Exhibit 10.45
EMPLOYMENT AGREEMENT
AGREEMENT (
“Agreement” ), dated
as of July 23, 2007 ( “Effective Date” ) by
and among Centro Watt Management Joint Venture 2 LP, ( “CWMJV” ), Centro
Properties Group, an entity listed on the Australian Securities
Exchange ( “Centro” )
(collectively referred to as “Company” ) and
Michael Carroll ( “Executive”
).
R E C
I T A L
CWMJV desires to
employ Executive as of the Effective Date, on the terms and
conditions set forth in this Agreement, and Executive desires to be
so employed.
AGREEMENT
IN CONSIDERATION
of the premises and the mutual covenants set forth below, the
parties hereby agree as follows:
1.
Employment . CWMJV hereby agrees to employ Executive
and Executive hereby agrees to accept such employment, on the terms
and conditions hereinafter set forth.
2.
Prior Agreements . The Parties hereby agree that this
Agreement terminates and supersedes the Employment Agreement
between Executive and New Plan Realty Trust, Inc. dated
as of March 15, 2005 ( “Prior Employment
Agreement” ) and that any provisions of the Prior
Employment Agreement that specifically survive closing are hereby
waived and deemed to be null and void and no force or effect.
Accordingly, as of the Effective Date, neither the Company (or
Centro NP LLC, the corporate successor to New Plan Excel Realty
Trust, Inc.) nor the Executive shall have any rights or
obligations pursuant to the Prior Employment Agreement; provided,
however, that prior service with New Plan Realty Trust, Inc will be
recognized for all relevant purposes including, without limitation,
Sections 6(e) and (f) of this Agreement.
3.
Term . Executive’s employment by CWMJV hereunder
shall commence on the Effective Date and shall continue for one
(1) year ( “Original
Term” ). The term of employment hereunder
shall thereafter be automatically extended for an unlimited number
of additional one-year periods (each, an “Additional Term,”
and together with the Original Term and any Additional Terms, the
“Term” )
unless, at least 180 days prior to the expiration of the Term,
either the Executive or the Company gives written notice to the
other that it is electing not to so extend the Term.
Notwithstanding the foregoing, the Term may be earlier terminated
in strict accordance with the provisions of Section 7 hereof,
but subject to the provisions of Section 9 hereof. At
the time Executive ceases to be a full-time employee of CWMJV, the
Executive agrees that he shall resign from any office he holds with
Company and its subsidiaries and any entity in control of,
controlled by or under common control with the Company or in which
the Company owns any common or preferred stock or any ownership
interest or any entity in control of, controlled by or under common
control with such entity ( “Affiliate”
).
4.
Position and Duties .
Executive Vice President and Chief Operating
Officer . During the Term, the Executive shall
serve as the Executive Vice President and Chief Operating Officer
of all United States operations of Centro and its Affiliates (
“Centro
US” ); shall have all authorities, duties and
responsibilities customarily exercised by an individual serving as
the Executive Vice President and Chief Operating Officer of an
entity of the size and nature of Centro US; shall have such other
duties, authorities and responsibilities as the Centro Chief
Executive Officer may from time to time reasonably designate,
consistent with the foregoing; and shall report directly to the
Centro Chief Executive Officer. Executive will comply with
the Company’s policies including, but not limited to, the
Code of Conduct and the Employee Trading in Securities
Policy. During the Term, the Executive shall devote
substantially all of his business time and efforts to the business
and affairs of Centro US (unless otherwise directed by the Centro
US CEO); however, nothing shall preclude the Executive from the
following: (i) serving on the boards of a reasonable
number of non-competing business entities, trade associations and
charitable organizations, (ii) engaging in charitable
activities and community affairs, (iii) accepting and
fulfilling a reasonable number of speaking engagements, and
(iv) managing his personal financial and legal affairs
provided that such activities do not either individually or in the
aggregate interfere with the proper performance of his duties and
responsibilities hereunder and are not likely to be contrary to the
Company’s interests. The Executive has disclosed to the
Company a list of boards of which he is currently a member, and the
Company has consented to his continued membership on such
boards. The Executive shall give prior written notice before
joining any new business board on or after the Effective Date.
5.
Place of Performance . The principal place of
employment of Executive shall be at the Company’s US
corporate offices in New York, New York.
6.
Compensation and Related Matters .
