Exhibit 10.3


 


EMPLOYMENT AGREEMENT


 


AGREEMENT (“Agreement”), dated as of
April 29, 2009 (“Effective Date”) by and among Centro US Management Joint
Venture 2, LP (“Company”) and Tiffanie Fisher (“Executive”).


 


RECITAL


 


Company 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. Company hereby agrees to employ
Executive and Executive hereby agrees to accept such employment, on the terms
and conditions hereinafter set forth.


 


2.               Term. Executive’s employment by Company
hereunder shall commence on April 29, 2009 (the “Effective Date”) and
shall continue through April 30, 2011 (the “Term”). Notwithstanding the
foregoing, the Term may be earlier terminated in strict accordance with the
provisions of Section 6 hereof, but subject to the provisions of
Section 8 hereof. At the time Executive ceases to be a full-time employee
of Company, the Executive agrees that she shall resign from any office she
holds with (i) the 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
(“collectively, “Company Affiliates”), (ii) Centro Property Trust and
Centro Properties Limited (“Centro”) and each of their respective affiliates
including, without limitation, Centro Retail Trust and its affiliates
(collectively, “Centro Affiliates”) (Company, Company Affiliates, Centro and
Centro Affiliates being collectively referred to as the “Group”).


 


3.               Position and Duties


 


Executive Vice President - Chief Financial
Officer. During the
Term, the Executive shall serve as the Executive Vice President - Chief
Financial Officer of all United States operations of Centro and its Affiliates
(“Centro US”) and shall be an officer of all such US entities; shall have all
authorities, duties and responsibilities customarily exercised by an individual
serving as the Executive Vice President - Chief Financial Officer of an entity
of the size and nature of Centro US; shall have such other duties, authorities
and responsibilities as the Centro US Chief Executive Officer may from time to
time reasonably designate, consistent with the foregoing; and shall report
directly to the Centro US 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 her business time and efforts to the business and
affairs of Centro US (unless otherwise directed by the Centro US Chief
Executive 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
her personal financial and legal affairs provided that such activities do not
either individually or in the aggregate interfere with the proper performance
of her 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 board on or after the Effective Date.


 


4.             Place of Performance. The
principal place of employment of Executive shall be at the Company’s US
corporate offices in New York, New York.


 


5.             Compensation and Related
Matters.


 


(a)           Salary. During the Term, Company shall pay Executive
an annual base salary of not less than US$350,000 (“Base Salary”). Executive’s
Base Salary shall be paid in approximately equal installments in accordance
with Company’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 and individual goals as
outlined in the short term incentive bonus program in existence from time to
time for US Management Committee members. Executive’s STI annual bonus range
shall be 65% (Target) to 90% (Maximum) of Executive’s then current Base Salary
(the “STI Range”). The Centro Board may change the basis upon which the STI may
be calculated (but it shall be the same for all Management Committee members),
but if the then current target is achieved Executive shall receive an STI bonus
payout of 65% of Base Salary and if the maximum goal is achieved Executive
shall receive an STI bonus payout of 90% of Base Salary. If Executive’s
employment is terminated for any reason prior to the end of a financial year,
Executive shall not be entitled to a prorated STI for that current fiscal year
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 (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 her employment (provided same is consistent for all
Management Committee Members). 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. The current bonus period is
July 1, 2008 through June 30, 2009. For the period from the Effective
Date through June 30, 2009 (the end of the current bonus period), your
bonus shall be prorated based on the above bonus range and the number of days
worked during the current bonus period.


 


(c)           Long Term
Incentive Compensation. Executive shall be entitled to participate in
Centro’s long term incentive compensation program (or other programs in lieu of
a long term incentive compensation program), as outlined each year for, and on
the same basis as other, US Management Committee Members (it being understood
however that there is no guarantee that such a program or programs will be
offered to US Management Committee members each year (but if it is offered to
any US Management Committee member it must be offered to Executive) and that
there is no guarantee as to the amount or value of Executive’s


 


2

















 


award
under any such long term incentive compensation program or programs, subject
however to the next succeeding sentence). You shall be eligible to participate
in any such LTI program for the period first commencing on July 1, 2009
and the value of your LTI compensation for the period July 1, 2009 to
June 30, 2010 shall be $275,000; provided, however, that such amount shall
not be guaranteed for subsequent years and such amount may be more or less than
such amount and such amounts may increase or decrease from year to year. The
Centro Board shall periodically review the nature and extent of such plans in
line with comparable market practice.


 


(d)           Expenses. Company shall promptly reimburse Executive
for all reasonable business expenses upon the presentation of reasonably
itemized statements of such expenses in accordance with Company’s policies and
procedures now in force or as such policies and procedures may be modified with
respect to all senior executive officers of Company.


 


(e)           Vacation. Executive shall be entitled to the number of
weeks of vacation per year provided to the Company’s senior executive officers,
but in no event less than five (5) weeks annually. During the first year
of employment, Executive shall be entitled to four (4) paid personal days
and five (5) paid sick days and thereafter Executive shall be entitled to
the number of paid personal days and paid sick days per year provided to the
Company’s senior executive officers (whether more or less than the foregoing).


 


(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 Company senior executives generally,
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 Company 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 Company policies, in each case on terms and conditions that are no
less favorable to than those applying to other Company 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 than those applying
to other Company senior executives generally. Nothing in this
Section 5(f) shall be construed to require Company to establish or
maintain any particular employee or post-retirement benefit plan, program or
arrangement except as expressly set forth elsewhere in this Agreement. Company
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 5(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, to the extent granted to Executive, which are not vested by
means of any hedging (including without limitation, selling short) or other
techniques.


 


3

















 


6.             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 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 her 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 7(a)) is given after such one hundred
twenty (120) day consecutive period, Executive shall not have returned to the
substantial performance of her duties on a full-time basis, Company 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 8(c).


