AMENDED AND RESTATED EMPLOYMENT AGREEMENT Effective as of December 29, 2008
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
Effective
as of December 29, 2008
This
Agreement is entered into and made effective as of December 29, 2008 (the “Effective Date”)
between Tanger Properties
Limited Partnership (the “Company”) and XXXX X. XXXXXXXX (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 June 1, 2001 which was amended and restated
as of January 1, 2002, January 1, 2005, January 1, 2006, and January 1, 2008
(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-Leasing. During the Executive’s employment hereunder, her
primary duties, functions, responsibilities and authority will include
overseeing the Company’s leasing activities. Further, Executive shall
perform such other duties as are assigned to her 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 her best efforts and substantially all of her 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.
2. PERIOD OF
EMPLOYMENT.
2.1 Initial Contract
Term. The
period of employment pursuant to the Prior Agreement began 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. The
Contract Term shall be automatically extended at the end of the Initial or an
Extended Term for one additional Contract Year (sometimes herein referred to as
an “Extended Term”) unless either the Executive or the Company shall give
written notice to the other of them that the Contract Term shall not be so
extended at least one hundred eighty (180) days prior to the end of the Initial
or an Extended Term. An Extended Term shall be upon the same terms
and conditions as were applicable to the Initial Term except that the Annual
Base Salary shall be the Executive’s Annual Base Salary for the Contract Year
immediately preceding the Extended Term. References herein to the
“Contract Term” of this Agreement shall refer to the Initial Term as extended
pursuant to this Section.
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 $231,500 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
$231,500. The Annual Base Salary shall be paid in equal installments
in arrears in accordance with Employer’s regular pay schedule.
3.2 Bonus
Compensation. For
the Contract Year beginning January 1, 2008 and, if approved by the Company’s
Board of Directors, for each Contract Year thereafter, in addition to her Annual
Base Salary, Executive will be paid an annual bonus (“Annual Bonus”) in an
amount equal to the lesser of (i) one hundred percent (100%) of Executive’s
Annual Base Salary in effect on the last day of such Contract Year and (ii) an
amount equal to nine and sixteen one- hundredths percent (9.16%) of the total
the commissions of Qualified Leasing Representatives (as defined below) with
respect to that Contract Year computed as a percentage of average annual tenant
rents (net of tenant allowances) in accordance with the Company’s leasing team
bonus plan in effect for that Contract Year; provided however, that such Annual
Bonus shall be payable on or prior to the fifteenth (15th) day of
the third (3rd)
calendar month following the end of the calendar year with respect to which such
Annual Bonus relates. Notwithstanding the foregoing, if the amount
determined under clause (ii) above is greater than 100% of Executive’s Annual
Base Salary, such excess amount shall be carried over to the next succeeding
Contract Year and added to the amount determined under clause (ii) in the
calculation of her Annual Bonus for that succeeding Contract Year; provided,
however, that such excess amount shall be payable on or prior to the fifteenth
(15th) day of
the third (3rd)
calendar month following the end of the succeeding Contract Year[; and provided, further, that
the payment of such excess amount shall be subject to the continued employment
of the Executive through December 31 of such succeeding Contract Year]1.
For
purposes of this Agreement, “Qualified Leasing Representative”, with respect to
any Contract Year, shall mean any person, including Executive, who is entitled
to participate in the Company’s leasing team bonus plan for that Contract
Year.
For
purposes of illustration only, applying the bonus formula for the calendar year
2007, Executive’s Annual Bonus for that calendar year would have been as
follows:
|
A
|
B
|
C
|
D
|
E
|
|
Year
|
Annual
Base Salary
|
Total
2007 Commissions of Qualifying Leasing Representatives
|
Executive’s
Potential 2007 Annual Bonus (C x 9.16% plus any carryover from
preceding Contract Year)
|
Executive’s
Maximum 2007 Annual Bonus (B x
100%)
|
|
2007
|
$220,500
|
$2,116,012
|
$193,827
|
$220,500
|
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. Subject
to Section 10.2(e), the Company shall promptly reimburse the Executive for all
reasonable travel and other business expenses incurred by the Executive in the
performance of her 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 her death.
(b) Disability. The
Company may terminate Executive’s employment upon her Disability.
(c) Cause. The
Company may terminate the Executive’s employment hereunder for
Cause.
(d) Good
Reason. Executive may terminate her 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 her employment without Good
Reason upon 90 days’ written notice to the Company.
(g) Resignation following a
Change of Control. The Executive may terminate her employment
during the period commencing on the date of the first Change of Control to occur
following the Effective Date and ending on the 75th day
following such Change of Control (the “Cessation Date”) by written notice
provided to the Company on or prior to the 60th day
following such Change of Control.
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. Such
accrued compensation shall be paid in accordance with the Company’s ordinary
payment practices and, in any event, on or prior to the fifteenth (15th) day of
the third (3rd)
calendar month following the end of the calendar year in which the date of
termination occurs.
