EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of February 11, 1997, by and between
CHATEAU PROPERTIES, INC., a Maryland corporation (hereinafter referred to as the
"COMPANY"), and Xxxxx X. Xxxxxx (hereinafter referred to as the "EXECUTIVE").
WHEREAS, the Amended and Restated Agreement and Plan of Merger, dated
as of September 17, 1996, as amended, among ROC COMMUNITIES, INC., a Maryland
corporation ("ROC"), the Company, and R ACQUISITION SUB, INC., a Maryland
corporation and a direct subsidiary of the Company contemplates that the Company
enter into an employment agreement with the Executive;
WHEREAS, the Company wishes to offer employment to the Executive, and
the Executive wishes to accept such offer, on the terms set forth below;
Accordingly, the parties hereto agree as follows:
1. TERM. The Company hereby employs the Executive, and the
Executive hereby accepts such employment for an initial term commencing as of
the date hereof and ending on December 31, 1999, unless sooner terminated in
accordance with the provisions of Section 4 or Section 5 (the period during
which the Executive is employed hereunder being hereinafter referred to as the
"TERM").
2. DUTIES. The Executive, in his capacity as Chief Operating
Officer of the Company shall faithfully perform for the Company the duties of
said office and shall perform such other duties of an executive, managerial or
administrative nature as
shall be specified and designated from time to time by the Board of Directors
of the Company (the "BOARD"), the Chief Executive Officer or the President of
the Company (including the performance of services for, and serving on the
Board of Directors of, any subsidiary of the Company without any additional
compensation). The Executive shall devote substantially all of the
Executive's business time and effort to the performance of the Executive's
duties hereunder, provided that in no event shall this sentence prohibit the
Executive from performing (i) services for ROC GP Corp. (provided that the
activities of the Executive and ROC GP Corp. do not materially increase from
the level as of the date of this Agreement) and other activities related to
the business of ROC, the Company and their affiliates and (ii) personal and
charitable activities and any other activities approved by the Board, so long
as such activities do not interfere with the Executive's duties for the
Company.
3. COMPENSATION.
3.1 SALARY. The Company shall pay the Executive during the Term
a salary at the rate of $190,000 per annum (the "ANNUAL SALARY"), in accordance
with the customary payroll practices of the Company applicable to senior
executives generally. Annual Salary will increase annually on January 1 of each
year by a percentage equal to the percentage that represents the average salary
increase for all employees of the Company, or such higher amount as may be
approved by the Board, with such increase to be effective on the date salary
increases are effective for employees
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of the Company generally and, upon such increase, the increased amount shall
thereafter be deemed to be the "Annual Salary."
3.2 BONUS. The Executive will be eligible to participate in the
Chateau Communities, Inc. Annual Bonus Program (the "Bonus Plan"), the terms of
which will be established by the Executive Compensation Committee of the
Company.
3.3 BENEFITS - IN GENERAL. The Executive shall be permitted
during the Term to participate in any group life, hospitalization or disability
insurance plans, health programs, pension and profit sharing plans and similar
benefits (but not stock option or other equity-based plans, which are provided
for under Section 3.4) that may be available to other senior executives of the
Company generally, on the same terms as may be applicable to such other
executives, in each case to the extent that the Executive is eligible under the
terms of such plans or programs.
3.4 EQUITY-BASED BENEFITS - IN GENERAL. The Executive will be
eligible to participate in the Company's 1997 Equity Compensation Plan which as
of the date hereof is in the form attached hereto as Exhibit A.
3.5 VACATION. The Executive shall be entitled to vacation of 20
days per year.
3.6 AUTOMOBILE. The Company will provide the Executive a
monthly allowance of $750 for the use of an automobile. At the option of the
Company, in lieu of providing such allowance, the Company will provide the
Executive with an automobile of suitable standard to the Executive's position.
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3.7 DISABILITY BENEFITS AND LIFE INSURANCE. The Executive shall
be entitled to long-term disability benefits and life insurance benefits from
the Company each of which shall be reasonably commensurate with benefits
provided to similarly situated senior executives of comparable companies.
3.8 EXPENSES. The Company shall pay or reimburse the Executive
for all ordinary and reasonable out-of-pocket expenses actually incurred (and,
in the case of reimbursement, paid) by the Executive during the Term in the
performance of the Executive's services under this Agreement; provided that the
Executive submits such expenses in accordance with the policies applicable to
senior executives of the Company generally.
