|
RETIREMENT FROM EMPLOYMENT AND
RELEASE
THIS RETIREMENT FROM EMPLOYMENT AND RELEASE (this
"Release") is entered into as of July 10, 2008, by and between SUN
COMMUNITIES, INC., a Maryland corporation (the "Company"), and
BRIAN W. FANNON (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company and the Executive entered into
that certain Employment Agreement, dated as of February 23, 2005,
but effective as of January 1, 2005, as amended by that certain
First Amendment to Employment Agreement, dated as of
December 30, 2007 and that certain Second Amendment to
Employment Agreement, dated as of March 17, 2008 (the
“ Employment Agreement
”).
WHEREAS, the Company and Executive have agreed to
the Executive’s amicable retirement from employment with the
Company pursuant to the terms and conditions set forth in this
Release.
NOW, THEREFORE, in consideration of the mutual
promises contained in this Release, the parties agree as
follows:
1.
Termination of Employment . Effective July 31, 2008, the Executive’s employment
with the Company and/or any of its subsidiaries, including any
service as a director or officer of such entities, is terminated in
its entirety.
2.
Amicable Separation .
The Executive and the Company hereby acknowledge and agree that
this Release represents a voluntary, negotiated, amicable
settlement regarding Employee’s retirement from the
Company.
3.
Modification of Employment Agreement
. The Executive and the Company hereby agree to the
application of Section 8(a)(ii) of the Employment Agreement, as
such provision is hereby amended and restated in its entirety to
now state: “that subject to the Executive’s execution
of a general release of claims in a form satisfactory to the
Company, the Company shall pay the Executive an amount equal to
one-twelfth (1/12) of the Base Salary (at the rate that would
otherwise have been payable under this Agreement) on the first day
of each month following termination for nine (9) months, with the
first payment beginning on August 1, 2008 and the last payment
ending on April 1, 2009, if the Executive fully complies with
paragraph 12 of this Agreement (the "Severance Payment").”
The remainder of the Employment Agreement shall remain in full
force and effect, consistent with its terms.
4.
Stock Awards Vest . The
Executive and the Company hereby agree to the application of
Section 11 of the Employment Agreement, and thereby all stock
options and other stock based compensation awarded to the Executive
that are outstanding as of the date of this Release shall become
fully vested and immediately exercisable effective upon the date of
this Release, subject to the restrictions of Section 9.02 of the
Company’s 1993 Stock Option Plan.
5.
Covenant Not to Compete and
Confidentiality . The Executive and the
Company hereby agree that notwithstanding Section 12(a)(i) of the
Employment Agreement, the Non-competition Period (as defined in the
Employment Agreement) shall be reduced to a period ending April 30,
2009.
6.
Cooperation in Future Matters
. The Executive and the Company hereby affirm that
the Executive desires to cooperate with the Company pursuant to the
terms of Section 15 of the Employment Agreement.
(a)
The provisions of this Release 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)
Neither the Company nor the Executive may make any
assignment of this Release or any interest herein, by operation of
law or otherwise, without the prior written consent of the other
party; provided that the Company may assign its rights under this
Release without the consent of the Executive in the event that the
Company shall effect a reorganization, consolidate with or merge
into another corporation, partnership, organization or other
entity, or transfer all or substantially all of its properties or
assets to any other corporation, partnership, organization or
oth
| 