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 her 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 a full price retail
shopping facility which is located within a radius of five (5) miles of, and
competes directly for tenants with, a full price 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 her employment hereunder, she 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 she
shall not, at any time during or following the term of her employment, directly
or indirectly, divulge or disclose for any purpose whatsoever any such
confidential information that has been obtained by, or disclosed to her as a
result of her 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 her 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 she shall violate any of her 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 principles of law or equity.
7. SEVERANCE
BENEFITS.
7.1 Description of
Benefits.
(a) Termination without Cause or
for Good Reason: Subject to Section 7.1(g), 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 and
the provisions of Section 10.2 hereof, the Company shall pay Executive an amount
equal to one hundred percent (100%) of the sum of (x) her Annual Base Salary and
(y) her Average Annual Bonus. Such amount shall be paid in equal
consecutive installments, in accordance with the Company’s regular pay schedule
and subject to Section 10.2(d), over a twelve (12) month period beginning on the
effective date of the termination of Executive’s employment. For
these purposes, Executive’s Average Annual Bonus shall be the average of the
Annual Bonuses earned by Executive for the three consecutive Contract Years (or
if Executive has not been employed for three full Contract Years, such fewer
number of full Contract Years she has been employed by the Company) immediately
preceding the Contract Year in which Executive’s termination of employment
occurs.
(b) Termination by Death or
Disability. Subject to Section 7.1(g), upon the termination of
the Executive’s employment by reason of her death or Disability, the Company
shall pay to the Executive or to the personal representatives of her estate (i)
within thirty (30) days after the termination, a lump-sum amount equal to fifty
percent (50%) 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 Annual Bonus for the Contract Year in which the termination occurs
would have been payable pursuant to Section 3.2 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 7.1(b) shall not limit the entitlement of
the Executive, her 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 receive all Annual Base Salary and all Benefits
accrued through the date of termination, payable in accordance with the
Company’s ordinary payment practices and, in any event, on or prior to the
fifteenth (15th) day of
the third (3rd)
calendar month following the end of the calendar year in which the date of
termination occurs.
(d) Resignation following a
Change of Control. If the Executive elects to terminate her
employment following the first Change of Control to occur during the Contract
Term (pursuant to Section 5.1(g)), the Company shall pay the Executive an amount
equal to one hundred percent (100%) of the sum of (x) her Annual Base Salary and
(y) her Average Annual Bonus (as defined above). Such amount shall be
paid in equal consecutive installments, in accordance with the Company’s regular
pay schedule and subject to Section 10.2(d), over a twelve (12) month period
beginning on the effective date of the termination of Executive’s employment
and, in any event, the first installment shall be paid on or prior to the
Cessation Date.
(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 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.
(g) Cessation of Severance
Benefits. In the event of any termination of the Executive’s
employment following the Cessation Date, including, without limitation, a
termination of employment by the Company for Cause or by the Executive for Good
Reason, the Executive shall not be entitled to receive any severance payments or
benefits that would otherwise have been payable to the Executive pursuant to
this Agreement in connection with a termination of employment.
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
Company may determine the amount (if any) of reduction for each payment or
benefit that the Executive 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.
“Annual Bonus” is
defined in Section 3.
“Cause” For
purposes of this Agreement, the Company shall have “Cause” to terminate the
Executive’s employment hereunder upon (i) the Company’s determination that she
has embezzled money or property, (ii) the Executive’s willful refusal to perform
reasonable duties incident to her employment after ten (10) days’ written notice
to Executive from the Chief Executive Officer, Chief Operating Officer or Board
of Directors of the company of the specific duties to be performed, or (iii)
commission of a felony which, in the judgment of the Board of Directors of the
Company, adversely affects the business or reputation of the
Company.
“Cessation Date” is
defined in Section 5.1(g).
“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 the total gross fair market value
of its assets to a single purchaser or to a group of associated purchasers; (B)
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 her lineal descendants, lineal
ancestors or siblings) which results in their ownership of fifty (50%) 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; or (C) 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 Executive’s inability, due to a physical or mental illness that is expected
to result in death or can be expected to last for a continuous period of not
less than twelve (12) months, to perform any of the material duties assigned to
her by the Company for a period of ninety (90) days or more within any twelve
consecutive calendar months.
