Filing # 39058616 E-Filed 03/15/2016 05:36:50 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAML-DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASE NO. THE PEEBLES CORPORATION, Plaintiff, vs. TAWAN DAVIS. Defendant / VERIFIED COMPLAINT FOR AND DAMAGES TIVE RE! Plaintiff, The Peebles Corporation (“TPC” or “Plaintiff"), by and through undersigned counsel, sues defendant Tawan Davis (“Davis” or “Defendant”), and states as follows: PARTIES, JU! DICTION, AND VENUE 1. This is an action for injunctive relief and damages in which the amount in controversy exceeds Fifteen Thousand Dollars ($15,000.00), exclusive of interest, costs and attomey fees 2 TPC seeks injunctive relief pursuant to a non-disclosure agreement that it entered into with Davis (its former Chief Investment Officer) and which provides for injunctive relief. In violation of that agreement, Davis has impermissibly utilized, disseminated and retained confidential information that he obtained while working at TPC. In doing so, Davis used such TPC confidential information to self-deal and take for his own benefit corporate opportunities from ‘TPC in violation of the agreement and his fiduciary duties to TPC.3. Plaintiff TPC is a corporation incorporated in the District of Columbia with its principal place of business in Miami-Dade County, Florida, TPC is qualified to conduct business in the State of Florida, and it operates in Miami-Dade County, Florida. 4 Upon information and belief, Defendant Davis resides in New York County, New York. Un February 10, 2016, Davis was employed by TPC, a company headquartered in Miami- Dade County, Florida. He often worked out of the Miami-Dade County office of TPC, and engaged in Miami-Dade County-based business transactions. Given these contacts with Florida (as well as his agreement to litigate in Miami-Dade Circuit Court pursuant to the mandatory forum selection clause in the non-disclosure agreement (as further addressed below)), this Court has personal jurisdiction over Davis pursuant to Section 48.193 of the Florida Statutes, 5. This Court has subject matter jurisdiction over this matter pursuant to Section 26.012 of the Florida Statutes. 6. Venue and jurisdiction are also proper before this Court pursuant to a mandatory forum selection clause contained in the parties’ Non-Disclosure/Non-Solicitation Agreement (:NDA*), a copy of which is attached hereto as Exhibit A, under w +h TPC and Davis agreed: This Agreement shall be govemed by and construed and enforced in accordance with the laws of the State of Florida. Any suits or actions instituted by any party hereto in connection with this Agreement or the transactions contemplated hereby shall be instituted and maintained in the Circuit Court of Miami-Dade County, Florida. NDA, Section 9(b) (emphasis added). 7. All conditions precedent to the filing of this action ave occurred, have been performed by TPC or have otherwise been fulfilled, or their performance has been excused or waived by the acts and/or omissions of Davis.8. TPC has retained the services of undersi ed counsel for the purpose of bringing and maintaining this action and has obligated itself to pay a reasonable fee for legal services and the costs of bringing this action 9. As set forth below, TPC seeks an award of reasonable attomeys’ fees and costs against Davis pursuant to Section 9(e) of the NDA. FACTUAL BACKGROUND L TPC Hires Davis in January 2014 10. In or around January 2014, Davis was hired by TPC asits Chief Investment Officer. 11. TPC isa privately-held national real estate investment and development company specializing in residential, hospitality, retail, and mixed-use commercial properties. In connection with its business operations, TPC maintains proprietary and confidential information relating to its investments and developments, including valuable project and bid-specific data, unique development plans, highly-sensitive confidential financial information and documents reflecting other confidential negotiations and stratezy Il. Davis Signs Non-Disclosure/Non-Solicitation Agreement (NDA) 12, Soon after commencement of his employment, on or about February 20, 2014, and with full knowledge that TPC possessed and maintained confidential information to which he would have access, Davi ned the NDA (Exhibit A) 13. The NDA was also signed by a representative of TPC on or about February 20, 2014 14. During Davis’s employment with TPC, he had access to TPC’s confidential and ted to, TPC’s investments and developments,valuable project and bid-specific data, unique development plans, highly-sensitive confidential financial information and documents reflecting other confidential negotiations and strategy. a, Use of Confidential Information is Heavily Restricted Under the NDA 15, Pursuant to Section 3 of the NDA, “Confidential Information” includes, but is not limited to. memoranda and other material or records of a proprietary nature; technical data; records and policy matters relating to research, finance, capital sources, accounting, sales, personnel, management, and operations, matters particularly relating to operations and project acquisitions, financing and development. (NDA, §3). 16, Pursuant to Section | of the NDA, the “Company” includes “The Peebles Corporation, a Florida corporation and/or any of its affiliated entities and all of its divisions, aries or affiliates. The provisions of this agreement shall be binding upon [Davis] whether hhe [] is employed by the above-named employer or any other affiliated company.....” (NDA, §1). 17, Pursuant to Section 3(a) of the NDA, Davis expressly agreed that he would not utilize Confidential Information either during or subsequent to his employment with the Company Specifically, he agreed that: [he] w[ould] not during or after the term of his or her employment or engagement in any way utilice any of said Confidential Information, except in connection with [his] employment or engagement by the Company and [he] [would] not copy, reproduce, or take with him [] the original or any copies of said Confidential Information (NDA, §3(a) (emphasis added)). 