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EMPLOYMENT AGREEMENT

Employment Agreement

EMPLOYMENT AGREEMENT | Document Parties: KIMCO REALTY CORP | David Henry You are currently viewing:
This Employment Agreement involves

KIMCO REALTY CORP | David Henry

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Title: EMPLOYMENT AGREEMENT
Governing Law: New York     Date: 3/21/2007
Industry: Real Estate Operations     Sector: Services

EMPLOYMENT AGREEMENT, Parties: kimco realty corp , david henry
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EXHIBIT 10.1

EMPLOYMENT AGREEMENT

THIS AGREEMENT , dated March 8, 2007 is made by and between Kimco Realty Corporation (the “Company”), a Maryland corporation, and David Henry (the “Executive”).

1.

 

Employment . The Company hereby agrees to employ Executive, and Executive hereby agrees to be employed by the Company, upon the terms and subject to the conditions set forth in this Agreement.

 

 

 

2.

 

Certain Definitions .

 

a.

 

Base Salary ” is defined in Section 6(a).

 

 

 

 

 

b.

 

Bonus ” is defined in Section 6(b).

 

 

 

 

 

c.

 

Automobile ” is defined in Section 6(c).

 

 

 

 

 

d.

 

Benefits ” is defined in Section 6(e).

 

 

 

 

 

e.

 

Board ” means the Board of Directors of the Company.

 

 

 

 

 

f.

 

Calendar Quarter ” shall mean each of the three-month periods ending March 31, June 30, September 30 and December 31 of each year.

 

 

 

 

 

g.

 

Cause ”. For purposes of this Agreement, “Cause” shall mean any of the following (i) conviction of a crime (including conviction on a nolo contendere plea) involving the commission by Executive of a felony or of a criminal act involving, in the good faith judgment of the Company, fraud, dishonesty, or moral turpitude; (ii) deliberate and continual refusal to perform employment duties reasonably requested by the Company or an affiliate after thirty (30) days’ written notice by certified mail of such failure to perform, specifying that the failure constitutes cause (other than as a result of vacation, sickness, illness or injury); (iii) fraud or embezzlement determined in accordance with the Company’s normal, internal investigative procedures consistently applied in comparable circumstances; or (iv) gross misconduct or gross negligence in connection with the business of the Company or an affiliate which has a substantial adverse effect on the Company or the affiliate (v) violation of any of the company policies prohibiting harassment or discrimination in the workplace.

 

 

 

 

 

h.

 

Change in Control ”. For purposes of this Agreement, a “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

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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 entity 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.

 

 

 

 

 

i.

 

Significantly Disabled ” For purposes of this Agreement, Executive shall be “Significantly Disabled” with or without reasonable accommodation if Executive is physically or mentally incapacitated so as to render Executive incapable of performing his usual and customary duties under this Agreement. Executive’s receipt of disability benefits under the Company’s long-term disability benefits plan (the “LTD Plan”) or receipt of Social Security disability benefits shall be deemed conclusive evidence of Total Disability for purpose of this Agreement; provided, however, that in the absence of Executive’s receipt of such long-term disability benefits or Social Security benefits, the Company may, in its reasonable discretion (but based upon appropriate medical evidence), determine that Executive is Significantly Disabled.

 

 

 

 

 

j.

 

Effective Date ” shall mean April 15, 2007

 

 

 

 

 

k.

 

Stock Options ” is defined in Section 6(d).

 

 

 

 

 

l.

 

Term of Employment ” is defined in Section 3.

 

 

 

 

 

m.

 

Renewed Term of Employment ” is defined in Section 4.

3.

 

Term of Employment . The period of Executive’s employment under this Agreement shall begin as of the Effective Date and shall continue until April 14, 2011 (the “Term of Employment”), unless sooner terminated in accordance with Section 7 below or unless renewed pursuant to Section 4 or extended by mutual agreement of the parties.

 

 

 

4.

 

Renewal . If this Agreement is not otherwise terminated, it will automatically renew for a term of one (1) year (the “Renewed Term of Employment”) effective on the day after the Term of Employment ends (the “renewal date”), unless either party hereto gives written notice of non-renewal at least ninety (90) days prior to the end of the Term of Employment.

 

 

 

5.

 

Duties and Responsibilities .

 

 

(a)

 

During the Term of Employment and any Renewed Term of Employment, the Executive shall serve as Vice Chairman and Chief Investment Officer of the company. In such capacity, Executive shall perform the customary duties and have the customary responsibilities of such positions and such other duties as may be assigned to Executive from time to time by the

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officer to whom Executive reports or by the designee of the Company’s Chief Executive Officer.

