EX-10.6






EXHIBIT 10.6




AMENDED AND RESTATED 2008-2010 EARNINGS PARTICIPATION AWARD AGREEMENT




This AMENDED AND RESTATED 2008-2010 EARNINGS PARTICIPATION AWARD AGREEMENT, dated December 22,
2008 (the “Agreement”), is made by and between Avatar Holdings Inc., a Delaware corporation
(the “Company”) and Gerald D. Kelfer (the “Participant”), and amends and restates
in its entirety the 2008-2010 Earnings Participation Award Agreement, by and between the Company
and the Participant, dated April 15, 2005 (the “Original Agreement”).



The Company and the Participant wish to provide for certain modifications to the Original
Agreement to comply with Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”) and wish to amend, restate and supersede the Original Agreement, all upon the terms
and conditions set forth herein.



The Cash Awards (as defined in the Original Agreement) granted to the Participant pursuant to
the Original Agreement remain in effect as amended and restated in this Agreement.



1. AWARD. Pursuant to the provisions of the Avatar Holdings Inc. 2005 Executive Incentive
Compensation Plan, as the same may be amended, restated, modified and supplemented from time to
time (the “Executive Plan”) the Committee (as defined in the Executive Plan) hereby awards
to the Participant, on the date hereof, subject to the terms and conditions of the Executive Plan
and subject further to the terms and conditions and other provisions herein set forth, the Cash
Awards if, as of an applicable Performance Goal Test Date (as defined below), the Performance Goal
(as defined below) applicable to such Cash Award is satisfied.



2. CERTAIN DEFINITIONS.



(a) Capitalized terms used but not defined herein shall have the meanings assigned to them in
the Plans.



(b) Each reference contained in this Agreement to:




“Anniversary” shall mean, with respect to any date, the annual recurrence of
such date.




“Actual Gross Profit Amount” shall mean the Company’s cumulative Gross Profit
during the Performance Period.




“Annual Cash Award” shall mean, with respect to each fiscal year during the
Performance Period ending on a Performance Goal Test Date, a cash payment equal to two and
one-quarter percent (2.25%) of the excess, if any, of (x) the Gross Profit earned by the
Company for such fiscal year, over (y) the Minimum Gross Profit Level for such
fiscal year.




“Business Plan” shall mean the Company’s business plan for the period
commencing on January 1, 2005 and ending on December 31, 2010, as submitted to the
Compensation Committee at a meeting held on March 3, 2005.




“Cash Awards” shall mean, collectively, the Annual Cash Award and the
Cumulative Cash Award, and “Cash Award” shall mean each of the Annual Cash Award
and the Cumulative Cash Award.




“Common Stock” shall mean common stock, par value $1.00 per share, of the
Company.




“Cumulative Cash Award” shall mean a cash payment equal to one and one-half
percent (1.5%) of the excess, if any, of (x) the Actual Gross Profit Amount over (y) the
Target Gross Profit Amount.




“Excluded Amounts” shall mean, with respect to a fiscal year of the Company,
as at any date of determination, an amount equal to the dollar amount of any Gross Profit
attributable to Harbor Islands and the Rio Rico Excluded Properties for such fiscal year.




