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EXHIBIT 10.30
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of
December , 1998, but effective as of January 1, 1999, by and between SUN
COMMUNITIES, INC., a Maryland corporation (the "Company"), and XXXXXXX X.
XXXXXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to continue the employment of the
Executive, and the Executive desires to continue to be employed by the Company,
on the terms and subject to the conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises contained in
this Agreement, the parties agree as follows:
1. Employment.
(a) The Company agrees to employ the Executive and the Executive
accepts the employment, on the terms and subject to the conditions set forth
below. During the term of employment hereunder, the Executive shall serve as
Senior Vice President, Treasurer, Chief Financial Officer and Secretary of the
Company, and shall do and perform diligently all such services, acts and things
as are customarily done and performed by such officers of companies in similar
business and in size to the Company, together with such other duties as may
reasonably be requested from time to time by the Board of Directors of the
Company (the "Board"), which duties shall be consistent with the Executive's
positions as set forth above.
(b) For service as an officer and employee of the Company, the
Executive shall be entitled to the full protection of the applicable
indemnification provisions of the Articles of Incorporation and Bylaws of the
Company, as they may be amended from time to time.
2. Term of Employment.
Subject to the provisions for termination provided below, the term
of the Executive's employment under this Agreement shall commence on January 1,
1999 and shall continue thereafter for a period of five (5) years ending on
December 31, 2003; provided, however, that the term of this Agreement shall be
automatically extended for successive terms of one (1) year each thereafter,
unless either party notifies the other party in writing of its desire to
terminate this Agreement at least thirty (30) days before the end of the term
then in effect.
3. Devotion to the Company's Business.
The Executive shall devote his best efforts, knowledge, skill, and
his entire productive time, ability and attention to the business of the Company
during the term of this Agreement.
4. Compensation.
(a) During the term of this Agreement, the Company shall pay or
provide, as the case may be, to the Executive the compensation and other
benefits and rights set forth in paragraphs 4, 5 and 6 of this Agreement.
(b) Base Compensation. As compensation for the services to be
performed hereunder, the Company shall pay to the Executive, during his
employment hereunder, an annual base salary (the "Base Salary") of Two Hundred
Forty Thousand Dollars ($240,000.00) per year,
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payable in accordance with the Company's usual pay practices (and in any event
no less frequently than monthly).
(c) COLA Adjustment. At the beginning of each calendar year of
this Agreement, commencing with January 1, 2000, and on such date each year
thereafter (the "Adjustment Date"), the Base Salary shall be increased in
accordance with the increase, if any, in the cost of living during the preceding
one year as determined by the percentage increase in the Consumers Price
Index-All Urban Consumers (U.S. City Average/all items) published by the Bureau
of Labor Statistics of the U.S. Department of Labor (the "Index"). The average
Index for calendar years 1998 and 1999 shall be considered the "Base." The Base
Salary for the calendar year following each Adjustment Date shall be the Base
Salary specified in Paragraph 4(b) increased by the percentage increase, if any,
in the Index for the calendar year immediately preceding the Adjustment Date
over the Base. In the event the Index shall cease to be published or the formula
underlying the Index shall change materially from the formula used for the Index
as of the date hereof, then there shall be substituted for the Index such other
index of similar nature as is then generally recognized and accepted. In no
event shall the Base Salary during each adjusted calendar year be less than that
charged during the preceding year of this Agreement.
