Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated November 1, 1998, is made by and between
Kimco Realty Corporation (the "Company"), a Maryland corporation and Xxxxxxx X.
Xxxxx (the "Executive").
RECITALS:
A. Executive has been employed by the Company as its Vice
Chairman and President pursuant to an Employment Agreement dated November 1,
1995 which expires October 31, 1998 (the "Prior Agreement").
B. It is the desire of the Company and the Executive to
continue their relationship on the terms set forth below.
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements set forth below the parties hereto agree as
follows:
1. Certain Definitions.
(a) "Base Salary" is defined in Section 5(a).
(b) "Benefits" is defined in Section 5(d).
(c) "Board" shall mean the Board of Directors of the Company.
(d) "Bonus" is defined in Section 5(b).
(e) "Cause": For purposes of this Agreement, the Company
shall have "Cause" to terminate the Executive's
employment hereunder upon (i) a finding by the Board that
he has materially harmed the Company through a material
act of dishonesty in the performance of his duties
hereunder, (ii) his conviction of a felony, or (iii) his
failure to perform his material duties under this
Agreement (other than a failure due to disability) after
written notice specifying the failure and a reasonable
opportunity to cure (it being understood that if his
failure to perform is not of a type requiring a single
action to cure fully, that he may commence the cure
promptly after such written notice and thereafter
diligently prosecute such cure to completion).
(f) "Disability" shall mean the absence of the Executive from
the Executive's duties to the Company on a full-time
basis for a total of 16 weeks during any 12 month period
as a result of incapacity due to mental or physical
illness which is determined to be total and permanent by
a physician selected by the Company and acceptable to the
Executive or the Executive's legal representative (such
agreement as to acceptability not to be withheld
unreasonably).
(g) "Effective Date" shall mean November 1, 1998.
(h) "Good Reason": The Executive shall have Good Reason to
terminate his employment in the event of any material
adverse change in his job titles, duties,
responsibilities, perquisites granted hereunder, or
authority without his consent.
(i) "Prior Agreement" is defined in the Preamble hereto.
(j) "Term of Employment" is defined in Section 2.
2. Employment. The Company shall continue to employ the Executive and
the Executive shall continue to be employed by the Company, for the five year
period commencing on the Effective Date (such period, subject to earlier
termination pursuant to Section 6, the "Term of Employment"), in the position
set forth in Section 3 and upon the other terms and conditions herein provided.
The Term of Employment shall automatically be extended for successive one year
periods until either party hereto gives notice of non-renewal to the other
(pursuant to Section 13), no later than three months prior to the then
applicable end of the Term of Employment. Notwithstanding the foregoing the
Executive shall have the right to terminate the Term of Employment effective on
or after the third anniversary of the Effective Date by giving notice thereof to
the Company pursuant to Section 13.
3. Position. During the Term of Employment, the Executive shall serve
as the Vice-Chairman and President of the Company.
4. Place of Performance. In connection with his employment during the
Term of Employment, the Executive shall be based at the Company's principal
executive offices currently located in New Hyde Park, New York.
5. Compensation and Related Matters.
(a) Base Salary. During the Term of Employment the Executive
shall receive a base salary ("Base Salary") at a rate of $650,000 per
annum, payable monthly or more frequently in accordance with the
Company's practice as applied to other senior executives.
(b) Bonus. As additional compensation for services rendered
during the Term of Employment the Executive shall be eligible to
receive a bonus ("Bonus") in cash at such times and in such amounts, if
any, as the Board in its sole discretion shall determine.
(c) Equity Compensation. Executive shall be eligible to
receive grants of common stock of the Company, or options with respect
thereto, in such amounts, if any, and under such conditions as the
Board, in its sole discretion, shall determine.
(d) Benefits. During the Term of Employment, the Executive
shall be entitled to participate in or receive benefits under any
employee benefit plan or other arrangement made available by the
Company to any of its senior employees (collectively "Benefits"),
subject to and on a basis consistent with the terms, conditions and
overall administration of such plan or arrangement, provided, however,
that the Executive shall
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be entitled to four weeks of paid vacation per annum during the Term of
Employment, exclusive of Company holidays and that the Executive shall
be entitled to take sick or personal days off in accordance with the
Company's practice as applied to other senior executives. The Company
shall also provide Executive with use of an automobile selected by
Executive and shall pay fuel, oil and other vehicle necessities and
maintenance and repairs cost and expenses for or to the automobile and
shall provide a driver for the Executive's use of the automobile on
Company business.
