Exhibit 10.46
SECOND AMENDMENT TO
EMPLOYMENT
AGREEMENT
This Second Amendment to Employment
Agreement (the “Second Amendment”) is made and entered
into by and between KENNEDY-WILSON, INC., a Delaware corporation
(the “Company”), and Mary L. Ricks, an individual
(“Employee”). This amendment will become
effective at the times set forth below, including the time at which
KW Merger Sub Corp. (“Merger Sub”), a subsidiary of
Prospect Acquisition Corp. (“PAX”), is merged into the
Company (the “Effective Time”).
RECITALS
WHEREAS, Company and Employee have agreed that the terms
of the Employment Agreement shall be modified as set forth below
and that, except as modified, the Agreement shall remain in full
force and effect.
WHEREAS , Company and Employee have agreed that the
modifications set forth below that are effective as of the
Effective Time shall be conditioned upon the consummation of the
merger of PAX into the Company.
AMENDMENT TO
AGREEMENT
NOW, THEREFORE
, for good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereby amend the Agreement, as
follows:
1.
Section 3 (b) is deleted
immediately before the Effective Time.
2.
Section 11(c) is amended
as of the Effective Time to read as follows:
(c)
If the Employee is terminated by Company prior to the end of the
Term without cause, then Company shall continue to pay Employee the
basic salary described in Section 5(a) for the remainder
of the Term of the Agreement on the Company’s ordinary
payroll dates applicable to similarly situated employees of the
Company, together with such other employee benefits (other than
continued participation under the Company’s
Section 401(k) plan) as Employee may be entitled to under
the provisions of Section 6 (or if such benefits cannot be
provided to Employee pursuant to the terms of the applicable plans,
comparable benefits, provided, however, that the provision of
comparable benefits shall be made following Employee’s
termination of employment only if and to the extent that such
benefits may be provided at no additional cost to the Company above
what was previously paid by the Company). Notwithstanding
Section 2, if Company instructs Employee to work full-time or
substantially full-time at any location not acceptable to Employee
(other than the Company’s main headquarters) that is more
than 50 miles from Employee’s then principal place of work
and more than 50 miles from Employee’s then principal
residence, or eliminates or materially reduces her duties as a
senior executive level manager and supervisor of projects,
personnel and budgets, then Employee may elect to deem such
action(s) a constructive termination by Company and resign her
employment, provided that (i) such
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resignation occurs within one year of such
action(s); (ii) Employee provides written notice to the
Company of such action(s) within 90 days thereof; and
(iii) the Company fails to cure the
action(s) constituting such constructive termination within 30
days of receipt of the notice. In the event of such a
resignation, Company shall continue to pay or provide the
compensation and benefits described in this
Section 11(c) for the remainder of the Term and
Employee’s employment shall be terminated.
3.
The old Section 12 captioned
“Miscellaneous” shall be renumbered as
Section 17.
4.
A new Section 12 is added,
effective as of September 4, 2009:
12.
October 15, 2009 Bonus
Payments.
The Company shall pay Employee a
cash bonus of $2 million on October 15, 2009 if Employee is
employed by Company through October 15, 2009. The bonus
shall be promptly repaid if either (a) the merger of Merger
Sub into Company does not occur by November 15, 2009 or
(b) Employee has not remained employed with the Company
through the Effective Time. The requirement of continued
employment in the preceding two sentences shall not apply, however,
if employment has terminated on account of death or
disability.
5.
A new Section 13 is added,
effective as of the Effective Time:
13.
April 1, 2010 and
January 1, 2011 Bonus Payments.
(a)
Subject to the conditions set forth in this Section 13,
Company shall pay Employee a cash bonus of $1 million on
April 1, 2010, and a cash bonus of $1 million on
January 1, 2011.
(b)
The bonus payable April 1, 2010 is conditioned on
(1) approval by the PAX Compensation Committee of the issuance
of the bonus as a Performance Unit Award under the Kennedy-Wilson
Holdings, Inc. 2009 Equity Participation Plan (the
“Plan”), (2) approval of the Plan by the
shareholders of PAX (3) Employee’s continued employment
through April 1, 2010, (4) satisfaction as of
March 31, 2010 of the Performance Target, and
(5) reapproval of the Performance Target by the PAX
Compensation Committee subsequent to the Effective Time. The
“Performance Target” is that the Company’s assets
under management be at least $3 billion. For this purpose,
“assets under management” shall equal the value of
assets under management by the Company, as reflected in the
footnotes to the Company’s financial statements, plus the
cost of properties subject to property management contracts with
the Company (not taking into account any properties whose value is
reflected in the footnotes). In the event that the
Performance Target is not met as of March 31, 2010, the bonus
otherwise due March 31, 2010 shall, nevertheless, be paid on
July 1, 2010, October 1, 2010, or January 1, 2011,
respectively, if the Performance Target is satisfied as of the
earliest of June 30,
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2010, September 30, 2010, or
December 31, 2010, respectively, and Employee has remained
employed through the date on which the Performance Target is
met.
(c)
The bonus payable January 1, 2011 is conditioned on
(1) approval by the PAX Compensation Committee of the issuance
of the bonus as a Performance Unit Award under the Plan,
(2) approval of the Plan by the shareholders of PAX
(3) Employee’s continued employment through
January 1, 2011, (4) satisfaction of the Performance
Target as of December 31, 2010, and (5) reapproval of the
Performance Target by the PAX Compensation Committee subsequent to
the Effective Time.
(d)
Notwithstanding the preceding subsections of this section, the
bonuses described herein shall be payable even if Employee is not
employed through the dates set forth above, provided that the other
conditions to the payment of the bonus are met and Employee
terminates employment under conditions that would entitle her under
Section 11(c) to payment of her salary through the
remainder of the Term.
6.
A new Section 14 is added,
effective as of the Effective Time:
14.
Restricted Shares.
(a) Immediately after the
Effective Time and subject to the conditions set forth herein,
Employee shall be issued 900,000 restricted shares of common stock
of PAX. The restricted shares are conditioned on
(1) approval by the PAX Compensation Committee of the issuance
and terms of the restricted shares under the Kennedy-Wilson
Holdings, Inc. 2009 Equity Participation Plan (the
“Plan”), subject to the conditions set forth below in
(b) and (c), (2) approval of the Plan by the shareholders
of PAX, (3) Employee’s continued employment through the
dates set forth below in (b), (4) satisfaction of the
Performance Target, and (5) reapproval of the Performance
Target by the PAX Compensation Committee subsequent to the
Effective Time.
(b)
180,000 restricted shares shall become vested on each of the first
through fifth anniversaries of the Effective Time, provided that,
with respect to the shares vesting on the first anniversary, the
Performance Target is met as of September 30, 2010; with
respect to the shares vesting on the second anniversary, the
Performance Target is met as of September 30, 2011; and with
respect to the shares vesting on the third through fifth
anniversaries, the Performance Target is met as of
September 30, 2012 with respect t