(d) Incentive Compensation. The Company shall pay to the
Executive incentive compensation ("Incentive Compensation") for each calendar
year that the Executive is employed under this Agreement ("Bonus Year") or
prorated on a per diem basis for partial Bonus Years, which Incentive
Compensation shall be determined and calculated as follows:
If the Company's Funds from Operations (as defined below) per share of
the Company's common stock, $.01 par value ("Common Stock"), for the
Bonus Year increased by more than five percent (5%) over the Company's
Funds from Operations per share of Common Stock for the previous
calendar year, then the Executive shall be entitled to Incentive
Compensation equal to twenty-five percent (25%) of the Base Salary for
the Bonus Year in which the increase occurred. If the Company's Funds
from Operations per share of Common Stock for the Bonus Year increased
by more than eight and one half percent (8.5%) over the Company's Funds
from Operations per share of Common Stock for the previous calendar
year, then the Executive shall be entitled, in lieu of the Incentive
Compensation described in the immediately preceding sentence, to
Incentive Compensation equal to fifty percent (50%) of the Base Salary
for the Bonus Year in which the increase occurred. For purposes hereof,
"Funds from Operations" shall have the meaning ascribed to such term by
the National Association of Real Estate Investment Trusts ("NAREIT")
and Funds from Operations shall be calculated in accordance with
NAREIT's definition of such term.
Such Incentive Compensation shall be paid entirely in cash. Unless
otherwise specified by the Company's Chief Executive Officer, one-twelfth of
such Incentive Compensation shall be paid monthly during the year following such
Bonus Year; provided, however, in the event that the Executive voluntarily
terminates his employment under this Agreement pursuant to paragraph 7(a)(i)
hereof or the Executive's employment under this Agreement is terminated with
"cause" pursuant to paragraph 7(a)(ii) hereof or the Executive is in default of
that certain Reimbursement Agreement by and between the Executive and Sun
Communities Operating Limited Partnership (the "Reimbursement Agreement"), the
Executive shall not be entitled to any unpaid Incentive Compensation.
The determination of the Incentive Compensation shall be made no later
than February 15 of each calendar year of this Agreement by the Company, who
shall provide a copy of its calculations to the Executive. The Executive shall
have the right to dispute any such calculation by delivering written notice of
the dispute to the Company. If the Company and the Executive are
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unable to resolve the dispute within thirty (30) days after written notice of
the dispute is delivered by the Executive to the Company, the dispute shall be
submitted to the independent public accountants regularly retained by the
Company (the "Accountants") and the determination of the Accountants shall be
final and binding on the parties. Notwithstanding a dispute of the calculation
of the Incentive Compensation, the Company shall pay the Executive the Incentive
Compensation in accordance with the terms of this Agreement and the Executive's
receipt of such Incentive Compensation shall not be deemed a waiver of his right
to dispute the calculation of the Incentive Compensation.
(e) Disability. During any period that the Executive fails to
perform his duties hereunder as a result of incapacity due to physical or mental
illness (the "Disability Period"), the Executive shall continue to receive his
full Base Salary, Incentive Compensation and other benefits at the rate in
effect for such period until his employment is terminated by the Company
pursuant to paragraph 7(a)(iii) hereof; provided, however, that payments so made
to the Executive during the Disability Period shall be reduced by the sum of the
amounts, if any, which were paid to the Executive at or prior to the time of any
such payment under disability benefit plans of the Company.
5. Benefits.
(a) Insurance. The Company shall provide to the Executive life,
medical and hospitalization insurance for himself, his spouse and eligible
family members as may be determined by the Board to be consistent with the
Company's standard policies.
(b) Benefit Plans. The Executive, at his election, may
participate, during his employment hereunder, in all retirement plans, 401(K)
plans and other benefit plans of the Company generally available from time to
time to other executive employees of the Company and for which the Executive
qualifies under the terms of the plans (and nothing in this Agreement shall or
shall be deemed to in any way affect the Executive's right and benefits under
any such plan except as expressly provided herein). The Executive shall also be
entitled to participate in any equity, stock option or other employee benefit
plan that is generally available to senior executives of the Company. The
Executive's participation in and benefits under any such plan shall be on the
terms and subject to the conditions specified in the governing document of the
particular plan.
