AMENDED AND RESTATED EMPLOYMENT AGREEMENT Effective as of January 1, 2008
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
Effective
as of January 1, 2008
This Agreement is entered into and made
effective as of January 1, 2008 (the “Effective Date”) between Tanger Properties Limited
Partnership (the “Company”) and XXXXXX NEHMEN (the
“Executive”). The Company and the Executive are sometimes referred to
individually as a “Party” and collectively as the “Parties”.
RECITALS
A. The
Company and the Executive have agreed upon the terms and conditions of the
Executive’s employment by the Company. Company and Executive entered into an
Employment Agreement dated January 1, 1995 which was amended and restated as of
January 1, 1999 and July 1, 2003 (the “Prior Agreement”).
B. The
Parties intend to set forth herein the entire agreement between them with
respect to Executive’s employment by the Company. The Parties intend
to modify, amend and restate their Prior Agreement upon the terms and conditions
set forth herein.
Now therefore in consideration of the
foregoing recitals and the promises contained herein the Parties agree as
follows:
1. EMPLOYMENT AND
DUTIES.
1.1 Employment. During
the Contract Term (as defined herein), the Company will employ the Executive and
the Executive shall serve the Company as a full-time employee upon and subject
to the terms and conditions of this Agreement. The Executive’s
employment hereunder may be terminated before the end of the Contract Term only
as provided in Section 5 of this Agreement.
1.2 Position and
Responsibilities. Executive has been elected and is currently
serving as Senior Vice President of Operations. During the
Executive’s employment hereunder, his primary duties, functions,
responsibilities and authority will include overseeing the operations of the
Company’s retail facilities. Further, Executive shall perform such
other duties as are assigned to him by the Chief Executive Officer, Chief
Operating Officer and/or the Board of Directors.
1.3 Time and
Effort. During the Contract Term, Executive shall be employed
on a full-time basis and shall devote his best efforts and substantially all of
his attention, business time and effort (excluding sick leave, vacation provided
for herein and reasonable time devoted to civic and charitable activities) to
the business and affairs of the Company.
Notwithstanding the foregoing
provisions of this Section, Executive may perform consulting or employment
services which do not materially interfere with the performance of his duties as
a full time employee of the Company as follows:
(a) For
a purchaser of any of the assets or capital stock of Merchants Wholesalers of
Missouri, Inc. (the company in which he was formerly a part owner and with whom
he was employed) in connection with the purchaser's conduct of a business for
the wholesale and retail sale of cigarettes, candy, tobacco and similar items
and so long as the purchaser is not engaged in activities which are in
competition with the business currently conducted by the Company;
and
(b) For
Xxxxxx & Associates (a firm in which Executive owns an interest) in
connection with that firm's conduct of the business of providing tax
consultation and advice and so long as that firm is not engaged in
activities which are in competition with the business currently conducted by the
Company.
2. PERIOD OF
EMPLOYMENT.
2.1 Initial Contract
term. The period of employment pursuant to this
Agreement shall begin on January 1, 2008 (the “Commencement Date”) and shall
extend through December 31, 2010 (the “Initial Contract Term”), unless earlier
terminated as provided in Section 5 or extended as provided in this Section
2. The calendar year beginning January 1, 2008 and each calendar year
thereafter during the Contract Term is sometimes herein referred to as a
“Contract Year”.
2.2 Extended Contract
Term. On January 1, 2009 and on the first day of January of
each calendar year thereafter (an “Extension Date”), the Contract Term shall be
automatically extended by one year unless (i) Executive’s employment has been
earlier terminated as provided in Section 5 or (ii) the Company gives written
notice to Executive one hundred eighty (180) days prior to the Extension Date
that the Contract Term shall not be automatically extended. For
purposes of illustration, if Executive’s employment has not been terminated as
provided in Section 5 and if the Company has not given written notice to
Executive at least 180 days prior to January 1, 2009 that the Contract Term will
not be extended, on January 1, 2009, the Contract Term will be extended to and
including December 31, 2011.
If the Contract Term is extended as
provided herein, Executive’s employment may be terminated (other than upon
expiration) only as provided in Section 5. References herein to the "Contract
Term" shall refer to the Initial Contract Term as extended pursuant to this
Section 2.
3. COMPENSATION.
3.1 Base
Salary. As compensation for Executive’s services performed
pursuant to this Agreement, Employer will pay Executive an “Annual Base Salary”
of $295,470 for
the
Contract Year beginning January 1, 2008 and, with respect to each
Contract Year thereafter an amount agreed upon by Executive and the Company but
not less than $295,470. The Annual Base Salary shall be paid in equal
installments in arrears in accordance with Employer's regular pay
schedule.
