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Exhibit 10.16
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated September 21, 2005 is
made by and between Kimco Realty
Corporation (the "Company"), a Maryland
corporation, and Jerald Friedman (the
"Executive").
1. 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.
2. Certain Definitions.
(a) "Base Salary" is defined in
Section 6(a)
(b) "Bonus" is defined in Section
6(b).
(c) "Automobile" is defined in Section
6(c).
(d) "Benefits" is defined in Section
6(e).
(e) "Board" means the Board of
Directors of the Company.
(f) "Calendar Quarter" shall mean each
of the three-month periods ending
March 31, June 30, September 30 and December 31 of each year.
(g) "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
Board,
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.
(h) "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 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) "Significantly Disabled" For
purposes of this Agreement, Executive
shall be "Significantly Disabled" (also referred to as
"Significant
Disability") if Executive is physically or mentally incapacitated
so
as to render Executive incapable of performing his usual and
customary
duties under this Agreement with or without reasonable
accommodation.
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 Board may, in
its
reasonable discretion (but based upon appropriate medical
evidence),
determine that Executive is Significantly Disabled.
(j) "Effective Date" shall mean
January 1, 2006.
(k) "Stock Options" is defined in
Section 6(d).
(l) "Term of Employment" is defined in
Section 3.
(m) "Renewed Term of Employment" is
defined in Section 4.
(n) "Annual Salary" is defined in
Section 6(a).
3. Term of Employment. The
period of Executive's employment under this
Agreement shall
begin as of the Effective Date and shall continue until
December 31,
2007 (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.
4. 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.
5. Duties and
Responsibilities.
(a) During the Term of Employment and
any Renewed Term of Employment, the
Executive shall serve as President of Kimco Developers Inc. 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 officer to
whom
Executive reports or by the designee of the Company's Chief
Executive
Officer.
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(b) 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.
(c) 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.
(d) In connection with his employment
during the Term of Employment and
Renewed Term of Employment, the Executive shall be based at the
Company's Los Angeles, CA offices, or such other location as shall
be
agreed between the Executive and the Company.
6. Compensation and
Benefits.
(a) 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 $500,000 per annum (or such greater amount
as
shall be recommended by the Company's Chief Executive Officer
and
approved by the Executive Compensation Committee, which shall
be
referred to as "Annual Salary"), payable semi-monthly. Such
base
salary shall be reviewed at least annually.
(b) Bonus. For each twelve month
period during the Employment Term in
which Development Company profits are realized, Employee shall
be eligible to receive a bonus, less all required deductions
("Yearly
Bonus"). The total Yearly Bonus during each twelve month period
ending
on December 31 shall be an amount equal to fifteen percent (15%)
of
Development Company Profits or $450,000, whichever is less. The
Yearly
Bonus shall be paid to Employee at the end of each Calendar Quarter
in
the amount of $112,500 for the first three Calendar Quarters and,
at
the end of the fourth Calendar Quarter, in an amount equal to
the
difference between $337,500 and i) fifteen percent (15%) of
Development Company Profits or ii) $450,000, whichever is less. In
the
event fifteen percent (15%) of Development Company Profits for
the
twelve month period ending on December 31 is less than the
$337,500
already received by Executive during the first three Calendar
Quarters, he will reimburse to the Company the overpayment, which
is
the difference between $337,000 and fifteen percent (15%) of
Development Company Profits. The Yearly Bonus to be earned by
the
Employee shall not be in excess of $450,000 for any said twelve
month
period ending on December 31, unless the Executive Compensation
Committee of the Board so states in writing.
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Development Company Profit shall be calculated by Kimco for
each
Development Company project that is, in whole or in part, either
sold
or is subject to a written contract of sale which, in Kimco's
reasonable judgment is probable to be sold, such Development
Company
Profit to be determined by Kimco in accordance with Development
Company's books and records and also in accordance with
generally
accepted accounting principles. Consistent with past practice that
has
developed in the determination of Development Company Profit,
Kimco
shall determine Development Company Profit without consideration
or
offset for taxes, and Kimco shall continue to earn a 10%
priority
return on all funds contributed to a project (whether it be in
the
form of debt or equity capital).
(c) Automobile. During the term of
Employment the Company shall also
provide Executive with a car allowance in the amount of $8,400
per
year, paid in equal installments in Executive's weekly paycheck
(d) 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
Employees
and Outside Directors of Kimco Realty Corporation (the "Amended
and
Restated 1998 Equity Participation Plan") 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.
(e) 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.
(f) 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.
(g) No Waiver. The Executive shall
also be entitled to such other benefits
or terms of employment as are required by law.
7. 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:
(a) Death. The Executive's employment
hereunder shall terminate upon his
death.
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(b) 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.
(c) Cause. The Company may terminate
the Executive's employment hereunder
for Cause.
(d) Without Cause. The Company may
terminate the Executive's employment at
any time hereunder without Cause upon thirty (30) days notice.
(e) 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 3, 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.
(f) 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.
8. Compensation Following
Termination of Employment. Upon termination of
Executive's
employm
