Exhibit 10.2
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is entered into and made
effective as of January 1, 2004 by and among TANGER PROPERTIES LIMITED
PARTNERSHIP (the "Partnership"), a North Carolina limited partnership, TANGER
FACTORY OUTLET CENTERS, INC. (the "Company"), a North Carolina corporation and
XXXXXX X. XXXXXX (the "Executive").
RECITALS:
A. The Executive is the Chief Operating Officer of the Partnership and
an officer and director of the Company under the terms of an Amended and
Restated Employment Agreement dated as of January 1, 1998 between the
Executive, the Partnership and the Company (the "Existing Employment
Contract"). The term of the Existing Employment Contract has been extended
by its terms to end on December 31, 2006.
B. The Company, the Partnership and the Executive intend modify and
amend the Existing Employment Contract and to extend its term as provided
herein.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below the parties hereto agree as follows:
1 . Certain Definitions.
(a) "Annual Base Salary" is defined in Section 7(a).
(b) "Annual Bonus" is defined in Section 7(d).
(c) "Benefits" is defined in Section 7(b)(iii).
(d) "Cause" For purposes of this Agreement, the Partnership or the
Company shall have "Cause" to terminate the Executive's employment
hereunder upon (i) the Executive causing material harm to 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) his willful failure 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).
(e) "Change of Control" shall mean (A) the sale, lease, exchange or
other transfer (other than pursuant to internal reorganization) by the
Company or the Partnership 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 the Company or the
Partnership does not survive as an independent, publicly owned corporation
or the Company ceases to be the sole general partner of the Partnership; or
(C) the acquisition of securities of the Company or the Partnership 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 the 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 the Company
(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 the
Company if, immediately following the merger, the holders of the Company'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.
(f) "Disability" shall mean the absence of the Executive from the
Executive's duties to the Partnership and/or 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 Partnership or the
Company and acceptable to the Executive or the Executive's legal
representative (such agreement as to acceptability not to be withheld
unreasonably).
(g) A "Contract Year" shall be a calendar year.
(h) "Good Reason": The Executive shall have Good Reason to terminate
his employment upon the occurrence of any of the following events:
(1) any material adverse change in his job titles, duties,
responsibilities, perquisites granted hereunder, or authority
without his consent;
(2) if, after a Change of Control, either (i) the principal
duties of the Executive are required to be performed at a
location other than New York, New York without his consent or
(ii) the Executive no longer reports directly to the Board of
Directors;
(3) a material breach of this Employment Agreement by the
Partnership or Company, including without limitation, the failure
to pay compensation or benefits when due hereunder if such
failure is not cured within 30 days after delivery to the Company
and the Partnership of the Executive's written demand for payment
thereof;
(4) if the Executive elects to terminate his employment by
written notice to the Company and the Partnership within the 180
day period following a Change of Control; or
(5) if the Executive is removed, or is not re-elected as a
Director of the Company.
(i) "Contract Term" is defined in Section 2(b).
2 . Employment.
(a) The Partnership and the Company shall continue to employ the
Executive and the Executive shall remain in the employ of the Partnership
and the Company during the Contract Term (as defined in this Section 2) in
the positions set forth in Section 3 and upon the other terms and
conditions herein provided, unless the Executive's employment is terminated
earlier as provided in Section 8 hereof.
(b) The initial Contract Term of this Amended and Restated Employment
Agreement shall begin as of January 1, 2004 (the "Commencement Date") and
shall end on December 31, 2006 (the "Initial Contract Term"). On January 1,
2005 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) the Executive's employment has been earlier terminated as
provided in Section 8 or (ii) either the Partnership or the Company gives
written notice to the 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 the Executive's employment has not been
terminated as provided in Section 8 and if neither the Company nor the
Partnership has given written notice to the Executive at least 180 days
prior to January 1, 2005 that the Contract Term will not be extended, on
January 1, 2005, the Contract Term will be extended to and including
December 31, 2007.
If the Contract Term is extended as provided herein, the Executive's
employment may be terminated (other than upon expiration) only as provided
in Section 8. References herein to the "Contract Term" shall refer to the
Initial Contract Term as extended pursuant to this Section 2.