3.2 Bonus or Incentive
Compensation. As additional compensation for services
rendered, the Executive shall receive such bonus or bonuses as the Company’s
Board of Directors may from time to time approve including without
limitation awards under the Company’s Incentive
Award Plan. Such bonuses may be payable in cash (a “Cash
Bonus”) and/or in the form of equity based compensation as allowed under the
Company’s Incentive Award Plan.
4. EMPLOYEE
BENEFITS.
4.1 Executive Benefit
Plans. Executive shall participate in the employee benefit
plans (including group medical and dental plans, a group term life insurance
plan, a disability plan and a 401(k) Savings plan) generally applicable to
employees of the Company, as those plans may be in effect from time to
time.
4.2 Expenses. The
Company shall promptly reimburse the Executive for all reasonable travel and
other business expenses incurred by the Executive in the performance of his
duties to the Company hereunder. Executive shall observe and comply
with the Company’s policies with respect to such reimbursements as in effect
from time to time. At least monthly, Executive will submit such
records and paid bills supporting the amount of the expenses incurred and to be
reimbursed as the Company shall reasonably request or as shall be required by
applicable laws.
4.3 Vacation. Executive
shall have the number of days of paid vacation during each calendar year that
are provided to employees of the Company with the same number of years of
service as Executive has pursuant to the Company’s vacation policy described in
the Company’s employee handbook in effect on the first day of that calendar
year.
5. TERMINATION OF
EMPLOYMENT.
5.1 Termination
Circumstances. Executive's employment hereunder may be
terminated prior to the end of the Contract Term by the Company or the
Executive, as applicable, without any breach of this Agreement only under the
following circumstances:
(a) Death. Executive's
employment hereunder shall terminate upon his death.
(b) Disability. The
Company may terminate Executive’s employment upon his Disability.
(c) Cause. The Company
may terminate the Executive's employment hereunder for Cause.
(d) Good Reason.
Executive may terminate his employment for Good Reason.
(e) Without
Cause. The Company may terminate Executive’s employment
hereunder other than for Cause for any or no reason upon 30 days
notice.
(f) Resignation without Good
Reason. The Executive may resign his employment without Good Reason upon
90 days written notice to the Company.
Except as may otherwise be expressly
provided in Section 7.1(a) or in any written agreement between the Company and
Executive with respect to the issuance of awards under the Company’s Incentive
Award Plan, upon termination of Executive's employment, Executive shall be
entitled to receive only the compensation accrued but unpaid for the period of
employment prior to the date of such termination of employment and shall not be
entitled to additional compensation.
5.2 Notice of
Termination. Any termination of the Executive's employment hereunder by
the Company or by the Executive (other than by reason of the Executive's death)
shall be communicated by a notice of termination to the other party hereto. For
purposes of this Agreement, a “notice of termination” shall mean a written
notice which (i) indicates the specific termination provision in the Agreement
relied upon, (ii) sets forth in reasonable detail any facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision indicated and (iii) specifies the effective date of the
termination.
6. AGREEMENT NOT TO
COMPETE.
6.1 Covenant Against
Competition. Executive agrees that during the term of
Executive's employment hereunder and (i) if Executive’s employment is terminated
by the Company for Cause or by Executive without Good Reason, for one hundred
eighty (180) days after the date of such termination or (ii) if Executive
receives the Severance Payment described in Section 7.1(a) if this Agreement
because of a termination of his employment by the Company without Cause or by
Executive for Good Reason, from the date of such termination through the first
anniversary of such termination date, Executive shall not, directly or
indirectly, as an employee, employer, shareholder, proprietor, partner,
principal, agent, consultant, advisor, director, officer, or in any other
capacity,
(1) engage
in activities involving the development or operation of a manufacturers outlet
shopping center which is located within a radius of fifty (50) miles of a retail
shopping facility which, within the 365 day period ending on the date of the
termination of Executive’s employment hereunder, was owned (with an effective
ownership interest of 50% or more), directly or indirectly, by the Company or
was operated by the Company;
(2) engage
in activities involving the development or operation of a manufacturers outlet
shopping center which is located within a radius of fifty (50) miles of any site
which, within the 365 day period ending on the date of the termination of
Executive’s employment hereunder, the Company or its affiliate negotiated to
acquire and/or lease for the development or operation of a retail shopping
facility;
(3) engage
in activities involving the development or operation of any other type of retail
shopping facility which is located within a radius of five (5) miles of, and
competes directly for tenants with, a retail shopping facility which, within the
365 day period ending on the date of the termination of Executive’s employment
hereunder, was (i) under development by the Company or its affiliate; (ii) owned
(with an effective ownership interest of 50% or more), directly or indirectly,
by the Company; or (iii) operated by the Company.
