Exhibit
10.119


 


FIFTEENTH
AMENDMENT TO EMPLOYMENT AGREEMENT


 


This Fifteenth Amendment to Employment Agreement is
made and entered into as of January 1, 2009 by and between Kennedy-Wilson
Properties, Ltd., an Illinois corporation (“Company”), and James Rosten
(“Employee”).


 


RECITALS


 


WHEREAS, Company and Employee have entered into
that certain Employment Agreement dated as of January 4, 1999, and amended
January 1, 2001, March 15, 2001, January 3, 2003, September 5, 2003, October 1,
2003, January 1, 2004, April 19, 2004, January 1, 2005, February 11, 2005,
January 1, 2006, August 1, 2006, January 1, 2007, January 1, 2008 and January
1, 2009 (the “Agreement”), providing for the employment of Employee by Company
pursuant to the terms of the Agreement; and


 


WHEREAS, Company and Employee have agreed that
the terms of the Agreement should be modified for compliance with the
applicable requirements of Section 409A of the Internal Revenue Code of 1986,
as amended.


 


AMENDMENT
TO AGREEMENT


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereby amend the Agreement, as follows:


 


1.               Section 5(b) of the Agreement is hereby
amended by the addition of the following sentence to the end thereof:


 


“Any such bonus determined to be payable to Employee
for any period during the Term shall be paid in a cash lump sum payment by no
later than the fifteenth day of the third calendar month next following the
later of the end of the calendar year, or the end of Company’s fiscal year, in
either case in which such bonus is determined and declared by the Company.”


 


2.               Section 5(d)(i) of the Agreement is
hereby amended by the addition of the following sentence to the end thereof:


 


“Any such bonus determined to be payable to Employee
for any period during the Term shall be paid in a cash lump sum payment by no
later than the fifteenth day of the third calendar month next following the
later of the end of the calendar year, or the end of Company’s fiscal year, in
either case in which such bonus is determined and declared by the Company.”


 

















 


3.               The Agreement is hereby further amended
by replacing all references to “Section 5(d)(iii)” with “Section 5(d)(ii)”.


 


4.               Section 5(d)(ii) is hereby amended by
deleting the second to last sentence thereof and replacing it with the
following:


 


“Any such bonus determined to be payable to Employee
for any period during the Term shall be paid in a cash lump sum payment by no
later than the fifteenth day of the third calendar month next following the
later of the end of the calendar year, or the end of Company’s fiscal year, in
either case in which such bonus is determined and declared by the Company.”


 


5.               The first sentence of Section 11(c) of
the Agreement is hereby deleted in its entirety and replaced with the
following:


 


“If the Term of the Agreement is terminated by Company
without cause, then Company shall continue to pay Employee the basic salary and
other benefits described in Sections 5(a) and (b) for the remainder of the Term
of the Agreement (less the aggregate value of compensation and benefits
received by Employee during the remainder of the Term from any source and
without regard to characterization), on the Company’s ordinary payroll dates
then applicable to similarly situated employees of the Company, together with
such other employee benefits (other than continued participation under the
Company’s Section 401(k) plan) as Employee may be entitled to under the
provisions of Section 6 (or if such benefits cannot be provided pursuant to the
terms of the applicable plans, comparable benefits due hereunder and remaining
to be paid during the Term in the ordinary course, provided that the payment of
fringe or comparable benefits shall be subject to the availability of such
benefits following Employee’s termination of employment at no additional cost
above what was previously paid by the Company).


 


6.               Section 13 of the Agreement is hereby
amended by the addition of a new Section 13(h) to read as follows:


 


“(h) Code Section 409A.


