EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT made this 22nd day of April, 1994,
by and between AGREE REALTY CORPORATION, a Maryland corporation (the
"Company"), and EDWARD ROSENBERG (the "Executive").
W I T N E S S E T H :
WHEREAS, the Executive is expected to make certain
contributions to the financial strength of the Company;
WHEREAS, the Company desires to assure itself of the
continuity of management and desires to establish certain compensation rights
of certain of its key senior executive officers, including the Executive; and
WHEREAS, the Company desires to employ the Executive and the
Executive desires to accept such employment on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter contained, the parties hereto hereby agree as follows:
1. Employment; Term. The Company hereby employs the Executive
as Senior Vice President of the Company and the Executive agrees to serve the
Company in such capacity for the period commencing the date hereof (the
"Effective Date") and ending on the third anniversary of the Effective Date
(the "Initial Term").
2. Termination. Subject to the terms and conditions set forth
herein, the Executive's employment may be terminated by either party hereto
upon thirty (30) days' written notice to the other party hereto.
3. Duties. The Executive shall be responsible for the
supervision, control and conduct of all the business and affairs of the
Company and shall have such additional duties and any additional
responsibilities as are normally assigned to a Senior Vice President which
may from time to time be reasonably designated by the Board of Directors of
the Company (the "Board"), provided that in no event shall the scope of his
duties and the extent of his responsibilities be substantially different from
the duties and responsibilities usually associated with those positions in a
corporation similar in size and function to the Company. At all times, the
Executive shall be subject to the direction of the Board. During the period
the Executive is employed by the Company (the "Employment Period"), the
Executive shall devote his full business time and best efforts to the
business and affairs of the Company and its subsidiaries, except for any
business activities rendered by the Executive in connection with the
partnerships listed on Schedule A.
4. Compensation. The Company shall pay the Executive a salary
at the rate of seventy five thousand dollars ($75,000.00) per annum during
the Employment Period, subject to the last sentence of this Section 4. Such
compensation shall be payable in accordance with the usual payroll practices
of the Company, as compensation to the Executive for the services rendered by
the Executive hereunder, including, but not limited to, all services rendered
by the Executive as an officer or director of the Company and its
subsidiaries. The Board shall review the Executive's salary immediately prior
to the end of each fiscal year during the Employment Period to determine
whether the Executive's salary shall be increased
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based on such criteria as the Board or any committee thereof shall from time
to time establish (for purposes of this Employment Agreement, the term
"salary" shall mean the amount established and adjusted from time to time
pursuant to this Section 4).
5. Benefits.
(a) The Company agrees to reimburse the Executive
for all reasonable and necessary travel, business entertainment and other
business expenses incurred by the Executive in connection with the
performance of his duties under this Employment Agreement. Such
reimbursements shall be made by the Company on a timely basis upon submission
by the Executive of vouchers, in accordance with the Company's standard
procedures. All such reimbursements shall be subject to limitations which may
from time to time be prescribed by the Board.
(b) The Executive shall be entitled to participate
in any and all life insurance, medical insurance, group health, disability
insurance, and other benefit plans which are made generally available during
the Employment Period by the Company to executives of the Company, including,
but not limited to, the Company's Stock Incentive Plan, Profit Sharing Plan
and Performance Bonus Plan (to the extent that the Executive qualifies under
the eligibility provisions of such plan or plans). Additionally, the
Executive shall be entitled to receive annual paid vacation and paid holidays
made available pursuant to Company policy to all of the senior executives of
the Company.
(c) In the event of the death or disability of the
Executive, the Executive's employment hereunder shall terminate and in
addition to any amounts payable at such time and in accordance with the terms
of Paragraph 4 hereof (appropriately pro-rated),
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the Company shall, for the longer of (i) the remainder of the calendar year
in which the Executive dies or becomes disabled or (ii) six (6) months, but
in no event longer than the remainder of the Initial Term, pay to the
Executive or the Executive's personal representative, as the case may be, the
Executive's salary at the date of such death or disability. For the purposes
hereof, the term "disability" shall mean the absence of the Executive, due to
physical or mental illness, on a full-time basis for one hundred twenty (120)
consecutive business days or for shorter periods which aggregate more than
four months during any consecutive twelve (12) month period.
(d) In the event the employment of the Executive is
terminated by the Company for any reason other than for cause (as defined
below), the Executive shall be entitled to all amounts payable during the
Initial Term (including, but not limited to, salary at the then applicable
rate) within ten (10) days of such termination and the Executive shall have
the right to continue to participate in all benefits plans made generally
available by the Company to its executives during the Initial Term. For
purposes of this Section 5(d) the term "cause" shall mean: (i) the
Executive's willful failure or refusal to perform specific reasonable written
directives of the Board, which directives are consistent with the scope and
nature of the Executive's duties and responsibilities under this Employment
Agreement, and which are not remedied by the Executive within sixty (60) days
after being notified, in writing, of his failure by the Board; (ii) the
Executive's conviction of a felony; (iii) any act of dishonesty involving the
Company which results in an unjust gain or enrichment to the Executive at the
expense of the Company; (iv) any act involving moral turpitude of the
Executive which adversely affects the business of the Company; or (v) a
material breach by the Executive of his obligations under Section 6 hereof.