4. TERMINATION UPON DEATH OR DISABILITY. If the Executive dies
during the Term, the obligations of the Company to or with respect to the
Executive shall terminate in their entirety except as otherwise provided under
this Section 4. If the Executive becomes eligible for disability benefits under
the Company's long-term disability plans and arrangements (or, if none apply,
would have been so eligible under the most recent plan or arrangement), the
Company shall have the right, to the extent permitted by law, to terminate the
employment of the Executive upon notice in writing to the Executive; provided
that the Company will have no right to terminate the Executive's employment if,
in the opinion of a qualified physician reasonably acceptable to the Company, it
is reasonably certain that the Executive will be able to resume the Executive's
duties on a regular full-time basis within 30 days of the date the Executive
receives notice of such
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termination. Upon death or other termination of employment by virtue of
disability, (i) the Executive (or the Executive's estate or beneficiaries in
the case of the death of the Executive) shall have no right to receive any
compensation or benefit hereunder on and after the effective date of the
termination of employment other than Annual Salary and other benefits (but
excluding any bonuses except as provided in the Bonus Plan) earned and
accrued under this Agreement prior to the date of termination (and
reimbursement under this Agreement for expenses incurred prior to the date of
termination); and (ii) this Agreement shall otherwise terminate upon such
death or other termination of employment and there shall be no further rights
with respect to the Executive hereunder (except as provided in Section 7.14).
5. CERTAIN TERMINATIONS OF EMPLOYMENT.
5.1 TERMINATION FOR CAUSE; TERMINATION OF EMPLOYMENT BY THE
EXECUTIVE WITHOUT GOOD REASON.
(a) For purposes of this Agreement, "CAUSE" shall mean
(i) the Executive's conviction for (or pleading nolo contendere
to) any felony, or a misdemeanor involving moral turpitude;
(ii) the Executive's commission of an act of fraud, theft or
dishonesty related to the performance of the Executive's duties
hereunder;
(iii) the willful and continuing failure or habitual neglect by
the Executive to perform the Executive's duties hereunder after
reasonable notice and affording the Executive a reasonable
opportunity to cease such failure or neglect;
(iv) any material violation by the Executive of the covenants
contained in Section 6; or
(v) the Executive's willful and continuing material breach of
this Agreement after reasonable
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notice and affording the Executive a reasonable opportunity to
cure such breach.
(b) For purposes of this Agreement, "GOOD REASON" shall mean, unless
otherwise consented to by the Executive,
(i) the material reduction of the Executive's authority, duties
and responsibilities, or the assignment to the Executive of
duties materially inconsistent with the Executive's position or
positions with the Company and its subsidiaries;
(ii) a reduction in Annual Salary of the Executive or the failure
to provide for the increases in Annual Salary required by this
Agreement;
(iii) the failure by the Company to obtain an agreement in form
and substance reasonably satisfactory to the Executive from any
successor to the business of the Company to assume and agree to
perform this Agreement; or
(iv) the Company's material and willful breach of this Agreement.
Notwithstanding the foregoing, if there exists (without regard to this sentence)
an event or condition that constitutes Good Reason under clause (i), (ii) or
(iv) above, the Company shall have 30 days from the date such notice is given to
cure such event or condition and, if the Company does so, such event or
condition shall not constitute Good Reason hereunder.
(c) The Company may terminate the Executive's employment hereunder for
Cause. If the Company terminates the Executive for Cause, (i) the Executive
shall have no right to receive any compensation or benefit hereunder on and
after the effective date of the termination of employment other than Annual
Salary and other benefits (but excluding any bonuses except as provided in the
Bonus Plan) earned and accrued under this Agreement prior to the effective date
of the termination of employment (and reimbursement
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under this Agreement for expenses incurred prior to the effective date of the
termination of employment); and (ii) this Agreement shall otherwise terminate
upon such termination of employment and the Executive shall have no further
rights hereunder (except as provided in Section 7.14).
(d) The Executive may terminate his employment without Good Reason.
