Exhibit 10.5
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is entered into
and made effective as of January 1, 1998 by and among Tanger Properties Limited
Partnership a North Carolina limited partnership (the "Partnership"), Tanger
Factory Outlet Centers, Inc. (the "Company"), a North Carolina corporation and
Xxxxxxx X. Xxxxxx (the "Executive").
RECITALS:
A. The Executive is the Chief Executive Officer of the Partnership, an
officer of the Company and Chairman of the Board of Directors of the Company
under the terms of an Amended and Restated Employment Agreement dated as of
January 1, 1996 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, 2000.
B. The Company, the Partnership and the Executive intend to 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
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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; (E) 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 (F) 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) "Funds From Operations" or "FFO", with respect to a Contract
Year or a calendar quarter, shall be equal to the Company's consolidated Funds
From Operations before the minority interest of the limited partners of the
Partnership as reported in the Company's relevant filings with the Securities
and Exchange Commission, or if not so reported, as determined by the Company's
Board of Directors in good faith, after deduction of any Annual Bonus paid to
the Executive or Xxxxxxx X. Xxxxxx under similar provisions of his employment
agreement for such period.
(i) "Funds From Operations Per Share" or "FFO Per Share" for any
Contract Year or for any calendar quarter shall equal the amount of the Funds
From Operations for such period, divided by the Weighted Average Number of
Shares Outstanding for such period.
(j) "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;
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(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 the Greensboro, North Carolina metropolitan area
without his consent or (ii) the Executive no longer reports directly to
the Board of Directors;
(3) the relocation of the Company and/or the Partnership
headquarters outside of the Greensboro, North Carolina metropolitan area
without his consent;
(4) 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;
(5) 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
(6) if the Executive is removed, or is not re-elected as a
Director of the Company.
(k) Target FFO Per Share.
(1) The "Target FFO Per Share" or "Target" for any
Contract Year beginning prior to December 31, 1996 shall be the average
FFO Per Share for the calendar quarters beginning with the calendar
quarter beginning on July 1, 1993 and ending with the last calendar
quarter in the immediately preceding Contract Year multiplied by 4;
provided however the Target FFO Per Share shall not be less than
$1.5520.
(2) The "Target FFO Per Share" or "Target" for any
Contract Year beginning after December 31, 1996 shall be the average FFO
Per Share for the previous three Contract Years; provided however the
Target FFO Per Share shall not be less than $1.5520.
(l) "Contract Term " is defined in Section 2(b).
(m) The "Weighted Average Number of Shares Outstanding" for a
Contract Year or for a calendar quarter shall be the weighted average number of
the Company's total shares of common stock outstanding during such period as
determined by the Company's outside auditors pursuant to generally accepted
accounting principles; provided that for the purposes of this calculation, the
conversion features of the Company's preferred stock and the Partnership's units
shall both be deemed exercised.
2. Employment.
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(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, 1998 (the "Commencement Date")
and shall end on December 31, 2000 (the "Initial Contract Term"). On January 1,
1999 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, 1999 that the Contract Term will
not be extended, on January 1, 1999, the Contract Term will be extended to and
including December 31, 2001.
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. The Executive shall serve in the following manner:
(a) During the Executive's employment hereunder, he shall serve
as:
(1) an executive employee of the Partnership and shall
have such duties, functions, responsibilities and authority as are
consistent with the Executive's position,
(2) the Chief Executive Officer and Chairman of the Board
of Directors of the Company and shall have such duties, functions,
responsibilities and authority as are consistent with the Executive's
position as the senior executive officer in charge of the general
management, business and affairs of the Company (and the Partnership,
through the Company's capacity as general partner of the Partnership),
and
(3) if elected or appointed thereto, as a Director and
Chairman of the Board of directors of the Company.
