<PAGE>
<PAGE> 1
QUARTERLY REPORT UNDER SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q/A
Amendment #1
__________________________________________________
[X] Quarterly report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the quarterly period ended June 30, 1994
or
[ ] Transition Report Pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934
For the transition period from
________ to ________
________________________________________
Commission file number 0-7616
I.R.S. Employer Identification Number 23-1739078
Avatar Holdings Inc.
(a Delaware Corporation)
255 Alhambra Circle
Coral Gables, Florida 33134
(305) 442-7000
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90
days. Yes X No .
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date: 9,095,102
shares of the Company's common stock ($1.00 par value) were
outstanding as of July 29, 1994.
EXPLANATORY NOTE
- ----------------
This Amendment to the Form 10-Q for the period ending June 30, 1994, which
restates the Form 10-Q in its entirety, is submitted to correct an
omission of a dated signature page.
1 of 38<PAGE>
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AVATAR HOLDINGS INC. AND SUBSIDIARIES
INDEX
PAGE
PART I. Financial Information
Item 1. Financial Statements (Unaudited):
Consolidated Balance Sheets --
June 30, 1994 and December 31, 1993.............. 3
Consolidated Statements of Operations --
Six months and three months ended June 30, 1994
and 1993.......................................... 4
Consolidated Statements of Cash Flows --
Six months ended June 30, 1994 and 1993.......... 5
Notes to Consolidated Financial Statements......... 7
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations................................ 13
PART II. Other Information
Item 1. Legal Proceedings........................... 15
Item 4. Submission of Matters to a Vote of
Security Holders.................................... 15
Item 6. Exhibits and Reports on Form 8-K.......... 15
Exhibit Index........................................ 17
2<PAGE>
<PAGE>
<PAGE> 3
PART I -- FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
AVATAR HOLDINGS INC. AND SUBSIDIARIES
Consolidated Balance Sheets
Unaudited
(Dollars in thousands)
<TABLE>
<CAPTION>
June 30, December 31,
1994 1993
-------- --------
<S> <C> <C>
Assets
Cash $5,510 $7,178
Restricted cash 1,375 1,442
Investments 52,796 51,184
Contracts, mortgage notes and other receivables, net 75,986 82,996
Land and other inventories 119,520 117,557
Property, plant and equipment, net 181,622 178,940
Other assets 16,433 15,460
Regulatory assets 7,437 7,437
-------- --------
Total assets $460,679 $462,194
======== ========
Liabilities and Stockholders' Equity
Notes, mortgage notes and other debt:
Real estate and corporate $96,468 $96,768
Utilities 38,013 38,789
Estimated development liability for sold land 19,193 19,331
Accrued and other liabilities 31,723 27,558
Deferred customer betterment fees 19,379 19,537
Minority interest in consolidated subsidiaries 9,061 9,058
Regulatory liabilities 4,377 4,447
-------- --------
Total liabilities 218,214 215,488
Commitments and contingent liabilities
Contributions in aid of construction 62,930 63,334
Stockholders' equity, net 179,535 183,372
-------- --------
Total liabilities and stockholders' equity $460,679 $462,194
======== ========
</TABLE>
See notes to consolidated financial statements.
