EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated January 1, 2002 is made by and between Kimco
Realty Corporation (the "Company"), a Maryland corporation, and Xxxxxxx X.
Xxxxxxxxxx (the "Executive").
RECITALS:
A. It is the desire of the Company to assure itself of the management
services of the Executive by engaging the Executive as the Chief
Financial Officer of Kimco Realty Corporation.
B. The Executive desires to commit himself to serve the Company on the
terms herein provided.
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) "Calendar Quarter" shall mean each of the three-month
periods ending March 31, June 30, September 30 and December 31 of each
year.
(f) "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 harmed the Company through an 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).
(g) "Change of Control": shall mean (i) a sale of all or
substantially all of the assets of the Company to a Person who is not
an Affiliate of the Company or an entity in which the shareholders of
the Company immediately prior to such transaction do not control more
than 50% of the voting power immediately following the transaction,
(ii) a sale by any Person resulting in more than 50% of the voting
stock of the Company being held by a Person or Group that does not
include the Company or (iii) a merger or consolidation of the Company
into another Person which is not an Affiliate of the Company or an
entity in which the shareholders of the Company immediately prior to
such transaction do not control more than 50% of the voting power
immediately following the transaction.
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(h) "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).
(i) "Effective Date" shall mean January 1, 2002.
(j) "Employment Fraction" is defined in Section 5(b).
(k) "Discretionary Bonus" is defined in Section 5(b).
(l) "Option Agreement" is defined in Section 5(c).
(m) "Option Plan" is defined in Section 5(c).
(n) "Stock Options" is defined in Section 5(c).
(o) "Term of Employment" is defined in Section 2.
2. Employment. The Company shall employ the Executive, and the
Executive shall enter the employ of the Company, in the positions set
forth in Section 3 and upon the other terms and conditions herein
provided. Unless sooner terminated as provided herein, this Agreement
and the term of employment hereunder (the "Term of Employment") shall
initially commence on the Effective Date and expire on the third
anniversary of such date.
3. Position. During the Term of Employment, the Executive
shall serve as Chief Financial Officer, reporting directly to the
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 $ 400,000 per annum (or such greater amount as shall
be determined by the Board), payable monthly or more
frequently in accordance with the Company's practice as
applied to other senior executives.
(b) Discretionary Bonus. As additional compensation
for services rendered, the Executive may receive a
discretionary bonus ("Bonus") in cash in an amount based on
the sole discretion of the Board of Directors.
(c) Equity Compensation. Executive shall retain all
of his rights pursuant to his currently outstanding agreement
(the "Option Agreement") under the Stock Option Plan for Key
Employees and Outside Directors of Kimco Realty Corporation
(the "Option Plan").
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(d) Benefits. During the Term of Employment, the
Executive shall be entitled to participate in or receive
benefits under the employee benefit plans and other
arrangements made available by the Company to its senior
employees generally (collectively "Benefits"), subject to and
on a basis consistent with the terms, conditions and overall
administration of such plans or arrangements, provided,
however, that the Executive shall be entitled to four weeks of
paid vacation per annum during the Term of Employment,
exclusive of Company or 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.
(e) Business 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 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) Without Cause. The Company may terminate the
Executive's employment hereunder without Cause upon
thirty days notice.
(e) Notice of Termination. Any termination of the
Executive's employment hereunder (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.
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7. Benefits upon Termination of Employment.
(a) Termination upon Death or Disability: If the
Executive's employment shall terminate by reason of his death
(pursuant to Section 6(a)) or by reason of his Disability
(pursuant to Section 6(b)), the Company shall continue to pay
the Executive his Base Salary and Discretionary Bonus 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, and the Executive's Stock
Options shall become fully vested as of such date of
termination.
(b) Termination without Cause: If the Executive's
employment shall terminate without Cause (pursuant to
Section 6(d)),
(i) the Company shall continue to pay the
Executive his Base Salary to make all necessary
payments for and provide all Benefits to the
Executive under this Agreement pursuant to Section
5(d) until the then scheduled expiration of the Term
of Employment, unless such Termination shall occur
within the last six months of the scheduled Term, in
which case the Company shall continue to pay the
Executive his Base salary, make all necessary
payments and to provide all Benefits to the Executive
for a period of six months from the date of
Termination, and
(ii) if the Stock Options have not become
100% vested and have not otherwise expired as of such
date of termination, the Stock Options shall become
100% vested as of the date of termination.
(c) Termination by Reason of Expiration of the Term
of Employment. Should the Executive's employment hereunder
terminate by reason of the expiration of the Term of
Employment,
(i) the Company shall continue to pay the
Executive his Base Salary and Discretionary Bonus 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, and
(ii) if the Stock Options have not become
100% vested and have not otherwise expired as of such
date of termination, the Stock Options shall continue
to be eligible to vest as scheduled pursuant to the
Option Agreement and shall become vested on such
scheduled vesting date(s) if the Executive shall have
made himself available to consult with the Company as
reasonably requested by the Company during the period
beginning on the date of termination and ending on
such scheduled vesting date(s).
(d) Other Terminations of Employment: Should the
Executive's employment hereunder terminate for any reason not
set forth in subsections (a) - (c) above, then any Stock
Options not then vested shall be forfeited and the Company
shall have no other obligation of any kind hereunder to the
Executive.
8. Change in Control. Following a Change in control (a) the
Executive may terminate his employment within 60 days or (b) if the
acquiring entity or Person decides to terminate the Executive without
Cause, then upon Executive's execution of a general release in the
Company's customary form, Executive shall be entitled, as his exclusive
remedy hereunder to (x) full and immediate vesting of all otherwise
unvested Stock Options and (y) a payment equal to the lesser of (i) the
amount of Base Salary and bonus he would have been entitled to receive
under this contract for the duration of the otherwise applicable term
or (ii) the greatest payment which, in combination with all other
payments to which he would be entitled, would not constitute an "excess
parachute payment" as such term is defined in Section 280G(b)(1) of the
Internal Revenue Code.
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9. 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.
10. 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.
11. Disputes. 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.
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.
12. 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.
13. 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.
14. 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.
15. 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:
If to the Company, address to the Company's principal offices
to the attention of President, at:
0000 Xxx Xxxx Xxxx Xx.
Xxx Xxxx Xxxx, XX 00000
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.
16. 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.
17. 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.
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18. 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.
19. 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.
20. 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.
(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.
21. 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.
22. Effect of Prior Employment Agreement. Effective as of the
Effective Date Executive's prior Employment Agreement with the Company
dated April 30, 1997 and effective May 27, 1997 shall be of no further
force or effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
EXECUTIVE KIMCO REALTY CORPORATION,
a Maryland Corporation
By: /s/ Xxxxxx Xxxxxx
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/s/ Xxxxxxx X. Xxxxxxxxxx Chief Executive Officer
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/s/ Xxxxx X. Xxxxxxxxxx
-------------------------
Executive's payee pursuant to Section 7(a):
Name Xxxxx X. Xxxxxxxxxx
Address 00 Xxxxx Xxxx
Xxxxxxxx, Xx. 00000
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