THIS
AGREEMENT , dated
March 8, 2007 is made by and between Kimco Realty Corporation
(the “Company”), a Maryland corporation, and David
Henry (the “Executive”).
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1.
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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.
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2.
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Certain Definitions
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a.
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“ Base Salary ”
is defined in Section 6(a).
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b.
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“ Bonus ” is
defined in Section 6(b).
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c.
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“ Automobile ” is
defined in Section 6(c).
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d.
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“ Benefits ” is
defined in Section 6(e).
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e.
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“ Board ” means
the Board of Directors of the Company.
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f.
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“ Calendar Quarter
” shall mean each of the three-month periods ending
March 31, June 30, September 30 and December 31
of each year.
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g.
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“ 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.
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h.
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“ 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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Page 4 of 16
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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.
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i.
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“ 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.
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j.
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“ Effective Date
” shall mean April 15, 2007
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k.
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“ Stock Options ”
is defined in Section 6(d).
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l.
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“ Term of Employment
” is defined in Section 3.
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m.
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“ Renewed Term of
Employment ” is defined in Section 4.
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3.
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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.
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4.
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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.
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5.
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Duties and
Responsibilities .
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(a)
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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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Page 5 of 16
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officer to whom
Executive reports or by the designee of the Company’s Chief
Executive Officer.
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(b)
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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.
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(c)
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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.
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(d)
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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.
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6.
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Compensation and Benefits
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(a)
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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.
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(b)
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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.
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(c)
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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.
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(d)
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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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Page 6 of 16
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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.
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Regardless of whether Executive has
at any time been granted Stock Options, if
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(i) Executive is
employed by the Company on April 2, 2011, or
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(ii) a Change of
Control occurs prior to April 2, 2011 and Executive is
employed by the Company on such date,
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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).
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(e)
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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.
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(f)
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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.
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(g)
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No Waiver . The Executive shall also be
entitled to such other benefits or terms of employment as are
provided by law.
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7.
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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:
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(a)
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Death . The Executive’s employment
hereunder shall terminate upon his death.
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Page 7 of 16
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(b)
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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.
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(c)
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Cause . The Company may terminate the
Executive’s employment hereunder for Cause.
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(d)
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Without Cause.
The Company may
terminate the Executive’s employment at any time hereunder
without Cause upon thirty (30) days notice.
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(e)
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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.
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(f)
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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.
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8.
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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:
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(a)
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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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