3<PAGE>
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<PAGE> 4
AVATAR HOLDINGS INC. AND SUBSIDIARIES
Consolidated Statements of Operations
For the Six Months and Three Months Ended June 30, 1994 and 1993
(Unaudited)
(Dollars in thousands except per share data)
<TABLE>
<CAPTION>
Six Months Three Months
---------- ------------
1994 1993 1994 1993
------ ------ ------ ------
<S> <C> <C> <C> <C>
Revenues:
Real estate sales $22,362 $21,374 $10,836 $9,999
Deferred gross profit (1,229) (1,241) (425) (475)
Utility revenues 14,850 27,795 7,562 13,972
Interest income 5,693 6,866 2,857 3,350
Trading account profit, net 1,161 - 684 -
Other 318 507 194 462
------ ------ ------ ------
Total revenues 43,155 55,301 21,708 27,308
Expenses:
Real estate expenses 23,021 21,852 11,318 10,757
Utility expenses 11,543 19,612 5,884 9,927
General and administrative expenses 5,447 4,424 3,129 2,342
Interest expense 6,319 8,550 3,164 4,098
Other 407 720 203 361
------ ------ ------ ------
Total expenses 46,737 55,158 23,698 27,485
------ ------ ------ ------
(Loss) income before income taxes and
cumulative effect of change in method
of accounting for income taxes (3,582) 143 (1,990) (177)
Provision for income taxes 255 674 - 278
------ ------ ------ ------
Loss before cumulative effect
of change in method of accounting for
income taxes (3,837) (531) (1,990) (455)
Cumulative effect of change in method of
accounting for income taxes - (964) - -
-------- -------- -------- ------
Net loss ($3,837) ($1,495) ($1,990) ($455)
======== ======== ======== ======
Per share amounts:
Primary
Loss before cumulative effect of change
in method of accounting for income taxes ($.42) ($.07) ($.22) ($.06)
Cumulative effect of change in method
of accounting for income taxes - (.13) - -
------ ------ ------ ------
Net loss ($.42) ($.20) ($.22) ($.06)
====== ====== ====== ======
Fully Diluted
Loss before cumulative effect of change
in method of accounting for income taxes ($.42) ($.05) ($.22) ($.05)
Cumulative effect of change in method
of accounting for income taxes - (.10) - -
------ ------ ------ ------
Net loss ($.42) ($.15) ($.22) ($.05)
====== ====== ====== ======
</TABLE>
See notes to consolidated financial statements.
4<PAGE>
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<PAGE> 5
AVATAR HOLDINGS INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows
(Unaudited)
(Dollars in Thousands)
<TABLE>
<CAPTION>
For the six months ended
June 30,
------------------------
1994 1993
---- ----
OPERATING ACTIVITIES
<S> <C> <C>
Net loss ($3,837) ($1,495)
Adjustments to reconcile net loss to
net cash provided by operating activities:
Depreciation and amortization 4,010 3,720
Deferred gross profit 1,229 1,241
Provision for income taxes 255 674
Cost of sales not requiring cash 1,306 1,044
Cumulative effect of change in method of accounting
for income taxes - 964
Trading account profit, net (1,161) -
Changes in operating assets and liabilities:
Decrease in restricted cash 67 54
Principal payments on contracts receivable 10,547 9,408
Increase in receivables (5,000) (3,863)
Decrease in other receivables 234 965
Increase in inventories (3,407) (2,727)
Increase in other assets (973) (2,849)
Increase in accounts payable and accrued
and other liabilities 3,231 268
------ ------
NET CASH PROVIDED BY OPERATING ACTIVITIES 6,501 7,404
INVESTING ACTIVITIES
Investment in property, plant, and equipment (7,096) (4,777)
Investment in marketable securities - (126)
Proceeds from the sale of marketable securities - 17,444
------ ------
NET CASH (USED IN) PROVIDED BY
INVESTING ACTIVITIES (7,096) 12,541
FINANCING ACTIVITIES
Net proceeds from revolving lines of credit
and long-term borrowings 9,145 12,724
Principal payments on revolving lines of credit and
long-term borrowings (10,218) (29,180)
Purchase of 8% debentures - (29)
Purchase of 9% debentures - (49)
Net proceeds from issuance of common stock in conjunction
with the redemption/conversion of 5 1/4% debentures - 30,860
------ ------
NET CASH (USED IN) PROVIDED BY
FINANCING ACTIVITIES (1,073) 14,326
------- ------
(DECREASE) INCREASE IN CASH (1,668) 34,271
Cash at beginning of period 7,178 2,644
------- ------
CASH AT END OF PERIOD $5,510 $36,915
======= =======
</TABLE>
See notes to consolidated financial statements.
5<PAGE>
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<PAGE> 6
AVATAR HOLDINGS INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows -- continued
(Unaudited)
(Dollars in thousands)
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
<TABLE>
<CAPTION>
For the six months ended
June 30,
------------------------
Cash paid during the period for: 1994 1993
---- ----
<S> <C> <C>
Interest $4,788 $9,442
====== ======
Income taxes (1) $276 $317
====== ======
</TABLE>
SUPPLEMENTAL SCHEDULE OF NON-CASH FINANCING ACTIVITIES
<TABLE>
<CAPTION>
1994 1993
---- ----
<S> <C> <C>
Contributions in aid of construction $500 $1,342
====== ======
</TABLE>
(1) Consists of Federal and State income taxes, inclusive of
alternative minimum taxes.