(c) Annual Vacation. The Executive shall be entitled to four (4)
weeks vacation time each year, without loss of compensation. The Executive shall
not take more than fourteen (14) consecutive calendar days of vacation without
the prior approval of the Company's Chief Executive Officer. In the event that
the Executive is unable for any reason to take the total amount of vacation time
authorized herein during any year, he may accrue such unused time and add it to
the vacation time for any following year; provided, however, that no more than
ten (10) business days of accrued vacation time may be carried over at any time
(the "Carry-Over Limit"). In the event that the Executive has accrued and unused
vacation time in excess of the Carry-Over Limit (the "Excess Vacation Time"),
the Excess Vacation Time shall be paid to the Executive within ten (10) days of
the end of the year in which the Excess Vacation Time was earned based on the
Base Salary then in effect. Upon any termination of this Agreement for any
reason whatsoever, accrued and unused vacation time (not to exceed thirty (30)
business days) shall be paid to the Executive within ten (10) days of such
termination based on the Base Salary in effect on the date of such termination.
For purposes of this Agreement, one-twelfth (1/12) of the applicable annual
vacation time shall accrue on the last day of each calendar month that the
Executive is employed under this Agreement.
6. Reimbursement of Business Expenses.
The Company shall reimburse the Executive or provide him with an
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expense allowance during the term of this Agreement for travel, entertainment
and other expenses reasonably and necessarily incurred by the Executive in
connection with the Company's business. The Executive shall furnish such
documentation with respect to reimbursement to be paid hereunder as the Company
shall reasonably request.
7. Termination of Employment.
(a) The Executive's employment under this Agreement may be
terminated:
(i) by either the Executive or the Company at any time for
any reason whatsoever or for no reason upon not less than sixty (60)
days written notice;
(ii) by the Company at any time for "cause" as defined
below, without prior notice;
(iii) by the Company upon the Executive's "permanent
disability" (as defined below) upon not less than thirty (30) days
written notice; and
(iv) upon the Executive's death.
(b) For purposes hereof, for "cause" shall mean the material
breach of any provision of this Agreement by the Executive which breach, if
curable, continues uncured for a period of twenty (20) days after the
Executive's receipt of written notice of such breach from the Company, or any
action of the Executive (or the Executive's failure to act), which, in the
reasonable determination of the Board, involves malfeasance, fraud, or moral
turpitude, or which, if generally known, would or might have a material adverse
effect on the Company and/or its reputation.
(c) For purposes hereof, the Executive's "permanent disability"
shall be deemed to have occurred after one hundred twenty (120) consecutive days
during which the Executive, by reason of his physical or mental disability or
illness, shall have been unable to discharge his duties under this Agreement.
The date of permanent disability shall be such one hundred twenty-first (121st)
day. In the event either the Company or the Executive, after receipt of notice
of the Executive's permanent disability from the other, disputes that the
Executive's permanent disability shall have occurred, the Executive shall
promptly submit to a physical examination by the chief of medicine of any major
accredited hospital in Michigan and, unless such physician shall issue his
written statement to the effect that in his opinion, based on his diagnosis, the
Executive is capable of resuming his employment and devoting his full time and
energy to discharging his duties within thirty (30) days after the date of such
statement, such permanent disability shall be deemed to have occurred.
8. Compensation Upon Termination or Disability.
(a) In the event that the Company terminates the Executive's
employment under this Agreement without "cause" pursuant to paragraph 7(a)(i)
hereof, the Executive shall be entitled to any unpaid Base Salary, Incentive
Compensation and benefits accrued and earned by him hereunder up to and
including the effective date of such termination, which shall be paid by the
Company to the Executive within thirty (30) days of the effective date of such
termination, and the Company shall pay the Executive monthly an amount equal to
one-twelfth (1/12) of the Base Salary (at the rate that would otherwise have
been payable under this Agreement) for a period of up to eighteen (18) months if
the Executive fully complies with paragraph 12 of this Agreement (the "Severance
Payment"). Notwithstanding the foregoing, the Company, in its sole discretion,
may elect to make the Severance Payment to the Executive in one lump sum due
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within thirty (30) days of the Executive's termination of employment.