3 . Position and Duties. During the Executive's employment hereunder, he shall
serve as:
(a) an executive employee of the Partnership and shall have such
duties,functions, responsibilities and authority as are consistent with the
Executive's position,
(b) the President and Chief Operating Officer of the Company and shall
have such duties, functions, responsibilities and authority as are
consistent with the Executive's position as an executive officer with
respect to the general management, business and affairs of the Company (and
the Partnership, through the Company's capacity as general partner of the
Partnership), and
(c) if elected or appointed thereto, as a Director of the Company.
The Executive's position, duties and responsibilities may not be
changed and the Executive's Annual Base Salary may not be reduced during
the his employment hereunder.
4 . Competition.
(a) Subject to the limitations and conditions in Section 4(e) hereof,
the Executive shall be prohibited from engaging in Competition (as defined
in subsection 4(b) below) with the Partnership or the Company during the
following described periods: (i) during the period beginning on the date
hereof and extending through the date on which the Executive's employment
hereunder is terminated; (ii) if the Executive's employment is terminated
by the Company for Cause or by the Executive without Good Reason, from the
date of such termination through the date of the first anniversary of such
termination date and (iii) if the Executive receives the Severance Payment
described in Section 9(a) because of a termination of his employment by the
Company without Cause or by the Executive for Good Reason, from the date of
such termination through the date of the third anniversary of such
termination date.
(b) During the period prior to the termination of the Executive's
employment hereunder, the term "Competition" for purposes of this Agreement
shall mean the Executive's management, development or construction of any
factory outlet centers or competing retail commercial property outside the
Partnership and the Company or any other active or passive investment in
property connected with a factory outlet center or a competing retail
commercial property outside the Partnership and Company, with the exception
of
(1) the development or ownership of properties (or replacement
properties) which were owned collectively or individually by the
Executive, by members of his family or by any entity in which any of
them owned an interest or which was for the benefit of any of them
prior to June 30, 1993 (including the three factory outlet centers in
which Xxxxxxx X. Xxxxxx is a 50% partner, the shopping center on West
Market Street in Greensboro, North Carolina (such four properties
defined herein as the "Excluded Properties") and the interests of the
Tanger Family Limited Partnership),
(2) the ownership of up to 1% of any class of securities of any
publicly traded company, and
(3) service on the board of directors of any publicly traded company,
whether or not such company engages in Competition as defined in this
subsection 4(b).
Provided however, for any period following the termination of the
Executive's employment, the Executive shall be considered as engaging in
"Competition" prohibited by this Section only if the Executive engages in
the prohibited activities with respect to a property that is within a fifty
(50) mile radius of the site of any commercial property owned, leased or
operated by the Company and/or the Partnership on the date the Executive's
employment terminated or with respect to a property that is within a fifty
(50) mile radius of any commercial property which the Company and/or
Partnership actively negotiated to acquire, lease or operate within the six
(6) month period ending on the date of the termination of the Executive's
employment.
(c) The Executive covenants that a breach of subsection 4(a) above
would immediately and irreparably harm the Partnership and the Company and
that a remedy at law would be inadequate to compensate the Partnership and
the Company for their losses by reason of such breach and therefore that
the Partnership and/or the Company shall, in addition to any other rights
and remedies available under this Agreement, at law or otherwise, be
entitled to an injunction to be issued by any court of competent
jurisdiction enjoining and restraining the Executive from committing any
violation of subsection 4(a) above, and the Executive hereby consents to
the issuance of such injunction.
5 . Registration Rights. The Executive shall have registration rights pursuant
to the Registration Rights Agreement attached hereto as Exhibit A.
6 . Place of Performance. During his employment hereunder, the Executive shall
be based at the Partnership's principal executive offices and the Company's
principal executive offices located in Greensboro, North Carolina or New York
City, at the Executive's choice.
7 . Compensation and Related Matters. During the Executive's employment
hereunder, the Executive shall be paid the compensation and shall be provided
with the benefits described below:
(a) Annual Base Salary. The Executive's annual base compensation
("Annual Base Salary") payable with respect to the Contract Year ending
December 31, 2004 shall be $400,000. The amount of Annual Base Salary
payable to the Executive with respect to each Contract Year thereafter
shall be an amount negotiated between and agreed upon by the Executive and
the Board of Directors of the Company (in its capacity as general partner
and in its own behalf) but in no event less than the Executive's Annual
Base Salary for the prior Contract Year.