See notes to consolidated financial statements.
6<PAGE>
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<PAGE> 7
AVATAR HOLDINGS INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements (Unaudited)
(Dollars in thousands)
Basis of Statement Presentation and Summary of Significant Accounting
Policies
The consolidated balance sheet as of June 30, 1994 and the related
consolidated statements of operations for the six month and three
month periods ended June 30, 1994 and 1993 and the consolidated
statements of cash flows for the six months ended June 30, 1994 and
1993 have been prepared in accordance with generally accepted
accounting principles for interim financial information and with the
instructions to Form 10-Q and Article 10 of Regulation S-X.
Accordingly, they do not include all of the information and footnotes
required by generally accepted accounting principles for complete
financial statement presentation. In the opinion of management, all
adjustments necessary for a fair presentation of such financial
statements have been included. Such adjustments consisted only of
normal recurring items. Interim results are not necessarily indicative
of results for a full year.
For a complete description of the Company's other accounting
policies, refer to Avatar Holdings Inc.'s 1993 Annual Report on Form
10-K and the notes to Avatar's consolidated financial statements
included therein.
Reclassifications
Certain amounts presented for 1993 have been reclassified in the
financial statements for comparative purposes.
Net Loss Per Common Share
For the six and three months ended June 30, 1994, net loss per
common share is computed on the basis of the weighted average number
of shares outstanding.
For the six and three months ended June 30, 1993, net loss per
common share is computed on the basis of the weighted average number
of shares outstanding plus common stock equivalents, if any, that
would result from the dilutive effect of the assumed conversion (and
associated purchase) of the 5 1/4% convertible-purchase subordinated
debentures. On June 29, 1993, the Company redeemed and converted all
of the 5 1/4% convertible-purchase subordinated debentures into
2,688,276 shares of common stock. The result of this redemption and
conversion was dilutive for the six months and three months ended June
30, 1993. The fully diluted computation assumes the actual conversion
occurred at the beginning of the period.
Regulatory Assets and Regulatory Liabilities
The cumulative effect of adopting FASB Statement No. 109 --
"Accounting for Income Taxes" , and FASB Statement No. 106 --
"Employers' Accounting for Postretirement Benefits Other Than
Pensions" for Avatar Utilities' subsidiaries was recorded as a
regulatory liability or regulatory asset in accordance with accounting
procedures applicable to regulated enterprises.
7<PAGE>
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<PAGE> 8
Notes to Consolidated Financial Statements (Unaudited) -- continued
Investments
The Company classified all of its investment portfolio as trading.
This category is defined as including debt and marketable equity
securities held for resale in anticipation of earning profits from
short-term movements in market prices. Trading account securities are
carried at fair market value and both realized and unrealized gains
and losses are included in net trading account profit.
Investments at June 30, 1994 consist of $20,564 invested in
corporate bonds rated B- or above by Moody's and/or Standard and
Poor's and $12,899 invested in non-rated bonds of companies which are
in bankruptcy and have defaulted as to payments of principal and
interest on such bonds. These bonds are thinly traded and may require
sixty to ninety days to liquidate. The portfolio also includes an
unsecured claim on a company in bankruptcy of $6,290 which is
not readily marketable, $1,629 of equity securities, $7,401 of money
market accounts and $4,013 of U.S. Government and Agency securities.
Avatar's investment portfolio at December 31, 1993 includes $20,045
invested in corporate bonds rated B- or above by Moody's and/or
Standard and Poor's and $12,775 invested in non-rated bonds of
companies which are in bankruptcy and have defaulted as to payments of
principal and interest on such bonds. These bonds are thinly traded
and may require sixty to ninety days to liquidate. The portfolio also
includes an unsecured claim on a company in bankruptcy of $5,689 which
is not readily marketable, $7,020 of equity securities, $1,661 of
money market accounts and $3,994 of U.S. Government and Agency
securities.
Fair values for actively traded debt securities and equity
securities are based on quoted market prices on national markets.
Fair values for thinly traded investment securities are generally
based on prices quoted by investment brokerage companies.