“Gross Profit” shall mean, with respect to a fiscal year of the Company, the
excess, if any, of (x) the sum of (i) the amount set forth in the Company’s audited
Consolidated Statements of Operations as set forth in the Company’s annual report on Form
10-K (the “Income Statement”) for such fiscal year with respect to the line item “Net
income (loss)” plus (ii) the amount reflected in the Company’s Income Statement for
such fiscal year as compensation expense relating to the 2008-2010 Earnings Participation
Award Agreements, dated the date hereof, between the Company and each of Gerald Kelfer,
Jonathan Fels and Michael Levy, as amended from time to time, plus (iii) the
amount, if any, set forth in the Company’s Income Statement for such fiscal year with
respect to the line item “Income tax expense (benefit)”, to the extent that there is
“Income tax expense” less (iv) the amount, if any, set forth in the Company’s
Income Statement for such fiscal year with respect to the line item “Income tax expense
(benefit)”, to the extent that there is “Income tax (benefit)” plus (v) the
amount(s), if any, set forth in the Company’s Income Statement for such fiscal year
relating to any income tax expense included in any income or (loss) attributable to the
discontinued operations and/or extraordinary items set forth in the Income Statement
less (vi) the amount(s), if any, set forth in the Company’s Income Statement for
such fiscal year relating to any income tax (benefit) included in any income or (loss)
attributable to such discontinued operations and/or extraordinary items set forth in the
Income Statement plus (vii) for purposes of determining the Annual Cash Award, the
Gross Profit Carry Forward Amount, if any, with respect to the Company’s prior fiscal year,
over (y) the Excluded Amounts for such fiscal year.




“Gross Profit Carry Forward Amount” shall mean an amount equal to (x) the
excess of the amount of the Annual Cash Award that would otherwise be payable to the
Participant but for the Annual Cap, over the amount of the Annual Cap, divided by (y)
2.25%; provided, that in no event shall the Gross Profit Carry Forward Amount
exceed $20,000,000.




“Harbor Islands” shall mean the development and/or sale of the Company’s
property in Hollywood, Florida, generally known by the Company as parcels 1, 8 and 9 at
“Harbor Islands.”




“Minimum Cumulative Gross Profit Level” shall mean that, as of Performance
Goal Test Date applicable to the Cumulative Cash Award, (x) the Actual Gross Profit Amount
is greater than (y) the Target Gross Profit Amount.




“Minimum Gross Profit Level” shall mean the Gross Profit set forth opposite
each fiscal year ending on the dates set forth below:



	 	 	 
	Fiscal Year End	 	Gross Profit
	December 31, 2008

December 31, 2009

December 31, 2010

	 	$40,000,000

$50,000,000

$60,000,000







“Payment Date” shall have the meaning ascribed to such term in Section 3(c).




“Performance Goal” shall mean (i) in the case of the Annual Cash Award, the
achievement of the Minimum Gross Profit Level in any fiscal year, ending on December 31,
during the Performance Period and (ii) in the case of the Cumulative Cash Award, the
achievement of the Minimum Cumulative Gross Profit Level for the entire Performance Period.




“Performance Goal Test Date” shall mean with respect to the Annual Cash Award,
December 31 of each year within the Performance Period and with respect to the Cumulative
Cash Award, the earlier of (i) a Change in Control Date and (ii) the Last Day of the
Performance Period.




“Performance Period” shall mean the period commencing January 1, 2008 and
ending on December 31, 2010 (December 31, 2010, being the “Last Day of the Performance
Period”).




“Rio Rico Excluded Properties” shall mean those parcels of land not suitable
for development in accordance with the Company’s current Business Plan due to environmental
factors located in the Company’s property in Rio Rico, Arizona, generally known by the
Company as “Rio Rico”.




“Target Gross Profit Amount” shall mean $390,000,000.



(c) For purposes of this Agreement, the terms “Cause”, “Change in Control”,
“Change in Control Date”, “Good Reason” and “Disability” shall have the
meanings ascribed to such terms in the Participant’s amended and restated employment agreement with
the Company, dated as of the date hereof, as amended or restated from time to time;
provided, however, if the Participant is no longer employed pursuant to such
employment agreement, each such term shall have the meaning ascribed to it in the employment
agreement last in effect which contains such defined term.



3. TERMS AND CONDITIONS. The Cash Awards evidenced by this Agreement are subject to the following
terms and conditions:



(a) The payment of performance-based compensation described herein is contingent upon the
achievement of the Performance Goal applicable to each Cash Award.