(b) In the event of termination of the Executive's employment
under this Agreement for "cause" or if the Executive voluntarily terminates his
employment hereunder, the Executive shall be entitled to no further compensation
or other benefits under this Agreement, except only as to any unpaid Base Salary
and benefits accrued and earned by him hereunder up to and including the
effective date of such termination.
(c) In the event of termination of the Executive's employment
under this Agreement due to the Executive's permanent disability or death, the
Executive (or his successors and assigns in the event of his death) shall be
entitled to any unpaid Base Salary, Incentive Compensation and benefits accrued
and earned by him hereunder up to and including the effective date of such
termination, which shall be paid by the Company to the Executive or his
successors and assigns, as appropriate, within thirty (30) days of the effective
date of such termination, and the Company shall pay the Executive monthly an
amount equal to one-twelfth (1/12) of the Base Salary (at the rate that would
otherwise have been payable under this Agreement) for a period of up to twenty
four (24) months if the Executive fully complies with paragraph 12 of this
Agreement (the "Disability Payment"); provided, however, that payments so made
to the Executive shall be reduced by the sum of the amounts, if any, which: (i)
were paid to the Executive at or prior to the time of any such payment under
disability benefit plans of the Company, and (ii) did not previously reduce the
Base Salary, Incentive Compensation and other benefits due the Executive under
paragraph 4(e) of this Agreement. Notwithstanding the foregoing, the Company, in
its sole discretion, may elect to make the Disability Payment to the Executive
in one lump sum due within thirty (30) days of the Executive's termination of
employment.
(d) Regardless of the reason for termination of the Executive's
employment hereunder, Incentive Compensation and benefits shall be prorated for
any period of employment not covering an entire year of employment.
(e) Notwithstanding anything to the contrary in this paragraph 8,
the Company's obligation to pay, and the Executive's right to receive, any
compensation under this paragraph 8, including, without limitation, the
Severance Payment and the Disability Payment, shall terminate upon the
Executive's breach of any provision of paragraph 12 hereof or the Executive's
breach of any provision of the Reimbursement Agreement. In addition, the
Executive shall promptly forfeit any compensation received from the Company
under this paragraph 8, including, without limitation, the Severance Payment and
the Disability Payment, upon the Executive's breach of any provision of
paragraph 12 hereof.
9. Resignation of Executive. Upon any termination of the Executive's
employment under this Agreement, the Executive shall be deemed to have resigned
from any and all offices held by the Executive in the Company and/or any of the
Affiliates (as defined below). In addition, upon any termination of the
Executive's employment under this Agreement, the Executive shall promptly
transfer one-half (1/2) of his stock in Sun Home Services, Inc., a Michigan
corporation, to each of Xxxxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx for and in
consideration of $1.00.
10. Effect of Change in Control.
(a) The Company or its successor shall pay the Executive the
Change in Control Benefits (as defined below) if there has been a Change in
Control (as defined below) and any of the following events has occurred: (i) the
Executive's employment under this Agreement is terminated in accordance with
paragraph 7(a)(i), (ii) upon a Change in Control under paragraph 10(f)(ii), the
Company or its successor does not expressly assume all of the terms and
conditions of this Agreement, or (iii) there are less than thirty (30) months
remaining under the term of this
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Agreement (without regard to the last clause of paragraph 2 hereof).
(b) For purposes of this Agreement, the "Change in Control
Benefits" shall mean the following benefits:
(i) A cash payment equal to two and 99/100 (2.99) times the
Base Salary in effect on the date of such Change in Control, payable
within sixty (60) days of the Change in Control; and
(ii) Continued receipt of all compensation and benefits set
forth in paragraphs 5(a) and 5(b) of this Agreement, until the earlier
of (i) one year following the Change in Control (subject to the
Executive's COBRA rights) or (ii) the commencement of comparable
coverage from another employer. The provision of any one benefit by
another employer shall not preclude the Executive from continuing
participation in Company benefit programs provided under this paragraph
10(b)(ii) that are not provided by the subsequent employer. The
Executive shall promptly notify the Company upon receipt of benefits
from a new employer comparable to any benefit provided under this
paragraph 10(b)(ii).