Contracts, Mortgage Notes, and Other Receivables
Contracts, mortgage notes, and other receivables are summarized as
follows:
<TABLE>
<CAPTION>
June 30, December 31,
1994 1993
-------- --------
<S> <C> <C>
Contracts and mortgage notes receivable $108,597 $117,249
Notes and other receivables 5,284 5,639
-------- --------
113,881 122,888
-------- --------
Less:
Allowance for doubtful accounts 1,759 2,631
Market valuation reserve 1,618 2,082
Deferred gross profit 31,040 31,969
Other 3,478 3,210
------ ------
37,895 39,892
------ ------
$75,986 $82,996
======= =======
</TABLE>
Notes to Consolidated Financial Statements (Unaudited) -- continued
8<PAGE>
<PAGE>
<PAGE> 9
Land and Other Inventories
Inventories consist of the following:
<TABLE>
<CAPTION>
June 30, December 31,
1994 1993
--------- ------------
<S> <C> <C>
Land developed and in process of development $77,895 $76,145
Land held for future development or sale 37,440 37,478
Dwelling units completed or under construction 2,784 2,407
Other 1,401 1,527
----- -----
$119,520 $117,557
======== ========
</TABLE>
Minority Interest in Consolidated Subsidiaries
Minority interest in consolidated subsidiaries is represented by
preferred stock of Avatar Utilities' subsidiaries. Total preferred
stock outstanding is as follows:
<TABLE>
<CAPTION>
June 30, December 31,
1994 1993
-------- ------------
<S> <C> <C>
9% Cumulative preferred stock $9,000 $9,000
Other 61 58
------ ------
$9,061 $9,058
====== ======
</TABLE>
Avatar's utility subsidiary's 9% cumulative preferred stock issue
provides for redemption to occur no earlier than March 1, 1997, in
whole or in part; however, a minimum of $1,800 of the preferred
stock must be redeemed per annum beginning in 1997. A redemption of
all outstanding shares shall occur no later than March 1, 2001.
Charges to operations recorded as "Other expenses" relating to
preferred stock dividends of subsidiaries for the six months ended
June 30, 1994 and 1993 amounted to $407 and $720, respectively, and
for the three months ended June 30, 1994 and 1993 amounted to $203 and
$361, respectively.
9<PAGE>
<PAGE>
<PAGE> 10
Notes to Consolidated Financial Statements (Unaudited) -- continued
Income Taxes
Deferred income taxes reflect the net tax effect of temporary
differences between the carrying amounts of assets and liabilities for
financial reporting purposes and the amounts used for income tax
purposes. Significant components of the Company's deferred income tax
assets and liabilities as of June 30, 1994 are as follows:
<TABLE>
<CAPTION>
<S> <C>
Deferred income tax assets
Net operating loss carryover $7,000
Tax over book basis of land inventory 22,000
Unrecoverable land development costs 5,000
Tax over book basis of depreciable assets 5,000
Alternative minimum tax and investment tax credit carryforward 5,000
Other 3,000
-------
Total deferred income taxes 47,000
Valuation allowance for deferred income tax assets (34,000)
--------
Deferred income tax assets after valuation allowance 13,000
Deferred income tax liabilities
Book over tax income recognized on land sales (3,000)
Deferred carrying charges on utility plant (3,000)
Other (7,000)
--------
Total deferred income tax liabilities (13,000)
--------
Net deferred income taxes $0
========
</TABLE>
The provision for income taxes for the six months and three months
ended June 30, 1994 consists of the following:
<TABLE>
<CAPTION>
Six Three
Months Months
------ ------
<S> <C> <C>
Federal:
Current $255 -
Deferred - -
------ ------
255 -
State:
Current - -
Deferred - -
------ ------
Total $255 -
====== ======
</TABLE>
10<PAGE>
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<PAGE> 11
Notes to Consolidated Financial Statements (Unaudited) -- continued
A reconciliation of income tax expense to the expected income tax
expense at the federal rate of 34% is as follows:
<TABLE>
<CAPTION>
1994 1993
-------- -------
<S> <C> <C>
Income tax expense ( credit) computed
at statutory rate ($1,218) $49
Income tax effect of non-deductible dividends
on preferred stock of subsidiary 139 245
State income tax (credit), net of federal effect (120) 34
Gross up tax received on contributions
in aid of construction 54 -
Federal and state taxes of unconsolidated
subsidiary in excess of amount computed
at statutory rate - 346
Change in valuation allowance on deferred tax assets 1,400 -
----- -----
Provision for income taxes $255 $674
===== ===== -
</TABLE>
Contingencies
Avatar is involved in various pending litigation matters primarily
arising in the normal course of its business. Although the outcome of
these and the following matters cannot be determined, it is the
opinion of management that the resolution of these matters will not
have a material effect on Avatar's business or financial position.