6.2 Disclosure of
Information. Executive acknowledges that in and as a result of
his employment hereunder, he may be making use of, acquiring and/or adding to
confidential information of a special and unique nature and value relating to
such matters as financial information, terms of leases, terms of financing,
financial condition of tenants and potential tenants, sales and rental income of
shopping centers and other specifics about Company's development, financing,
construction and operation of retail shopping facilities. Executive covenants
and agrees that he shall not, at any time during or following the term of his
employment, directly or indirectly, divulge or disclose for any purpose
whatsoever any such confidential information that has been obtained by, or
disclosed to, him as a result of his employment by Company.
6.3 Reasonableness of
Restrictions.
(a) Executive
has carefully read and considered the foregoing provision of this Section, and,
having done so, agrees that the restrictions set forth in this Section,
including but not limited to the time period of restriction set forth in the
covenant against competition are fair and reasonable and are reasonably required
for the protection of the interests of Company and its officers, directors and
other employees.
(b) In
the event that, notwithstanding the foregoing, any of the provisions of this
Section shall be held invalid or unenforceable by a court of competent
jurisdiction, the remaining provisions thereof shall nevertheless continue to be
valid and enforceable as though the invalid or unenforceable parts had not been
included herein. In the event that any provision of this Section
relating to the time period and/or the areas of restriction shall be declared by
a court of competent jurisdiction to exceed the maximum time period or areas
such court deems reasonable and enforceable, the time period and/or areas of
restriction deemed reasonable and enforceable by the court shall become and
thereafter be the maximum time period and/or areas.
6.4 Consideration. Executive
promises in this Section not to compete with the Company and not to disclose
information obtained during his employment by the Company are made in
consideration of the Company's agreement to pay the compensation provided for
herein for the period of employment provided herein. Such promises by
Executive constitute the material inducement to Company to employ Executive for
the term and to pay the compensation provided for in this Agreement and to make
and to continue to make confidential information developed by Company available
to Executive.
6.5 Company's
Remedies. Executive covenants and agrees that if he shall
violate any of his covenants or agreements contained in this Section, the
Company shall, in addition to any other rights and remedies available to it at
law or in equity, have the following rights and remedies against
Executive:
(a) The
Company shall be relieved of any further obligation to Executive under the terms
of this agreement;
(b) The
Company shall be entitled to an accounting and repayment of all profits,
compensation, commissions, remunerations or other benefits that Executive,
directly or indirectly, has realized and/or may realize as a result of, growing
out of or in connection with, any such violation; and
(c) Company
shall be entitled to a permanent injunction to prevent or restrain the breach or
violation of the agreements contained herein by Executive or by Executive's
partners, agents, representatives, servants, employees and/or any and all
persons directly acting for or with Executive.
The foregoing rights and remedies of
the Company shall be cumulative and the election by the Company to exercise any
one or more of them shall not preclude the Company's exercise of any other
rights described above or otherwise available under applicable principals of law
or equity.
7. SEVERANCE
BENEFITS.
7.1 Description of
Benefits.
(a) Termination without Cause or
for Good Reason: If Executive's employment shall be terminated
(i) by the Company other than for Cause or (ii) by the Executive for Good
Reason, subject to the limitation in Section 7.2 hereof, the Company shall pay
Executive an amount equal to three hundred percent (300%) of his
Annual Base Salary. Such amount shall be paid in equal consecutive
monthly or bi-weekly installments in accordance with the Company’s regular pay
schedule over a twelve (12) month period beginning on the effective date of the
termination of Executive’s employment.
(b) Termination by Death or
Disability. Upon the termination of the Executive's employment
by reason of his death or Disability, the Company shall pay to the Executive or
to the personal representatives of his estate (i) within thirty (30) days after
the termination, a lump-sum amount equal to one hundred percent (100%) of the
Executive’s Annual Base Salary for the Contract Year in which the termination
occurs and (ii) on or before the day on which the Executive’s Cash Bonus for the
Contract Year in which the
termination
occurs would have been payable if the termination had not occurred, an amount
equal to the Cash Bonus the Executive would have received for that Contract Year
if the termination had not occurred multiplied by a fraction the numerator of
which is the number of days in that Contract Year before the date of termination
and the denominator of which is 365. This subsection 9(b) shall not
limit the entitlement of the Executive, his estate or beneficiaries to any
disability or other benefits then available to the Executive under any life,
disability insurance or other benefit plan or policy which is maintained by the
Company for the Executive's benefit.