18, Moreover, pursuant to Section 3(b) of the NDA, Davis agreed that he would not ~ at any time during or after his employment with the Company — divulge Confidential Information to third parties. He agreed that [aft any time during or after [his] term of employment, divalge to any persons, firms or corporations, other than the Company (hereinafter referred to collectively as “ThirdParties’), or use or cause to authorize any Third Parties to use any such Confidential Information or any other information relating to the business or interests of the Company which he knew was] regarded as confidential and valuable by the Company (whether oF not any of the foregoing information is actually novel or unique ) except as otherwise required by law. (NDA, §3(b) (emphasis added). 19. Relatedly, Section 4 of the NDA severely curtailed Davis's ability to, inter alia, interact with any clients or business relations of the Company for a year following the termination of his employment. It stated [d]uring the term of Employment and for a period of 12 months thereafter, [Davis] shall not...(ii) call on, solicit or service any customer or client of the Company or its affiliates (including any person or entity that was a customer, client of the Company or its affiliates at any time during the velve (12) month period ending on the termination of the employment period])], induce or attempt to induce any customer, client, capital source, supplier, licensee, licensor, franchisee or other business relation of the Company or its affiliates to cease doing business with the Company or such affiliate, or in any way interfere with the relationship between any such customer, client, supplier, or other business relation and the Company or its affiliates (NDA, §4 (emphasis added)) 20. The NDA also established that: [the] Company has a proprietary right in all of its... files, and upon any termination of services hereunder, such items shall, except as hereinafter set forth, continue to belong solely to the Company and shall remain the sole and exclusive property of the Company Employee hereby relinquishes any and all claims and interests therein and for the use thereof. (NDA, §6). 21, Section 7 of the NDA required Davis to, upon expiration of his employment, “deliver or cause to be delivered up to the Company any and all.,..Confidential Information or any discovery which is otherwise the property of the Company” (NDA, §7)22, Atissue in this lawsuit is Davis’s use and disclosure of “Confidential Information” during and subsequent to his employment with TPC, which is in direct contravention of the clear terms of the NDA. b. Violations of the NDA Cause Irreparable Damage and Entitle TPC to Apply for Injunctive Relief and Costs and Attorneys’ Fees 23. By signing the NDA, Davis agreed that any violation (actual or threatened) by him of the NDA would cause irreparable damage to TPC which would entitle it to seek injunctive relief against him. 24. Section 8 of the NDA explicitly states: Therefore, undersigned agrees that any breach or threatened breach by him [J of any provision of this Agreement shall entitle the Company to apply to any court of competent jurisdiction for a temporary and permanent injunction ot any othet appropriate decree of specific performance, without any bond or security being required and without proof of actual damages, in order to enjoin such breach or threatened breach (NDA, §8 (emphasis added)) 25. Pursuant to the NDA, a prevailing party is entitled recover reasonable attomeys fees and costs. Section 9(e) states In the event that any of the parties to this Agreement institute suit against any other party to this Agreement to enforce any of their rights hereunder, the prevailing party in such action shall be entitled to recover from the other party all reasonable costs thereof, including reasonable attorneys’ fees. (NDA, §9(e)). IIL. Davis Also Signs a Term Sheet Containing an Exclusivity Provision 26. In January 2014, Davis and TPC (through R. Donahue Peebles, its Chairman and CEO), signed a Term Sheet (Exhibit B) that was to “summarize[] the principal terms of a partnership to be formed to initiate raise, develop, structure and manage funds (Parinership) thatinvest in real property, real property development, and in companies that develop, invest in operate, manage or finance real property...” 27. The Term Sheet identified the roles of Peebles as Chairman and Chief Executive Officer and Davis as President and Chief Operating Officer of the partnership, and set forth their respective membership interesis in the partnership. 28, The Term Sheet was to bein effect for eighteen (18) months through July 31, 2015. 29. Importantly, the Term Sheet contained an eighteen (18) month exclusivity provision. It stated, in relevant part: For a period of eighteen months (18) months following the full execution of this Term Sheet, any real estate private equity fund management business initiated, raised, structured and/or managed by TPC, [Peebles] and/or [Davis] for the purpose of managing institutional, sovereign, of third party high net worth money will be via this Partnership. (omphasis added). IV. Davis Engages in Discussions Regarding Wash., D.C. Property (733 10th) 30. In early 2015, TPC and an associated partnership initiated discussions regarding potential acquisition of property located at 733 10th Street NW, Washington, DC. 20001 commonly known as “733 10th.” 31, Davis led these discussions, as well as the underwriting and due diligence for the proposed transaction relating to the property 32. In connection with Davis's work on this proposed transaction, he accessed and utilized TPC’s proprietary materials and records, including, among other things, records relating to research, financial, capital sources, accounting, sales, management, operations and matters particular relating to operations and project acquisitions, financing and development33. Davis obtained this information during and by virtue of his employment with TPC and during the Term Sheet's eighteen (18) month exclusivity period 34. Davis also had TPC employees work on this proposed transaction, and he referenced the potential acquisition of this property in TPC’s “marketing and capital raise” book. V. Davis Misappropriates the Opportunity to Acquire 733 10th 35. During his employment, Davis used the offices, computers, staf? and reputation of TPC to plan his transition to a new position with a TPC competitor and to conduct personal business as a faithless fiduciary. 