 


(i)            The
Company intends that the reimbursements, payments and benefits to which
Employee could become entitled under this Agreement be exempt from or comply
with Section 409A of the Code and the regulations and other guidance
promulgated thereunder (“Section 409A”). 
The provisions of this section shall qualify and supersede all other
provisions of this Agreement as necessary to fulfill the foregoing
intention.  If Company believes, at any
time, that any of such reimbursement, payment or benefit is not exempt or does
not so comply, Company will promptly advise Employee and will reasonably and in
good faith amend the terms of such arrangement such that it is exempt or
complies (with the most limited possible economic effect on Employee and on
Company) or to minimize any additional tax,


 


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interest and/or penalties that may apply under Section
409A if exemption or compliance is not practicable.  Company agrees that it will not, without
Employee’s prior written consent, knowingly take any action, or knowingly
refrain from taking any action, other than as required by law, that would
result in the imposition of tax, interest and/or penalties upon Employee under
Section 409A, unless such action or omission is pursuant to Employee’s written
request.


 


(ii)           To the extent applicable, each and
every payment to be made pursuant to this Agreement shall be treated as a
separate payment and not as one of a series of payments treated as a single
payment for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii).


 


(iii)          If Employee is a “specified employee”
(determined by Company in accordance with Section 409A and Treasury Regulation
Section 1.409A-3(i)(2)) as of the date that Employee experiences a separation
from service, as defined in Treasury Regulations Section 1.409A-1(h)(1), from
the Company (a “Separation from Service”) and if any reimbursement, payment or
benefit to be paid or provided under this Agreement or otherwise both (A)
constitutes a “deferral of compensation” within the meaning of and subject to
Section 409A (“Nonqualified Deferred Compensation”) and (B) cannot be paid or
provided in a manner otherwise provided herein without subjecting Employee to
additional tax, interest and/or penalties under Section 409A, then any such
reimbursement, payment or benefit that is payable during the first six months
following Employee’s date of termination shall be paid or provided to Employee
in a lump sum cash payment to be made, with interest at the applicable federal
rate, on the earlier of (X) Employee’s death and (Y) the first business day of
the seventh (7th) month immediately following Employee’s Separation from
Service.  To the extent available, all
the exceptions of Treasury Regulations Section 1.409A-1(b)(9) shall apply in
implementing the rules of this section.


 


(iv)          Except to the extent any
reimbursement, payment or benefit to be paid or provided under this Agreement
does not constitute Nonqualified Deferred Compensation, (A) the amount of
expenses eligible for reimbursement or the provision of any in-kind benefit (as
defined in Section 409A) to Employee during any calendar year will not affect
the amount of expenses eligible for reimbursement or provided as in-kind
benefits to Employee in any other calendar year (subject to any lifetime and
other annual limits provided under Company’s health plans), (B) the
reimbursements for expenses for which Employee is entitled shall be made on or
before the last day of the calendar year following the calendar year in which
the applicable expense is incurred and (C) the right to payment or
reimbursement or in-kind benefits may not be liquidated or exchanged for any
other benefit.


 


(v)           Any
reimbursement, payment or benefit to be paid or provided under this Agreement
due to a Separation from Service that is


 


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exempt from Section 409A pursuant to Treasury
Regulation Section 1.409A-1(b)(9)(v) will be paid or provided to Employee only
to the extent the expenses are not incurred or the benefits are not provided
beyond the last day of the Employee’s second taxable year following the
Employee’s taxable year in which the Separation from Service occurs; provided,
however, that Company shall reimburse such expenses no later than the last day of
the third taxable year following the Employee’s taxable year in which the
Employee’s Separation from Service occurs.


 


(vi)          Any reimbursement, payment or benefit
to be paid or provided under this Agreement that constitutes Nonqualified
Deferred Compensation due upon a termination of employment shall be paid or
provided to Employee only in the event of a Separation from Service.


 


Subject to the foregoing, the Agreement remains in
full force and effect, and Company and Employee hereby ratify and affirm the Agreement
in each and every respect.


 


IN WITNESS WHEREOF, the undersigned have executed this
Amendment as of the date first above written.


 


 


	
  “COMPANY”

  	
   

  	
  “EMPLOYEE”

  
	
  Kennedy-Wilson
  Properties, Ltd.,

  	
   

  	
   

  
	
  an Illinois
  corporation

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ William J.
  McMorrow

  	
   

  	
  /s/ James Rosten

  
	
  Name:

  	
  William J.
  McMorrow

  	
   

  	
  James Rosten

  
	
  Its:

  	
  Chairman/CEO

  	
   

  	
   

  



 


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