Period,
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Executive violates any of the
provisions of this Agreement under the headings
“Nonsolicitation” and “Confidentiality and
Nondisclosure”. Severance shall also terminate if Executive
exercises his option to receive Noncompete Compensation under
Section 3, and thereafter he violates any provision of the
Noncompete Addendum. Termination of WCI’s obligations to pay
Severance under this Section 2.b shall not release Executive
from his obligations under this Agreement (including the Noncompete
Addendum, if executed).
3. Noncompete
Compensation .
a. Executive’s
Option to Obtain Noncompete Compensation . In the event of a
Termination within twelve (12) months following a Change in
Control, Executive shall have an option to obtain Noncompete
Compensation. Such option shall be exercised by Executive, if at
all, within fourteen (14) days of Termination, by the
execution by Executive of the Noncompete Addendum and the delivery
by him to the Company of such executed copy of the Noncompete
Addendum within such fourteen (14) day period. Noncompete
Compensation shall be in addition to Severance. If Executive fails
to execute and deliver the Noncompete Addendum within fourteen
(14) days of Termination, then Executive’s option to
obtain Noncompete Compensation shall be void and of no force and
effect.
b. Effectiveness of
Noncompete Addendum . The Noncompete Addendum attached hereto
shall have no force or effect unless a copy thereof is executed by
Executive and delivered to WCI within the time period provided in
Section 3.a. Upon execution by Executive of a copy of the
Noncompete Addendum and delivery thereof to WCI within the time
period provided, the Noncompete Addendum shall become a part of
this Agreement, and the Agreement and the Noncompete Addendum shall
be considered as one and the same document.
c. Payment of Noncompete
Compensation . Noncompete Compensation will be paid by WCI in
twelve (12) equal monthly installments, beginning in the month
after the month in which the last monthly payment of Severance has
been made. All payments of Noncompete Compensation shall terminate
if, during the Noncompete Restricted Period, Executive violates any
of the provisions of this Agreement under the headings
“Nonsolicitation” and “Confidentiality and
Nondisclosure”, or if Executive violates any of the
provisions of the Noncompete Addendum. Termination of WCI’s
obligations to pay Noncompete Compensation under this
Section 3.b shall not release Executive from his obligations
under this Agreement (including the Noncompete
Addendum).
4. Effect of Death or
Disability .
a. During Employment .
All of the obligations of WCI hereunder, including the obligation
of WCI to pay Severance and Noncompete Compensation, will terminate
upon a termination of employment as a result of death or
disability.
b. During Nonsolicitation
Restricted Period and Noncompete Restricted Period . In the
event of the death or disability of Executive during the
Nonsolicitation Restricted
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Period, Severance shall
terminate as of the date of death, and Executive or his personal
representative shall be entitled to receive any payments of
Severance accrued (on a per diem basis) but unpaid as of the date
of death. If Executive exercised his option to receive Noncompete
Compensation, then Executive or his personal representative shall
be entitled to continue to receive a pro rata portion of Noncompete
Compensation, based on the percentage of the Noncompete Restricted
Period which had elapsed between the date of Termination and the
date of death. Such amounts shall continue to be paid on a monthly
basis.
5. Nonsolicitation .
During the Nonsolicitation Restricted Period (and irrespective of
whether Executive executes the Noncompete Addendum), Executive
shall not solicit any person who was an employee of or consultant
to the Company at any time within three (3) months prior to
Termination to accept employment with Executive, with
Executive’s new employer, or with any other person or entity,
or encourage any person to terminate his employment or consultant
relationship with the Company, or assist any person or entity,
including Executive’s new employer, in identifying employees
of or consultants to the Company to solicit for employment or
consulting relationships, or in any way assist any person or
entity, including Executive’s new employer, in solicitation
of any employee of or consultant to the Company, nor except with
the prior written consent of WCI, shall Executive hire, or cause or
permit any entity controlled directly or indirectly by Executive to
hire, any person as an employee or consultant who was, at any time
within three (3) months prior to Termination, an employee of
the Company.
6. Confidentiality and
Nondisclosure . Executive agrees that he shall not use or
disclose to third parties any confidential information of the
Company. All files, records, documents, data and similar items
relating to the Company, as well as all copies thereof, whether
prepared by Executive or otherwise coming into his possession,
shall remain the exclusive property of the Company and shall
immediately be returned to the Company upon termination of
Executive’s employment. Executive’s obligations under
this section shall continue while he is an employee of the Company,
and after termination of the employment so long as the Company
derives value from such confidential information remaining
confidential.
7. Release . As a
condition to the payment of Severance and as a condition to the
payment of Noncompete Compensation, Executive will execute a
complete release in the form of Exhibit A.
8. Restrictions
Reasonable . Executive acknowledges that the restrictions under
the sections headed “Nonsolicitation” and
“Confidentiality and Nondisclosure” are reasonable and
necessary to protect the legitimate
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