(c) Termination for Cause or
Without Good Reason. If the Executive’s employment is
terminated by the Company for Cause or by the Executive without Good Reason, the
Executive shall be entitled to all Annual Base Salary and all Benefits accrued
through the date of termination.
(d) Survival. Neither the
termination of the Executive’s employment hereunder nor the expiration of the
Contract Term shall impair the rights or obligations of any party hereto which
shall have accrued hereunder prior to such termination or
expiration.
(e) Mitigation of
Damages. In the event of any termination of the Executive's employment by
the Company, the Executive shall not be required to seek other employment to
mitigate damages, and any income earned by the Executive from other employment
or self-employment shall not be offset against any obligations of the Company to
the Executive under this Agreement.
7.2 Limitation on Severance
Benefits.
(a) Notwithstanding
any other provision of this Agreement, and except as provided in paragraph
7.2(b) below, payments and benefits to which Executive would otherwise be
entitled under the provisions of this Agreement will be reduced (or the
Executive shall make reimbursement of amounts previously paid) to the extent
necessary to prevent the Executive from having any liability for the federal
excise tax levied on certain “excess parachute payments” under section 4999 of
the Internal Revenue Code as it exists as of the date of this
Agreement.
(b) The
Executive may determine the amount (if any) of reduction for each payment or
benefit that he would otherwise be entitled to receive. The extent to
which the payments or benefits to the Executive are to be reduced pursuant to
paragraph 7.2(a) will be determined by the accounting firm servicing the Company
on the date that the Executive’s employment is terminated. The
Company shall pay the cost of such determination.
(c) If
the final determination of any reduction in any benefit or payment pursuant to
this Section has not been made at the time that the Executive is entitled to
receive such benefit or payment, the Company shall pay or provide an estimated
amount based on a recommendation by the accounting firm making the determination
under subparagraph 10(b). When the final determination is made, the
Company shall pay the Executive any additional amounts that may be due or the
Executive shall reimburse the Company for any estimated amounts paid to the
Executive that were in excess of the amount payable hereunder.
8. DEFINITIONS.
“Annual Base Salary”
is defined in Section 3.
“Cash Bonus” is
defined in Section 3.
“Cause” For
purposes of this Agreement, the Company shall have "Cause" to terminate
Executive's employment hereunder upon (i) a finding by the Board of Trustees of
the Company’s general partner, Tanger GP Trust that Executive has materially
harmed the Company through a material act of dishonesty in the performance of
his duties hereunder, (ii) his conviction of a felony involving moral turpitude,
fraud or embezzlement, or (iii) a finding by Tanger GP Trust’s Board
of Trustees that Executive has willfully failed to perform his material duties
under this Agreement (other than a failure due to disability) after written
notice specifying the failure and a reasonable opportunity to cure (it being
understood that if his failure to perform is not of a type requiring a single
action to cure fully, that he may commence the cure promptly after such written
notice and thereafter diligently prosecute such cure to
completion).
“Change of
Control” shall mean (A) the sale, lease, exchange or other
transfer (other than pursuant to internal reorganization) by the Company or
Tanger Factory Outlet Centers, Inc. (“TFOC”) of more than 50% of its assets to a
single purchaser or to a group of associated purchasers; (B) a merger,
consolidation or similar transaction in which TFOC or the Company does not
survive as an independent, publicly owned corporation or TFOC or an entity
wholly owned by TFOC ceases to be the sole general partner of the Company; or
(C) the acquisition of securities of TFOC or the Company in one or a related
series of transactions (other than pursuant to an internal reorganization) by a
single purchaser or a group of associated purchasers (other than Executive or
any of his lineal descendants, lineal ancestors or siblings) which results in
their ownership of twenty-five (25%) percent or more of the number of Common
Shares of TFOC (treating any Partnership Units or Preferred Shares acquired by
such purchaser or purchasers as if they had been converted to Common Shares)
that would be outstanding if all of the Partnership Units and Preferred Shares
were converted into Common Shares; (D) a merger involving TFOC if, immediately
following the merger, the holders of TFOC’s shares immediately prior to the
merger own less than fifty (50%) of the surviving company’s outstanding shares
having unlimited voting rights or less than fifty percent (50%) of the value of
all of the surviving company’s outstanding shares; or (E) a majority of the
members of the Company’s Board of Directors are replaced during any
twelve month period by directors whose appointment or election is not endorsed
by a majority of the members of the Board prior to the date of the
appointment or election.