(b) Subject to Section 4 hereof (i) the Participant shall be entitled to receive a payment on
the related Payment Date pursuant to the Annual Cash Award if the applicable Performance Goal is
satisfied on the applicable Performance Goal Test Date and (ii) the Participant shall be entitled
to receive the Cumulative Cash Award on the related Payment Date if the applicable Performance Goal
is satisfied on the applicable Performance Goal Test Date.



(c) The Committee shall determine whether a Performance Goal has been met as of the applicable
Performance Goal Test Date and, (i) if it has, shall so certify in writing and ascertain the amount
of cash to be paid, if any, to the Participant and (ii) if it has not, shall so certify in writing
with a brief explanation as to the methodology and calculation of the Committee in determining that
such Performance Goal has not been met. Payments of cash in a lump sum, if any, pursuant to the
Cash Awards shall be made to the Participant, in each case in the fiscal year following the year
during which the applicable Performance Goal Test Date occurs, within thirty (30) days following
the filing with the Securities and Exchange Commission of an annual report on Form 10-K (which
contains audited financial statements) for such fiscal year but in no event later than April 1st of
the fiscal year following the year during which the applicable Performance Goal Test Date occurs
(each such date being a “Payment Date”).



(d) Notwithstanding anything to the contrary contained in this Agreement, in the event a
Change in Control Date occurs during the Performance Period, the Participant shall be entitled to
receive (i) a pro rata portion of the Annual Cash Award (as of the Change in Control Date) for the
fiscal year in which such Change in Control Date occurs and (ii) any cash payment pursuant to the
Cumulative Cash Award. The Committee shall determine the basis, methodology and calculation for,
and any estimates used in, determining the prorated Actual Gross Profit Amount and prorated Minimum
Gross Profit Level for the portion of the fiscal year preceding the Change in Control Date. The
determination of the Committee as to any such partial award shall be final and binding on all
parties, including the Participant and the Company. Such Cash Awards shall be paid in a lump sum
cash payment within thirty (30) days following the Change in Control Date.



4. LIMITATIONS ON AWARDS. Notwithstanding anything to the contrary herein:



(a) The maximum cash amount that may be paid to the Participant pursuant to the Annual Cash
Award (the “Annual Cap”) shall be $1,800,000 for each fiscal year during the Performance
Period; provided, however, that in the event that the Annual Cash Award is less
than $1,800,000 with respect to either or both of the first two (2) fiscal years of the Performance
Period (the amount by which such Annual Cash Awards are less than $1,800,000, in the aggregate, is
referred to herein as the “Shortfall Amount”), the Annual Cap with respect to the third
fiscal year of the Performance Period shall equal the sum of (x) $1,800,000 plus (y) the Shortfall
Amount; provided, further, that in no event shall the Shortfall Amount exceed
$400,000.



(b) The maximum cash amount that may be paid to the Participant pursuant to the Cumulative
Cash Award shall be $1,200,000.



(c) The maximum payment of cash pursuant to the Cash Awards shall be subject to the
limitations in the Executive Plan and the Participant’s employment agreement with the Company or a
subsidiary or affiliate thereof (the foregoing entities being referred to herein collectively as
the “Avatar Entities” and each as an “Avatar Entity”), each as may be amended,
restated, modified or supplemented from time to time.



5. TERMINATION OF EMPLOYMENT.



(a) If the Participant’s employment with Avatar Properties is terminated by Avatar Properties
for Cause or by the Participant Without Good Reason, in addition to any other consequences of such
termination provided for in this Agreement or any other agreement, notwithstanding Section 3
hereof, Participant shall forfeit any right to cash payments that would otherwise accrue pursuant
to this Agreement on or after the date of such termination.



(b) If the Participant’s employment with the Company is terminated by the Company other than
for Cause or by the Participant for Good Reason, the Participant shall be entitled to continue to
receive such cash payments as would otherwise be made pursuant to this Agreement as though the
Participant’s employment had not been terminated.