If the Executive terminates the Executive's employment with the Company without
Good Reason and such termination is not covered by Section 5.2 by virtue of the
last sentence thereof, (i) the Executive shall have no right to receive any
compensation or benefit hereunder on and after the effective date of the
termination of employment other than Annual Salary and other benefits (but
excluding any bonuses except as provided in the Bonus Plan or in clause (ii)
below) earned and accrued under this Agreement prior to the effective date of
the termination of employment (and reimbursement under this Agreement for
expenses incurred prior to the effective date of the termination of employment);
(ii) the Executive shall be entitled to receive (A) a cash payment equal to the
sum of (x) the Executive's Annual Salary (as in effect on the effective date of
such termination) payable no later than 30 days after such termination and (y)
the "TERMINATION BONUS," which shall be the average of the two previous annual
bonuses received by the Executive as provided for in the Bonus Plan, or, in the
event the Executive has received only one annual bonus pursuant to the Bonus
Plan at the time of such termination, the Termination Bonus shall be equal to
the amount of such annual bonus, or, in the event the Executive has not received
any annual
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bonuses pursuant to the Bonus Plan at the time of such termination, the
Termination Bonus shall be equal to the annual bonus the Executive would have
received under the Bonus Plan if the Executive would have remained employed
through the period required to be entitled to receive the annual bonus,
payable no later than 30 days after such termination (or, if later, as soon
as practicable, but in no event more than 30 days after, the amount of the
Termination Bonus is known) and (B) for a period of one year after
termination of employment such continuing health benefits (including any
medical, vision or dental benefits), under the Company's health plans and
programs applicable to senior executives of the Company generally as the
Executive would have received under this Agreement (and at such costs to the
Executive) as would have applied in the absence of such termination (but not
taking into account any post-termination increases in Annual Salary that may
otherwise have occurred without regard to such termination and that may have
favorably affected such benefits); it being expressly understood and agreed
that nothing in this clause (ii) shall restrict the ability of the Company to
amend or terminate such plans and programs from time to time in its sole
discretion; provided, however, that the Company shall in no event be required
to provide such coverage after such time as the Executive becomes entitled to
receive health benefits from another employer or recipient of the Executive's
services (and provided, further, that such entitlement shall be determined
without regard to any individual waivers or other arrangements); and (iii)
this Agreement shall otherwise terminate upon such termination of employment
and the Executive
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shall have no further rights hereunder (except as provided in Section 7.14).
5.2 TERMINATION WITHOUT CAUSE; TERMINATION FOR GOOD REASON. The
Company may terminate the Executive's employment at any time for any reason or
no reason and the Executive may terminate the Executive's employment with the
Company for Good Reason. If the Company or the Executive terminates the
Executive's employment, and such termination is not described in Section 4 or
Section 5.1, (i) the Executive shall have no right to receive any compensation
or benefit hereunder on and after the effective date of the termination of
employment other than Annual Salary and other benefits (but excluding any
bonuses except as provided in the Bonus Plan or in clause (ii) below) earned and
accrued under this Agreement prior to the effective date of the termination of
employment (and reimbursement under this Agreement for expenses incurred prior
to the effective date of the termination of employment); (ii) the Executive
shall receive (A) a cash payment equal to two times the sum of (x) the
Executive's Annual Salary (as in effect on the effective date of such
termination) payable no later than 30 days after such termination and (y) the
Termination Bonus payable no later than 30 days after such termination (or, if
later, as soon as practicable, but in no event more than 30 days after, the
amount of the Termination Bonus is known) and (B) for a period of two years
after termination of employment such continuing health benefits (including any
medical, vision or dental benefits), under the Company's health plans and
programs applicable to senior executives of the Company generally as the
Executive would have
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received under this Agreement (and at such costs to the Executive) as would
have applied in the absence of such termination (but not taking into account
any post-termination increases in Annual Salary that may otherwise have
occurred without regard to such termination and that may have favorably
affected such benefits); it being expressly understood and agreed that
nothing in this clause (ii) shall restrict the ability of the Company to
amend or terminate such plans and programs from time to time in its sole
discretion; provided, however, that the Company shall in no event be required
to provide such coverage after such time as the Executive becomes entitled to
receive health benefits from another employer or recipient of the Executive's
services (and provided, further, that such entitlement shall be determined
without regard to any individual waivers or other arrangements); (iii) all
outstanding unvested options and restricted stock held by the Executive shall
vest and all options shall remain exercisable for two years (or, if longer,
the balance of the regular term of the options); and (iv) this Agreement
shall otherwise terminate upon such termination of employment and the
Executive shall have no further rights hereunder (except as provided in
Section 7.14). For purposes of this Section 5, if the Executive's employment
is not terminated under Section 4 or this Section 5 before the Term would
otherwise expire under Section 1, then a termination of employment at the
expiration of the Term, which termination is not covered by Section 4, shall
be covered under this Section 5.2 rather than under Section 5.1(c); provided,
however, that, in such event, "two times" in clause (ii)(A) above shall be
replaced with "one and one-half times" and
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"two years" in clause (ii)(B) above shall be replaced with "18 months".