On October 1, 1993, the United States, on behalf of the U.S.
Environmental Protection Agency, filed a civil action against a
utility subsidiary of Avatar in the U.S. District Court for the Middle
District of Florida. (United States vs. Florida Cities Water Company,
Civil Action No. 93-281-C1) The complaint alleges that the
subsidiary's wastewater treatment plant in North Fort Myers, Florida,
committed various violations of the Clean Water Act, 33 U.S.C. S1251
et seq., including (1) discharge of pollutants without an operating
permit from October 1, 1988 to October 31, 1989; (2) discharging
from an unpermitted discharge location from November 1, 1989 until
July 14, 1992; and (3) discharging pollutants in excess of permit
limitations at various times from July 1991 to June of 1992. The
government is seeking the statutory maximum civil penalties of $25 per
day, per violation based upon the allegations. The subsidiary
strongly believes that there are mitigating facts as well as
valid legal defenses that could reduce or eliminate the imposition
of monetary sanctions.
On March 1, 1994, the Wisconsin Department of Natural Resources
(the "Department") sent Avatar notice that the Department had
recently issued a second Record of Decision ("ROD") in connection
with the Edgerton Sand & Gravel Landfill site (the "Site"). The ROD
calls for the City of Edgerton's public water supply system to be
extended to the owners of private wells in the vicinity of the Site.
The ROD also states that other work related to soil and groundwater
remedial action would be required at the Site. The Department
demanded that all potentially responsible parties ("PRPs")
associated with the Site organize into a PRP group to undertake the
implementation of the ROD. Avatar was previously identified as a PRP
by the Department.
11<PAGE>
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<PAGE> 12
Notes to Consolidated Financial Statements (Unaudited) -- continued
Avatar believes that it is not liable for any claims by any
governmental or private party in connection with the Site.
On July 22, 1994, the Company's pending litigation with Lawrence
Wilkov, its former President and Chief Executive Officer, was settled.
Pursuant to the settlement agreement, among other things, the
litigation was dismissed with prejudice, the Company paid Mr. Wilkov
$1,000 (less required tax withholding), and his employment
relationship with the Company has ended. The settlement resulted in a
charge to operations in the amount of $486 for the six and three
months ended June 30, 1994 and is included in general and
administrative expenses.
12<PAGE>
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<PAGE> 13
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (dollars in thousands except per share data)
RESULTS OF OPERATIONS
Operations for the six and three month periods ended June 30, 1994
resulted in a loss before cumulative effect of change in method of
accounting for income taxes of $3,837 and $1,990 or $.42 and $.22 per
share (primary) compared to a loss before cumulative effect of change
in method of accounting for income taxes of $531 and $455 or $.07 and
$.06 per share (primary) for the same period of 1993. The net loss
for the six and three months ended June 30, 1994 totaled $3,837 and
$1,990 or $.42 and $.22 per share (primary), compared to a net loss of
$1,495 and $455 or $.20 and $.06 per share (primary), for the same
periods of 1993. The decline in operating results for the six and
three month periods ended June 30, 1994 is primarily a result of the
decrease in utility revenues in comparison to the same period for 1993
due to the sale of the Midwest Water Utilities which occurred on
August 31, 1993. During the first quarter of 1993, Avatar adopted
FASB Statement No. 109, "Accounting for Income Taxes" which resulted
in a cumulative effect loss adjustment based on the change in method
of accounting for income taxes of $964 or $.13 per share (primary).
Avatar's real estate revenues for the six and three months ended
June 30, 1994 increased $988 or 4.6% and $837 or 8.4%, respectively,
while real estate expenses increased $1,169 or 5.3% and $561 or 5.2%,
respectively, when compared to the same periods of 1993. The increase
in real estate revenues for the six and three month periods ended June
30, 1994 is primarily a result of a bulk land sale. The increase in
real estate expenses for the six and three months periods ended June
30, 1994, when compared to the same period of 1993, is primarily a
result of the overall increase in real estate revenues.
