Exhibit 10.69
EMPLOYMENT
AGREEMENT
This Employment Agreement (the
“Agreement”) dated for reference purposes only is made
and entered into as of January 4, 1999 by and between
Kennedy-Wilson Properties, Ltd., an Illinois corporation
(“The Company”), a wholly owned subsidiary of Kennedy
Wilson, Inc., a Delaware corporation (“KWI”), having an
address of 9601 Wilshire Boulevard, Suite 220, , and Jim Rosten
having an address of 1280 Shadybrook Drive Beverly Hills,
California 90210 (“Employee”), with reference to the
following facts and circumstances:
RECITALS :
A.
Company is a diversified real estate
marketing, property management and investment firm whose businesses
include the acquisition of real estate and real estate related
assets, real estate brokerage and marketing programs for all types
of properties and financial instruments. Employee is experienced in
property management.
B.
Company desires to employ Employee
and Employee desires to be employed by Company for the purposes and
on the terms and conditions set forth in this Agreement.
C.
This Agreement replaces and
supersedes in their entirety any and all prior agreements, express
or implied, written or oral, performed or unperformed, pertaining
to the employment of Employee and the compensation to be paid to
him therefore, and all such prior agreements and understandings are
hereby terminated and shall be of no further force or
effect.
NOW, THEREFORE, in consideration of
the mutual covenants set forth herein and for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Company and Employee agree as follows:
1.
Employment
. This Agreement shall become
effective the first business day after termination of the
Employee’s current employment. If said transaction is not
consummated for any reason by January 31, 2000, then this Agreement
shall not be effective and neither party shall have any liability
to the other hereunder. Company hereby employs Employee commencing
on the Effective Date and Employee hereby accepts employment to
perform the duties described in Section 2 below, on the terms,
conditions and covenants set forth in this Agreement.
2.
Services provided to the
Company .
Employee’s duties shall be to provide marketing and corporate
administration services, subject to the policy guidelines and
directives, which are provided to him by Company from time to time
during the term of this Agreement. Employee shall have no authority
to bind or obligate Company to the purchase or sale of any real
property, or to any other financial commitment, including without
limitation the borrowing of any monies on a secured or unsecured
basis, without obtaining the prior written authorization of Company
as to the specific transaction. Employee’s duties may not be
materially changed by Company without Employee’s prior
written consent but shall include such other matters or
responsibilities as Company and Employee may jointly agree upon
from time to time during the term of this Agreement.
Employee’s employment is on a
full-time and “best efforts” basis meaning that during
the term of this Agreement, Employee shall not accept any full or
part-time employment, including without limitation as an
Independent Consultant, after working hours or otherwise, without
the prior written consent of Company, which may be given, withheld
or conditioned in Company’s sole and absolute discretion.
Employee shall devote his full energies, interests, abilities, and
productive time to the performance of his duties and
responsibilities under this agreement. During the term of this
Agreement, Employee shall not, directly or indirectly, whether as a
partner, employee, creditor, shareholder or
otherwise, promote, participate or
engage in any activity or other business competitive with
Company’s businesses. Notwithstanding the foregoing, Company
acknowledges that Employee has made and will continue to make
personal investments, including but not limited to real estate
investments, that will require Employee’s periodic attention.
Employee may participate in such personal investments to the full
extent desired by Employee so long as such personal investment
activity does not detract from Employee’s ability to devote
his full energies and productive interests to the performance of
his duties and responsibilities under this Agreement. Company shall
be responsible for payment of all dues and fees required in
connection with the maintenance of any professional licenses that
may be required of Employee in the performance or satisfaction of
Employee’s duties hereunder.
3.
Term of Employment . Employee shall be employed
by the Company pursuant to this Agreement for a term (the
“Term”) beginning on the Effective Date, when Employee
begins to perform his duties, and continuing through to, and
terminating on the second anniversary thereof.
4.
Commitment
to the Company
.
(a) Except as provided above,
during the Term, Employee shall not be involved, individually or as
an Employee, principal, officer, general partner, director or
shareholder, in any real estate, management, leasing, brokerage or
development activities without first obtaining the consent and
approval of a majority of the Company’s Board of Directors,
which shall be given or denied within 5 days, and shall not
be unreasonably withheld. The limitation contained in this Section
4 shall not apply, however, to the ownership of not more than three
percent (3%) of the outstanding shares of any class of securities
of a publicly-held issuer subject to the public reporting
requirements of the Securities and Exchange Act of 1934, as
amended, or any limited partner interest in a limited partnership
or similar passive investment interest so long as the nature of
such investment prevents, pursuant to applicable law,
Employee’s control of the management of the issuer of such
investment interests.
