EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated February 14, 2001 is made by and between Kimco
Realty Corporation (the "Company"), a Maryland corporation, and David Henry (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 Vice
Chairman and Chief Investment 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(e).
(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 reasonable
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 from the Board of Directors of the Company specifying the failure and a
reasonable opportunity (of at least 30 days duration) 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 within 30 days 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 April 16, 2001.
(h) "Good Reason" shall mean the Company's breach of any material term
of this Agreement including the second sentence of Section 10.
(i) "Stock Options" is defined in Section 5(c).
(j) "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 position 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 commence on the Effective Date and
expire on the fifth anniversary of such date, provided that the Term of
Employment shall automatically be extended in successive one year terms unless
either party hereto gives written notice of non-extension to the other (pursuant
to Section 13) no later than three months prior to the end of the otherwise
applicable term.
3 Position. During the Term of Employment, the Executive shall
serve as Vice Chairman and Chief Investment Officer 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 in New Hyde Park, NY, or such other location as shall be
agreed between the Executive and the Company.
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 $500,000 per annum
(or such greater amount as shall be determined by the Company's Chief
Executive Officer), payable monthly or more frequently in accordance
with the Company's practice as applied to other senior executives. Such
base salary shall be reviewed at least annually.
(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 $250,000 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. Executive shall be eligible to be granted
options with respect to the Company's common stock ("Stock Options")
pursuant to an agreement under the Stock Option Plan for Key Employees
and Outside Directors of Kimco Realty Corporation (the "Option Plan").
The amount, terms and conditions of any such grant shall be determined
in the sole discretion of the Company's Board of Directors or committee
thereof. Executive shall initially be granted 25,000 shares of the
Company's common stock. Additionally, the Executive shall receive
250,000 Stock Options of the Company's common stock. The Stock Options
with respect to a maximum of 25,000 of these shares shall be granted
with intent that they qualify as "incentive stock options" as defined
in Section 422 (b) of the Internal Revenue Code of 1986 as amended.
(i) If Executive is employed by the Company on the tenth
anniversary of the Effective Date, on such date the Company shall
grant Executive 25,000 shares of the Company's common stock.
(d) Automobile. During the period of employment, Executive shall
be entitled to an automobile and driver.
(e) Benefits. During the Term of Employment, the Executive shall
be entitled to participate in or receive benefits under the employee
benefit plans (including health, welfare and insurance 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. Additionally, Executive shall receive a
life insurance policy in the amount of $3,500,000.
(f) 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.
(g) 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. The giving
of a notice of non-extension as described in Section 2 shall not be
deemed to constitute a termination without Cause.
(e) For Good Reason. The Executive may resign his employment upon
thirty days notice for Good Reason.
(f) 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 to, or on behalf of, the Executive his
Base Salary at the time of his Death or Disability and Guaranteed Bonus
and to make all necessary payments for and provide all Benefits to the
Executive under this Agreement pursuant to Section 5(e) until the
effective date of his termination and any Stock Options of Executive
shall become fully vested as of such effective date of termination.
(b) Termination without Cause: If the Executive's employment shall
terminate without Cause (pursuant to Section 6(d)) or for Good Reason
(pursuant to Section 6(e)),
(i) the Company shall continue, on its regular
payroll dates, to pay the Executive his Base Salary at the
time of his termination without cause and Guaranteed Bonus and
to make all necessary payments for and provide all Benefits to
the Executive under this Agreement for a period from the
effective date of his termination of employment equal to the
greater of
(A) the duration of the remaining Term of
Employment (without extension) and
(B) one year; and
(ii) any Stock Options of Executive which have not
become vested and have not otherwise expired as of such date
of termination, shall thereupon become vested and exercisable.
(c) Other Terminations of Employment: Should the Executive's
employment hereunder terminate by reason of expiration of the Term of
Employment or for any other reason not set forth in subsections (a) -
(b) 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, except to the extent that any obligation to the
Executive hereunder remains unpaid.
8 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.
9 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.
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. The
Company shall cause any successor to all or substantially all of its assets or
business to assume this Agreement.
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 without regard to its choice of law rules.
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, facsimile transmission, or certified or registered mail, postage
prepaid, as follows:
If to the Company, addressed to:
3333 New Hyde Park Rd.
New Hyde Park, NY 11042
Att: Vice President of Human Resources
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 in accordance herewith.
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 shall 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. Upon the
execution hereof the Original Agreement shall be of no further force or effect.
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.
(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.
20 Indemnification. The Company shall provide indemnification to the
Executive to the maximum extent permitted by the Company's corporate bylaws and
under New York law.
21 Change in Control. Change in 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 Company or (iii) a merger or consolidation of the
Company into another Person which is not an Affiliate of 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.
(a) Following the Change in Control (a) the Executive may
terminate his employment within 60 days or (b) if the acquiring Company
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 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 Code.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
KIMCO REALTY CORPORATION,
a Maryland corporation
By: /s/ Milton Cooper
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Milton Cooper
Chief Executive Officer
EXECUTIVE
/s/ David Henry
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David Henry
Executive's payee pursuant to Section 7(a):
Name ______________________________
Address ___________________________
___________________________