(b) Benefits. The Executive shall be entitled to
(1) receive stock options (incentive or nonqualified) under the
Company's Stock Option Plan and the Partnership's Unit Option
Plan;
(2) participate in the Partnership's 401(k) Savings Plan, and
(3) participate in or receive benefits under any employee benefit
plan or other arrangement made available by the Partnership or
the Company to any of its employees (collectively "Benefits"),on
terms at least as favorable as those on which any other employee
of the Partnership or the Company shall participate; provided,
however, that the Executive shall be entitled to four weeks of
paid vacation during each Contract Year, exclusive of Partnership
holidays.
Without the Executive's prior written consent, the Company and/or
the Partnership will not terminate or reduce any benefits paid to the
Executive under this Section 7(b) unless the Executive is furnished
with a benefit that is substantially equivalent.
(c) Automobile. In addition to the other compensation and benefits
described in this Section 7, the Executive shall be entitled to receive a
fixed monthly automobile allowance of $800, payable at the same times that
Base Salary is payable hereunder. The allowance shall be in lieu of
reimbursement by the Company of any expense incurred by Executive to
purchase or lease a vehicle that will be available for use by the Executive
on Company business. The Executive shall not be required to provide the
Company with supporting documentation to substantiate any such expenses and
the allowance shall be payable whether or not the Executive actually incurs
such automobile expenses in the amount of the allowance. The Executive
shall be responsible for the expenses of leasing or purchasing an
automobile which are in excess of the allowance provided hereunder.
(d) Annual Bonus. As additional compensation for services rendered,
the Executive shall receive such bonus or bonuses as the Company's Board of
Directorsw may from time to time approve including without limitations
awards under the Company's Incentive Award Plan.
(e) Expenses. The Partnership and 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
Partnership and the Company, respectively hereunder.
(f) Payment of Compensation. For each Contract Year or portion thereof
covered by this Agreement, the Company shall be liable for the percentage
described below (the "Company Percentage") of the cost of the Executive's
Annual Base Salary, and for any awards granted by the Company to the
Executive pursuant to the Incentive Award Plan of the Company and the
Partnership (the "Incentive Award Plan"), and the Partnership shall be
liable for the remainder of the cost of the Executive's total compensation
(including any awards granted by the Partnership pursuant to the Incentive
Award Plan).
The Company Percentage for each Contract Year shall be determined by the
Board of Directors of the Company (in its capacity as sole owner of the
general partner and in its own behalf), excluding the Executive, as the
reasonable allocation of the benefits for the Executive's services.
8 . Termination. The Executive's employment hereunder may be terminated prior to
the end of the Contract Term by the Partnership, the Company or the Executive,
as applicable, without any breach of this Agreement only under the following
circumstances:
(a) Death. The Executive's employment hereunder shall terminate upon
his death.
(b) Disability. If the Disability of the Executive has occurred during
the Contract Term, the Partnership or the Company, respectively, may give
the Executive written notice in accordance with Section 15(c) of its
intention to terminate the Executive's employment. In such event, the
Executive's employment with the Partnership and the Company shall terminate
effective on the 30th day after receipt of such notice by the Executive,
provided that within the 30 days after such receipt, the Executive shall
not have returned to full-time performance of his duties.
(c) Cause. The Partnership or the Company may terminate the
Executive's employment hereunder for Cause.
(d) Good Reason. The Executive may terminate his employment for Good
Reason.
(e) Without Cause. The Partnership or the Company may terminate the
Executive's employment hereunder without Cause 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
Partnership and the Company.
(g) Notice of Termination. Any termination of the Executive's
employment hereunder by the Partnership, the Company or the Executive
(other than by reason of the Executive's death) shall be communicated by a
notice of termination to the other parties 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.
9 . Severance Benefits.