(b) Employee shall, at all
times during the Term, strictly adhere to and comply with all of
Company’s policies, rules and procedures as they currently
exist and as they may be changed by the Company. Employee agrees
that to the best of his ability and experience he will at all times
loyally and conscientiously perform all of the duties and
obligations required of him expressly or by implication by the
terms of this Agreement.
5.
Compensation
.
(a) Salary. Company shall pay a
basic salary to Employee at the rate of $20,833.00 per month for
the Term of this Agreement, subject to such deductions and
withholdings as Company may be required to make pursuant to
applicable law, governmental regulation or order.
(b) Bonus . Employee
shall be eligible annually to participate in a bonus pool. The
“Bonus Pool” shall be defined as 20% of net operating
income (NOl) from property services revenue from each client
generated by the National Marketing Group, to the extent such
client is generated by the National Marketing Group, during the
first year that Employer or an affiliate or subsidiary performs
services for the client. The Bonus Pool shall also include any
revenue accrued but not paid during the first year to the extent
such accrued funds are actually received by Employer after the one
year period, but while Employee is still employed by Employer.
(NOl) shall mean the gross revenues realized by the Employer during
the applicable period from clients it approves as being generated
by the National Marketing Group, (NMG) or where the NMG
participates in the transaction, less costs and expenses properly
incurred performing the services, as determined by KWI’s
Chief Financial Officer, including, without limitation, salaries,
bonuses and benefits of all the employees who perform such
services, marketing costs and write offs. Subject to such equitable
adjustment as may occur with the consent of Employee, based upon
growth of the national marketing group, Employee shall receive,
within 60 days of
each calendar year end beginning
with the year 2000, 50% of the 20% Bonus pool. The Bonus
Pool shall also include all revenues from NMG clients, as defined
herein, who terminate Employer as a vendor due to unsatisfactory
performance by Employer during the bonus period, without fault of
Employee.
(c) Stock Options . On
July 1, 2000, KWI shall grant to Employee under KWI’s 1992
Incentive and Nonstatutory Stock Option Plan (the “Stock
Option Plan”) non-transferable incentive options to purchase
an aggregate of 10,000 shares of common stock of KWI at an exercise
price equal to the closing price of such KWI common stock on the
NASDAQ National Market Quotation System as of the last business day
prior to the effective date of the grant. Such options to purchase
shall vest as follows: (i) 1/3rd on the first anniversary of the
grant, (ii) 1/3rd on the second anniversary of the option grant,
and (iii) 1/3rd on the third anniversary of the option grant. Such
stock options shall be for a term of five (5) years from the date
of the grant and may be exercised by Employee pursuant to the terms
and provisions of the Stock Option Plan and a separate Stock Option
Agreement between KWI and Employee. Such stock options shall
immediately be fully vested and shall continue in full force and
effect for the balance of their terms in the event that KIWI is
sold (by sale of stock or assets) or merged into another company
(other than an Affiliate) or if Employee shall terminate this
Agreement for Cause. Employee acknowledges that he has been
furnished with substantially the same kind of information regarding
KIWI and its business as would be contained in a registration
statement prepared in connection with a public sale of securities.
Neither KIWI nor the Company nor any other person or party
purporting to act on their behalf has made any representations to
Employee as to the value of KIWI or its stock or any other matter
pertaining to KIWI. The Company has advised Employee that the
options issued to Employee will be subject to a registration
statement filed with the Securities and Exchange Commission and
therefore the shares received on exercise of the options will not
be “restricted stock.” KWI joins this agreement solely
for the purposes of this clause.
6. Other Benefits .
During the Term of his employment and subject to applicable
eligibility requirements of position, tenure, salary, age, health
and other qualifications as may be set forth in the Company’s
Employment handbook, or pursuant to the terms of the applicable
benefit provider or other policies, Employee shall participate in
such benefit plans or programs as are available to all of the
Company’s other employees, including without limitation
medical, dental, disability, life insurance, and 401K
Plan.
7. Business Expenses .
Employee will be required to incur ordinary and necessary travel
and other business expenses in connection with the performance of
his duties hereunder, and Employee shall be entitled to
reimbursement from Company for such expenses in accordance with
Company’s policies and procedures. For example, Employer
shall pay, in accordance with an annual budget as may be approved
by the parties, the cost of Employee’s participation in 1RPM,
continuing broker education, cell phone usage for business, monthly
membership dues at the Jonathan Club, and a laptop
computer.
8. Non-Competition .
For all periods that Employee is employed pursuant to this
Agreement and for a period of twelve (12) months thereafter,
Employee shall not directly or indirectly:
(a) Engage in any business in
the State of California without the consent of the Board of
Directors of the Company which could or would result in a breach of
sections 9 or 10