36. Mest notably, after working substantially on the potential acquisition of 733 10th Street on behalf of TPC using IPC's reputation, resources and proprietary models, Davis determined that the 733 10th opportunity was better suited to his personal needs than TPC’s 37. On July 9, 2015, during the eighteen (18) month exclusivity period and without the authority or permission of TPC, Davis advised the seller of 733 10th that TPC wes unlikely to pursue the transaction 38 On July 20, 2015, without the authority or permission of TPC, Davis advised several financing institutions with whom TPC had substantial relationships and who were imterested in financing the acquisition of 733 10th that the transaction was on hold. 39. OnJuly 29, 2015, without the authority or permission of TPC. Davis advised TPC’s own financing sources that “Peebles is not moving forward” with 733 10th and certain other potential transactions. 40. ‘These statements were in fact false and known to be false by Davis when made. Davis had in fact unilaterally and for his own personal purposes determined not to pursue 733 10th for the benefit of TPC41. On information and belief, unbeknownst 10 TPC, Davis was in the process of negotiating a new position with ScanlanKemperBard (“SKB”) — a TPC competitor — and a fee for the introduction of the opportunity to acquire 733 10th, 42. Afier determining the substantial value of this potential off-market acquisition opportunity, Davis intentionally and wrongfully neglected to pursue the opportunity to acquire 733 10th on behalf of TPC in order to use that opportunity to self-deal and benefit himself with SKB at TPC’s substantial expense. 43. Inaddition, Davis continued to use TPC’s offices and resources to pursue 733 10th on behalf of SKB — not TPC - from at least September 2015 until his departure on February 10, 2016. 44, The acquisition of 733 1th in which SKB was a joint venturer in fact closed on February 29, 2016, only three wecks or so after Davis gave notice of his intention to leave TPC. VI. Davis Impermissibly Shares and Utilizes Confidential Information with Third Parties 45. Unbeknownst to TPC, Davis impermissibly utilized Confidential Information for his own benefit and business pursuits, which were unrelated to and unaligned with the pursuits of ‘TPC and/or its affiliates. Upon information and belief, Davis secretly did so starting in April 2015 and continuing thereafter. 46. Upon information and belief, Davis impermissibly divulged such Confidential Information to third parties unaffiliated with TPC, including SKB, for his own benefit and in furtherance of his own business pursuits. 47. Upon information and belief, Davis induced third parties unaffiliated with TPC to utilize Confidential Information.48. By impermissibly utilizing Confidential Information, Davis stele corporate opportunities that belonged to TPC. 49. Davis also impermissibly utilized TPC’s Confidential Information, goodwill and reputation for his own personal benefit and the benefit of third parties unaffiliated with TPC. 50. Upon information and belief, Davis identified attomeys to engage in the 733 10th transaction on SKB’s behalf utilizing legal relationships he developed through TPC VIL. Davis Resigns from TPC and Ui Deal on 733 10th izes Confidential Information to Swiftly Close 51, In carly February 2016, Davis informed Peebles that he had accepted a position with another firm, 52. On Febmuary 10, 2016, Davis advised Peebles that he had selected February 19, 2016 as his last day with TPC. 53. Also on February 10, 2016, Peebles advised Davis that February 10, 2016 would be his last day with TPC 54. Davis immediately joined SKB. He advised Peebles that he was joining SKB to open an East Coast office. 55. OnFebmary 1, 2016, at Davis's request, he received permission to access TPC’s shared drive for the first time during his approximately two-year-long employment. 56. After leaving TPC, Davis impermissibly retained and utilized Confide! Information 57. Thus, both during and after his employment with TPC, Davis impermissibly shared Confidential Information with his new employer. SKB, and utilized Confidential Information on SKB's behalf,58. Upon information and belief, on February 29, 2016 ~ less than three weeks after Davis left TPC ~ Davis secured the sale of 733 10th to his current employer, SKB. Upon information and belief, this is SKB’s first deal on the East Coast. 59. Todo so, Davis utilized and shared Confidential Information with SKB, including, inter alia, materials and records of a proprictary nature and records relating to operations and project acquisitions, financing and development. 60. Upon information and belief, Davis's work on this transaction on behalf of SKB, which included both dissemination and utilization of Confidential Information, apparently began in April 2015 and continued thereafter throughout the duration of Davis's employment with TPC 61. By working on this transaction on behalf of SKB during his employment with TPC while simultaneously representing to TPC that he was working on this transaction on TPC’ s behalf, Davis stole this business opportunity from TPC. VILL, Davis Also Self-Deals With Other TPC Relationships 62. Davis also grossly misused TPC’s reputation, relationships and resources in an attempt fo secure other potential deals for SKB with TPC’s relationships to his personal benefit and at TPC’s substantial detsiment. 63. For example, in or about August 2015, Davis learned that developer Michael Shvo was “looking to develop” the Gucci headquarters located at 685 Fifth Avenue in Manhattan (“685 sth”), 64, Infact, TPC and Shvo have and have had an extensive relationship developed over a ten-year period. 65. Notwithstanding that relationship and Davis's duty to source such potential deals for the benefit of TPC, on August 28, 2015, Davis wrote to Shvo that “[w}e haven’t formally met,” Wlbut “I'm Chief Investment Officer and President of the capital business at The Peebles Corporation, with Don Peebles.” 