Utility revenues for the six and three months ended June 30, 1994
decreased $12,945 or 46.6% and $6,410 or 45.9%, respectively, when
compared to the same periods of 1993 which includes revenues of the
subsidiaries sold on August 31, 1993. Utility expenses for the six and
three months ended June 30, 1994 decreased $8,069 or 41.1% and $4,043
or 40.7%, respectively, when compared to the same period of 1993 which
includes expenses of the subsidiaries sold on August 31, 1993. As a
result of such sale, utility revenues and expenses decreased, however,
continuing utility revenues and expenses for the six months and three
months ended June 30, 1994, were comparable to the same period for
1993.
Interest income for the six and three months ended June 30, 1994
decreased $1,173 or 17.1% and $493 or 14.7%, respectively, when
compared to the same period for 1993. The decline in interest income
is primarily attributable to lower average aggregate amounts
outstanding in the Company's contract and mortgage notes receivable
portfolio. Avatar's contracts and mortgage notes receivable portfolio
amounted to $108,597 at June 30, 1994 compared to $128,005 at June 30,
1993.
Trading account profit for the six and three months ended June 30,
1994 of $1,161 and $684, respectively, represents interest income and
realized and unrealized gains and losses related to the investment
portfolio, net of commissions payable to brokers. These investments
were acquired during the fourth quarter of 1993.
13<PAGE>
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<PAGE> 14
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (dollars in thousands except per share data)
--continued
General and administrative expenses for the six and three months
ended June 30, 1994 increased $1,023 or 23.1% and $787 or 33.6%,
respectively, compared to the same periods of 1993. These increases
are primarily attributable to an increase in professional fees, an
increase in the accrual for incentive compensation and the financial
settlement of a lawsuit. Refer to the Notes to Consolidated Financial
Statements (Unaudited).
Interest expense for the six and three months ended June 30, 1994
decreased $2,231 or 26.1% and $934 or 22.8%, respectively, compared to
the same period of 1993. The decrease is primarily attributable to an
overall decrease in the outstanding balance of notes, mortgage notes
and other debt as a result of the sale of the Midwest Water Utilities.
LIQUIDITY AND CAPITAL RESOURCES
Avatar's primary business activities, which include retail land
sales, land development and utility services, are capital intensive in
nature. Avatar expects to fund its operations and capital requirements
through a combination of cash and investment securities on hand,
operating cash flows and external borrowings.
Avatar has approximately $52,796 in investments which are
classified as trading. The Company intends to continue to actively
trade such securities in an effort to generate profits and will
reinvest such profits until such time as the Company's cash
requirements necessitate the use or partial use of the portfolio
proceeds.
A portion of the investment portfolio collateralizes a $30,000 line
of credit which had an outstanding balance at June 30, 1994 of $19,500
and will mature during the fourth quarter of 1994. Avatar is in the
process of securing an extension or refinancing, of its maturing bank
and credit lines; however, there can be no assurance that Avatar will
be able to do so.
14<PAGE>
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<PAGE> 15
PART II -- OTHER INFORMATION
Item 1. Legal Proceedings
The information, which is set forth in the last paragraph to the
Notes to Consolidated Financial Statements (Unaudited) under the
caption "Contingencies" in Item 1 of Part 1 of this Report,
relating to the Company's settlement of pending litigation with its
former President and Chief Executive Officer, is incorporated herein
by reference.
Item 4. Submission of Matters to a Vote of Security Holders
The Company's Annual Meeting of Stockholders was held on May 26,
1994, in Coral Gables, Florida, for the purpose of electing eight
directors and approving the appointment of Ernst & Young,
independent accountants, as auditors for the year ending December
31, 1994. Proxies were solicited from holders of 9,095,102
outstanding shares of Common Stock as of the close of business of
March 31, 1994, as described in Registrant's Proxy Statement dated
April 26, 1994. All of management's nominees for directors were re-
elected and the appointment of Ernst & Young was approved by the
following votes:
ELECTION OF DIRECTORS
<TABLE>
<CAPTION>
Shares Shares
Name Voted FOR WITHHELD
------- --------- --------
<S> <C> <C>
Leon Levy 6,702,879 26,509
J. Edward Houston 6,700,884 28,504
Edwin Jacobson 6,700,622 28,766
Leon T. Kendall 6,702,669 26,719
Martin Meyerson 6,702,531 26,857
William M. Porter 6,701,269 28,119
Fred Stanton Smith 6,700,916 28,472
Henry King Stanford 6,700,953 28,435
</TABLE>
APPOINTMENT OF AUDITORS
<TABLE>
<CAPTION>
Shares Voted Shares
Shares Voted FOR AGAINST ABSTAINED
------------ ---------
<S> <C> <C>
6,712,377 4,498 12,513
</TABLE>
Item 6. Exhibits and Reports on Form 8-K
Exhibits
10(l) Settlement Agreement dated July 22, 1994, between Lawrence Wilkov
and Avatar Holdings Inc., et al (Filed Herewith).