(c) Notwithstanding anything to the contrary herein, (i) in the
event that the Executive's employment under this Agreement is terminated in
accordance with paragraph 7(a)(i) within sixty (60) days prior to a Change in
Control, such termination shall be deemed to have been made in connection with
the Change in Control and the Executive shall be entitled to the Change in
Control Benefits; and (ii) in the event that the Executive's employment under
this Agreement is terminated by the Company or its successor in accordance with
paragraph 7(a)(i) after a Change in Control and the Executive was not already
entitled to the Change in Control Benefits under paragraph 10(a)(iii), the
Company or its successor shall pay the Executive an amount equal to the
difference between the Change in Control Benefits and the amounts actually paid
to the Executive under this Agreement after the Change in Control but prior to
his termination.
(d) The Change in Control Benefits are in addition to any and all
other Company benefits to which the Executive may be entitled, including,
without limitation, Base Salary, Incentive Compensation, Severance Payment,
Disability Payment and the exercise or surrender of stock options as a result of
the Change in Control.
(e) Notwithstanding anything to the contrary contained herein,
the Change in Control Benefits shall be reduced by all other payments to the
Executive which constitute "excess parachute payments" under Section 280(G) of
the Internal Revenue Code of 1986, as amended.
(f) For purposes of this Agreement, a "Change in Control" shall
be deemed to have occurred:
(i) if any person or group of persons acting together
(other than (a) the Company or any person (I) who on December 1, 1998
was a director or officer of the Company, or (II) whose shares of
Common Stock of the Company are treated as "beneficially owned" by any
such director or officer, or (b) any institutional investor (filing
reports under Section 13(g) rather than 13(d) of the Securities
Exchange Act of 1934, as amended, including any employee benefit plan
or employee benefit trust sponsored by the Company)), becomes a
beneficial owner, directly or indirectly, of securities of the Company
representing ten percent (10%) or more of either the then-outstanding
Common Stock of the Company or the combined voting power of the
Company's then-outstanding voting securities;
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(ii) if the directors or stockholders of the Company approve
an agreement to merge into or consolidate with, or to sell all or
substantially all of the Company's assets to, any person (other than a
wholly-owned subsidiary of the Company formed for the purpose of
changing the Company's corporate domicile); or
(iii) if the new directors appointed to the Board during any
twelve-month period constitute a majority of the members of the Board,
unless (I) the directors who were in office for at least twelve (12)
months prior to such twelve-month period (the "Incumbent Directors")
plus (II) the new directors who were recommended or appointed by a
majority of the Incumbent Directors constitutes a majority of the
members of the Board.
For purposes of this paragraph 10(f), a "person" includes an
individual, a partnership, a corporation, an association, an unincorporated
organization, a trust or any other entity.
11. Stock Options. In the event of termination of the Executive's
employment under this Agreement for "cause", all stock options or other stock
based compensation awarded to the Executive shall lapse and be of no further
force or effect whatsoever in accordance with the Company's Amended and Restated
1993 Stock Option Plan. In the event that the Company terminates the Executive's
employment under this Agreement without "cause" or upon the death or permanent
disability of the Executive, all stock options and other stock based
compensation awarded to the Executive shall become fully vested and immediately
exercisable; provided, however, such options and other stock based compensation
cannot be exercised until the expiration of the eighteen month periods
referenced in paragraph 12 hereof and such stock options or other stock based
compensation shall be automatically forfeited upon the Executive's breach of any
of the provisions of paragraph 12 hereof. Any Stock Option Agreements between
the Company and the Executive shall be amended to conform to the provisions of
this paragraph 11.
