Exhibit 10.50
EMPLOYMENT
AGREEMENT
This Employment Agreement (the
“Agreement”) is made and entered into as of June 15,
2009 by and between Kennedy Wilson, Inc., a Delaware corporation
(the “Company”), and Donald J. Herrema
(“Employee”), with reference to the following facts and
circumstances:
RECITALS:
A.
Company is a 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 or any and all consulting agreements
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
. 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 him by Company from time to time during the term of this
Agreement, Employee shall serve as Executive Vice Chairman of
Kennedy Wilson International, and President and CEO of Kennedy
Wilson East, and be responsible for the operation of Kennedy Wilson
East, 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 Co9(any 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 will serve as Member of the
Executive Committee of Kennedy Wilson International.
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 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.
3.
Term of Employment
.
(a)
Employee shall be employed by the
Company pursuant to this Agreement for a term (the
“Term”) beginning on June 15, 2009, and continuing
through to, and terminating at the close of business on December
31, 2010 (unless earlier terminated pursuant to Section
11).
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
Chairman / CEO. The limitation contained in this Section 4
shall not apply, however, to the ownership of not more than one
percent (l%) 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’ 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
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 $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. For calendar year 2009, Employee will receive a minimum
bonus of $500,000. to be paid no later than March 31,
2010.
(c)
Stock Options
: Upon execution of this Agreement
the Company shall grant to Employee under the Company’s 2009
Incentive and Non-statutory Stock Option Plan a non-transferable
option to purchase an aggregate of 100,000 shares of the Common
Stock at an exercise price of $30.00 per share (the “Exercise
Price”), The grant of such options is to be approved by the
Stock Option Committee of the Board of Directors of the Company on
or before the next Stock Option Committee meeting, on such terms
and subject to such conditions as are set forth in the Stock Option
Agreement between the Company and Employee.
(d)
Right to Invest
: Consultant shall have the right to
invest as a general partner in KW Fund III consistent with others
who have a similar level of responsibility to the Company, as well
as Employee will be eligible to invest in other principal
investments of Company at an investment percentage consistent with
others who have a similar level of responsibility at the
Company.
(e)
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 $500,000.
“Change in Control” shall mean that William J.
McMorrow, Chairman! CEO is no longer an Employee of
Company.
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 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, 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.
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.
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 New York 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
determined by any court of competent jurisdiction to be invalid or
unenforceable by reason of such agreement extending for too great a
period of time or over too great a geographical area, or by reason
of its being too extensive in any other respect, such agreement
shall be interpreted to extend only over the maximum period of time
and geographical area and to the maximum extend enforceable, all as
determined by such court in such