(a) Termination without Cause or for Good Reason: If the Executive's
employment shall be terminated (i) by the Company or the Partnership other
than for Cause (as defined above) or (ii) by the Executive for Good Reason
(as defined above), the Partnership and the Company shall pay a lump sum
cash payment (the "Severance Payment") to the Executive within thirty (30)
days after such termination of the Executive's employment in an amount
equal to 300% of the sum of (A) his Annual Base Salary, (B) his Deemed
Annual Bonus for the Contract Year in which the termination occurs and (C)
his annual automobile allowance under Section 7(c) hereof. In addition, the
Partnership and the Company shall continue to provide all Benefits to the
Executive under this Agreement for each Contract Year through the end of
the Contract Term. For these purposes, the Executive's Deemed Annual Bonus
for any Contract Year shall be the greater of (i) the Executive's Average
Annual Bonus for that Contract Year and (ii) Executive's Annual Bonus for
the prior Contract Year. The Executive's Average Annual Bonus for a
Contract Year shall be an amount equal to the sum of all Annual Bonuses
earned by the Executive for the Contract Years immediately preceding the
Contract Year for which the calculation is being made (not exceeding three
(3) Contract Years) divided by the number of such Annual Bonuses. In
calculating the Executive's Annual Bonus or Average Annual Bonus for a
Contract Year, the amount of any share-based award under the Incentive
Award Plan that the Executive is required to recognize as income for
federal income tax purposes in a Contract Year shall be included as part of
the Executive's Annual Bonus for that Contract Year.
(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 the amount of Annual Base Salary that would have been due through the
end of the Contract Term assuming no early termination had occurred and
assuming no increases or decreases in Annual Base Salary and (ii) on or
before the day on which the Executive's Annual 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 Annual 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 Partnership or 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 and to any
accrued but unpaid Annual Bonus for a Contract Year prior to the Contract
Year in which the Executive's employment was terminated.
(d) Assignment of Life Insurance. Upon any termination of the
Executive's employment hereunder, the Partnership and the Company shall, at
Executive's option (exercisable at any time during the period commencing
upon the termination of his employment and ending 90 days thereafter),
transfer the life insurance policy described in such Section 11(b) to
Executive, for no consideration. In addition, notwithstanding any provision
of the Partnership's Executive Deferred Compensation Plan to the contrary,
all amounts in the Executive's account under such Plan (if there is such a
Plan) shall be immediately payable to him.
(e) 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.
(f) Mitigation of Damages. In the event of any termination of the
Executive's employment by the Partnership or 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 Partnership or the
Company to the Executive under this Agreement.
10 . Limitation on Severance Benefits.
(a) Notwithstanding any other provision of this Agreement, and except
as provided in paragraph 10(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 10(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.
11 . Insurance.
(a) Officers and Directors Fiduciary Liability Insurance: During the
Executive's employment hereunder, the Company shall maintain, at its
expense, officers and directors fiduciary liability insurance that would
cover the Executive in an amount of no less than $3 million per year.
(b) Term Life Insurance: During the Executive's employment hereunder
and for a period of ninety (90) days thereafter, the Company shall maintain
in force a term life insurance policy on the Executive in the face amount
of $10 million. If the Executive's employment is terminated prior to the
expiration of the Contract Term (other than by reason of the Executive's
death, a termination by the Company for Cause or a termination by the
Executive without Good Reason), the Company shall pay, prior to the
expiration of the ninety (90) period described in the preceding sentence,
either to the Executive or, on behalf of the Executive, to the issuer(s) of
such life insurance policy(ies), an amount sufficient to pay the premiums
to maintain such policy(ies) in force for the remainder of the Contract
Term.
The Company shall be liable for the Company Percentage (as described
in Section 7(f)) of the annual premium for such term life insurance policy
and the Partnership shall be liable for the remainder of such premium. The
beneficiary of such insurance shall be designated, from time to time, by
the Executive in his sole and absolute discretion.
12 . Disputes and Indemnification.
(a) Any dispute or controversy arising under, out of, in connection
with or in relation to this Agreement shall, at the election and upon
written demand of any party to this Agreement, be finally determined and
settled by arbitration in the City of New York, New York in accordance with
the rules and procedures of the American Arbitration Association, and
judgment upon the award may be entered in any court having jurisdiction
thereof.
(b) The Partnership and/or the Company shall promptly pay pursuant to
Section 7(e) as incurred, to the full extent permitted by law, all legal
fees and expenses which the Executive may reasonably incur as a result of
any contest (regardless of the outcome thereof) by the Partnership, the
Company, the Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement.