 


(c)           Cause. Company shall have the right to terminate
Executive’s employment for Cause, and such termination shall not be, nor shall
it be deemed to be, a breach of this Agreement; provided that no termination of
Executive’s employment hereunder for Cause shall be effective as a termination
for Cause unless the provisions of this Section 6(c) shall first have
been complied with. The Executive shall be given written notice by the Centro
US Chief Executive Officer of the intention to terminate her 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 twenty (20)
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 US Chief Executive Officer’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 twenty (20) 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 12 hereof.


 


For
purposes of this Agreement, Company 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 her 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 6(d)) after demand for substantial
performance is delivered by Company in writing that specifically identifies the
manner in which Company believes Executive has willfully and continually failed
to use reasonable best efforts to substantially perform her duties hereunder;
or


 


(iii)         theft of Company property, or


 


4

















 


(iv)          serious
misconduct, dishonesty or disloyalty, which results from a willful act or
omission or from gross negligence, and which is materially or likely to be materially injurious to the operation, financial
condition or business reputation of the Company, Centro or to any Affiliate.


 


For
purposes of this Section 6(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, Centro or any Affiliates thereof; provided, however, that the willful
requirement outlined in paragraphs (ii) or (iv) above shall be deemed
to have occurred if the Executive’s action or non-action continues for more
than twenty (20) days after Executive has received written notice of the
inappropriate action or non-action.


 


(d)           Good Reason.
Executive may terminate her 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
Company’s election, through arbitration in accordance with Section 12
hereof:


 


(i)            the
assignment to Executive of duties materially and adversely inconsistent with
Executive’s status as Centro US Executive Vice President - Chief Financial
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 Executive Vice President - Chief Financial Officer;


 


(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 6(c) (and for purposes of this
Agreement, no such purported termination shall be effective);


 


(v)           Company’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 5(f);


 


(vi)          Company’s
failure to provide in all material respects the indemnification set forth in
Section 11 of this Agreement, or to require any successor to assume and
agree to perform this Agreement as set forth in Section 13 of this
Agreement;


 


(vii)         a
Change in Control (as defined below); or


 


5

















 


(viii)        a
reduction in the STI Range as provided for in Section 5(b).


 


Executive’s
right to terminate her employment hereunder for Good Reason shall not be
affected by her 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.


 


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
or Centro Affiliates 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, any Company Affiliate or
any Centro Affiliate, (B) any tax-qualified, broad-based
employee benefit plan sponsored or maintained by the Company or any
majority-owned entity, (C) any underwriter temporarily holding securities
pursuant to an offering of such securities, or (D) Executive or any group
of persons including Executive (or any entity controlled by Executive or any
group of persons including Executive);


 


(2)           Centro sells, transfers or otherwise disposes of more than
a fifty percent share of the Company or any Centro Affiliate then employing Executive
or more than 50% of the assets of or aggregate interests in Centro US provided
that the acquisition of ownership or such assets by another Centro Affiliate or
the assignment of Executive to work for such entity or Affiliate (provided that
such assignment does not alter in any material respect the terms and conditions
of this Agreement) shall not be considered a Change in Control, but shall still
be subject to the other provisions of Section 6(d) above.


 


If
a Change in Control occurs, regardless of whether Executive elects to terminate
her employment for Good Reason, all unvested stock options and restricted stock
grants received by Executive, if any, regardless of any vesting conditions or
performance and/or time hurdles, shall automatically vest 100% upon the
occurrence of such Change in Control. In addition, in the event that
Executive’s employment is terminated by Company without Cause in contemplation
of a Change in Control, then notwithstanding any other provision of this
Agreement regarding the vesting of stock options and restricted stock grants,
then all unvested stock options and restricted stock grants, if any, received
by Executive, regardless of any vesting conditions or performance and/or time
hurdles, shall automatically vest 100% upon such employment termination..


 


(e)           Without Good Reason. Executive shall have the right to
terminate her employment hereunder without Good Reason by providing Company
with a Notice of Termination, and such termination shall not be, nor shall it
be deemed to be, a breach of this Agreement.


 


6

















 


7.             Termination Procedure.


 


(a)           Notice of Termination. Any termination of Executive’s employment by Company or by Executive
during the Term (other than termination pursuant to Section 6(a)) shall be
communicated by written Notice of Termination to the other party hereto in
accordance with Section 14. For purposes of this Agreement, a “Notice of
Termination” shall mean a notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive’s employment under the provision
so indicated.


 


(b)           Date of Termination. “Date of Termination” shall mean (i) if Executive’s employment is terminated by death, the date
of death, (ii) if Executive’s employment is terminated pursuant to
Section 6(b), thirty (30) days after Notice of Termination (provided that
Executive shall not have returned to the substantial performance of her duties
on a full-time basis during such thirty (30) day period), or (iii) if
Executive’s employment is terminated for any other reason (other than for
Cause), the date on which a Notice of Termination is given or any later date
(within thirty (30) days after the giving of such notice) set forth in such
Notice of Termination.


 


8.             Compensation Upon Termination or
During Disability. In the event Executive is disabled or her employment
terminates during the Term, Company shall provide Executive with the payments
and benefits set forth below; provided, however, as a specific condition to
being entitled to any payments or benefits under this Section 8, Executive
must have resigned all offices and positions with the Group and must have
joined Company in having executed a mutual release of the Group, in the form
attached hereto as Exhibit A (except with regard to any payments hereunder
that Executive is entitled to receive during any period in which she is
disabled and is still an employee of the Company). Executive acknowledges and
agrees that the payments set forth in this Section 8 constitute liquidated
damages for termination of her employment during the Term.