(b) The Executive shall serve as manager of the Factory Outlet
Center in Commerce, Georgia and shall have such duties, functions,
responsibilities and authority as are consistent with the Executive's position
thereas and the Executive's activities as manager of such
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property prior to the date of this Agreement. Notwithstanding any other
provision of the Employment Agreement, the Executive's obligations under this
subsection 3(b) shall not be terminated without the prior consent of New York
Life Insurance Annuity Corporation ("New York Life") but, in any event, shall
terminate on the later of (i) the payment of the Liabilities and (ii) the
satisfaction of all the Partnership's obligations under the terms of the Loan
Documents under the Guaranty of Payment and Performance by Xxxxxxx X. Xxxxxx,
dated May , 1993 (the "Guaranty"), pursuant to which, in consideration for
certain consent by New York Life, Executive agrees to guarantee certain
obligations of the Partnership.
If the Executive's employment is otherwise terminated under the
Employment Agreement, the Partnership and the Company shall allow the Executive
to continue his duties under this subsection 3(b) until they are terminated in
accordance with this subsection 3(b) or until the death or Disability of the
Executive, provided that no additional compensation shall be paid to the
Executive.
For purposes of this subsection 3(b), the terms "Liabilities",
"Property" and "Loan Documents" shall be defined as in the Guaranty.
The Executive's position, duties and responsibilities may not be changed
and the Executive's Annual Base Salary may not be reduced during his employment
hereunder.
4. Competition.
(a) The Executive shall be permanently prohibited from engaging
in Competition (as defined in subsection 4(b) below) with the Partnership or the
Company.
(b) The term "Competition" for purposes of this Agreement shall
mean the engagement outside the Partnership and the Company
(1) in any material commercial real estate activities,
with the exception of
(i) 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
the Executive 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),
(ii) the direct or indirect passive investment in
commercial real estate, and
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(iii) 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 that,
(2) "Competition" shall include management, development or
construction of any factory outlet centers or competing retail
commercial property or any other active or passive investment in
property connected with a factory outlet center or a competing retail
commercial property, with the exception of
(i) the activities permitted in subparagraph
4(b)(i)(A) with respect to the Excluded Properties,
(ii) the ownership of up to 1% of any class of
securities of any publicly traded company, and
(iii) the employment under this Agreement.
(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.
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, 1998 shall be $330,000. 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 increased by the Consumer Price Index adjustment described in the following
paragraph.
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If the FFO Per Share for the Contract Year ending December 31, 1998 or
for any succeeding Contract Year equals or exceeds the Target for that Contract
Year, the Executive's Annual Base Salary for the next Contract Year shall be
increased to reflect any increase in the Consumer Price Index for All Urban
Consumers (CPI-U), U.S. City Average for All Items as determined by the United
States Department of Labor, Bureau of Labor Statistics using 1982-84=100 as the
standard reference base or, if there be no such Consumer Price Index, then by
the successor or the most nearly comparable successor index thereto
(appropriately adjusted to the 1982-84=100 standard reference base). For the
purpose of determining such increased Annual Base Salary for a Contract Year,
the Basic Index Figure ("BIF") shall be such Consumer Price Index for the month
of October in the second preceding Contract Year. The Current Index Figure
("CIF") shall be the corresponding Consumer Price Index for the month of October
in the immediately preceding Contract Year. The Annual Base Salary payable for a
Contract Year beginning after December 31, 1998 shall be no less than an amount
arrived at by multiplying the Annual Base Salary for the preceding Contract Year
by a fraction, of which the numerator shall be the Current Index Figure ("CIF")
and the denominator shall be the Basic Index Figure ("BIF"):
ABS for preceding Contract Year X CIF = ABS for the Contract Year
---
BIF
(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 monthly automobile allowance of $800, payable at the same times Base Salary is
payable hereunder. The Executive may apply such allowance in any manner, and
shall be entitled to retain any portion of such allowance not applied towards
his automobile expense. The Executive shall be responsible for all automobile
costs and expenses in excess of the allowance provided hereunder.
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(d) