EMPLOYMENT AGREEMENT
THIS AGREEMENT dated April 30, 1997, 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 Chief Financial
Officer of the Company.
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) "Bonus" is defined in Section 5(b).
d) "Calendar Quarter" shall mean each of the three month periods
ending March 31, June 30, September 30 and December 31 of each
year.
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 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).
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 May 27, 1997.
h) "Employment Fraction" is defined in Section 5(b).
i) "Guaranteed Bonus" is defined in Section 5(b).
j) "Option Plan" is defined in Section 5(c).
k) "Stock Option" is defined in Section 5(c).
l) "Term of Employment" is defined in Section 2.
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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 second
anniversary of such date.
3. Position: During the Term of Employment, the Executive shall serve as
the Chief Financial Officer of the Company, 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, NY.
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 $250,000 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) Bonus: As additional compensation for services rendered, the
Executive shall receive a bonus ("Bonus") in cash as of the
latest day in each Calendar Quarter any part of which falls
within the Term of Employment. The amount of the Bonus shall be
one-quarter of the product of $150,000 and the Employment
Fraction for the Calendar Quarter period in question (the
"Guaranteed Bonus") or such higher amount as the Board in its
sole discretion shall determine. The "Employment Fraction" for a
Calendar Quarter is the fraction of such period which falls
within the Term of Employment.
c) Equity Compensation: at the Effective Date and pursuant to an
agreement under the Stock Option Plan for Key Employees and
Outside Directors of Kimco Realty Corporation (the "Option
Plan"), the Company shall grant the Executive stock options with
respect to 50,000 shares of the Company's common stock,
exercisable at the fair market value of such stock at the date of
grant (the "Stock Options"). The Stock Options shall be "Non
Qualified Options" (as such term is defined in the Option Plan)
and shall vest in three equal installments upon the day prior to
each of the first three anniversaries of the date of grant.
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 holidays and that the
Executive shall be entitled to take sick or personal days off in
accordance with 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:
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a) Death: The Executive's employment hereunder shall terminate upon
his death.
b) Disability: If the Company determines in good faith that
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 of 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.
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 Guaranteed Bonus and to make all necessary payment 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 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(b))
(i) the Company shall continue to pay the Executive his Base Salary
and Guaranteed 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 then scheduled expiration of
the Term of Employment
(ii) if the Sock Option have not become 100% vested and have not
otherwise expires, as of such date of termination, the Stock
Options shall become 100% vested as of the termination date.
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 Guaranteed Bonus and to make all necessary payments for and
provide all Benefits the Executive under this Agreement pursuant
to Section 5(d) until the date of his termination, and
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(ii) if the Stock Options have not become 100% vested and have not
otherwise expires as of such date of termination, the Stock
Options shall continue to eligible to vest as scheduled pursuant
to Section 5(c) 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. Survival: The expiration or termination of the Term of Employment
shall not impair the right or obligations of any party hereto which
shall have accrued hereunder prior to such expiration.
9. 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.
10. 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:
11. 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 representative, executors,
administrators, heirs, distributees, devisces, and legatees, as
applicable.
12. Governing Law: This Agreement is being made and executed in and is
intended to be preformed 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.
13. Validity: The invalidity or unenforceability of any provision or
provisions of the Agreement shall not affect the validity or
enforceability of any other provision in this Agreement, which shall
remain in full force and effect.
14. 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 paid as follows:
If to the Company, addressed to its principal offices to the attention of
President at:
0000 Xxx Xxxx Xxxx Xxxx
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.
15. 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.
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16. 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 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.
17. 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 Xxxxxxx 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 further exercise of any other
right, remedy, or power provided herein or by law or in equity.
18. 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.
19. 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.
20. 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 of his estate.
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IN WITNESS WHEREOF, the parties has executed this Agreement as of the date and
year first above written.
EXECUTIVE KIMCO REALTY CORPORATION
a Maryland Corporation
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
President & Chief Operating Officer
/s/ Xxxxxxx X. Xxxxxxxxxx
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