Exhibit 10.47
EMPLOYMENT
AGREEMENT
This Employment Agreement (the
“Agreement”) is made and entered into as of
February 1, 2009 by and between KENNEDY WILSON, INC., a
Delaware corporation (the “Company”), and Mary L. Ricks
(“Employee”), with reference to the following facts and
circumstances:
RECITALS:
A:
Company is diversified real estate
marketing and investment firm whose businesses include the
management, marketing, development and acquisition of real estate
and real estate related assets, such as secured promissory notes,
real estate brokerage and marketing programs for all types of
properties and financial instruments. Employee is experienced in
real estate transactions and financial instruments.
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
her 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
. Company hereby employs Employee
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 . Subject to the
policy guidelines and directives of the Company which are provided
to her by Company from time to time during the term of this
Agreement, Employee shall serve as President of and be responsible
for the operation of Kennedy Wilson Investment Sales Group, and to
advance the business and welfare of Kennedy Wilson as determined by
the Company from time to time, and have such powers and duties as
may from time to time be prescribed by the Chairman and Chief
Executive Officer of the Company, which duties may, in the
Company’s reasonable discretion, be changed in any legal
manner from time to time. 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 authorization of Company as to
the specific transaction. Employee’s duties also 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 her full energies, interests, abilities, and
productive time to the performance of her 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 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 her full energies and productive interests to the
performance of her duties and responsibilities under this
Agreement.
3.
Term of Employment
.
(a)
Employee shall be employed by the
Company pursuant to this Agreement for a term (the
“Term”) beginning on February 1, 2009, and
continuing through to, and terminating at the close of business on
January 31, 2014 (unless earlier terminated pursuant to
Section 11).
(b)
Change in Control
. In the event of a “Change in
Control” as defined below the Company shall make a one-time
payment to Employee upon such Change in Control equal to two
(2) times the Employee’s “annual
compensation”. The annual compensation would be the
arithmetic average of all compensation paid to Employee in each of
the most recent three (3) year periods and would include
salary and bonus as reported in the Proxy Statement or the
Company’s books, as applicable.
“Change in Control”
shall mean the first to occur of any of the following
events:
(i)
Any “person” (as that
tem is used Section 13 and 14 (d) (2) of the
Securities Exchange Act of 1934 (“Exchange Act”)
becomes the beneficial owner (as that term is used in
Section 13 (d) of the Exchange Act), directly or
indirectly, of 5Q% or more of the Company’s capital stock
entitled to vote in the election of Directors;
(ii)
If at anytime after the date of this
Agreement, individuals who constitute the incumbent Board of
Directors cease for any reason to constitute at least a majority of
the Board. For this purpose, any person who becomes a member of the
Board after the date of this Agreement and who is approved by the
vote of at least a majority of the persons who constitute the
incumbent Board shall be considered a member of the incumbent
Board, but any person whose election as a director occurs as the
result of an actual or threatened election contest, or actual or
threatened solicitation of proxies or consents by or on behalf of
any person or entity shall not be considered a member of the
incumbent Board;
(iii) The shareholders of the
Company approve any consolidation or merger of the Company, other
than a consolidation or merger of the Company in which the holders
of the common stock of the Company immediately prior to the
consolidation or merger hold more than 50% of the common stock of
the surviving corporation immediately after the consolidation or
merger;
(iv) The shareholders of the
Company approve any plan or proposal for the liquidation or
dissolution of the Company; or
(v) The shareholders of the
Company approve the sale or transfer of all or substantially all of
the assets of the Company to parties that are not within a
“controlled group of corporations” (as defined in Code
Section 1563) in which the Company is a member.
4.
Commitment to the
Company .
(a)
During the Term, Employee shall not
be involved, individually or as an Employee, principal, officer,
general partner, director or shareholder, in the marketing and! or
sale of any real estate properties or any real estate activities
that are not proprietary to Kennedy Wilson, without first obtaining
the consent and approval of a majority of the Company’s Board
of Directors. The limitation contained in this Section 4 shall
not apply, however, to the ownership of not more than one percent
(1%) 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. For purposes of this Section 4, Employee shall be
deemed the owner of any interests held by Employee,
Employee’s spouse, or any other un-emancipated minor member
of the Employee’s family.
(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 her ability and
experience she 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 $50,000.00 per month ($600,000.00 annualized) for
the term of this Agreement, payable in bi-monthly equal
installments, $50,000.00 per month total, subject to such
deductions and withholdings as Company may from time to time be
required to make pursuant to applicable law, governmental
regulation or order.
(b)
Discretionary Bonus
: In addition to the base salary
provided for above, at the discretion of the Company, Employee may
receive with respect to each fiscal year (or portion thereof)
during the term of this Agreement, a discretionary bonus in an
amount determined in the sole and absolute discretion of the
Compensation Committee of the Board of Directors.
Employee acknowledges that Company
has not provided Employee with any projections or estimates of a
Discretionary Bonus that might be received by Employee under the
terms of this Agreement as an inducement to Employee to accept
employment with Company.
6.
Other Benefits
. During the Term of her 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, Employee shall
participate in such benefit plans or programs as are available to
the Company’s other employees, including without limitation
medical, dental, disability, life insurance, and, 401K
Plan.
Employee will be eligible to invest
in the principal investments at an investment percentage consistent
with others who have a similar level of responsibility at the
Company.
7.
Business Expenses
. Employee will be required to incur
ordinary and necessary travel and other business expenses in
connection with the performance of her duties hereunder, and
Employee shall be entitled to reimbursement from Company for such
expenses in accordance with Company’s policies and
procedures.
8.
Non-Competition
. For all periods that Employee is
employed pursuant to this Agreement and for a period of six
(6) months thereafter, unless Company has
terminated Employee without cause,
or if Company has not renewed Employee’s employment in
Company’s sole and absolute discretion, Employee shall not
directly or indirectly:
(a)
Engage in any business in the State
of California which engages in the same businesses or similar
businesses engaged in by the Company during the Term, without the
consent of the Board of Directors of the Company, or which would
result in using or revealing any trade secrets or confidential
information of the Company, including but not limited to
activities, whether direct or indirect, as proprietor, partner,
shareholder, principal, agent, or employee; and
(b)
In any manner induce, attempt to
induce, or assist others to induce or attempt to induce any
employee, partner, joint venturer, independent contractor, agent or
customer of the Company to terminate its, his or her association
with the Company, or do anything to interfere with the relationship
between the Company and such person or entity or other persons or
entities dealing with the Company.
(c)
The parties hereto intend that the
covenants and agreements contained in this Section 8 shall be
deemed to be a series of separate covenants and agreements, one for
each and every country, county, state, city and other jurisdiction
in the world with respect to which the Company’s business has
been or is hereafter carried on. If any of the foregoing is
determin