(e) Expenses. The Company shall promptly reimburse the
Executive for all reasonable travel and other business expenses
incurred by the Executive in the performance of his duties to the
Company hereunder.
(f) No Waiver. The Executive shall also be entitled to such
other benefits or terms of employment as are provided by law.
6. Termination. The Executive's employment hereunder may be terminated
by the Company or the Executive, as applicable, without any breach of this
Agreement only under the following circumstances:
(a) Death. The Executive's employment hereunder shall
terminate upon his death.
(b) Disability. If the Company determines in good faith that
the Disability of the Executive has occurred during the Term of
Employment, the Company may give the Executive written notice in
accordance with Section 13(b) of its intention to terminate the
Executive's employment. In such event, the Executive's employment with
the Company shall terminate effective on the 30th day after receipt of
such notice by the Executive, provided that within the 30 days after
such receipt, the Executive shall not have returned to full-time
performance of his duties. The Executive shall continue to receive his
Base Salary and Benefits until the date of termination.
This subsection 6(b) shall not limit the entitlement of the
Executive, his estate or beneficiaries to any disability or other
benefits then available to the Executive under any disability insurance
or other benefit plan or policy which is maintained by the Company for
the Executive's benefit.
(c) Cause. The Company may terminate the Executive's
employment hereunder for Cause.
(d) Good Reason. The Executive may terminate his employment
for Good Reason.
(e) Without Cause. The Company may terminate the Executive's
employment hereunder without Cause upon 30 days notice.
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(f) Notice of Termination. Any termination of the Executive's
employment hereunder by the Company or the Executive (other than by
reason of the Executive's death) shall be communicated by a notice of
termination to the other parties hereto. For purposes of this
Agreement, a "notice of termination" shall mean a written notice which
(i) indicates the specific termination provision in the Agreement
relied upon, (ii) sets forth in reasonable detail any facts and
circumstances claimed to provide a basis for termination of the
Executive's employment under the provision indicated and (iii)
specifies the effective date of the termination.
7. Benefits upon Certain Terminations of Employment.
(a) Termination upon Death or Disability.
(i) If the Executive's employment shall terminate by
reason of his death (pursuant to Section 6(a)) payment of
one-half his Base Salary shall continue for the lesser of one
year or the otherwise applicable termination of the Term of
Employment to such payee as the Executive shall have
designated on the signature page hereof. (Such payee may
subsequently be changed by the Executive by written notice to
the Company).
(ii) If the Executive's employment shall terminate by
reason of his death or Disability, any options with respect to
the common stock of the Company then held by Executive which
are not yet exercisable shall thereupon become exercisable and
shall remain exercisable until expiration in accordance with
the terms of such option.
(b) Termination without Cause or for Good Reason: If the
Executive's employment shall terminate without Cause (pursuant to
Section 6(e)) or for Good Reason (pursuant to Section 6(d)),
(i) the Company shall continue to pay the Executive
his Base Salary and to make all necessary payments for and
provide all Benefits to the Executive under this Agreement
pursuant to Section 5(d) until the date of his termination,
(ii) the Company shall pay the Executive a severance
benefit equal to the greater of (A) the remaining Base Salary
payments to which the Executive would be entitled for the
remainder of the Term of Employment if such termination of
employment had not occurred (and without regard to the
Executive's right described in the last sentence of Section 2)
or (B) one year's payment of Base Salary, and
(iii) any options with respect to the common stock of
the Company then held by Executive which are not yet
exercisable shall thereupon become exercisable and shall
remain exercisable until expiration in accordance with the
terms of such option.
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(c) Survival. The expiration or termination of the Term of
Employment shall not impair the rights or obligations of any party
hereto which shall have accrued hereunder prior to such expiration.
(d) Mitigation of Damages. In the event of any termination of
the Executive's employment by the Company, the Executive shall not be
required to seek other employment to mitigate damages and any income
earned by the Executive from other employment or self-employment shall
be not be offset against any obligations of the Company to the
Executive hereunder.