 

 

 

 

 

(b)

 

Executive agrees to faithfully serve the Company, devote his full working time, attention and energies to the business of the Company, its subsidiaries and affiliated entities, and perform the duties under this Agreement to the best of his abilities.

 

 

 

 

 

(c)

 

Executive agrees (i) to comply with all applicable laws, rules and regulations, and all requirements of all applicable regulatory, self-regulatory, and administrative bodies; (ii) to comply with the Company’s rules, procedures, policies, requirements, and directions; and (iii) not to engage in any other business or employment without the written consent of the Company except as otherwise specifically provided herein.

 

 

 

 

 

(d)

 

In connection with his employment during the Term of Employment and Renewed 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.

6.

 

Compensation and Benefits .

 

 

(a)

 

Base Salary . During the Term of Employment or Renewed Term of Employment, if any, the Executive shall receive a base salary (“Base Salary”) at a rate of $700,000 per annum (or such greater amount as shall be recommended by the Company’s Chief Executive Officer and approved by the Executive Compensation Committee), 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. Provided that Executive remains employed hereunder on such dates, Executive shall become entitled to receive a cash bonus (the “Minimum Bonus”) at the minimum amount of $600,000 (or such greater amount as recommended by the Company’s Chief Executive Officer and approved by the Executive Compensation Committee) to be paid in equal quarterly installments on the last day of each Calendar Quarter.

 

 

 

 

 

(c)

 

Automobile . During the term of Employment and Renewed Term of Employment, if any, 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.

 

 

 

 

 

(d)

 

Equity Compensation . Executive shall be eligible to be granted options to purchase shares of the Company’s common stock (“Stock Options”) in accordance with the terms of the Stock Option Plan for Key

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Employees and Outside Directors of Kimco Realty Corporation (the “Amended and Restated 1998 Equity Participation Plan”), or any successor plan thereto, and may be eligible for future grants as well. In accordance with the above mentioned “Amended and Restated 1998 Equity Participation Plan”, he is also entitled to participate in the Restricted Stock Program.

 

 

 

 

 

 

 

Regardless of whether Executive has at any time been granted Stock Options, if

 

 

 

 

 

 

 

(i)   Executive is employed by the Company on April 2, 2011, or

 

 

 

 

 

 

 

(ii)   a Change of Control occurs prior to April 2, 2011 and Executive is employed by the Company on such date,

 

 

 

 

 

 

 

then the Company shall grant Executive 75,000 shares of the Company’s common stock effective as of such date. The number of shares to be granted will be adjusted for stock splits, if any, occurring after the date of this Agreement and will vest on a Change of Control. If Executive’s employment is terminated by the Company without Cause pursuant to Section 7(d) below prior to the occurrence of either of the events described in this paragraph, then if he meets the conditions described in Section 8(c) below he will be granted stock in accordance with Section 8(c)(v).

 

 

 

 

 

(e)

 

Benefits . During the Term of Employment or Renewed Term of Employment, if any, 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 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 provided that such expenses are incurred for business reasons and accounted for in accordance with the Company’s policy.

 

 

 

 

 

(g)

 

No Waiver . The Executive shall also be entitled to such other benefits or terms of employment as are provided by law.

7.

 

Termination of Employment . 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.

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(b)

 

Disability . If the Company determines in good faith that the Executive is Significantly Disabled 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 with or without a reasonable accommodation.

 

 

 

 

 

(c)

 

Cause . The Company may terminate the Executive’s employment hereunder for Cause.

 

 

 

 

 

(d)

 

Without Cause. The Company may terminate the Executive’s employment at any time hereunder without Cause upon thirty (30) days notice.

 

 

 

 

 

(e)

 

Expiration of Term of Employment and Ninety Day Notice Not to Renew . Executive’s employment hereunder shall terminate upon expiration of the Term of Employment upon written notice by either party provided ninety (90) days before the expiration of the Term of Employment in accordance with Section 4, above, or if this Agreement is renewed, before expiration of the Renewed Term of Employment, if applicable. The giving of notice not to renew shall not constitute a termination without Cause.

 

 

 

 

 

(f)

 

Notice of Termination. Any termination of the Executive’s employment hereunder (other than by reason of the Executive’s death or expiration of the Term of Employment or Renewed Term of Employment, if any) 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.

8.

 

Compensation Following Termination of Employment . Upon termination of Executive’s employment under this Agreement, Executive (or his/her designated beneficiary or estate, as the case may be) shall be entitled to receive the following compensation:

 

 

(a)

 

Base Salary and Accrued but Unpaid Expenses and Vacation . The Company shall pay Executive any Base Salary for services rendered to the date of termination, any accrued but unpaid expenses required to be reimbursed under this Agreement, and any vacation accrued, but


 
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