66. Based on that introduction, Davis sought to introduce Shvo to SKB - not TPC by whom he was employed and to whom he owed fiduciary duties of loyalty — to the potential opportunity to participate in the development of 685 5th 67. Davis did not disclose to TPC either the 685 Sth opportunity or the fact that he was seeking to introduce Shvo to SKB. 68. In fact, on information and belief, Davis was still in the process of negotiating position with SKB and his exit from TPC and once again used this potential opportunity to self: deal and benefit himself with SKB at TPC’s substantial expense IX. Davis's Other Employment Misdeeds 69. Indeed, as TPC is now discovering, during the approximately last six months of Davis's employment with TPC, Davis neglected to actively or faithfully discharge his employment duties. 70. For example, for at least several months prior to his departure, Davis frequently failed to show up for work and missed many meetings and calls. Upon information and belief, Davis failed to fulfill these duties because he was spending time on activities that would benefit him or his associates, and not his employer, TPC 71. During this period, Davis also travelled often for personal and non-TPC related purposes, yet did so at TPC’s expense. 72, Davis invited various colleagues, including Piyush Bhardwaj, a business associate ies and and a person with whom Davis wished to do business, to TPC’s offices to use its facili conference rooms to purse their personal and non-TPC business activities 1273. During this period, Davis failed and refused to conduct TPC business in an honest and faithful manner in these and various other ways, but nevertheless accepted salary, health insurance and other employment benefits and compensation. 74. Following his termination, upon information and belief, Davis continues to misuse and misappropriate its Confidential Information in connection with transactions unrelated to TPC’ business, and TPC brings this action for injunctive and related relief accordingly. INT 75. Plaintiff incorporates the allegations of paragraphs | through 74 as if set forth fully herein. 76. TPC has the absolute right to prevent Davis from utilizing, disseminating and/or retaining any Confidential Information 77. Davis’sutilization, dissemination and/or retention of the Confidential Information, which includes highly confidential and proprietary business ciscussions, negotiations, transactions, and/or agreements, has and will continue to cause irreparable injury to TPC. 78. TPC has no adequate remedy at |aw for this threatened injury. Damages cannot adequately compensate TPC for Davis's continued impermissible utilization, dissemination and/or retention of the Confidential Information, 79. Florida courts recognize that an injunction is the appropriate remedy for misappropriation and misuse of confidential information or trade secrets. See Hatfield v. AutoNation, Inc., 939 So. 2d 155, 156 (Fla. 4th DCA 2006) (affirming injunctive relief in trade secret context, which included requirement that party return all misappropriated materials and refrain from disclosing any information about former employer to third parties); Braman Motors, Inc. v. Ward, 479 So. 2d 225 (Fla, 3d DCA 1985) (reversing denial of preliminary injunction toprevent use of confidential customer list by former employee); Sun Crete of Florida, Inc. v. Sundeck Products, Inc, 452 So, 24 973 (Fla. 4h DCA 1984) (affirming preliminary injunction restraining defendants’ use of trade secret); see also Fla. Stat. § 688.03 (2015) (providing that injunctive relief is an appropriate remedy for actual or threatened misappropriation of a trade secret) 80. Moreover, public policy favors granting the injunction, as a business's rights to its confidential and proprietary information warrant protection and former employees should be discouraged from utilizing and/or disseminating their former employer’s confidential and proprietary information. 81, Injunctive relief is also proper because multiple breaches of the NDA, as well as the Term Sheet’s exclusivity provision, have occurred 82. Pursuant to Section 8 of the NDA, TPC is entitled to an injunction to remedy the breach of the NDA. 83. TPC hasirrefutable evidence that Davis breached Sections 3, 4, 6and 7 of the NDA. 84, Accordingly, TPC has a likelihood of success on the merits, 85. Byssigning the NDA, Davis agreed that any lation (actual or threatened) by of the NDA caused irreparable damage to TPC which would entitle it to seek injunctive ré against him. See Section 8 of the NDA (undersigned agrees that any breach or threatened breach by him or her of any provision of this Agreement shall entitle the Company to apply to any court of competent jurisdiction fora temporary and permanent injunction or any other appropriate decree of specific performance, without any bond or security being required and without proof of actual damages, in order to enjoin such breach or threatened breach.”).86. Thus, under the express terms of the NDA, TPC is entitled to an injunction against Davis to protect the Confidential Information and ensure that Davis does not continue to violate the NDA. WHEREFORE, TPC requests the entry of (1) an injunction against Davis (a) enjoining and restraining Davis from utilizing, retaining and/or disseminating TPC’s Confidential Information, (b) enjoining Davis from (i) calling on, soliciting or servicing any customer or client of TPC (or its affiliates), (i) inducing or attempting to induce any customer, client, capital source, supplier, licensee, licensor, franchisee or other business relation of TPC (or its affiliates) to cease doing business with TPC (or such affiliate), and (iii) in any way interfering with the relationship between any such customer, client, supplier, or other business relation and TPC (or its affiliates), (c) requiting Davis to affinm that he will not disseminate, utilize or otherwise disclose any of TPC’s Confidential Information to any third parties, including but not limited to his new employer and its affiliates and associates, and that he does not have any TPC Confidential Information in his possession or subject to his custody and control; and (d) requiring Davis to identify any third- parties to whom he disseminated any of TPC’s Confidential Information, (II) an award of reasonable attomeys’ fees and costs in favor of TPC against Davis in accordance with the terms of the NDA, and (Ill) any other relief in favor of TPC that this Court deems proper. COUNT SURF/NON-SOLICITATIO! 