(a)
Salary . During the
Term, CWMJV shall pay Executive an annual base salary of not less
than US$390,000 ( “Base
Salary” ). Executive’s Base Salary
shall be paid in approximately equal installments in accordance
with CWMJV’s customary payroll practices. If
Executive’s Base Salary is increased, such increased Base
Salary shall then constitute the Base Salary for all purposes of
this Agreement.
(b)
Short Term Incentive-Bonus
. Executive shall be eligible for an annual short term
incentive-bonus ( “STI” ) based on the
achievement of certain financial goals. For the financial
year ending June 30, 2008, fifty percent of the STI will be
based on achievement of Centro Distributions per Security target
and maximum goals (as defined by the Centro Board) and fifty
percent of the STI will be based on achievement of Centro US Funds
from Operations target and maximum goals (as defined by the Centro
CEO and the Centro US CEO). The target and maximum goals for
the financial year ending June 30, 2008 shall be established
prior to July 31, 2007. If a target goal is achieved,
Executive shall receive a STI of 35% of Base Salary for that STI
measure. If a maximum goal is achieved, Executive shall
receive a STI of 50% of Base Salary for that STI measure. If
performance for a measure between target goal and maximum goal is
achieved, Executive shall receive a pro rata STI between 35% and
50% of Base Salary for that measure. Any payment of a
prorated STI, if target for a measure is not achieved, shall
be
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subject to the discretion of
the Centro Board. For the financial year ending June, 30,
2007, Executive shall be eligible for a guaranteed STI payment (the
“Stub STI
Payment” ) between US$70,000 and US$ 100,000, the
amount of such guaranteed STI within such range to be at the
discretion of the Centro Board payable by July 31, 2007.
For financial years commencing after June 30, 2008, the Centro
Board may change the basis upon which STI may be calculated, but if
the target is achieved the Executive shall continue to receive an
STI payout of a total of 70% of Base Salary and if the maximum goal
is achieved the payout. shall be a total of 100% of Base
Salary (the “STI
Range” ). If Executive’s employment is
terminated for any reason prior to the end of a financial year, he
shall not be entitled to a prorated STI unless otherwise
specifically agreed by the Centro Board. Notwithstanding
anything contained herein to the contrary, a change in the basis
upon which STI may be calculated after June 30, 2008 (but not
a reduction to the STI Range) shall not constitute a breach or
violation of this Agreement by the Company or constitute Good
Reason for Executive to terminate his employment. With the
exception of the STI for the financial year ending June 30,
2007, all STI amounts will be paid at the first appropriate
opportunity after June 30 of that financial year, but not
later than July 31 of that same calendar year.
(c)
Long Term Incentive
Compensation . Executive shall from time to time be
invited to participate in the Centro Employee Security Plan, the
Centro Executive Option Plan or other stock or option related plans
that may be developed in the future. The Centro Board shall
periodically review the nature and extent of such plans in line
with comparable market practice.
(i)
Attached hereto as Exhibit A is an invitation from the Centro
Board with respect to a grant of stock options of Centro securities
to the value of US$400,000. Upon submission of the invitation
by the Executive to the Company, Executive shall be granted such
options and receive a written grant of stock options consistent
with the terms of Exhibit A (the “Option Invitation”
).
(ii)
Attached hereto as Exhibit B is an invitation from the Centro
Board with respect to a grant of restricted shares of Centro to the
value of US$400,000. Upon submission of the invitation by the
Executive to the Company, Executive shall be granted such
restricted shares and receive a written grant of restricted shares
consistent with the terms of Exhibit B (the “Stock Invitation”
).
(d)
Expenses . CWMJV
shall promptly reimburse Executive for all reasonable business
expenses upon the presentation of reasonably itemized statements of
such expenses in accordance with CWMJV’s policies and
procedures now in force or as such policies and procedures may be
modified with respect to all senior executive officers of
CWMJV.
(e)
Vacation . Executive
shall be entitled to the number of weeks of vacation per year
provided to the CWMJV’s senior executive officers, but in no
event less than four (4) weeks annually.