 


(a)           Termination By Company Without Cause or By Executive for Good
Reason. If Executive’s employment is terminated by Company without Cause or by
Executive for Good Reason:


 


(i)            Company
shall pay to Executive her Base Salary, accrued vacation pay through the date
of Termination and any previously declared, but unpaid, bonus for any
previously completed fiscal year (an “Accrued Bonus”), as soon as practicable
following the Date of Termination; and


 


(ii)           Company
shall pay to Executive as soon as practicable following the Date of
Termination, a lump-sum payment equal to twelve months of her Base Salary and
the average STI received by Executive for the two (2) preceding fiscal
years ending on or prior to termination (and if Executive has not received two
(2) STI payments, then for any STI payment not received the foregoing
shall be calculated at target range in accordance with
Section 5(b) for any year for which an STI payment was not received)
(and for purposed of such calculation, the stub


 


7

















 


period
bonus for the period from the Effective Date through June 30, 2009 shall
be computed on an annualized basis);


 


(iii)          Company shall reimburse Executive pursuant to
Section 5(d) for reasonable expenses incurred, but not paid prior to
such termination of employment;


 


(iv)          Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance with the
terms and provisions of any agreements, plans or programs of Company; and


 


(v)           Company shall maintain in full force and effect, for the
continued benefit of Executive, her spouse and her dependents for a period of
one (1) year following the Date of Termination the medical,
hospitalization, dental, and life insurance programs in which Executive, her
spouse and her dependents were participating immediately prior to the Date of
Termination at the level in effect and upon substantially the same terms and
conditions (including without limitation contributions required by Executive
for such benefits) as existed immediately prior to the Date of Termination; provided,
that if Executive, her spouse or her dependents cannot continue to participate
in the Company programs providing such benefits, Company shall arrange to
provide Executive, her spouse and her dependents with the economic equivalent
of such benefits which they otherwise would have been entitled to receive under
such plans and programs (“Continued Benefits”), provided, that such Continued
Benefits shall terminate on the date or dates Executive receives substantially
equivalent coverage and benefits, without waiting period or pre-existing
condition limitations, under the plans and programs of a subsequent employer
(such coverage and benefits to be determine on a coverage-by-coverage, or
benefit-by-benefit, basis).


 


The
foregoing notwithstanding, the total of the severance payments payable under
this Section 8(a) shall be reduced to the extent the payment of such
amounts would cause Executive’s total termination benefits (as determined by
Executive’s tax advisor) to constitute an “excess” parachute payment under
Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)
and by reason of such excess parachute payment Executive would be subject to an
excise tax under Section 4999(a) of the Code, but only if Executive
determines that the after-tax value of the termination benefits calculated with
the foregoing restriction exceed those calculated without the foregoing
restriction.


 


(b)           Cause or By Executive Without Good Reason. If Executive’s employment is terminated by
Company for Cause or by Executive (other than for Good Reason or Disability):


 


(i)            Company
shall pay Executive his Base Salary and, to the extent required by law or
Company vacation policy, her accrued vacation pay through the Date of
Termination, and any Accrued Bonus, as soon as practicable following the Date
of Termination; and


 


8

















 


(ii)           Company
shall reimburse Executive pursuant to Section 5(d) for reasonable
expenses incurred, but not paid prior to such termination of employment, unless
such termination resulted from a misappropriation of funds; and


 


(iii)          Executive
shall be entitled to any other rights, compensation and/or benefits as may be
due to Executive in accordance with the terms and provisions of any agreements,
plans or programs of Company;


 


(c)           Disability. During any period that Executive fails to
perform her duties hereunder as a result of incapacity due to physical or
mental illness (“Disability Period”), Executive shall continue to receive her
full Base Salary set forth in Section 5(a) until her employment is
terminated pursuant to Section 6(b). In the event Executive’s employment
is terminated for Disability pursuant to Section 6(b):


 


(i)            Company
shall pay to Executive his Base Salary and accrued vacation pay through the
Date of Termination, and any Accrued Bonus, as soon as practicable following
the Date of Termination, and continued Base Salary (as provided for in
Section 5(a)) for six (6) months; and


 


(ii)           Company
shall reimburse Executive pursuant to Section 5(d) for reasonable
expenses incurred, but not paid prior to such termination of employment; and


 


(iii)          Company
shall continue to pay Executive’s health insurance for six (6) months
immediately following the termination of Executive’s employment and Executive
shall be entitled to any other rights, compensation and/or benefits as may be
due to Executive in accordance with the terms and provisions of any agreements,
plans or programs of the Company.


 


(d)           Death. If Executive’s employment is terminated by
death:


 


(i)            Company
shall pay in a lump sum to Executive’s beneficiary, legal representatives or
estate, as the case may be, Executive’s Base Salary through the Date of
Termination and one (1) times Executive’s annual rate of Base Salary and
any Accrued Bonus;


 


(ii)           Company
shall reimburse Executive’s beneficiary, legal representatives, or estate, as
the case may be, pursuant to Section 5(d) for reasonable expenses
incurred, but not paid prior to such termination of employment; and


 


(iii)          Executive’s
beneficiary, legal representatives or estate, as the case may be, shall be
entitled to any other rights, compensation and benefits as may be due to any
such persons or estate in accordance with the terms and provisions of any
agreements, plans or programs of Company.


 


9

















 


(e)           Failure to Extend. A failure to renew or extend the term of
this Agreement by the Company shall not be deemed to constitute a termination
of Executive’s employment for purposes of this Agreement and shall not
constitute “Good Reason” hereunder.


 


9.             Mitigation. Executive shall not be required to mitigate
amounts payable under this Agreement by seeking other employment or otherwise,
and there shall be no offset against amounts due Executive under this Agreement
on account of subsequent employment. Additionally, amounts owed to Executive
under this Agreement shall not be offset by any claims Company may have against
Executive, and Company’s obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any other circumstances, including, without limitation, any
counterclaim, recoupment, defense or other right which Company may have against
Executive or others.