“Good
Reason” The Executive shall have “Good Reason” to terminate
her employment hereunder if (i) the Company materially fails to make payment of
amounts due to Executive hereunder; (ii) Company commits a material breach of
its obligations under this Agreement; or (iii) the principal duties of Executive
are required to be performed at a location other than the Greensboro, North
Carolina metropolitan area without her consent following the occurrence of (A) a
Change of Control, (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) a merger involving TFOC if, immediately
following the merger, the holders of TFOC’s shares immediately prior to the
merger own less than fifty percent (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. Notwithstanding the foregoing, the Executive shall not have
Good Reason to resign her employment unless (x) she provides the Company with
Notice of Termination within 90 days after the occurrence of the act purported
to constitute Good Reason, (y) the Company has not remedied the alleged
violation(s) on or before the date of termination specified in the Notice of
Termination (which, for the avoidance of doubt, shall be a date not less than 30
days following the date such Notice of Termination is provided), and (z) such
resignation occurs on or prior to the second anniversary of such
act.
“Section 409A” shall
mean, collectively, Section 409A of the Internal Revenue Code of 1986, as
amended, and the Department of Treasury Regulations and other interpretive
guidance promulgated thereunder, including without limitation any such
regulations or other guidance that may be issued after the date of this
amendment and restatement.
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:
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Tanger
Properties Limited Partnership
0000
Xxxxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxxxxx,
XX 00000
Attention:
|
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With
a copy to:
|
|
|
If
to Executive, to:
|
XXXX
X. XXXXXXXX
0
Xxxx Xxxxx
Xxxxxxxxxx,
XX 00000
|
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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.
10. SECTION
409A.
10.1 The
parties acknowledge and agree that, to the extent applicable, this Agreement
shall be interpreted in accordance with, and the parties agree to use their best
efforts to achieve timely compliance with Section 409A of the Internal Revenue
Code of 1986, as amended and the Department of Treasury Regulations and other
interpretive guidance promulgated thereunder (collectively, “Section 409A”),
including without limitation any such regulations or other guidance that may be
issued after the Effective Date. Notwithstanding any provision of
this Agreement to the contrary, in the event that the Company determines that
any compensation or benefits payable or provided under this Agreement may be
subject to Section 409A, the Company may adopt (without any obligation to do so
or to indemnify the Executive for failure to do so) such limited amendments to
this Agreement and appropriate policies and procedures, including amendments and
policies with retroactive effect, that the Company reasonably determines are
necessary or appropriate to (i) exempt the compensation and benefits payable
under this Agreement from Section 409A and/or preserve the intended tax
treatment of the compensation and benefits provided with respect to this
Agreement or (ii) comply with the requirements of Section 409A. No
provision of this Agreement shall be interpreted or construed to transfer any
liability for failure to comply with the requirements of Section 409A from the
Executive or any other individual to the Company or any of its affiliates,
employees or agents.
10.2 Separation from Service
under 409A. Notwithstanding any provision to the contrary in
this Agreement:
(a) No amount
shall be payable pursuant to Sections 7.1(a) or (b) unless the termination of
the Executive’s employment constitutes a “separation from service” within the
meaning of Section 1.409A-1(h) of the Department of Treasury Regulations;
and
(b) If the
Executive is deemed at the time of his separation from service to be a
“specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, to
the extent delayed commencement of any portion of the termination benefits to
which the Executive is entitled under this Agreement (after taking into account
all exclusions applicable to such termination benefits under Section 409A),
including, without limitation, any portion of the additional compensation
awarded pursuant to Sections 7.1(a) or (b), is required in order to
avoid a
prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion
of the Executive’s termination benefits shall not be provided to the Executive
prior to the earlier of (A) the expiration of the six-month period measured from
the date of the Executive’s “separation from service” with the Company (as such
term is defined in the Department of Treasury Regulations issued under Section
409A of the Code) or (B) the date of the Executive’s death. Upon the
earlier of such dates, all payments deferred pursuant to this Section 10.2(b)
shall be paid in a lump sum to the Executive, and any remaining payments due
under the Agreement shall be paid as otherwise provided herein; and
(c) The
determination of whether the Executive is a “specified employee” for purposes of
Section 409A(a)(2)(B)(i) of the Code as of the time of his separation from
service shall be made by the Company in accordance with the terms of Section
409A of the Code and applicable guidance thereunder (including without
limitation Section 1.409A-1(i) of the Department of Treasury Regulations and any
successor provision thereto); and
(d) For
purposes of Section 409A of the Code, the Executive’s right to receive
installment payments pursuant to Section 7.1(a) shall be treated as a right to
receive a series of separate and distinct payments; and
(e) The
reimbursement of any expense under Section 4.2 or Section 7.1 shall be made no
later than December 31 of the year following the year in which the expense was
incurred. The amount of expenses reimbursed in one year shall not
affect the amount eligible for reimbursement in any subsequent
year.
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/ Xxxxx X. Xxxxxxxxxxx
Xx.
Print
Name: Xxxxx X. Xxxxxxxxxxx,
Xx.
Print
Title: Vice President, Treasurer and Assistant Secretary
of Tanger GP Trust
its sole general
partner
/s/ Xxxx X.
Xxxxxxxx (SEAL)
Executive
Print
Name: XXXX X.
XXXXXXXX