87. TPC incorporates the allegations of paragraphs 1 through 74 as if set forth fully herein, 88. The NDA prohibited Davis from, among other things. utilizing or disclosing any Confidential Information during and subsequent to his employment with TPC. See Sections 3, 4 6 and 7 of the NDA89. Davis has materially breached Sections 3, 4, 6 and 7 of the NDA by: (i) disseminating and utilizing the Confidential Information in, during and subsequent to his employment, (ii) sharing the Confidential Information with third parties and inducing them to utilize that information, (iii) retaining the Confidential Information subsequent to the termination of his employment, and (iv) interfering with TPC’ s business relations 90, Davis’s breaches of the NDA have harmed TPC. 91. Davis should be required to compensate TPC for the damage already caused by these breaches WHEREFORE, TPC requests that the Court enter (1) judgment in favor of TPC and against Davis for damages caused by his breach of the NDA, (II) an award of reasonable attorneys’ fees. and costs in favor of TPC against Davis in accordance with the terms of the NDA, and (II) any other relicf in favor of TPC that this Court deems proper. COUNT IIL - FAITHLESS FIDUCIARY CLAIM 92. TPC incorporates the allegations of paragraphs 1 through 74 as if set forth fully herein, 93, Inhis capacity as an employee and senior officer of TPC (ie., Chief Investment Officer), Davis owed fiduciary duties to TPC. 94. In performing and/or neglecting to perform his duties as an employee and senior officer of TPC, Davis materially and substantially violated his duty of loyalty and became a less fiduciary 95. As set forth above in more detail, Davis’s actions as a faithless fiduciary include at least the following:4) misappropriating TPC’s corporate opportunity to purchase 733 10th and divulging that opportunity to SKB to secure a favorable position with SKB and to personally benefit from SKB’s participation in the acquisition of 733 10th; >) misappropriating TPC’s reputation and resources to introduce SKB to an opportunity to participate in the acquisition of 685 Sth, and ©) misappropriating salary, health insurance and other compensation and benefits while failing to honestly and faithfully perform his employment duties for TPC. 96. Asarresult of the foregoing, Davis should be required to disgorge all cash and non- cash compensation and reimbursements thet he received fiom TPC, directly and indirectly, from the moment of his first disloyal act as a faithless fiduciary in an amount to be determined at trial including cash compensation plus prejudgment interest WHEREFORE, TPC requests that the Court enter (I) judgment in favor of TPC and against Davis for an award of cash compensation plus pre-judgment interest, (I) an award of reasonable attomeys’ fees and costs in favor of TPC against Davis, and (III) any other relief in favor of TPC that this Court deems proper, COUNT IV — BREACH OF FIDUCIARY DUTY 97. ‘TPC incorporates the allegations of paragraphs 1 through 74 as if set forth fully herein 98, As an employee and senior officer of TPC, Davis also owed fiduciary duties of loyalty, due care, good faith‘fair dealing, candor and full disclosure of all material facts to TPC. 99, TPC reposed its trust and confidence in Davis to properly perform his duties in connection with TPC.100. Davis has breached his fiduciary duties of loyalty, due care, good faith/fair dealing, candor, and full disclosure to TPC 101. Davis’s breaches of fiduciary duties include misappropriating TPC opportunities for his personal benefit. 102. Davis has engaged in self-dealing to the deiriment of TPC. 103. Davis has acted in bad faith and in a manner inconsistent with his fiduciary duties. 104. Davis has committed these breaches of fiduciary duties deliberately and with intent to benefit himself at the expense of TPC 105. Davis's breaches of fiduciary duties have caused TPC to sustain damages. 106. Davis's breaches of fiduciary duties have deprived TPC of various opportunities in amounts to be determined at trial 107. As aresult of the foregoing, TPC is entitled to compensatory damages from Davis in an amount to be proven at trial WHEREFORE, TPC requests that the Court enter (I) judament in favor of TPC and against Davis for compensatory damages, (Il) an award of reasonable attomeys’ fees and costs in favor of and (III) any other relief in favor of TPC that this Court deems proper. col V- UNJUST ENRICHME 108. TPC incorporates the allegations of paragraphs 1 through 74 as if set forth fully herein, 109. Asset forth above, Davis has been unfairly and inequitably enriched at the expense of TPC in violation of TPC’s contractual, fiduciary and other rights. 110. Asa result of the foregoing, Davis should make restitution in an amount to be proven at trial 18WHERI FORE, TPC requests that the Court enter (I) judgment in favor of TPC and against Davis for make restitution in an amount to be proven at trial, (II) an award of reasonable attomeys” fees and costs in favor of TPC against Davis, and (III) any other relief in favor of TPC that this Court deems proper. RESERVATION OF RIGHTS FOR PUNITIVE DAMAGES Plaintiff reserves the right toamend its Complaint to claim punitive damages against Davis pursuant to Fla, Stat. § 768.72 JURY DEMAND, Plaintiff hereby requests @ trial by jury on all issues triable by a jury Dated: March 15, 2016 Respectfully submitted, SHUBIN & BASS, PA. 46 S.W. First Street, Third Floor Miami, Florida 33130 Tel (305) 381-6060 Fax (305) 381-9457 jshubin@shubinbass.com jfarach@ shubinbass.com Ibrunswick@shubinbass.com By:__/s John K. Shubin John K. Shubin Fla. Bar No. 771899 Juan J. Farach Fla. Bar No. 957704 Lauren Brunswick Fla. Bar No. 0084055, Attorneys for Plaintiff The Peebles CorporationSTATE OF FLORIDA ) ) COUNTY OF MIAMI-DADE ) 