 


10.           Confidential
Information; Ownership of Documents; Non-Competition.


 


(a)           Confidential Information. Executive shall hold in a fiduciary capacity
for the benefit of the Company all trade secrets and confidential information,
knowledge or data relating to the Company and its businesses and investments,
which shall have been obtained by Executive during Executive’s employment by
Company and which is not generally available public knowledge (other than by
acts by Executive in violation of this Agreement) or was otherwise made known
to the Executive from a source not subject to a confidentiality obligation.
Except as may be required or appropriate in connection with his carrying out
her duties under this Agreement, Executive shall not, without the prior written
consent of Company or as may otherwise be required by law or any legal process,
or as is necessary in connection with any adversarial proceeding against the
Company (in which case Executive shall use reasonable best efforts in
cooperating with the Company in obtaining a protective order against disclosure
by a court of competent jurisdiction), communicate or divulge any such trade
secrets, information, knowledge or data to anyone other than the Company and
those designated by the Company or on behalf of the Company in the furtherance of
its business or to perform duties hereunder.


 


(b)           Removal of Documents; Rights to Products. All records, files, drawings, documents,
models, equipment, and the like relating to the Company’s business, which
Executive has control over shall not be removed from the Company’s premises
without its written consent, unless such removal is in the furtherance of the
Company’s business or is in connection with Executive’s carrying out her duties
under this Agreement and, if so removed, shall be returned to the Company
promptly after termination of Executive’s employment hereunder, or otherwise
promptly after removal if such removal occurs following termination of
employment. Executive shall assign to the Company all rights to trade secrets
and other products relating to the Company’s business developed by her alone or
in conjunction with others at any time while employed by the Company.


 


(c)           Injunctive Relief. In the event of a breach or threatened breach of
this Section 10, Executive agrees that Company shall be entitled to
injunctive relief in a court of appropriate jurisdiction to remedy any such
breach or threatened breach, Executive acknowledging that damages would be
inadequate and insufficient.


 


10
















 


(d)           Continuing Operation. Except as specifically provided in this Section 10,
the termination of Executive’s employment or of this Agreement shall have no
effect on the continuing operation of this Section 10.


 


11.           Indemnification.


 


(a)           General. Company agrees that if Executive is made a
party or a threatened to be made a party to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a “Proceeding”), by
reason of the fact that Executive is or was a trustee, director or officer of
the Company or any subsidiary of the Company or is or was serving at the
request of the Company or any subsidiary as a trustee, director, officer,
member, employee or agent of another corporation or a partnership, joint
venture, trust or other enterprise, including, without limitation, service with
respect to employee benefit plans, whether or not the basis of such Proceeding
is alleged action in an official capacity as a trustee, director, officer,
member, employee or agent while, serving as a trustee, director, officer,
member, employee or agent, Executive shall be indemnified and held harmless by
the Company to the same extent as other senior executive officers and
directors, as in effect from time to time (including, without limitation, having
the benefit of any Company D&O policies), against all Expenses incurred or
suffered by Executive in connection therewith, and such indemnification shall
continue as to Executive even if Executive has ceased to be an officer,
director, trustee or agent, or is no longer employed by the Company and shall
inure to the benefit of her heirs, executors and administrators.


 


(b)           Expenses. As used in this Agreement, the term
“Expenses” shall include, without limitation, damages, losses, judgments,
liabilities, fines, penalties, excise taxes, settlements, and costs, attorneys’
fees, accountants’ fees, and disbursements and costs of attachment or similar
bonds, investigations, and any expenses incurred by Executive in any Proceeding
in which Executive is entitled to, or seeking, indemnification hereunder.


 


(c)           Enforcement. If a claim or request under this Agreement
is not paid by Company or on its behalf, within thirty (30) days after a
written claim or request has been received by Company, Executive may at any
time thereafter bring suit against Company to recover the unpaid amount of the
claim or request and, if Executive prevails in respect to the material issues,
Executive shall be entitled to be paid also the Expenses of prosecuting such
suit. All obligations for indemnification hereunder shall be subject to, and
paid in accordance with, applicable New York law.


 


(d)           Partial Indemnification. If Executive is entitled under any provision
of this Agreement to indemnification by Company for some or a portion of any
Expenses, but not, however, for the total amount thereof, Company, shall
nevertheless indemnify Executive for the portion of such Expenses to which
Executive is entitled.


 


(e)           Advances of Expenses. Expenses incurred by Executive in connection
with any Proceeding shall be paid by Company in advance upon request of
Executive that Company pay such Expenses; but only in the event that Executive
shall have delivered in writing to Company (i) an undertaking to reimburse
Company for Expenses with respect to which


 


11

















 


Executive
is not entitled to indemnification and (ii) an affirmation of her good
faith belief that there are grounds for such expenses.


 


(f)            Notice of Claim. Executive shall give to Company notice of
any claim made against her for which indemnification will or could be sought
under this Agreement. In addition, Executive shall give Company such
information and cooperation as it may reasonably require and as shall be within
Executive’s power and at such times and places as are convenient for Executive.


 


(g)           Defense of Claim. With respect to any Proceeding as to which
Executive notifies Company of the commencement thereof:


 


(i)              Company will be entitled to participate
therein at its own expense; and


 


(ii)             Except as otherwise provided below, to the
extent that it may wish, Company will be entitled to assume the defense
thereof, with counsel reasonably satisfactory to Executive, which in Company’s
sole discretion may be regular counsel to Company and may be counsel to other
officers and directors of Company or any subsidiary. Executive also shall have
the right to employ her own counsel in such action, suit or proceeding if she
reasonably concludes that failure to do so would involve a conflict of interest
between Company and Executive, and under such circumstances the fees and
expenses of such counsel shall be at the expense of Company.


 


(iii)            Company shall not be liable to indemnify
Executive under this Agreement for any amounts paid in settlement of any action
or claim without its written consent. Company shall not settle any action or
claim in any manner which would impose any penalty or limitation on Executive
without Executive’s written consent. Neither Company nor Executive will
unreasonably withhold or delay their consent to any proposed settlement.


 


(h)           Non-exclusivity. The right to indemnification and the payment
of expenses incurred in
defending a Proceeding in advance of its final disposition conferred in this Section 11
shall not be exclusive of any other right which Executive may have or hereafter
may acquire under any statute, provision of the declaration of trust or
certificate of incorporation or by-laws of Company or any subsidiary,
agreement, vote of shareholders or disinterested directors or trustees or
otherwise.