6. COVENANTS OF THE EXECUTIVE.
6.1 COVENANT AGAINST COMPETITION; OTHER COVENANTS. The Executive
acknowledges that (i) the principal business of the Company is the owning,
acquiring, developing or operating of manufactured housing communities (such
businesses, and any and all other businesses that after the date hereof, and
from time to time during the Term, become material and substantial with respect
to the Company's then-overall business, herein being collectively referred to as
the "BUSINESS"); (ii) the Company knows of a limited number of persons who have
developed the Company's Business; (iii) the Company's Business is, in part,
national in scope; (iv) the Executive's work for the Company and its
subsidiaries (and the predecessors of either) has given and will continue to
give the Executive access to the confidential affairs and proprietary
information of the Company; (v) the covenants and agreements of the Executive
contained in this Section 6 are essential to the business and goodwill of the
Company; and (vi) the Company would not have entered into this Agreement but for
the covenants and agreements set forth in this Section 6. In light of the
foregoing, during the Term and for a period of one year thereafter (and, as to
Section 6.1(b) and (d), at any time during and after the Executive's employment
with the Company and its subsidiaries (and the predecessors of either)):
(a) Except for such affiliation with ROC GP Corp. and its
affiliates (provided that the activities of the
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Executive and ROC GP Corp. do not materially increase from the level as of
the date of this Agreement), the Executive shall not, directly or indirectly,
own, manage, control or participate in the ownership, management, or control
of, or be employed or engaged by or otherwise affiliated or associated as an
employee, employer, consultant, agent, principal, partner, stockholder,
corporate officer, director or in any other individual or representative
capacity, engage or participate in any business that is in competition in any
manner whatsoever with the business of the Company in any county of any state
in which the Company owns or leases manufactured home communities. In the
case of a termination by the Company without Cause or by the Executive for
Good Reason, the preceding covenant shall expire on the date of termination;
provided, however, that, notwithstanding the foregoing, the Executive may
invest in securities of any entity, solely for investment purposes and
without participating in the business thereof, if (i) such securities are
traded on any national securities exchange or the National Association of
Securities Dealers, Inc. Automated Quotation System, (ii) the Executive is
not a controlling person of, or a member of a group which controls, such
entity and (iii) the Executive does not, directly or indirectly, own one
percent or more of any class of securities of such entity.
(b) The Executive shall keep secret and retain in strictest
confidence, and shall not use for his benefit or the benefit of others, except
in connection with the business and affairs of the Company and its affiliates,
all confidential matters
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relating to the Company's Business and the business of any of its affiliates
and to the Company and any of its affiliates, learned by the Executive
heretofore or hereafter directly or indirectly from the Company or any of its
subsidiaries (or any predecessor of either) (the "CONFIDENTIAL COMPANY
INFORMATION"), including, without limitation, information with respect to the
Business and any aspect thereof, profit or loss figures, and the Company's
or its affiliates' (or any of their predecessors') properties, and shall not
disclose such Confidential Company Information to anyone outside of the
Company except with the Company's express written consent and except for
Confidential Company Information which (i) at the time of receipt or
thereafter becomes publicly known through no wrongful act of the Executive,
(ii) is clearly obtainable in the public domain, (iii) was not acquired by
the Executive in connection with the Executive's employment or affiliation
with the Company, (iv) was not acquired by the Executive from the Company or
its representatives, or (v) is required to be disclosed by rule of law or by
order of a court or governmental body or agency.
(c) The Executive shall not, without the Company's prior
written consent, directly or indirectly, (i) knowingly solicit or encourage to
leave the employment or other service of the Company or any of its affiliates,
any employee thereof or hire (on behalf of the Executive) or any other person or
entity) any employee who has left the employment or other service of the Company
or any of its affiliates (or any predecessor of either) within one year of the
termination of such employee's or independent contractor's employment or other
service with the
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Company and its affiliates, or (ii) whether for the Executive's own account
or for the account of any other person, firm, corporation or other business
organization, intentionally interfere with the Company's or any of its
affiliates' relationship with, or endeavor to entice away from the Company or
any of its affiliates, any person who during the Executive's employment with
the Company and its affiliates (or the predecessors of either) is or was a
customer or client of the Company or any of its affiliates (or any
predecessor of either).