1. RDanatve Gooter 0s Cutan ted,.CEQ._ of The Peebles Corporation. whose business address is 2020 Ponce de Leon Boulevard, Suite 907, Coral Gables, Florida, 33134, under penalty of perjury, declare that | have read the foregoing Verified Complaint and ‘that the facts stated in it are true and correct to the best of my knowledge and belief; a zap Yen Nosed Ye ) ) COUNTY OF NEW YORK ) STATE OF NEW YORK ‘The foregoing instrument was acknowledged before me this «6-day of March, 2016, by RB. Dowahus Patlr, who is“ personally known to mer __who produced Youle. aim & a5 a form of identification, did state under oath, that he executed the foregoing for the purposes expressed herein. MY COMMISSION EXPIRES: //4/: commlguice Bean 22Noa:Disclosure/Non-Solientation Agreement Employee's Initials i Lavi S (the “Enployee"), residing at 20.8% Ce Ave byoue ary _1c¥@@ __, in consideration of Employee's employment by The Peebles Corporation, a Florida limited liability company and/or any of its affliated entities, particalarly The Peebles Corporation, (collectively, the “Company"), and the compensation paid or to be paid to Employee, as well as such other consideration and benefits to be provided to Employee by the Company, agrees as follows: Company and Affiliates. The term Company as used in this agreement includes The Pecbles Corporation, @ Florida corporation aud/or any of its alifiliated entities and all of its divisions, subsidiaries or affiates. The provisions of this agreement shall be binding upon Employee whether he or sbe is entployed by the above-named employer or any other affiliated ‘company, or any successor thereto, 2 —_ Disclosure by Emplovee. Employee will disclose and assign to the Company any and all material of a proprietary nature developed by Employee ia connection with the services Employse is providing specifically for Company under terms of employment, pasticalarly including, but not limited 10, material subject to protection, trade secre's or as patentable or copyrightable ideas, . Employee hereby assigns and agrees to assign to Company any righ, ttle or interest in all such intellectual property. and goodwill conceived, invented, or discovered, either solely or jointly with another or others in connection with the services Employee is providing specifically for Company during his employment or engagement, and which relates to ‘or is capable of use in connection with the business of the Company or any services or products or services offered, used, sold or being developed by the Company at the time said mactesial is, developed. Company shall not bo entitled to any patent, trademark, service mark, copyright andlor intellectual property rights in and to any artwork, documents, trademarks, copyrights, service marks, inventions or ideas developed by the Employee entirely on his own time without use of Company's confidential information or wade secret information. 3. Confidential Information. Employee acknowledges that in his or her emptoyment or ‘engagement he or she will be making use of, acquiring or adding to the Company's "Confidential Information,” which inchides, but is not Limited to memoranda and other material or records of a proprietary nature; technical daia; records and policy matters relating to research, finance, capital sources, sccounting, sales, personnel, management, and operations; matters pavticalary relating to ‘operations and project acquisitions, finencing and development. Additionally, Employee will be rking use of, acquiring or accessing similar information and records relating to the Principal of the Company and his farsily members. For parposes of this Agreement, all sch information pertaining to the Principal or members of hic family shall be deemed Confidential Informstion. ‘Therefore, in order to protect the Confidential Infonnation and to protect other employees or independent contractors who depend on the Corspany for regular employment, Employee agrees a8 follows: Exhibit A{@) Employee will not during or after the term of his or her employment or engagement in any way utilize any of said Confidential Information, except in connection with my employment or engagement by the Company and Employee wil not copy, reproduce, or take wid bim or her the original or any copies of said Confidentint foformation, (6) At any time during or after Employee's term of employment, divalge to any persons, firins or corporations, other than the Company (hereinafter referred to collectively as "Third Pures"), or usc or cause to authorize any Third Partics to use any such Confidentint Joformation or any sther information relating to the business or interosts of the Company which he ‘or she knows or should know is regarded as confidential and valuable by the Company (whether or ot uny of te foregoing infurrmation is actually novel or unique } except as otherwise required by Law. (©) The obfigations of this Agreement shall net apply to any information which is aiveady in the public domain at the time of disclosure or becomes available to the public through no breach of this Agreement by Employee or is independently acquired or devetoped by Employee without violating eny obligations under this Agreement. Except where required by law, nile, regulation or by a Cout of competeat jurisdiction, the Company similarly agrees to keep confideatial any information and records relating to Employee and his family members (*Fimptoyee Confidential Information”) that the Company may have, Company agrees that any breach or threatened breach of confidentiality Employee Confidential Information shail entitle the Empfoyce to apply to any court of competent jorisdiction for temporary end perroanent injenction without any bond or security being required and without needing proof of aotnal damages, 4 lov 1s, During the term of Employment and for a period of 12 months thereafter, Employee shall not directly of indirectly (aud shall not permit any of his ‘or ber affiliates 10) () indice or attempt to induce any employee of the Company or its affiiates to leave the employ of the Company ot its affiliaiss or in any way interfere with the relationship Dderween the Company or its affiliates and any employee thereof, (i) knowingly