 


12.           Disputes


 


Any
claim arising out of or relating to this Agreement, any other agreement between
the Executive and Company or its Affiliates, the Executive’s employment with or
any termination thereof (collectively, “Covered Claims”) shall (except
to the extent otherwise provided in Section 10(c) hereof with respect
to certain requests for injunctive relief) be resolved by binding confidential
arbitration, to be held in New York, New York in accordance with the Commercial
Arbitration Rules (and not the National Rules for Resolution of
Employment Disputes) of the American Arbitration Association and this Section 12
and Company and Executive submits to


 


12

















 


jurisdiction
in New York, New York for such arbitration. Judgment upon the award rendered by
the arbitrator(s) may be entered in any court having jurisdiction thereof.
Company shall reimburse Executive for all legal fees and expenses reasonably
incurred by Executive in connection with such contest or dispute, but only if
Executive prevails in respect of the material issues in dispute of Executive’s
claims brought and pursued in connection with such contest or dispute. Such
reimbursement shall be made as soon as practicable following the final resolution
of such contest or dispute to the extent Company receives reasonable written
evidence of such fees and expenses.


 


13.           Successors; Binding Agreement.


 


(a)           Company’s Successors. No rights or obligations of Company under
this Agreement may be assigned or transferred except that Company will require
any successor (whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that Company would be required to perform it if
no such succession had taken place.


 


(b)           Executive’s Successors. No rights or obligations of Executive under
this Agreement may be assigned or transferred by Executive other than her
rights to payments or benefits hereunder, which may be transferred only by will
or the laws of descent and distribution. Upon Executive’s death, this Agreement
and all rights of Executive hereunder shall inure to the benefit of and be
enforceable by Executive’s beneficiary or beneficiaries, personal or legal
representatives, or estate, to the extent any such person succeeds to
Executive’s interests under this Agreement. Executive shall be entitled to
select and change a beneficiary or beneficiaries to receive any benefit or
compensation payable hereunder following Executive’s death by giving Company
written notice thereof. In the event of Executive’s death or a judicial
determination of her incompetence, reference in this Agreement to Executive
shall be deemed, where appropriate, to refer to his beneficiary(ies), estate or
other legal representative(s). If Executive should die following her Date of
Termination while any amounts would still be payable to her hereunder if she had
continued to live, all such amounts unless otherwise provided herein shall be
paid in accordance with the terms of this Agreement to such person or persons
so appointed in writing by Executive, or otherwise to his legal representatives
or estate.


 


14.           Notice.   All notices or other communications which are
required or permitted hereunder
shall be in writing and sufficient if delivered personally, or sent by
nationally-recognized, overnight courier or by registered or certified mail,
return receipt requested and postage prepaid, addressed as follows:


 


If
to Executive:


Ms. Tiffanie
Fisher

1500 Hudson Street

#2i


Hoboken,
NJ 07030


 


With
a copy to:


Jeffrey
A. Kimmel, Esq.


 


13

















 


Meister
Seelig & Fein LLP

2 Grand Central Tower


140
East 45th Street


New
York, New York 10017


 


If
to Company:


Centro
US Management Joint Venture 2 LP


420
Lexington Avenue


7th Floor


New
York, NY 10070


Attention
Steven F. Siegel


 


or
to such other address as any party may have furnished to the others in writing
in accordance herewith. All such notices and other communications shall be
deemed to have been received (a) in the case of personal delivery, on the
date of such delivery, (b) in the case of delivery by
nationally-recognized, overnight courier, on the business day following
dispatch and (c) in the case of mailing, on the third business day
following such mailing.


 


15.           Miscellaneous.
No provisions of this Agreement may be amended, modified, or waived unless such
amendment or modification is agreed to in writing signed by Executive and by a
duly authorized officer of Company, and such waiver is set forth in writing and
signed by the party to be charged. No waiver by either party hereto at any time
of any breach by the other party hereto of any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express
or implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. The respective
rights and obligations of the parties hereunder of this Agreement shall survive
Executive’s termination of employment and the termination of this Agreement to
the extent necessary for the intended preservation of such rights and
obligations. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of New York without regard
to its conflicts of law principles.


 


16.           Jurisdiction.
Subject to the obligations with respect to arbitration as provided in Section 12
hereof, Company and Executive each submits to the jurisdiction of any New York
State Court or Federal Court of the United States of America sitting in the
borough of Manhattan, and any appellate court from any such court, in any suit,
action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each hereby agrees that all
claims in respect of any such suit, action or proceeding shall be brought in
and may be heard and determined in such New York State Court or, to the extent
permitted by law, in such Federal Court. Company, Centro and Executive each
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement in any
New York State Court or Federal Court sitting in the borough of Manhattan.


 


14

















 


17.           Validity. The invalidity or
unenforceability of any provision or provisions of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.


 


18.           Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original but all of which together will constitute one and
the same instrument.


 


19.           Entire Agreement.
This Agreement sets forth the entire agreement of the parties hereto in respect
of the subject matter contained herein and supersede all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, director, employee or
representative of any party hereto in respect of such subject matter. Any prior
agreement of the parties hereto in respect of the subject matter contained herein
is hereby terminated and canceled.


 


20.           Withholding. All payments hereunder
shall be subject to any required withholding of Federal, state and local taxes
pursuant to any applicable law or regulation.


 


21.           Noncontravention.  Company represents that Company
is not prevented from entering into, or performing this Agreement by the terms
of any law, order, rule or regulation, its by-laws or certificate of
incorporation, or any agreement to which it is a party, other than which would
not have a material adverse effect on Company’s ability to enter into or
perform this Agreement. Executive represents to Company that she is not a party
to any contract that would preclude her from accepting employment as Executive
Vice President - Chief Financial Officer of Centro US and he has no reason to
believe that accepting employment as Executive Vice President - Chief Financial
Officer of Centro US would result in a disclosure of any confidential
information of any prior employer.