(f)
Welfare, Pension and Incentive
Benefit Plans . During the Term, the Executive shall
be entitled to participate in all employee benefit plans, programs
and arrangements made available to other CWMJV senior executives
generally, including, without limitation, pension, income deferral,
savings, 401(k), and other retirement plans or programs,
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medical, dental, vision,
prescription drug, hospitalization, short-term and long-term
disability and life insurance plans and programs, accidental death
and dismemberment protection, travel accident insurance, and any
other employee benefit plan, program or arrangement
that may from time to time be made available to other CWMJV senior
executives generally, including any plans, programs or arrangements
that supplement the above-listed types of plans, programs or
arrangements, whether funded or unfunded, subject to the terms of
the applicable plan documents and generally applicable CWMJV
policies, in each case on terms and conditions that are no less
favorable to him than those applying to other CWMJV senior
executives generally. To the extent that post-retirement
welfare and other benefits then exist, the Executive shall be
entitled to post-retirement welfare and other benefits on terms and
conditions that are no less favorable to him than those applying to
other CWMJV senior executives generally. Nothing in this
Section 6(f) shall be construed to require CWMJV to
establish or maintain any particular employee or post-retirement
benefit plan, program or arrangement except as expressly set forth
elsewhere in this Agreement. CWMJV may, to the extent
consistent with the foregoing, alter, modify, supplement or delete
its employee and post-retirement benefit plans at any time as it
sees fit without recourse by the Executive, subject to the terms of
this Section 6(f).
(g)
No Hedging : During
the Term, Executive will not in any way attempt to limit the
financial risk with respect to stock options or restricted stock
which are not vested by means of any hedging (including without
limitation, selling short) or other techniques.
7.
Termination . Notwithstanding the foregoing,
Executive’s employment hereunder may be terminated during the
Term under the following circumstances:
(a)
Death .
Executive’s employment hereunder shall terminate upon his
death.
(b)
Disability . If, as
a result of Executive’s incapacity due to physical or mental
illness, Executive shall have been substantially unable to perform
his duties hereunder for an entire period of one hundred twenty
(120) consecutive days, and within thirty (30) days after written
Notice of Termination (as defined in Section 8(a)) is given
after such one hundred twenty (120) day consecutive period,
Executive shall not have returned to the substantial performance of
his duties on a full-time basis, CWMJV shall have the right to
terminate Executive’s employment hereunder for
“Disability,” and such termination in and of itself
shall not be, nor shall it be deemed to be, a breach of this
Agreement, but shall be subject to the terms of
Section 9(c).
(c)
Cause . CWMJV shall
have the right to terminate Executive’s employment for Cause,
and such termination in and of itself shall not be, nor shall it be
deemed to be, a breach of this Agreement; provided that no
termination of the Executive’s employment hereunder for Cause
shall be effective as a termination for Cause unless the provisions
of this Section shall first have been complied with. The
Executive shall be given written notice by the Centro Chief
Executive Officer of the intention to terminate him for Cause (the
“Notice of
Intention” ). The Notice of Intention shall state
in reasonable detail the particular circumstances that constitute
the grounds on which the proposed termination for Cause is
based. The Executive shall have 10 days after receiving the
Notice of Intention in which to cure the purported grounds for
termination asserted therein. Termination for Cause shall be
effective immediately upon the Centro Chief Executive
Officer’s issuance to Executive of a written
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Termination for Cause Notice
in the event that Executive fails to cure the purported grounds for
termination within such 10 day period. Any allegation that
Cause existed, or that cure was not achieved, shall be subject to
review, at the Executive’s election, through arbitration in
accordance with Section 14 hereof.
For purposes of
this Agreement, CWMJV shall have “Cause” to terminate
Executive’s employment upon Executive’s:
(i)
conviction of, or plea of guilty or nolo contenders to, a felony;
or
(ii)
willful and continued failure to use reasonable best efforts to
substantially perform his duties hereunder (other than such failure
resulting from Executive’s incapacity due to physical or
mental illness or subsequent to the issuance of a Notice of
Termination by Executive for Good Reason (as defined in
Section 7(d)) after demand for substantial performance is
delivered by CWMJV in writing that specifically identifies the
manner in which CWMJV believes Executive has willfully and
continually failed to use reasonable best efforts to substantially
perform his duties hereunder; or
(iii)
willful misconduct that has a materially adverse effect on the
Company or to any Affiliate.
For purposes of
this Section 7(c), no act, or failure to act, by Executive
shall be considered “willful” unless committed in bad
faith and without a reasonable belief that the act or omission was
in the best interests of the Company or any Affiliates thereof;
provided, however, that the willful requirement outlined in
paragraphs (ii) or (iii) above shall be deemed to have
occurred if the Executive’s action or non-action continues
for more than ten (10) days after Executive has received
written notice of the inappropriate action or
non-action.