12. Covenant Not To Compete and Confidentiality.
(a) The Executive acknowledges the Company's reliance and
expectation of the Executive's continued commitment to performance of his duties
and responsibilities during the term of this Agreement. In light of such
reliance and expectation on the part of the Company, the Executive agrees that:
(i) for a period commencing on the date of this Agreement
and ending upon the expiration of eighteen (18) months following the termination
of the Executive's employment under this Agreement for any reason, the Executive
shall not, either directly or indirectly, engage in, or have an interest in or
be associated with (whether as an officer, director, stockholder, partner,
associate, employee, consultant, owner or otherwise) any corporation, firm or
enterprise which is engaged in (A) the real estate business (the "Real Estate
Business"), including, without limitation, the development, ownership, leasing,
sales, management or financing of single family or multi-family housing,
condominiums, townhome communities or other form of housing, or (B) any business
which is competitive with the business then or at any time during the term of
this Agreement conducted or proposed to be conducted by the Company, or any
corporation owned or controlled by the Company or under common control with the
Company (an "Affiliate"), anywhere within the continental United States or
Canada; provided, however, that the Executive may invest in any publicly held
entity engaged in the Real Estate Business, if his investment in such entity
does not exceed one percent (1%) in value of the issued and outstanding equity
securities of such entity;
(ii) the Executive will not at any time, for so long as
any Confidential Information (as defined below) shall remain confidential or
otherwise remain wholly or partially
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protectable, either during the term of this Agreement or thereafter, use or
disclose, directly or indirectly, to any person outside of the Company or any
Affiliate any Confidential Information;
(iii) promptly upon the termination of this Agreement for any
reason, the Executive (or in the event of the Executive's death, his personal
representative) shall return to the Company any and all copies (whether prepared
by or at the direction of the Company or Executive) of all records, drawings,
materials, memoranda and other data constituting or pertaining to Confidential
Information;
(iv) for a period commencing on the date of this Agreement
and ending upon the expiration of eighteen (18) months from the termination of
this Agreement for any reason, the Executive shall not, either directly or
indirectly, divert, or by aid to others, do anything which would tend to divert,
from the Company or any Affiliate any trade or business with any customer or
supplier with whom the Executive had any contact or association during the term
of the Executive's employment with the Company or with any party whose identity
or potential as a customer or supplier was confidential or learned by the
Executive during his employment by the Company; and
(v) for a period commencing on the date of this Agreement
and ending upon the expiration of eighteen (18) months from the termination of
this Agreement for any reason, the Executive shall not, either directly or
indirectly, solicit for employment any person with whom the Executive was
acquainted while in the Company's employ.
As used in this Agreement, the term "Confidential Information" shall
mean all business information of any nature and in any form which at the time or
times concerned is not generally known to those persons engaged in business
similar to that conducted or contemplated by the Company or any Affiliate (other
than by the act or acts of an employee not authorized by the Company to disclose
such information) and which relates to any one or more of the aspects of the
present or past business of the Company or any of the Affiliates or any of their
respective predecessors, including, without limitation, patents and patent
applications, inventions and improvements (whether or not patentable),
development projects, policies, processes, formulas, techniques, know-how, and
other facts relating to sales, advertising, promotions, financial matters,
customers, customer lists, customer purchases or requirements, and other trade
secrets.
(b) The Executive agrees and understands that the remedy at law
for any breach by him of this paragraph 12 will be inadequate and that the
damages flowing from such breach are not readily susceptible to being measured
in monetary terms. Accordingly, it is acknowledged that, upon adequate proof of
the Executive's violation of any legally enforceable provision of this paragraph
12, the Company shall be entitled to immediate injunctive relief and may obtain
a temporary order restraining any threatened or further breach. Nothing in this
paragraph 12 shall be deemed to limit the Company's remedies at law or in equity
for any breach by the Executive of any of the provisions of this paragraph 12
which may be pursued or availed of by the Company.