 


22.           Section Headings.
The section headings in this Agreement are for convenience of reference only,
and they form no part of this Agreement and shall not affect its
interpretation.


 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.


 


	
   

  	
  CENTRO
  US MANAGEMENT JOINT VENTURE 2, LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael
  Carroll

  
	
   

  	
   

  	
  Name:
  Michael Carroll

  
	
   

  	
   

  	
  Title:
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Tiffanie
  Fisher

  
	
   

  	
  TIFFANIE
  FISHER

  



 


15

















 


EXHIBIT A


 


GENERAL RELEASE


 


The
Release will contain provisions consistent with the following:


 


General
Release. Executive knowingly and voluntarily
releases, waives and forever discharges the Group of and from any and all
claims and causes of action, known and unknown, which Executive, his heirs,
beneficiaries, personal representatives, executors, administrators, successors
and assigns (collectively referred to herein as “Executive Releasors”) have or
may have, arising out of or relating to her employment with the Company, the
terms and conditions of that employment, or the termination of that employment
relationship, as of the date of execution of this Agreement, including, without
limitation, any alleged violation of, or claims related to or arising out of:


 


A.                                   Title VII of the Civil Rights Act of 1964, as
amended; the Reconstruction Era Civil Rights Act (also known as the Civil
Rights Act of 1866), as amended; the Civil Rights Act of 1991, as amended; the
Americans with Disabilities Act of 1990, as amended; the ADA Amendments Act of
2008; the Family and Medical Leave Act of 1993; the Age Discrimination in
Employment Act of 1967, as amended; the Fair Labor Standards Act of 1938, as
amended; the Equal Pay Act; the National Labor Relations Act; the Immigration
Reform and Control Act; the Occupational Safety and Health Act; the Worker
Adjustment Retraining and Notification Act; the Uniform Services Employment and
Reemployment Rights Act of 1994, as amended; the Sarbanes-Oxley Act of 2002;
the False Claims Act; and the Employee Retirement Income Security Act of 1974,
as amended (excluding claims for accrued vested benefits under any employee
benefit or pension plan of Centro, if any, in accordance with the terms and
conditions of such plan and applicable law);


 


B.                                     the constitution and laws of the State of New
York and the City of New York concerning wages, employment, the terms and
conditions of employment, and the termination of employment including, without
limitation: the New York State Human Rights Law; the New York Executive Law;
the New York Civil Rights Law; the New York City Human Rights Law; the New York
City Administrative Code; the New York Minimum Wage Act; the New York State
Worker Adjustment and Retraining Notification Act; the New York Labor Law; and
including, without limitation, the New York laws relating to: equal pay, wage
payment, maximum hours and overtime, meal and rest periods, public holidays,
wage deductions, prevailing wages, medical examinations, lie detector tests,
fingerprinting, military leave, disaster service volunteer leave, jury duty,
time off to vote, whistleblower protection, labor relations, display of the
American flag, criminal background checks, genetic disorders, apprenticeship
programs, disability discrimination, reasonable accommodation for disabilities,
political


 

















 


activities,
recreational activities, legal use of consumable products outside of working
hours, confidentiality of AIDS test results, breastfeeding rights, leave for
adoptive parents, leave for bone marrow donors, discrimination in public works
contracts, discrimination in defense contracts; and/or any other law, rule,
regulation, order, executive order or ordinance pertaining to wages,
employment, the terms and conditions of employment, and/or the termination of
employment;


 


C.                                     Executive’s employment with the Company, the
terms and conditions of such employment, the termination of such employment
and/or any of the events relating directly or indirectly to or surrounding the
termination of that employment including, without limitation, wrongful discharge,
constructive discharge, breach of contract (whether express or implied), breach
of the covenant of good faith and fair dealing, breach of promise, detrimental
reliance, promissory estoppel, equitable estoppel, unjust enrichment, quantum
meruit, violation of public policy, tortious conduct, defamation, libel,
slander, false light, interference with contract or a prospective economic
advantage, fraud, fraud in the inducement, misrepresentation, invasion of
privacy, assault, battery, personal injury, harassment, hostile work
environment, failure to promote, violation of federal, state, or local
whistleblower or anti-retaliation personnel laws, infliction of emotional
distress (negligent and intentional), compensatory damages, economic damages,
and punitive damages; and


 


D.                                    claims for attorneys’ fees, costs,
disbursements, and the like, 


 


which
the Executive Releasors ever had, now have, or hereafter can, shall or may have
against the Group for, upon, or by reason of any act, omission, transaction or
occurrence up to and including the date of this Agreement. Executive shall not
be deemed or considered a prevailing party.


 


Except
with respect to the obligations of Executive specifically set forth herein and
except with respect to willful misconduct, fraud or actions outside the scope
of authority, the Company (on behalf of itself and the Group) hereby releases,
waives and forever discharges Executive of and from any and all claims and
causes of action, known and unknown, which the Group, and their respective
successors and assigns have or may have, arising out of or relating to
Executive’s employment with the Company and the terms and conditions of that
employment.


 


Executive’s Waiver.


 


(a)           Executive agrees, to the extent permitted by law, that she will not bring
or join any lawsuit or proceeding in any court against any member of the Group
relating to her employment, the terms and conditions of her employment, the
termination of her employment or any claim or potential claim waived by this
Agreement. Executive acknowledges that all such claims or causes of action
brought in any such lawsuit or proceeding are released and waived pursuant to
this Agreement. Except as prohibited by law, in the event that any such claim
is filed or joined by Executive, it shall be dismissed with prejudice upon
presentation of this Agreement


 


2

















 


and
Executive shall reimburse the Company for the costs, including attorneys’ fees
and costs, of defending any such action.


