Exhibit 10.23
EMPLOYMENT
AGREEMENT
AGREEMENT (“Agreement”),
dated as of 12/5/07 (“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 Moss
(“Executive”).
RECITAL
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 existing Employment
Agreement between Executive and CWMJV dated as of (“Prior
Employment Agreement”). Accordingly, as of the Effective
Date, neither the Company nor the Executive shall have any rights
or obligations pursuant to the Prior Employment Agreement;
provided, however, that prior service with CWMJV 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
continue from the Effective Date 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 –
National Director of Leasing . During the Term, the Executive shall serve as
the Executive Vice President – National Director of Leasing
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 – National Director of Leasing
of an entity of the size and nature of Centro US; shall have such
other duties, authorities and responsibilities as the Centro US
Executive Vice President and Chief Operating Officer may from time
to time reasonably designate, consistent with the foregoing; and
shall report directly to the Centro US Executive Vice President and
Chief Operating 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 Executive Vice President and
Chief Operating Officer); 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 shall give prior written
notice before joining any 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$330,000 (“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 30% of Base Salary for that STI measure. If
a maximum goal is achieved, Executive shall receive a STI of 42.5%
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 30% and 42.5% of Base Salary for
that measure. Any payment of a prorated STI, if target for a
measure is not
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achieved, shall be subject to the discretion of
the Centro Board. 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 60%
of Base Salary and if the maximum goal is achieved the payout shall
be a total of 85% 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. 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 to ensure such plans are in line with comparable market
practice.
(d)
Relocation . At the Company’s request, as a
condition of continued employment, the Executive will be required
to move principal residence. The Company shall provide the
Executive with an interest-free loan of One Million Dollars
($1,000,000) to assist with the costs of acquiring a new residence.
Subject to the terms hereinafter set forth, the loan shall be
payable in full in five years from the date of the first draw
(“anniversary”). Funds may be drawn from the loan
(a) for the payment of a deposit and (b) for settlement,
in both cases following the presentation to the Company of
satisfactory evidence of the transaction or event requiring the
funds.
If the Executive is still employed by the
Company on the third (3 rd )
anniversary of the loan, the Company shall forgive sixty percent
(60%) of the principal loan balance then outstanding and the
Executive will not be obligated to repay the amount so forgiven. If
the Executive is still employed by the Company on the fifth
(5 th ) anniversary of the loan, the Company shall
forgive the remaining loan balance then outstanding and the
Executive will not be obligated to repay the amount so
forgiven.
If, prior to the third (3 rd )
anniversary of the loan, either (i) the Executive is
terminated by the Company other than for Cause as that term is
defined in clause 7(c), or (ii) the Executive terminates
employment with the Company for Good Reason as that term is defined
in clause 7(d) then $600,000 of the loan balance shall be
forgiven by the Company and the Executive shall only be obligated
to repay the Company $400,000 of the outstanding loan balance and
in such event, Executive shall have a period of one (1) year
from the date of such termination to so repay said $400,000. If
after the third (3 rd
) anniversary of the loan but prior
to the fifth (5 th
) anniversary of the loan, either
(x) the Executive is terminated by the Employer other than for
Cause or (y) the Executive terminates employment with the
Company for Good Reason then the remaining balance of the loan then
outstanding shall be forgiven by the Company and the Executive will
have no further obligation to pay such outstanding loan
balance.
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If, prior to the fifth (5 th )
anniversary of the loan, the Executive’s employment is
terminated by the Company for cause or by the Executive without
Good Reason, the then outstanding balance of the loan shall be
immediately due and payable ( i.e., if employment is so terminated
prior to the third (3 rd )
anniversary of the loan, then the entire loan balance shall be
immediately due and payable and if employment is so terminated
after the third (3 rd
) anniversary of the loan but prior
to the fifth (5 th
) anniversary of the loan, then
$400,000 of the loan balance shall be immediately due and payable
(since $600,000 of the loan balance shall be forgiven on the third
3 rd anniversary of the loan) and the Executive
authorizes the Company to offset all or part of the outstanding
balance from any sums due the Executive from the Company and shall
pay to the Company the remaining outstanding balance within sixty
(60) days after the date of the Executive’s
termination.
(e)
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.
(f)
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.
(g)
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, including, without limitation, pension, income
deferral, savings, 401 (k), and other retirement plans or programs,
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. 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(g).
(h)
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.
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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 CEO 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
CEO’s issuance to Executive of a written 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 13 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 contendere 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
on any Affiliate.
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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 Executive
Vice President – National Director of Leasing or a material
and adverse alteration in the nature of the following:
Executive’s duties and/or responsibilities, reporting
obligations, titles or authority as Executive Vice President
– National Director of Leasing;
(ii) a
reduction in Executive’s Base Salary or a failure to pay any
such amounts when due;
(iii) the
relocation of Executive’s own office location to a location
that is more than fifty (50) miles from New York, New
York;
(iv) 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);
(v)
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(f);
(vi) 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;
(vii) a Change in
Control (as defined below);
(viii) a reduction in the STI
Range as provided for in Section 6(b); or
(ix) 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.
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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 terminati