hire any person ‘who was an employee of the Company or its affiliates at any time during the twelve (12) month period ending on the termination of the eraployment period or (fi) cal! on, solicit or serviee any ‘customer or dient of the Company or its affiliates (including any person or entity tat was customer, client of the Company or its affiliates at any tine during the (welve (12) month period ending on the termination of the employment period, induce or attempt to induce any customer, client, capital source, supplier, licensee, licensor, franchisee or otber business relation of the Company or i affiliates to cease doing basiness with the Company or sock affiliate. of in any way interfere with the relationship between any such customer, client, supplier. or other business relation and the Company or its affiliates Gncluding, without limitation. making any negetive or Gisparaging siatements or commmmicadons ragarding the Company or its affiiates)5. _H Employee's services are terminated for any reason, Employee shall vacate the premises of Company occupied by Employee immediately upon notice to Employee ind he or she chull forthwith upos such request remove af his or her sole owt and expense, only sach equipment and personal effects as belong solely to Employee. 6. Company has a proprietary right in all ofits physical jocutions, telephone numbers and files, and upon any tonnination of services hereunder, such items shall, except as hercinatter set forth, continue to belong solely to the Company and shall remain the sole and exclusive property of the Company. Employer hereby relinquishes any and afl clainis and interests therein and for the use theeeof, 7. The unkiersigned agrees that, upon the expiation of his or her employment oF engagement by the Company for any reason, he or she shall forthwith deliver oF cause 10 be delivered up to the Company any and ali Company property including computers, Blackberries, sofiware, notebooks, keys, data and other docamens end materials in bis ot her possession ot wader his or her comirol relating to any Confidential Information or any discovery which is otherwise the property of the Company. 8. the event of any dispute or difference perteining to thig Agreement, the paries apie that any such dispute or difference between them shal! be soted first by 3 meeting af the Parties attempiing to confer and resolve the dispute in a good faith manner. If the parties cannot come to an agreement, the undersigned acknowledges that it would be very difficult or impossible to measore any monetary damages resulting fiom the breach of this Agreement, Usdorsigned further acknowledges that the restrictions herein are reasonable, ave reasonably necessary for the proiection of the business and good will of the Company, aad by vistuc of the circumstances of the Company's business, « violation by Exoployee of aay such covenant will cause irreparable damage to tic Company. Therefore, undersigned agrees thet any breach or threatened breach by him or her of any provision of this Agreement shait entitie the Company to apply to any court of competent _jatisdiction for a temporary and permanent injunction or any other appropriate decree of specific ‘performance, without any bond or security being required and without proof of actual damages, in order (0 enjoin such breach or threatened breach, The parties agree thot any monetary damages awerded as 4 result of a breach of this Agreemeat shall specifically exclude punitive damages. The varies understand and iniend that each provision and restriction agreed to by the undersigned in this Agreement shall be construed as separable and divisible from every other provision and restrictinn and that the unenforceabifity of any one provision of restriction shall not linvt the enforceability, in whole or in part, of any other provision or restriction and thal one or move of all of sack provisions or restrictions may he enforced in whole or in part asthe circumstances warrant. (a) The provisions of this Agicement shall inure to the bouofit of aad be binding upon the parties hereto and their legal representatives and successors and assigns, provided, however, that this Agreement is personal in ature and the Employee or independent sales personshall not assign or transfer this Agreement or aay rights or obligations hereunder to any othe person oc entity, (This Agreement shall he govemed by and coasiued and enforced in accordance with the laws of the State of Florida, Any suits or actions instituted by any pasty hereto in connection with this Agreement or the transactions contemplated hereby shall be instituted and ‘maintained in the Circuit Court of Miami-Dade County, Florida. (©The hvalidity of any portion of this Agreement shall not alfect the enforceability of the remaining portions of this Agrecinent or any part thereof, all of which ae inserted conditionally on their being valid ia law; and in the event that aay portion or portions contained herein shall be invatic, this instrument shel! be construed a8 if auch invalid portion or portions had not been inserted. (0) _ Failure to insist epon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver or relincuishment of any such terms, covenants or conditions, nor shall any waiver or relinquishment of any right or power hereunder at any one time ‘or more times be deemed a waiver or relinquishment of such rights or power at any other time or times. (©) __ In the event that any of the parties to this Ageement institute suit against any other party to this Agreement to enforce any of their rights hereunder, the prevailing party in auch action chal! be entitled te recover trom the other party all rvasonable costs thereof, incloding reasonable attorneys! fees. (© This Agreement contains the entire agreement between Company and Exoployce with respoct 10 the subject matter hereof and shalt supersede all prior written and oral Agreements and undersiandings with respect to the subject matter, It is agreed that no. roodifications of this Agreement shall be binding upon either party unless approved in writing by both parties. | HAVE READ THIS ENTIRE AGREEMENT AND FULLY UNDERSTAND THE LIMITATIONS WHICH IT IMPOSES