(d) All memoranda, notes, lists, records, property and
any other tangible product and documents (and all copies thereof) made,
produced or compiled by the Executive or made available to the Executive
concerning the Business of the Company and its affiliates shall be the
Company's property and shall be delivered to the Company at any time on
request.
6.2 RIGHTS AND REMEDIES UPON BREACH. The Executive acknowledges and
agrees that any breach by him of any of the provisions of Section 6.1 (the
"RESTRICTIVE COVENANTS") would result in irreparable injury and damage for which
money damages would not provide an adequate remedy. Therefore, if the Executive
breaches, or threatens to commit a breach of, any of the Restrictive Covenants,
the Company and its affiliates shall have the right and remedy to have the
Restrictive Covenants specifically enforced (without posting bond and without
the need to prove damages) by any court having equity jurisdiction, including,
without limitation, the right to an entry against the Executive of restraining
orders and injunctions (preliminary, mandatory,
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temporary and permanent) against violations, threatened or actual, and
whether or not then continuing, of such covenants. This right and remedy
shall be in addition to, and not in lieu of, any other rights and remedies
available to the Company and its affiliates under law or in equity
(including, without limitation, the recovery of damages). The existence of
any claim or cause of action by the Executive, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement of
the Restrictive Covenants.
7. OTHER PROVISIONS.
7.1 SEVERABILITY. The Executive acknowledges and agrees that
(i) the Executive has had an opportunity to seek advice of counsel in connection
with this Agreement and (ii) the Restrictive Covenants are reasonable in
geographical and temporal scope and in all other respects. If it is determined
that any of the provisions of this Agreement, including, without limitation, any
of the Restrictive Covenants, or any part thereof, is invalid or unenforceable,
the remainder of the provisions of this Agreement shall not thereby be affected
and shall be given full effect, without regard to the invalid portions.
7.2 DURATION AND SCOPE OF COVENANTS. If any court or other
decision-maker of competent jurisdiction determines that any of the Executive's
covenants contained in this Agreement, including, without limitation, any of the
Restrictive Covenants, or any part thereof, are unenforceable because of the
duration or geographical scope of such provision, then, after such determination
has become final and unappealable, the duration or
15
scope of such provision, as the case may be, shall be reduced so that such
provision becomes enforceable and, in its reduced form, such provision shall
then be enforceable and shall be enforced.
7.3 ENFORCEABILITY; JURISDICTIONS. The Company and the
Executive intend to and hereby confer jurisdiction to enforce the Restrictive
Covenants upon the courts of any jurisdiction within the geographical scope
of the Restrictive Covenants. If the courts of any one or more of such
jurisdictions hold the Restrictive Covenants wholly unenforceable by reason
of breadth of scope or otherwise it is the intention of the Company and the
Executive that such determination not bar or in any way affect the Company's
right, or the right of any of its affiliates, to the relief provided above in
the courts of any other jurisdiction within the geographical scope of such
Restrictive Covenants, as to breaches of such Restrictive Covenants in such
other respective jurisdictions, such Restrictive Covenants as they relate to
each jurisdiction's being, for this purpose, severable, diverse and
independent covenants, subject, where appropriate, to the doctrine of RES
JUDICATA. Any controversy or claim arising out of or relating to this
Agreement or the breach of this Agreement that is not resolved by the
Executive and the Company (or its affiliates, where applicable), other than
those arising under Section 6, to the extent necessary for the Company (or
its affiliates, where applicable) to avail itself of the rights and remedies
provided under Section 6.2, shall be submitted to arbitration in Denver,
Colorado in accordance with Colorado law and the procedures of the American
Arbitration Association. The determination of the
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arbitrator(s) shall be conclusive and binding on the Company (or its
affiliates, where applicable) and the Executive and judgment may be entered
on the arbitrator(s)' award in any court having jurisdiction.
7.4 ATTORNEYS' FEES. In the event of any legal proceeding
(including an arbitration proceeding) relating to this Agreement or any term or
provision thereof in which the Executive is the prevailing party, the Company
shall be responsible to pay or reimburse the Executive for all reasonable
attorneys' fees incurred by the Executive in connection with such proceeding.