(c) If the Participant’s employment with the Company is terminated due to the Participant’s
death or Disability, subject to Section 3(d) hereof:



(i) the Participant shall be entitled to receive in a lump sum only that portion of any cash
payments otherwise payable pursuant to Section 3(c) hereof following such termination in accordance
with Section 3(c), 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 after the first day of the
Performance Period to the date of death or Disability, as the case may be, and the denominator of
which is the number of whole months from the first day of the Performance Period until the
applicable Performance Goal Test Date and (y) the amount of any cash payments that would have been
payable pursuant to Section 3(c) hereof if the Participant remained an employee of the Company
through and including the Last Day of the Performance Period; provided, however,
that with respect to cash payments pursuant to the Annual Cash Award, the Participant shall only be
eligible to receive a cash payment for the fiscal year in which the Participant’s employment was
terminated for death or Disability, as the case may be, and the Participant shall not be eligible
for any additional cash payments; and



(ii) the Participant will have no right to any other payments hereunder.



Any payments to the Participant (or the executor or administrator of the deceased
Participant’s estate or the person or persons to whom the deceased Participant’s rights shall pass
by will or the laws of descent or distribution, as applicable) pursuant to this Section 5(c) shall
be made no later than the relevant Payment Date.



6. FORFEITURE UPON BREACH OF RESTRICTIVE COVENANTS. Notwithstanding anything to the contrary set
forth in this Agreement, if the Participant breaches any provision relating to the Participant’s
covenant to keep information confidential, not to compete, not to solicit or similar restrictive
covenant contained in the Participant’s employment or other agreement with any of the Avatar
Entities (after the expiration of any notice and cure period), then in addition to any other rights
or remedies arising from or relating to such breach the Participant shall forfeit any right to any
cash payments pursuant to this Agreement from and after the date of such breach.



7. CLAWBACK; ADDITIONAL PAYMENTS; NO OFFSET BY PARTICIPANT; COMPANY OFFSET.



(a) In the event that the Company’s financial statements with respect to any fiscal year (or
portion thereof) within the Performance Period are restated within eighteen (18) months following
the payment to the Participant of cash pursuant to a Cash Award such that Gross Profit is less than
previously reported, the Participant shall pay to the Company upon demand by the Company following
the filing of such restated financial statements with the Securities and Exchange Commission, an
amount equal to the sum of (i) the excess of (A) the Excess Bonus Payments (as defined below) over
(B) the hypothetical income tax liability attributable to such Excess Bonus Payments (as determined
by the Committee by applying the highest marginal United States federal, state and local individual
income tax rates applicable to an individual resident of Coral Gables, Florida for the relevant
taxable period, taking into account the deductibility of state and local income taxes for federal
income tax purposes), and (ii) as determined by the Committee, the present value of any tax
benefits accruing to the Participant as a result of making any payments pursuant to this Section
7(a) to the Company. For purposes of the preceding sentence, “Excess Bonus Payments” shall
mean an amount equal to the difference between (x) the amount of the cash payment pursuant to the
Cash Award paid to the Participant and (y) the amount that cash payment pursuant to the Cash Award
would have been if the Company had used the restated financial statements to determine the amount
of the Company’s Gross Profit for the Performance Goal Test Date.



(b) In the event that the Company’s financial statements with respect to any fiscal year (or
portion thereof) within the Performance Period are restated within eighteen (18) months following
the payment to the Participant of cash pursuant to a Cash Award such that Gross Profit is greater
than previously reported, the Company shall pay in a lump sum cash payment to the Participant
within thirty (30) days following the filing of such restated financial statements with the
Securities and Exchange Commission, an amount equal to the difference between (x) the amount that
the cash payment pursuant to the Cash Award would have been if the Company had used the restated
financial statements to determine the amount of the Company’s Gross Profit for the Performance Goal
Test Date less (y) the amount of the cash payment pursuant to the Cash Award paid to the
Participant.