11 Statement Re: Computation of per share earnings (Filed Herewith).
15<PAGE>
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<PAGE> 16
Reports on Form 8-K
No reports on Form 8-K were filed during the quarter ended June
30, 1994.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
AVATAR HOLDINGS INC.
Date: August 12, 1994 By: /s/Jeffrey A. Sopshin
--------------- ---------------------
Jeffrey A. Sopshin
Assistant Vice President and Controller
Date: August 12, 1994 By: /s/Charles. L. McNairy
--------------- ----------------------
Charles L. McNairy
Executive Vice President, Treasurer and
Chief Financial Officer
16<PAGE>
<PAGE>
<PAGE> 17
Exhibits Index
Exhibits
10(1) Settlement Agreement dated July 22, 1994, between
Lawrence Wilkov and Avatar Holdings Inc., et al 18
11 Statement Re: Computation of per share earnings 38
17<PAGE>
<PAGE>
<PAGE>
<PAGE> 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
2
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<PAGE> 3
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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<PAGE> 4
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.
4
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<PAGE>
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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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<PAGE> 6
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
6
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<PAGE> 7
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
7
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<PAGE> 8
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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<PAGE> 9
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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<PAGE> 10
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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<PAGE> 11
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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<PAGE> 12
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.
12
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<PAGE> 13
/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
13
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<PAGE>
<PAGE> 14
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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<PAGE> 15
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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<PAGE>
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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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<PAGE> 18
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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<PAGE> 20
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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<PAGE> 1
Exhibit 11 -- Statement re: Computation of per share earnings
(Unaudited)
(Dollars in thousands except per share data)
<TABLE>
<CAPTION>
Six Months Ended Three Months Ended
June 30, June 30,
PRIMARY 1994 1993 1994 1993
------ ------ ------ ------
<S> <C> <C> <C> <C>
Weighted average common shares outstanding 9,095,102 7,418,889 9,095,102 7,406,394
Loss before cumulative effect
of change in method of accounting
for income taxes ($3,837) ($531) ($1,990) ($455)
Cumulative effect of change in method of
accounting for income taxes - (964) - -
------ ------ ------ ------
Net loss ($3,837) ($1,495) ($1,990) ($455)
======== ======== ======== =======
Per share amounts:
Loss before cumulative effect of change
in method of accounting for income taxes ($.42) ($.07) ($.22) ($.06)
Cumulative effect of change in method
of accounting for income taxes - (.13) - -
------ ------ ------ ------
Net loss ($.42) ($.20) ($.22) ($.06)
====== ====== ====== ======
</TABLE>
FULLY DILUTED
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Weighted average common shares outstanding 9,095,102 7,418,889 9,095,102 7,406,394
Dilutive effect of conversion of 5 1/4%
convertible-purchase subordinated
debentures - 2,688,276 - 2,688,276
--------- ---------- --------- ----------
Total 9,095,102 10,107,165 9,095,102 10,094,670
========= ========== ========= ==========
Loss before cumulative effect
of change in method of accounting
for income taxes ($3,837) ($531) ($1,990) ($455)
Add 5-1/4% convertible-purchase
subordinated debenture interest,
net of federal income tax - 32 - -
-------- -------- -------- --------
Total ($3,837) ($499) ($1,990) ($455)
======== ======== ======== ========
Cumulative effect of change in method of
accounting for income taxes - (964) - -
-------- -------- -------- --------
Net loss ($3,837) ($1,463) ($1,990) ($455)
======== ======== ======== ========
Per share amounts:
Loss before cumulative effect of change
in method of accounting for income taxes ($.42) ($.05) ($.22) ($.05)
Cumulative effect of change in method
of accounting for income taxes - (.10) - -
-------- -------- -------- --------
Net loss ($.42) ($.15) ($.22) ($.05)
======== ======== ======== ========
</TABLE>
See notes to consolidated financial statements.
18
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