Exhibit 10.41
NON-COMPETITION AND
CONFIDENTIALITY AGREEMENT
THIS NON-COMPETITION AND CONFIDENTIALITY
AGREEMENT (“Agreement”) is made and entered into
effective this 2 nd
day of July, 2007
(the “Effective Date”) by and between Centro NP LLC
(“Centro”) and John B. Roche (“Roche”), the
Effective Date being Roche’s last day of employment with
Centro.
WHEREAS, Roche previously served as Executive
Vice President and Chief Financial Officer of New Plan Excel Realty
Trust, Inc. (“New Plan”) pursuant to that certain
Employment Agreement entered into with New Plan dated as of
April 14, 2000 (as amended, the “Employment
Agreement”) and as such has unique knowledge about the
business, assets, operations, and affairs of New Plan;
WHERAS, on February 27, 2007, New Plan and
Excel Realty Partners, L.P. entered into an Agreement and Plan of
Merger with Centro, Super MergerSub Inc. and Super DownREIT
MergerSub LLC (the “Buyer Parties”) (the “Merger
Agreement”);
WHERAS, on April 20, 2007, New Plan and
the Buyer Parties completed the transactions contemplated by the
Merger Agreement (the “Merger”) and following the
completion of these transactions, New Plan dissolved into Centro
(together with its affiliates and subsidiaries,
“Centro”);
WHEREAS, Centro is engaged in the businesses of
owning, operating, investing in, constructing, managing,
developing, re-developing, and leasing shopping center and other
retail properties;
WHEREAS, in connection with the Merger, Roche
has provided notice under the Employment Agreement of his
termination of employment for “Good Reason” (per the
terms of the Employment Agreement) and as such will be terminating
as of July 2, 2007 (the “Termination Date”) all
positions he holds with Centro (as successor to New Plan) and its
subsidiaries and affiliates; and
WHEREAS, in an effort to protect the legitimate
business interests of Centro in view of Roche’s unique
knowledge about the business, assets, operations and affairs of
Centro, Centro desires that Roche enter into this
Agreement;
NOW, THEREFORE, in consideration of the
foregoing and other good and valuable consideration, the receipt
and sufficiency of which hereby are acknowledged, the parties
hereto severally agree as follows:
1.
Payment
. In consideration of
Roche’s agreement to enter into and be bound by the terms of
this Agreement, Centro shall pay Roche (subject (to the extent
applicable) to income tax and employment tax withholdings at the
applicable rates) $1,367,500 U.S. on the first business day
following the six month anniversary of the Termination Date which
payment shall (before such withholdings) be in full satisfaction of
the payment obligations of Centro to Roche under this Agreement and
the Employment Agreement. To the extent that Roche has any
remaining unused and accrued vacation time
1
as of the
Termination Date, said amount shall be paid to Roche per Centro
policy. In addition, Roche shall be entitled to keep the laptop
computer currently being used by Roche. As additional consideration
for and as a pre-condition to payment of the amount set forth in
this Section 1, Roche shall have executed and delivered (and
not revoked or rescinded) a Waiver and Release Agreement in the
form attached hereto as Exhibit A (with no modifications
thereto unless agreed to by Centro in its sole discretion). In the
event that Roche fails to so execute and deliver the foregoing
Waiver and Release as so provided, then the obligation of Centro to
make the payment provided for in this Section 1 shall
terminate and be null and void and of no further force or
effect.
2.
Non-competition .
(a)
Definitions
. For purposes of this
Agreement, the “Restricted Period shall be the one year
period which starts on the Effective Date. For purposes of this
Agreement, the “Restricted Area” shall be any
metropolitan area in which Centro owns shopping center
assets.
(b)
Non-Compete
. During the Restricted
Period, Roche shall not serve as an officer or as a director of any
real estate investment trust or real estate company (either public
or private) which in the Restricted Area is primarily engaged in
the business of owning, operating, investing in, constructing,
managing, developing, re-developing, or leasing neighborhood and/or
community strip shopping center properties.
3.
Non-Solicitation .
(a)
Customers
. During the Restricted
Period, Roche shall not solicit any now existing tenant of Centro
(or any entity through which Centro may conduct business during the
Restricted Period) for the purpose of inducing or otherwise
intending to cause such tenant to cease being a tenant of Centro or
any entity through which Centro may conduct business in the
future).
(b)
Employees
. During the Restricted
Period, Roche shall not solicit any employee of Centro (or any
entity through which Centro may conduct business in the
future)(including any employee formerly employed by New Plan) for
the purpose of causing such employee to leave the employment of
Centro (or any entity through which Centro may conduct business in
the future).
4.
Nondisclosure of
Confidential Information . Roche hereby agrees not to use or disclose,
directly or indirectly, during the Restricted Period any
Confidential Information (as defined below) that Roche may have
acquired during the term of his employment with New Plan or
thereafter for so long as such information remains confidential
during the Restricted Period. The term