(c) The Company and the Partnership agree that if the Executive is
made a party, or is 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 he is or was a director, officer
or employee of the Company or the Partnership or is or was serving at the
request of the Company or the Partnership as a director, officer, member,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, including service with respect to employee benefit
plans, whether or not the basis of such Proceeding is the Executive's
alleged action in an official capacity while serving as a director,
officer, member, employee or agent, the Executive shall be indemnified and
held harmless by the Company and the Partnership to the fullest extent
legally permitted, against all cost, expense, liability and loss
(including, without limitation, attorney's fees, judgements, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by the Executive in connection therewith,
and such indemnification shall continue as to the Executive even if he has
ceased to be a director, officer, member, employee or agent of the Company
or the Partnership or other entity and shall inure to the benefit of
Executive's heirs, executors and administrators. The Company and/or the
Partnership shall advance to the Executive all reasonable costs and
expenses incurred by him in connection with a Proceeding within 20 days
after receipt by them of a written request for such advance. Such request
shall include an undertaking by the Executive to repay the amount of such
advance, without interest, if it shall ultimately be determined that he is
not entitled to be indemnified against such costs and expenses.
13 . 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.
14 . Governing Law. This Agreement shall be governed, construed, interpreted and
enforced in accordance with the substantive laws of the State of North Carolina,
without reference to principles of conflicts or choice of law under which the
law of any other jurisdiction would apply.
15 . 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.
16 . Notices. Any notice, request, claim, demand, document and other
communication hereunder to any party shall be effective upon receipt (or refusal
of receipt) and shall be in writing and delivered personally or sent by telex,
telecopy, or certified or registered mail, postage prepaid, as follows:
(a) If to the Partnership, to: Xx. Xxxxxxxx Xxxxxxx
Tanger Properties Limited Partnership
X.X. Xxx 00000
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
(b) If to the Company, to:
Xx. Xxxxxxxx Xxxxxxx
Tanger Factory Outlets Centers, Inc.
X.X. Xxx 00000
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
(c) If to the Executive, to:
Xx. Xxxxxx X. Xxxxxx 000
Xxxx 00xx Xx. 00xx Xxxxx
Xxx Xxxx, XX 00000
or at any other address as any party shall have specified by notice in writing
to the other parties.
17 . Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original, but all of which together will
constitute one and the same Agreement.
18 . 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.
19 . Amendments; Waivers. This Agreement may not be modified, amended, or
terminated except by an instrument in writing, signed by the Executive, a member
of the Partnership and a disinterested director of the Company. By an instrument
in writing similarly executed, the Executive or the Company and the Partnership
may waive compliance by the other party or parties with any provision of this
Agreement that such other party was or is obligated to comply with or perform,
provided, however, that such waiver shall not operate as a waiver of, or
estoppel with respect to, any other or subsequent failure. No failure to
exercise and no delay in exercising any right, remedy, or power hereunder
preclude any other or further exercise of any other right, remedy, or power
provided herein or by law or in equity.
20 . No Effect on Other Contractual Rights. Notwithstanding Section 8, the
provisions of this Agreement, and any other payment provided for hereunder,
shall not reduce any amounts otherwise payable to the Executive under any other
agreement between the Executive and the Partnership and the Company, or in any
way diminish the Executive's rights under any employee benefit plan, program or
arrangement of the Partnership or the Company to which he may be entitled as an
employee of the Partnership or the Company.
21 . No Inconsistent Actions. The parties hereto shall not voluntarily undertake
or fail to undertake any action or course of action inconsistent with the
provisions or essential intent of this Agreement. Furthermore, it is the intent
of the parties hereto to act in a fair and reasonable manner with respect to the
interpretation and application of the provisions of this Agreement.
22 . Legal Fees. The Company and/or the Partnership agree to pay all legal fees
and expenses
incurred by the Executive in negotiating this Agreement promptly upon receipt of
appropriate statements therefor.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
EXECUTIVE
XXXXXX X. XXXXXX
TANGER FACTORY OUTLET CENTERS, INC.,
a North Carolina Corporation
By: _________________________________________
Print Name and Title: _______________________
----------------------------
TANGER PROPERTIES LIMITED PARTNERSHIP
a North Carolina Limited Partnership
By: TANGER GP TRUST, its sole General Partner
By: ________________________________________
Print Name and Title: ______________________
------------------------------
The Partnership and the Company hereby jointly and severally guarantee to the
Executive the prompt payment in full of the compensation owed hereunder by the
other.
TANGER FACTORY OUTLET CENTERS, INC.,
a North Carolina Corporation
By: _________________________________________
Print Name and Title: __________________________
--------------------------------
TANGER PROPERTIES LIMITED PARTNERSHIP
a North Carolina Limited Partnership
By: TANGER GP TRUST, its sole General Partner
By: ________________________________________
Print Name and Title: __________________________
--------------------------------