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(e) In the event this Employment Agreement is
terminated by the Company for "cause," the Executive shall forfeit his right
to any and all benefits (other than any previously vested benefits,
including, without limitation, the Executive's salary through the date of
termination) which the Executive would otherwise have been entitled to
receive pursuant to the terms of this Employment Agreement.
6. Non-Competition. The Executive agrees that (a) at all
times during the Initial Term, if the Executive is terminated for "cause" or
voluntarily terminates his employment hereunder and (b) at all times during
the Employment Period, the Executive shall not engage in any business which
is competitive with the then current business of the Company or any of its
subsidiaries. For the purposes of this Paragraph 6, a business shall be
deemed competitive if it consists of or includes any type or line of business
engaged in by the Company or any of its subsidiaries at the time of such
termination and which is conducted, in whole or in part, within those states
where the Company then conducts business. The Executive shall be deemed,
directly or indirectly, to engage in a business if he participates in such
business as a director, officer, stockholder, employee, salesman, partner or
individual proprietor, or if he participates in such business as an investor
who has made advances on loan, contributions to capital or expenditures for
the purchase of stock, permits his name to be used by, acts as a paid
consultant or paid advisor to, or if the Executive exerts a controlling
influence over such business, provided that nothing herein contained shall be
deemed to preclude the purchase of securities of publicly owned companies
which securities are listed on a national securities exchange, but the total
holding of any such securities so listed shall be limited to five percent
(5%) of the amount of such securities outstanding.
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7. Confidentiality. The Executive shall not at any time
use or divulge, furnish or make accessible to anyone (other than in the
regular course of the business of the Company or any of its subsidiaries) any
knowledge or information of trade secrets and proprietary information which
has not otherwise become publicly available (including, but not limited to,
any information concerning customers or accounts) with respect to the
business affairs of the Company or any of its subsidiaries.
8. Notices. All notices relating to this Employment
Agreement shall be in writing and shall be deemed to have been given at the
time when delivered personally or sent in the United States by registered or
certified mail, return receipt requested, in a postpaid envelope, addressed
to the other party at the address set forth below, or to such changed address
as the other party may have fixed by notice; provided, however, that any
notice of change of address shall be effective only upon receipt:
To the Company: 31850 Northwestern Highway
Farmington Hills, Michigan 48334
-copy to-
Kramer, Levin, Naftalis, Nessen,
Kamin & Frankel
919 Third Avenue
New York, New York 10022
Attn: David P. Levin
To the Executive: 6986 Pebble Creek Woods
West Bloomfield, Michigan 48033
9. Assignability, Binding Effect and Survival. This
Employment Agreement shall inure to the benefit of and be binding upon the
Company, its successors and assigns, including without limitation any
corporation which may acquire all or substantially all of the Company's
assets and business or with or into which the Company may be
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consolidated or merged, and shall inure to the benefit of and be binding upon
the Executive, his heirs, executors, administrators and legal
representatives, provided that the obligations of the Executive hereunder may
not be delegated.
10. Complete Understanding; Amendment; Waiver. This
Employment Agreement constitutes the complete understanding between the
parties with respect to the employment of the Executive hereunder, and no
statement, representation, warranty or covenant has been made by either party
with respect thereto except as expressly set forth herein. This Employment
Agreement shall not be altered, modified, amended or terminated except by
written instrument signed by each of the parties hereto. Waiver by either
party hereto of any breach hereunder by the other party shall not operate as
a waiver of any other breach, whether similar to or different from the breach
waived. No delay on the part of the Company or the Executive in the exercise
of any of their respective rights or remedies shall operate as a waiver
thereof, and no single or partial exercise by the Company or the Executive of
any such right or remedy shall preclude other or further exercise thereof.
11. Severability. If any provision of this Employment
Agreement or the application of any such provision to any party or
circumstances shall be determined by any court of competent jurisdiction to
be invalid and unenforceable to any extent, the remainder of this Employment
Agreement or the application of such provision to such person or
circumstances other than those to which it is so determined to be invalid and
unenforceable, shall not be affected thereby, and each provision hereof shall
be enforced to the fullest extent permitted by law.
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12. Governing Law. This Employment Agreement shall be
governed and construed in accordance with the internal laws of the State of
Michigan without regard to conflict of laws provisions.
13. Indemnification. The Company shall indemnify the
Executive against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys' fees actually and necessarily incurred, in any
action or proceeding to which the Executive is made a party by reason of the
fact that he is or was an officer or director of the Company, to the fullest
extent permitted by law, the By-laws of the Company and the Articles of
Incorporation of the Company.
14. Counterparts. This Employment Agreement may be executed
in counterparts, all of which together shall constitute one agreement binding
on all parties hereto.
15. Titles and Captions. All paragraph, article or section
titles or captions in this Employment Agreement are for convenience only and
in no way define, limit, extend or describe the scope or intent of any
provisions hereof.
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IN WITNESS WHEREOF, each of the parties hereto has duly
executed this Employment Agreement as of the date first above written.
AGREE REALTY CORPORATION
By: /s/ Richard Agree
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Name: Richard Agree
Title: President
/s/ Edward Rosenberg
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Edward Rosenberg
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