 


(b)           By virtue of the foregoing, Executive agrees that she has waived any
damages and other relief available to her (including, without limitation, money
damages and equitable relief) under the claims waived in this Agreement.
Therefore, Executive agrees that she will not accept any award or settlement
from any source or proceeding (including, but not limited to, any proceeding
brought by any other person or by any government agency) with respect to any
claim or right waived in this Agreement. Notwithstanding the foregoing,
Executive is not waiving any right to file a charge with any administrative
agency that is specifically provided to her by, and may not be waived under,
law, but Executive agrees that she will not be entitled to any benefit arising
from any claim or proceeding involving any matter within the scope of any claim
or charge that is filed or initiated by her or on her behalf by any such agency
or other governmental entity.


 


(c)           Executive agrees, to the extent permitted by law or unless required or
compelled pursuant to deposition, subpoena or other legal process, that she
will not provide information, advice or counsel to, or otherwise cooperate with
or assist in any manner, any entity or person, including, without limitation,
any employee or former employee of the Group, asserting or seeking to assert
any cause of action, charge or any claim whatsoever against any member of the
Group. Executive further agrees, to the extent permitted by law or unless
required or compelled pursuant to deposition, subpoena or other legal process,
that in connection with any action at law, proceeding in equity, or in any
administrative proceeding commenced by any person or entity against any member
of the Group, she will not participate as a witness or attempt to offer any
evidence against any member of the Group, concerning any act or omission by any
member of the Group.


 


Release of Claims Under the Age Discrimination in Employment Act of 1967,
as Amended.


 


(a)           Executive hereby knowingly and voluntarily specifically releases and forever
discharges, and covenants not to sue, each member of the Group from any and all
liability, claims, allegations, and causes of action arising under the Age
Discrimination in Employment Act of 1967, as amended (hereinafter referred to
as “ADEA”), which the Executive Releasors may have or claim to have against any
member of the Group.


 


(b)           Notwithstanding any other provision or section of this Agreement,
Executive does not hereby waive any rights or claims under the ADEA that may
arise after the Effective Date of this Agreement.


 


(c)           Executive hereby acknowledges and represents that she has been given a
period of at least forty-five (45) days to consider the terms of this
Agreement; that the terms of this Agreement are clear and understandable to
her; that the Company has advised her in writing to consult with an attorney
prior to executing this Agreement; and that she has received valuable and good
consideration to which she is otherwise not entitled in exchange for her
execution of this Agreement. If Executive decides to sign this Agreement in
fewer than 


 


3

















 


forty-five (45) days, Executive agrees that she has
done so with the understanding that she was given and declined the opportunity
to consider this Agreement for a full forty-five (45) days.


 


(d)           Executive hereby acknowledges that she may
revoke this Agreement within seven (7) days of signing the Agreement
(referred to herein as the “Revocation Period”) and that this Agreement shall
not become enforceable until the day after the seven-day Revocation Period has
expired, provided Executive has signed the Agreement and has not exercised her
right to revoke (referred to herein as the “Effective Date” of this Agreement).
In the event Executive chooses to exercise her option to revoke this Agreement,
she shall notify the Company in writing addressed to the company’s designated
agent for this purpose, Carolyn Carter Singh, Centro Properties Group, 420
Lexington Avenue, New York, NY 10170, no later than 5:00 p.m. of the last
day of the Revocation Period. If the last day of the Revocation Period is a
Saturday, Sunday or legal holiday, then the Revocation Period shall not expire
until the next following day which is not a Saturday, Sunday or such legal
holiday. Executive expressly understands and agrees that if she does not sign
this Agreement, or if she revokes it within the Revocation Period, this
Agreement will not be effective or enforceable, and she will not be entitled to
any of the benefits or consideration provided for in this Agreement.


 


Release
by the Group


 


In
consideration for Executive’s services to the Group, the Group, on behalf of
itself and its directors, officers, employees, agents, independent contractors,
subsidiaries, affiliates, successors and assigns, hereby voluntarily and
knowingly releases and discharges Executive and each of Executive’s respective
heirs, executors, administrators, agents, employees and assigns (collectively
“Executive Releasees”), from liability for any and all claims or damages that
the Group had, has, or may have against any of the Executive Releasees at any
time prior to and including the Effective Date of this Agreement, whether known
or unknown to the Group, including but not limited to any and all claims or
rights arising out of, or which might be considered to arise out of or to be
connected in any way with, Executive’s employment with any member of the Group
excluding however any claims or damages resulting from Executive’s willful
misconduct, conduct outside the scope of authority or from violations of the
terms of Section 10 of the Employment Agreement. The Group specifically
intends this release to be the broadest possible release permitted under law.


 


The
Group’s Waiver.


 


(a)           The Group agrees, to the extent permitted by law, that no member of the Group will bring
or join any lawsuit or proceeding in any court against any of the Executive
Releasees relating to Executive’s employment, the terms and conditions of her
employment, the termination of her employment or any claim or potential claim
waived by this Agreement except for any such claim related to Executive’s
willful misconduct, conduct outside the scope of authority or from violations
of Section 10 of the Employment Agreement. The Group acknowledges that all
such claims or causes of action brought in any such lawsuit or proceeding are
released and waived pursuant to this Agreement. Except as prohibited by law, in
the event that any such claim is filed or joined by the Group, it shall be
dismissed with prejudice upon presentation of this Agreement and the Group
shall reimburse Executive or the Executive


 


4

















 


Releasee,
as the case may be, for the costs, including attorneys’ fees and costs, of
defending any such action.


 


(b)           By virtue of the foregoing, the Group agrees that each member of the
Group has waived any damages and other relief available to it (including,
without limitation, money damages and equitable relief) under the claims waived
in this Agreement. Therefore, each member of the Group agrees that it will not
accept any award or settlement from any source or proceeding (including, but
not limited to, any proceeding brought by any other person or by any government
agency) with respect to any claim or right waived in this Agreement.