(c) The Participant shall be obligated to pay to the Company any amount due pursuant to this
Section 7 regardless of whether the Participant has or claims to have any claim against any of the
Avatar Entities, and the Participant shall have no right to offset any amount due or claimed to be
due from any of the Avatar Entities. The Company shall be obligated to pay to the Participant any
amount due pursuant to this Section 7 regardless of whether the Company has or claims to have any
claim against the Participant, and the Company shall have no right to offset any amount due or
claimed to be due from the Participant or any of its affiliates.



(d) In the event that the Participant has failed to repay any amount required pursuant to
Section 7(a) above, the Company shall be entitled to offset such amount against any amounts due
from the Company to the Participant.



(e) The foregoing provisions of this Section 7 shall not be applicable to any restatement,
after the consummation of a Change in Control, of the Company’s financial statements with respect
to any fiscal year (or portion thereof) within the Performance Period.



8. TAXES. Any cash payment pursuant to a Cash Award shall be net of any amounts required to be
withheld pursuant to applicable federal, state, local and foreign tax withholding requirements.
The Company shall have the right to withhold the amount of such taxes from any other sums due or to
become due from the Company to the Participant as the Committee shall prescribe.



9. NO RIGHT TO CONTINUED EMPLOYMENT. This Agreement does not confer upon the Participant any right
to continued employment by any of the Avatar Entities, nor shall it interfere in any way with the
right of the Participant’s employer to terminate the Participant’s employment at any time for any
reason or no reason.



10. NO OBLIGATION TO PURSUE PROJECTS. This Agreement shall in no way obligate the Company to
pursue any projects, developments or sales of any assets, and the Company may limit, abandon or
change any projects, developments or sales of any assets at any time in its sole discretion and the
Company shall have no obligation to take any action or provide any financing with respect to any
projects, developments or sales of any assets.



11. UNSECURED CREDITOR STATUS; NO PARTNERSHIP. The Participant shall rely solely upon the
unsecured promise of the Company, as set forth herein, for payment hereunder, and nothing herein
contained shall be construed to give to or vest in the Participant or any other person now or at
any time in the future, any right, title, interest, or claim in or to any specific asset, fund,
reserve, account, insurance or annuity policy or contract, or other property of any kind whatsoever
owned by the Company, or in which the Company may have any right, title, or interest, nor at any
time in the future. This Agreement is an agreement to pay compensation for services provided by
the Participant and is not a partnership or joint venture and is not intended to create a
partnership or joint venture between the Company and the Participant or any other person. The
Participant shall take no position inconsistent with this characterization.



12. ASSIGNMENT; SUCCESSORS.



(a) The Cash Awards and any interest of the Participant in any such awards may not be sold,
assigned, transferred, pledged, hypothecated or otherwise disposed of. Any attempt to transfer any
such Cash Awards in contravention of this Section 12(a) is void ab initio. The Cash Awards
shall not be subject to execution, attachment or other process.



(b) The Company’s rights and obligations hereunder may be assigned or transferred by the
Company to and may be assumed by and become binding upon and may inure to the benefit of any
affiliate of or successor to the Company. The term “successor” shall mean, with respect to any
Avatar Entity, any other corporation or other business entity which, by merger, consolidation,
purchase of assets, or otherwise, acquires all or a material part of the assets of such Avatar
Entity.



(c) In the event of the Participant’s death, the Participant’s rights and obligations
hereunder shall be binding upon and inure to the benefit of the Participant’s heirs and legal
representatives.



13. CONSTRUCTION. The Plans and this Agreement will be construed by and administered under the
supervision of the applicable Committee in such Committee’s sole and absolute discretion, and all
determinations of such Committee will be final and binding on the Participant.



14. NOTICES. Any notice required or permitted under this Agreement shall be deemed given when
delivered personally, or when deposited in a United States Post Office, postage prepaid, addressed,
as appropriate, (i) to the Participant at the last address specified in the Participant’s
employment records, or such other address as the Participant may designate in writing to the
Company, or (ii) to the Company, Avatar Holdings Inc., 201 Alhambra Circle, Coral Gables, Florida
33134, Attention: Chairman of the Board, with a copy to the Company’s Corporate Secretary, or such
other address as the Company may designate in writing to the Participant.



