Exhibit 10.84
EMPLOYMENT
AGREEMENT
This Employment Agreement (the
“Agreement”) is made and entered into as of January 1,
2006 by and between KW Multi-Family Management Group, Ltd. A
Delaware corporation (“the Company”), having an address
of 9601 Wilshire Boulevard, Suite 220, Beverly Hills, California
90210 and Robert E. Hart (“Employee”), with reference
to the following facts and circumstances:
R E C I T A L S:
A.
Company is diversified real estate
marketing, property management, and investment firm whose
businesses include the acquisition and management of real estate
and real estate related assets.
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 therefor, 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 be employed as President and Chief
Executive Officer with responsibilities for day to day management
of all Company operations, meeting revenue and expense objectives
and all related business goals as approved by the Company’s
Board of Directors, and to advance the business and welfare of KW
Multi-Family Management Group, Ltd. as determined by the Company
from time to time. Within the guidelines as set forth by the
Investment Committee, Employee shall have the authority to bind or
obligate Company to the purchase or sale of any real property, or
to make any other financial commitment, including without
limitation the borrowing of any monies on a secured or unsecured
basis,
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. 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. Company shall indemnify, defend,
protect and hold Employee harmless from the negligent acts and
omissions of Employee so long as Employee acted in good faith an in
the course of his employment.
3.
Term of Employment
. Employee shall be employed by the
Company pursuant to this Agreement for a term (the
“Term”) beginning on January 1, 2006 and continuing
through to, and terminating at the close of business on December
31, 2006 (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 any real estate
development activities 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 (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’s
spouse, or any other unemancipated 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)
Company shall pay a basic salary to
Employee at the rate of $15,384.62 per pay period ($400,000.00
annualized) payable in equal installments every two weeks (based on
26 pay periods per year) and 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)
Bonus. For each calendar year during
the term of Employee’s employment, under this Agreement the
Company shall make available a “Bonus Pool” equal to
twenty percent (20%) of the net operating income for the applicable
calendar year. The net operating income shall be equal to (i) the
gross revenue less (ii) costs and overhead expenses incurred up to
$2.3MM including among other things, salaries, bonuses and benefits
of all Company employees, the Company’s prorata share of any
services, leased premises, and personnel provided by Kennedy
Wilson, Inc. or its affiliates, KW Multi-Family Management Group,
Ltd., marketing costs, and write-offs and for consultants who
provide services.
Employee understands and
acknowledges that the Bonus Pool as so calculated shall be
distributed by Employee amongst the Company’s employees in
Employee’s sole and absolute discretion. The determination of
net operating income for any applicable period and any dispute
concerning the source an item of revenue or expense shall be
approved or resolved by the Chief Financial Officer of Kennedy
Wilson whose reasonable determination of same shall be
conclusive.
Employee acknowledges that Company
has not provided Employee with any projections or estimates of
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, vacations, 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 twelve (12)
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 could,
or 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 action. Any determination that any
provision hereof is invalid or unenforceable, in whole or in part,
shall have no effect on the va