13. Arbitration. Any dispute or controversy arising out of or relating
to this Agreement shall be settled finally and exclusively by arbitration in the
State of Michigan in accordance with the expedited procedures of the Commercial
Arbitration Rules of the American Arbitration Association then in effect. Such
arbitration shall be conducted by an arbitrator(s) appointed by the American
Arbitration Association in accordance with its rules and any finding by such
arbitrator(s) shall be final and binding upon the parties. Judgment upon any
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof, and the parties consent to the jurisdiction of the courts
of the State of Michigan for this purpose. Nothing contained in this paragraph
13 shall be construed to preclude the Company from obtaining injunctive or other
equitable relief to secure specific performance or to otherwise prevent a breach
or contemplated
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breach of this Agreement by the Executive as provided in paragraph 12 hereof.
14. Notice. Any notice, request, consent or other communication given
or made hereunder shall be given or made only in writing and (a) delivered
personally to the party to whom it is directed; (b) sent by first class mail or
overnight express mail, postage and charges prepaid, addressed to the party to
whom it is directed; or (c) telecopied to the party to whom it is directed, at
the following addresses or at such other addresses as the parties may hereafter
indicate by written notice as provided herein:
If to the Company:
Sun Communities. Inc.
00000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attn: President
If to the Executive:
Xxxxxxx X. Xxxxxxxx
00000 Xxxxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
In all events, with a copy to:
Jaffe, Raitt, Heuer & Xxxxx,
Professional Corporation
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxx
Any such notice, request, consent or other communication given or made:
(i) in the manner indicated in clause (a) of this paragraph shall be deemed to
be given or made on the date on which it was delivered; (ii) in the manner
indicated in clause (b) of this paragraph shall be deemed to be given or made on
the third business day after the day in which it was deposited in a regularly
maintained receptacle for the deposit of the United States mail, or in the case
of overnight express mail, on the business day immediately following the day on
which it was deposited in the regularly maintained receptacle for the deposit of
overnight express mail; and (iii) in the manner indicated in clause (c) of this
paragraph shall be deemed to be given or made when received by the telecopier
owned or operated by the recipient thereof.
15. Miscellaneous.
(a) The provisions of this Agreement are severable and if any one
or more provisions may be determined to be illegal or otherwise unenforceable,
in whole or in part, the remaining provisions and any partially unenforceable
provision to the extent enforceable in any jurisdiction nevertheless shall be
binding and enforceable.
(b) The rights and obligations of the Company under this
Agreement shall inure to the benefit of, and shall be binding on, the Company
and its successors and assigns, and the rights and obligations (other than
obligations to perform services) of the Executive under this Agreement shall
inure to the benefit of, and shall be binding upon, the Executive and his heirs,
personal representatives and assigns. This Agreement is personal to Executive
and he may not
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assign his obligations under this Agreement in any manner whatsoever.
(c) The failure of either party to enforce any provision or
protections of this Agreement shall not in any way be construed as a waiver of
any such provision or provisions as to any future violations thereof, nor
prevent that party thereafter from enforcing each and every other provision of
this Agreement. The rights granted the parties herein are cumulative and the
waiver of any single remedy shall not constitute a waiver of such party's right
to assert all other legal remedies available to it under the circumstances.
(d) This Agreement supersedes all agreements and understandings
between the parties and may not be modified or terminated orally. No
modification, termination or waiver shall be valid unless in writing and signed
by the party against whom the same is sought to be enforced.
(e) This Agreement shall be governed by and construed according
to the laws of the State of Michigan.
(f) Captions and paragraph headings used herein are for
convenience and are not a part of this Agreement and shall not be used in
construing it.
(g) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(h) Each party shall pay his or its own fees and expenses,
including, without limitation, legal fees, incurred in connection with the
transactions contemplated by this Agreement, including, without limitation, any
fees incurred in connection with any arbitration arising out of the transactions
contemplated by this Agreement.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
on the date first written above.
COMPANY:
SUN COMMUNITIES, INC.,
a Maryland corporation
By:
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Xxxx X. Xxxxxxxx, President and
Chief Executive Officer
EXECUTIVE:
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XXXXXXX X. XXXXXXXX
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