15. FAILURE TO ENFORCE NOT A WAIVER. The failure of either party hereto to enforce at any time any
provision of this Agreement shall in no way be construed to be a waiver of such provision or of any
other provision hereof.



16. SECTION 409A OF THE CODE. If any payment or entitlement provided to the Participant hereunder
in connection with the Participant’s termination of employment, is determined, in whole or in part,
to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code
(“Section 409A”) and the Participant is a specified employee as defined in Section
409A(a)(2)(B)(i), no part of such payments shall be paid before the day that is six (6) months plus
one (1) day after the date of termination or earlier death (the “New Payment Date”). The
aggregate of any payments that otherwise would have been paid to the Participant during the period
between the date of termination and the New Payment Date shall be paid to the Participant in a lump
sum on such New Payment Date. Thereafter, any payments that remain outstanding as of the day
immediately following the New Payment Date shall be paid without delay over the time period
originally scheduled, in accordance with the terms of this Agreement. A termination of employment
shall not be deemed to have occurred for purposes of any provision of this Agreement providing for
the payment of any amounts or benefits subject to Section 409A upon or following a termination of
employment unless such termination is also a “separation from service” within the meaning of
Section 409A, and for purposes of any such provision of this Agreement, references to a
“resignation,” “termination,” “terminate,” “termination of employment” or like terms shall mean
separation from service. The parties acknowledge and agree that the interpretation of Section 409A
and its application to the terms of this Agreement is uncertain and may be subject to change as
additional guidance and interpretations become available. Anything to the contrary herein
notwithstanding, all benefits or payments provided by the Company to the Participant that would be
deemed to constitute “nonqualified deferred compensation” within the meaning of Section 409A are
intended to comply with Section 409A. If, however, any such benefit or payment is deemed to not
comply with Section 409A, the Company and the Participant agree to renegotiate in good faith any
such benefit or payment (including, without limitation, as to the timing of any severance payments
payable hereof) so that either (i) Section 409A will not apply or (ii) compliance with Section 409A
will be achieved; provided, however, that any resulting renegotiated terms shall provide to the
Participant the after-tax economic equivalent of what otherwise has been provided to the
Participant pursuant to the terms of this Agreement, and provided further, that any deferral of
payments or other benefits shall be only for such time period as may be required to comply with
Section 409A.



17. GOVERNING LAW. This Agreement shall be governed by and construed according to the laws of the
State of Delaware, without regard to the conflicts of laws provisions thereof.



18. INCORPORATION OF EXECUTIVE PLAN. The Executive Plan is hereby incorporated by reference and
made a part of this Agreement, and this Agreement shall be subject to the terms of the Executive
Plan, as the Executive Plan may be amended from time to time.



19. ATTORNEYS’ FEES. In the event that either party hereto commences litigation against the other
to enforce such party’s rights hereunder, the prevailing party shall be entitled to recover all
costs, expenses and fees, including reasonable attorneys’ fees (including in-house counsel),
paralegals’ fees, and legal assistants’ fees through all appeals.



20. COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall
be an original but all of which together shall represent one and the same agreement.



21. MISCELLANEOUS. This Agreement cannot be modified or terminated orally. This Agreement, the
Executive Plan, and the letter agreement dated as of May 20, 2005, between the Company and the
Participant, contain the entire agreement between the parties relating to the subject matter
hereof. This Agreement supersedes the Original Agreement. The section headings herein are
intended for reference only and shall not affect the interpretation hereof.



(signature page follows)




1




IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first
written above.



	 	 	 
	AVATAR HOLDINGS INC.

	By:

	 	/s/ Juanita I. Kerrigan
	
 
	 	 







	 	 	Name: Juanita I. Kerrigan

Title: Vice President






	 	 	 	/s/ Gerald D. Kelfer






	 	 	Gerald D. Kelfer






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