8. Consultancy. Upon termination of the Term of Employment pursuant to
the notices described in the second or third sentences of Section 2, Executive
and the Company shall thereupon enter into a consulting agreement which shall
provide for compensation of $250,000 per annum, a term of three years and other
customary terms and conditions.
9. Disputes.
(a) Any dispute or controversy arising under, out of, in
connection with or in relation to this Agreement shall, at the election
and upon written demand of any party to this Agreement, be finally
determined and settled by arbitration in New York, New York in
accordance with the rules and procedures of the American Arbitration
Association, and judgment upon the award may be entered in any court
having jurisdiction thereof.
(b) The prevailing party in any such proceeding shall be
entitled to collect from the other party, all legal fees and expenses
reasonably incurred in connection therewith.
10. Binding on Successors. This Agreement shall be binding upon and
inure to the benefit of the Company, the Executive and their respective
successors, assigns, personnel and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as applicable.
11. Governing Law. This Agreement is being made and executed in and is
intended to be performed in the State of New York, and shall be governed,
construed, interpreted and enforced in accordance with the substantive laws of
the State of New York.
12. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
13. Notices. Any notice, request, claim, demand, document and other
communication hereunder to any party shall be effective upon receipt (or refusal
of receipt) and shall be in writing and delivered personally or sent by telex,
telecopy, or certified or registered mail, postage prepaid, as follows:
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(a) If to the Company, addressed to its principal offices to
the attention of the Chairman, at:
0000 Xxx Xxxx Xxxx Xx.
Xxx Xxxx Xxxx, XX 00000
(b) If to the Executive, to him at the address set forth below
under his signature;
or at any other address as any party shall have specified by notice in writing
to the other parties.
14. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same Agreement.
15. Entire Agreement. The terms of this Agreement are intended by the
parties to be the final expression of their agreement with respect to the
employment of the Executive by the Company and may not be contradicted by
evidence of any prior or contemporaneous agreement. The parties further intend
that this Agreement shall constitute the complete and exclusive statement of its
terms and that no extrinsic evidence whatsoever may be introduced in any
judicial, administrative, or other legal proceeding to vary the terms of this
Agreement.
16. Amendments; Waivers. This Agreement may not be modified, amended,
or terminated except by an instrument in writing, signed by the Executive and a
disinterested director of the Company. By an instrument in writing similarly
executed, the Executive or the Company may waive compliance by the other party
with any provision of this Agreement that such other party was or is obligated
to comply with or perform, provided, however, that such waiver shall not operate
as a waiver of, or estoppel with respect to, any other or subsequent failure. No
failure to exercise and no delay in exercising any right, remedy, or power
hereunder preclude any other or further exercise of any other right, remedy, or
power provided herein or by law or in equity.
17. No Effect on Other Contractual Rights. Notwithstanding Section 6,
the provisions of this Agreement, and any other payment provided for hereunder,
shall not reduce any amounts otherwise payable to the Executive under any other
agreement between the Executive and the Company, or in any way diminish the
Executive's rights under any employee benefit plan, program or arrangement of
the Company to which he may be entitled as an employee of the Company.
18. No Inconsistent Actions; Cooperation.
(a) The parties hereto shall not voluntarily undertake or fail
to undertake any action or course of action inconsistent with the
provisions or essential intent of this Agreement. Furthermore, it is
the intent of the parties hereto to act in a fair and reasonable manner
with respect to the interpretation and application of the provisions of
this Agreement.
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(b) Each of the parties hereto shall cooperate and take such
actions, and execute such other documents as may be reasonably
requested by the other in order to carry out the provisions and
purposes of this Agreement.
19. No Alienation of Benefits. To the extent permitted by law the
benefits provided by this Agreement shall not be subject to garnishment,
attachment or any other legal process by the creditors of the Executive, his
beneficiary or his estate.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
EXECUTIVE
/s/ Xxxxxxx X. Xxxxx
-----------------------------
Xxxxxxx X. Xxxxx
000 Xxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
KIMCO REALTY CORPORATION,
a Maryland corporation
By: /s/ Xxxxxx Xxxxxx
-------------------------
Executive's payee pursuant to Section 7(a):
Name: Xxxx X. Xxxxx
Address: 000 Xxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
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