(d)
Good Reason .
Executive may terminate his employment for “Good
Reason” within thirty (30) days after Executive has actual
knowledge of the occurrence, without the written consent of
Executive, of one of the following events that has not been cured
within thirty (30) days after written notice thereof has been given
by Executive to the Company; provided, however, that any allegation
that Good Reason existed, or that cure was not achieved, shall be
subject to review, at CWMJV’s election, through arbitration
in accordance with Section 14 hereof:
(i)
the assignment to Executive of duties materially and adversely
inconsistent with Executive’s status as Centro US Chief
Executive Officer or a material and adverse alteration in the
nature of the following: Executive’s duties and/or
responsibilities, reporting obligations, titles or authority as
Chief Executive Officer;
(ii)
a reduction in Executive’s Base Salary or a failure to pay
any such amounts when due;
(iii)
a failure by the Company to pay the Stub STI Payment due
June 30, 2007 as described in
Section 6(b) by July 31, 2007;
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(iv)
a failure by the Company to pay either the First Payment or the
Second Payment pursuant to Section 10 when due:
(v)
the relocation of Executive’s own office location to a
location that is more than fifty (50) miles from New York, New
York;
(vi)
any purported termination of Executive’s employment for Cause
which is not effected pursuant to the procedures of
Section 7(c) (and for purposes of this Agreement, no such
purported termination shall be effective);
(vii)
CWMJV’s failure to pay or provide any material employee
benefits due to be provided to Executive under this Agreement
including, but not limited to, a failure to allow the Executive to
participate in all employee benefit plans, programs and
arrangements contemplated under Section 6(t);
(viii)
CWMJV’s failure to provide in all material respects the
indemnification set forth in Section 13 of this Agreement, or
to require any successor to assume and agree to perform this
Agreement as set forth in Section 15 of this
Agreement;
(ix)
a Change in Control (as defined below);
(x)
a reduction in the STI Range as provided for in
Section 6(b);
(xi)
a failure by Centro and/or the Centro Board to accept the Option
Invitation application and/or the Stock Invitation application (if
properly submitted by the Executive) and a failure thereafter to
provide Executive with written documentation evidencing the grant
of the stock options and restricted shares as provided for in
Section 6(c) consistent with the Option Invitation and
the Stock Invitation; or
(xii)
the issuance of a notice by CWMJV to Executive indicating that
CWMJV has elected not to renew or extend the Term for an Additional
Period.
Executive’s
right to terminate his employment hereunder for Good Reason shall
not be affected by his incapacity due to physical or mental
illness. Executive’s continued employment during the
thirty (30) day cure period referred to above in this paragraph
(d) shall not constitute consent to, or a waiver of rights
with respect to, any act or failure to act constituting Good Reason
hereunder.
If Executive
terminates employment hereunder for Good Reason and thereafter
accepts reemployment by CWMJV or any successor or Affiliate within
six months of such termination of employment, Executive’s
termination of employment shall retroactively not be considered a
termination for Good Reason and Executive shall have no entitlement
to any payments or benefits pursuant to Section 9(a). To
the extent Executive has already received payments or benefits
pursuant to Section 9(a), Executive shall repay to such
payments or benefits or make other equitable restitution, as the
Centro Board shall determine. It is the express intent of the
parties that the provisions of this paragraph survive termination
of this Agreement.
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As provided in
Section 2 of this Agreement, any similar provision contained
in the Prior Employment Agreement is specifically waived and
notwithstanding the terms thereof shall not survive the termination
of the Prior Employment Agreement.
In furtherance of
clause (xii) above, the issuance of a notice by the Executive,
indicating that the Executive has elected not to renew or extend
the Term for an Additional Period shall not constitute Good
Reason.
For purposes of
this Agreement, a “Change in Control” means the
occurrence of one of the following events:
(1)
any person or party not currently affiliated with Centro gains
control of fifty percent plus one share of Centro’s issued
Stapled Securities; however, that an event described in this
paragraph (1) shall not be deemed to be a Change in Control if
any of following becomes such a beneficial owner:
(A) the Company or any majority-owned entity (provided, that
this exclusion applies solely to the ownership levels of the
Company or the majority-owned entity), (B) any
tax-qualifie
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