7.5 NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage prepaid. Any such notice shall be deemed
given when so delivered personally, telegraphed, telexed or sent by facsimile
transmission or, if mailed, five days after the date of deposit in the United
States mails as follows:
(i) If to the Company, to:
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
(ii) If to the Executive, to:
Xxxxx X. Xxxxxx
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
with a copy in either case to:
Xxxxxx & Xxxxx
000 Xxxx Xxxxxx
00
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxxx, Esq.
and
Timmis & Xxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, III, Esq.
Any such person may by notice given in accordance with this Section to the other
parties hereto designate another address or person for receipt by such person of
notices hereunder.
7.6 ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements, written or oral, with the Company or its
subsidiaries (or any predecessor of either).
7.7 WAIVERS AND AMENDMENTS. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by the parties or, in the case of a waiver,
by the party waiving compliance. No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any such right, power
or privilege nor any single or partial exercise of any such right, power or
privilege, preclude any other or further exercise thereof or the exercise of any
other such right, power or privilege.
7.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
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7.9 ASSIGNMENT. This Agreement, and the Executive's rights and
obligations hereunder, may not be assigned by the Executive; any purported
assignment by the Executive in violation hereof shall be null and void. In the
event of any sale, transfer or other disposition of all or substantially all of
the Company's assets or business, whether by merger, consolidation or otherwise,
the Company may assign this Agreement and its rights hereunder.
7.10 WITHHOLDING. The Company shall be entitled to withhold from
any payments or deemed payments any amount of withholding required by law. No
other taxes, fees, impositions, duties or other charges or offsets of any kind
shall be deducted or withheld from amounts payable hereunder, unless otherwise
required by law.
7.11 NO DUTY TO MITIGATE. The Executive shall not be required
to mitigate damages or the amount of any payment provided for under this
Agreement by seeking other employment or otherwise, nor will any payments
hereunder be subject to offset in the event the Executive does mitigate.
7.12 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors, permitted
assigns, heirs, executors and legal representatives.
7.13 COUNTERPARTS. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original but all such counterparts together shall
constitute one and the same instrument.
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Each counterpart may consist of two copies hereof each signed by one of the
parties hereto.
7.14 SURVIVAL. Anything contained in this Agreement to the
contrary notwithstanding, the provisions of Sections 6, 7.3, 7.4 and 7.10 and
the other provisions of this Section 7 (to the extent necessary to effectuate
the survival of Sections 6, 7.3, 7.4 and 7.10) shall survive termination of this
Agreement and any termination of the Executive's employment hereunder.
7.15 EXISTING AGREEMENTS. Executive represents to the Company
that the Executive is not subject or a party to any employment or consulting
agreement, non-competition covenant or other agreement, covenant or
understanding which might prohibit the Executive from executing this Agreement
or limit the Executive's ability to fulfill the Executive's responsibilities
hereunder.
7.16 HEADINGS. The headings in this Agreement are for reference
only and shall not affect the interpretation of this Agreement.
7.17 PARACHUTE PROVISIONS. If any amount payable to or other
benefit receivable by the Executive pursuant to this Agreement is deemed to
constitute a Parachute Payment (as defined below), alone or when added to any
other amount payable or paid to or other benefit receivable or received by the
Executive which is deemed to constitute a Parachute Payment (whether or not
under an existing plan, arrangement or other agreement), and would result in the
imposition on the Executive of an excise tax under Section 4999 of the Internal
Revenue Code, then, in addition to any other benefits to which the Executive is
entitled under this Agreement,
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the Executive shall be paid by the Company an amount in cash equal to the sum
of the excise taxes payable by the Executive by reason of receiving Parachute
Payments plus the amount necessary to put the Executive in the same after-tax
position (taking into account any and all applicable federal, state and local
excise, income or other taxes at the highest applicable rates on such
Parachute Payments and on any payments under this Section 7.17) and if no
excise taxes had been imposed with respect to Parachute Payments. The amount
of any payment under this Section 7.17 shall be computed by a certified
public accounting firm mutually and reasonably acceptable to the Executive
and the Company, the computation expenses of which shall be paid by the
Company. "Parachute
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Payment" shall mean any payment deemed to constitute a "parachute payment" as
defined in Section 280G of the Internal Revenue Code.
IN WITNESS WHEREOF, the parties hereto have signed their names as of
the day and year first above written.
Chateau Properties, Inc.
By: /s/ Xxxx X. Xxxx
-----------------------------
its Chairman
/s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
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