UPON ME. Signed at_lao Vere ay of Present Employee Job Title’ Ba ga dent fC 62.02 Signature af Employee: E> Accepted this 20" ay of FEBLeMey) 204k 2 Sings eleExpiration Date Pete Form Funds Structure renee ts eas te Present 600 Re ZK ‘Membership Interests in this Partnership ‘Tax Matters Partuer New Members ‘Transters Come Along Governance Initial Deal Execution, Administration & Support Income Sources, Term Sheet ‘This Term Sheet summarizes the principal terms of a partnership to be formed to initiate, raise, develop, structure and manage funds (Partnership) that invest in reel property, real propery development, and in companies that develop, invest in, operate, manage or finance real property (Fund ‘or Funds). The Exclusivity, Confidentiality, and Start-Up Expenses provisiens of this Term Sheet shall be binding obligations whether or not the Partnership is consummated. No other legally binding obligations will be created until definitive agreements are executed and delivered by all parties. This ‘Term Sheet shall be governed in all respects by the laws of the State of Now York. July 31,2015 This Term Sheet will be replaced by a Limited Liability Company (LLC), $-Corp or C-Corp to be established forthe operation of the Partnership ator before first Fund closing. ‘Separate General Partnerships (GPs) to be established for each Fund. Limited Partners (LPs) to contribute to Fund with GPs established for esch Fund. Future team members to be compensated by ‘membership in Fund-specific GP, not this Partnership. Delaware, Florida, or other state to be agreed on by partners R. Donahue Peebles (RDP) ( Chairman and Chief Executive Officer (CEO) ‘Tawan W. Davis (ID)/ President and Chief Operating Officer (COO) ‘The President / Chief Operating Officer will lead the fundraising effort and manage the Fund ig WALES SYLTELLD of TPC with its development and investment actviies and ral G.Sheligembuggs,y gpa tne Partnership fora portion of TD's salary, $0-$1.00bn 809% / 20% SLOODN-S1.S0bN 75% /25% $1.50bn-$2.00bn 70% 30% '$2.00bn-$2.50bn 63% / 35% '$2.50bn and above 60% | 40% RDP Newly admitted Member(s) dilute the Percentage Interests ofthe Initial Members pro rata, Allowable co spouse, heirs or rust without consent of other member(s). Otherwise consent required by other member(s), If Initial Member transfers, sells, or otherwise disposes of his Partnershi shall have the right, but not the obligation to “come along” at the same terms. interest, other Member(s) Pro rita up to TD having 2 35% ownership. Unanimous for major issues such as debt and additional members ‘Before ora first Fund closing, Management / Service Agreement will bein place berween The Peebles (Corporation (IPC) and this Partnership through which TPC will be reimbursed for expenses directly related to the Fund and its transactions. ‘Net Asset Management Fees (Fund asset management fees after Parinership expenses) Fund Carry / Profit Share (related to individual funds) Capital Event (sale or refinancing ofall ora portion of Partuership andor its interest(s)) ibRetained Profits & Partners may withdraw their portion of Net Asset Management Fees, but may also agree to retain a Withdrawals certain portion of the Partnership Net Profits within the Partnership to be used for co-investment commitments Capital Accounts Capital Account to be estelished for each Member ‘Tax Allocations Allocated in the same manner as net profits end gains via capital account. Distributions Formula As per capital account (including contributions and distributions) then pro rata. Distribution Timing Quarterly Distribution Acceptance ‘Company cannot be compelled to distribute, Member cannot be compelled to accept distribution, Reimbursement ‘Members reimbursed for ordinary and necessary expenses incurred on behalf of Company. Indemnification ‘The Company shall indemnify Members. Start-Up Expenses ‘Star-Up Expenses, including but not limited to legal, accounting, marketing ard research costs, will be paid via a loaa or as a preferred equity contribution from TPC to the Partnership. This loan or prefered ‘equi. including applicable interest, will be repaid to TPC by LPs upon first fund closing. AS part of Start-Up Expenses, President / COO will be paid $450,000 per annum. $225,000 of this will be paid ‘on a monthly basis beginning Febniary 2014 and an additional $225,000 deferred until the fist fund closing to be paid from available management fees or via reimbursement of Start-Up Expenses by LPs ‘The Chairman shall receive a salary of $450,000 which will accrue until the first closing of the fund soi be pid om aalale management fen general by the find or rinburmet of Stat Up penses by LPs, bat subordinate fo the payment of the defered salary af the PresidenvCOO., ZK The terms of tho TPE TBS patented sauiy shal BS Gn tualy Sorsee ears bekesen ID, TPC and ROP Exclusivity For a period of eighteen (18) months following the full execution of this Term Sheet any real estate private equity fund management business initisted, raised, structured andlor managed by TPC, RDP. ‘and/or TD for the purpose of managing institutional, sovereign, or third party high net worth money will be vie this Partnership. . This exclusivity provision shall not apply to any other business activity cagaged in by TPC or RDP including bt nt linited 3p the purchase, ownership, development, Foancing, management sale ofreleatte, «= (2 A, Confientiatity ‘The Inidal Members and TPC will not disclose the terms ofthis Term Sheet o any person other than their acsountants and atomeys. First Right of Refusal (ROFR) At earlier of S years from commencement of first Fund and Partnership NAV of $1ba, Partnership will & First Right of Offer (ROFO) have ROFO and ROFR on all of a portion of TPC less Funes"elated portion of value and/or eash on TRC flow. Dh GLE RU EA 2014 De Z R. Donahue Pectles| (Chairman & CEO ‘The Peebles Corporation “iar baie Die 2. of, “Inthe event the Partnership has not secured @ written investment commitment from an institutional investor in an YY amount of not less $50,000,000 within 7 months of the full execution of this term sheet either party may terminate this Exclusivity provi nN upon 30 days written notice.