“Contract Term” is
defined in Section 2.
“Contract Year” is
defined in Section 2.
“Disability” shall
mean the absence of Executive from Executive's duties to the Company on a
full-time basis for a total of 16 consecutive weeks during any 12 month period
as a result of incapacity due to mental or physical illness which is determined
to be total and permanent by a physician selected by the Company and acceptable
to Executive or Executive's legal representative (such agreement as to
acceptability not to be withheld unreasonably).
“Good Reason” The Executive
shall have “Good Reason” to terminate his employment hereunder if (i) the
Company fails to make payment of amounts due to Executive hereunder within
thirty (30) days after Executive has made written demand therefor upon Company;
(ii) Company commits a material breach of its obligations under this Agreement
and fails to cure such breach after a thirty (30) day written notice thereof;
(iii) if, after a Change of Control, the principal duties of Executive are
required to be performed at a location other than the Greensboro, North Carolina
metropolitan area without his consent; (iv) if Executive elects to terminate his
employment by written notice to the Company within the 180 day period following
a Change of Control; (v) there is a material adverse change in Executive’s job
titles, duties, responsibilities, perquisites granted hereunder or authority
without his consent; and (vi) the Company’s headquarters are relocated outside
of the Greensboro, North Carolina Metropolitan area without Executive’s
consent.
9. MISCELLANEOUS.
9.1 Binding on
Successors. This Agreement shall be binding upon and inure to
the benefit of the Partnership, the Company, the Executive and their respective
successors, assigns, personal and legal representatives, executors,
administrators, heirs, distributees, devisees, and legatees, as
applicable.
9.2 Governing
Law. This Agreement is being made and executed in and is
intended to be performed in the State of North Carolina, and shall be governed,
construed, interpreted and enforced in accordance with the substantive laws of
the State of North Carolina without any reference to principles of conflicts or
choice of law under which the law of any other jurisdiction would
apply.
9.3 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.
9.4 Notices. All notices,
demands, requests or other communications (collectively, “Notices”) required to
be given or which may be given hereunder shall be in writing and shall be sent
by (a) certified or registered mail, return receipt requested, postage prepaid,
or (b) national overnight delivery service, or (c) facsimile transmission
(provided that the original shall be simultaneously delivered by national
overnight delivery service or personal delivery), or (d) personal delivery,
addressed as follows:
|
If
to Company, to:
|
Tanger
Properties Limited Partnership
0000
Xxxxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxxxxx,
XX 00000
Attention:
____________________
|
|
With
a copy to:
|
______________________
______________________
______________________
|
|
If
to Executive, to:
|
XXXXXX
NEHMEN
000
Xxxxxxxx Xxxxx
Xxxxxxxxxx,
XX 00000
|
|
With
a copy to:
|
Any
Notice so sent by certified or registered mail, national overnight delivery
service or personal delivery shall be deemed given on the date of receipt or
refusal by the intended recipient as indicated on the return receipt, or the
receipt of the national overnight delivery service or personal delivery
service. Any Notice sent by facsimile transmission shall be deemed
given when received by the intended recipient as confirmed by the telecopier
electronic confirmation receipt. A Notice may be given either by a
party or by such party’s attorney. A Party may (i) change the address
to which any Notice to that Party hereunder is to be delivered or (ii) designate
additional or substituted parties to whom Notices hereunder to such Party should
be sent with any such change or designation to be effective five (5) Business
Days after delivery of notice thereof to the other Party in the manner herein
provided. As used herein the term “Business Day” shall mean every
day, other than Saturdays, Sundays and any other day on which banks in the State
in which the Center is located are not generally open for the conduct of banking
business during normal business hours.
9.5 Entire
Agreement. The terms of this Agreement are intended by the
parties to be the final expression of their agreement with respect to the
employment of the Executive by the Partnership and the Company and may not be
contradicted by evidence of any prior or contemporaneous agreement. The parties
further intend that this Agreement shall constitute the complete and exclusive
statement of its terms and that no extrinsic evidence whatsoever may
be
introduced
in any judicial, administrative, or other legal proceeding to vary the terms of
this Agreement.
IN WITNESS WHEREOF, the parties have
executed this Agreement in duplicate originals as of the day and year first
above written.
TANGER PROPERTIES LIMITED
PARTNERSHIP
(Company)
By: /s/ Xxxxxxx X.
Xxxxxx
Print Name: Xxxxxxx
X. Xxxxxx
Print Title: Chairman of the Board &
CEO
/s/ Xxxxxx X. Nehmen
(SEAL)
Executive
Print Name: XXXXXX NEHMEN
