FIRST AMENDMENT TO
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT ("First Amendment") is made as of January 1, 2002 (the "Effective
Date"), by and between Kimco Realty Corporation, a Maryland corporation
("Kimco"), and Xxxxxx Xxxxxxxx ("Employee").
Recitals
A. Employee is currently employed by Kimco, as it's Executive Vice
President; and Employee is also currently employed as the President of a
subsidiary of Kimco known as Kimco Developers, Inc. (the "Development Company"),
all pursuant to a certain Amended and Restated Executive Employment Agreement
(made as of April 3, 2000) by and between Kimco and Employee. Said Amended and
Restated Executive Employment Agreement is hereinafter referred to as the
"Agreement". A true and complete copy of the Agreement is attached hereto as
Exhibit A.
B. Kimco and Employee wish to amend the Agreement upon the terms and
subject to the conditions herein provided.
Terms and Conditions
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants and conditions hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, Kimco
and Employee hereby agree that, from and after the Effective Date, the aforesaid
Agreement shall be and hereby is amended as follows:
1. Regarding Term of Employment. Pursuant to Section 2b of the
Agreement, the Employment Term is hereby extended for four (4) years, commencing
January 1, 2002 and expiring December 31, 2005. During such extension of the
Employment Term, Employee shall continue to be employed in his capacity as
Executive Vice President of Kimco and also in his capacity as President of
Development Company.
2. Compensation. Section 3a of the Agreement is hereby deleted in its
entirety and the following is hereby substituted in lieu thereof:
"a. Salary. Commencing January 1, 2002, Employee's base annual
salary shall be $450,000 per annum, payable weekly; and in addition thereto,
Employee shall also receive an automobile allowance of $8,400 per annum to
reimburse Employee for expenses associated with the use of his personal vehicle
for business purposes. It is also agreed that Employee's base annual salary (as
well as any other bonus or compensation elsewhere provided for in the Agreement
as modified by the First Amendment) shall be re-evaluated annually in Kimco's
sole discretion; provided that in no event shall (i) Employee's base annual
salary be reduced or (ii) the definition of, or manner of calculating
"Development Company Profit" (as set forth below in this First Amendment) be
altered to Employee's detriment during the Employment Term as herein extended.
Further, Employee shall be and remain eligible for all benefit and incentive
programs available to all executives of Kimco."
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3. Regarding Schedule B attached to the Agreement. Schedule B attached
to the Agreement is hereby amended as follows:
a. Paragraph 1 of Schedule B is hereby deleted in its
entirety and the following is hereby substituted in lieu thereof:
"It is acknowledged and agreed that Development Company has
been formed as a taxable subsidiary of Kimco and is operating as a distinct
business; and that Development Company's books and records are kept and
maintained by Kimco, in the regular course of Kimco's business, and in
accordance with generally accepted accounting principles."
b. Paragraphs 2 and 3 of Schedule B are each hereby deleted
in their entirety.
c. Paragraph 4B of Schedule B is hereby deleted in its
entirety and the following is hereby substituted in lieu thereof:
"B. 'Development Company Profit' shall be calculated by Kimco for each
Development Company project that is, in whole or in part, either sold or is
subject to a written contract of sale which, in Kimco's reasonable judgment is
probable to be sold, such Development Company Profit to be determined by Kimco
in accordance with Development Company's books and records and also in
accordance with generally accepted accounting principles. Consistent with past
practice that has developed in the determination of Development Company Profit,
Kimco shall determine Development Company Profit without consideration or offset
for taxes, and Kimco shall continue to earn a 10% priority return on all funds
contributed to a project (whether it be in the form of debt or equity capital)."
d. Paragraphs 4C; 4D; 4E; and 4G are each hereby deleted in
their entirety.
e. Paragraph 4H of Schedule B is hereby amended by deleting
all references to the Casa Paloma project; the I-10/Xxx-Xxxxxxx project; and the
dollar figures appearing next to such projects.
4. Miscellaneous. Capitalized terms which are not expressly defined
herein shall have the same meanings as are ascribed to them in the Agreement.
The Agreement, as herein amended, is hereby ratified and confirmed to be in full
force and effect.
IN WITNESS WHEREOF, Kimco and Employee hereto have executed this First
Amendment as of the date first written above.
KIMCO REALTY CORPORATION
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Its: Chief Executive Officer
EMPLOYEE
/s/ Xxxxxx Xxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxx
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