 


(c)          The Group agrees, to the extent permitted by law or unless required or
compelled pursuant to deposition, subpoena or other legal process, that each
member of the Group will not provide information, advice or counsel to, or
otherwise cooperate with or assist in any manner, any entity or person seeking
to assert any cause of action, charge or any claim whatsoever against any of
the Executive Releasees. The Group further agrees, to the extent permitted by
law or unless required or compelled pursuant to deposition, subpoena or other
legal process, that in connection with any action at law, proceeding in equity,
or in any administrative proceeding commenced by any person or entity against
any of the Executive Releasees, each member of the Group will not participate
as a witness or attempt to offer any evidence against any of the Executive
Releasees, concerning any act or omission by any of the Executive Releasees.


 


Confidential Information; Ownership of Documents;
Non-Competition; Non-Disparagement; Letter of Recommendation.


 


(a)           Confidential Information. Executive shall not, without the prior
written consent of the Company or as may otherwise be required by law or any
legal process, or as is necessary in connection with any adversarial proceeding
against the Company (in which case Executive shall use her reasonable best
efforts in cooperating with the Company in obtaining a protective order against
disclosure by a court of competent jurisdiction), communicate or divulge to
anyone other than the Company any trade secrets, confidential information,
knowledge or data relating to the Company and its businesses and investments,
which shall have been obtained by Executive during Executive’s employment by
the Company and which is not generally available public knowledge.


 


(b)           Removal of Documents; Rights to Products. All records, files, drawings, documents,
models, equipment, and the like relating to the Company’s business, which
Executive has control over shall not be removed from the Company’s premises
without its written consent.


 


(c)           Non-Disclosure. Executive agrees not to disclose any
information regarding the existence, substance, or any of the terms or
conditions of this Agreement to anyone, except to an attorney with whom
Executive chooses to consult regarding her consideration of this Agreement,
Executive’s spouse, and her financial or tax advisors, so long as Executive
advises such individuals that they may not divulge the terms or conditions of
this Agreement and, to the maximum extent permitted by applicable law, rule,
code or regulation,


 


5

















 


they
agree to maintain the confidentiality of the Agreement. Executive also may
disclose the terms or conditions of this Agreement to any court or agency of
competent jurisdiction presiding over a proceeding challenging the validity of
this Agreement, provided that the Agreement is submitted to the court or agency
under seal. Executive represents that she has not spoken with anyone, other
than her spouse and her personal attorney, regarding the terms of this
Agreement.


 


In
addition, the Company agrees not to disclose any information regarding the
existence, substance, or any of the terms or conditions of this Agreement to
anyone, except to its attorneys and except to management committee members and
human resource personnel within the Company and, to the maximum extent
permitted by applicable law, rule, code or regulation, they agree to maintain
the confidentiality of the Agreement. The Company also may disclose the terms
or conditions of this Agreement to any court or agency of competent
jurisdiction presiding over a proceeding challenging the validity of this
Agreement, provided that the Agreement is submitted to the court or agency
under seal. The Company represents that they have not spoken with anyone, other
than the above mentioned Company personnel, regarding the terms of this
Agreement.


 


(d)           Injunctive Relief.
In the event of a breach or threatened breach of this Section, each party
agrees that the breaching party shall be entitled to injunctive relief in a
court of appropriate jurisdiction to remedy any such breach or threatened
breach, as the case may be, Executive and the Group each acknowledging that
damages would be inadequate and insufficient.


 


(e)           Non-Disparagement.
Executive agrees that she will not disparage any member of the Group or any of
their respective officers, directors and employees and each member of the Group
(and their respective directors and senior management) agree not to engage in
any disparagement of Executive or the Executive Releasees.


 


No
Other Consideration. Each party hereto affirms that the terms
stated herein are the only consideration for signing this Agreement and that no
other representations, promises, or agreements of any kind have been made by
any person or entity to cause her to sign this Agreement. Each party hereto has
accepted the terms of this Agreement because they believe them to be fair and
reasonable and for no other reason.


 


Acknowledgement of Receipt of Disclosure Information.
Executive acknowledges receipt of Disclosure Information Provided Pursuant to
Older Workers Benefit Protection Act, which is attached hereto as Exhibit A.


 


The
provisions of this Section are not intended to, and shall not affect
Executive’s right to file a lawsuit, complaint or charge that challenges the
validity of this Agreement under the Older Workers Benefit Protection Act, 29
U.S.C. § 626(f) (“OWBPA”), with respect to claims under the ADEA.
Furthermore, in the event of such a proceeding brought pursuant to OWBPA, the
provisions pertaining to Executive’s obligation to repay monies paid pursuant
to this Agreement, and the recovery of damages, including attorneys’ fees,
shall not apply. This Section is not intended to and shall not limit the
right of a court to determine, in its discretion, that the Company is entitled
to restitution, recoupment or setoff of any monies paid should the release of
ADEA claims in this Agreement be found to be invalid. Neither does this section
affect the


 


6

















 


Company’s
right to recover attorneys’ fees or costs to the extent authorized under
federal law. The provisions of this Section shall apply with full force
and effect with respect to any other legal proceeding.


 


EXECUTIVE HAS BEEN ADVISED THAT SHE HAS AT
LEAST FORTY-FIVE (45) DAYS TO CONSIDER THIS SEPARATION AGREEMENT AND GENERAL
RELEASE AND HAS BEEN ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY PRIOR TO
EXECUTION OF THIS SEPARATION AGREEMENT AND GENERAL RELEASE.


 


TO FULFILL THE PROMISES SET FORTH HEREIN, AND
TO RECEIVE THEREBY THE SUMS AND BENEFITS SET FORTH ABOVE, EACH PARTY HERETO
FREELY AND KNOWINGLY, WITHOUT COERCION OR DURESS, AND AFTER DUE CONSIDERATION,
ENTERS INTO THIS AGREEMENT AND GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND
RELEASE ALL CLAIMS THEY HAVE OR MIGHT HAVE AGAINST THE OTHER.


 


EACH PARTY HERETO ACKNOWLEDGES THAT THEY HAVE
READ THIS AGREEMENT, FULLY UNDERSTAND IT AND ARE VOLUNTARILY ENTERING INTO IT.


 


7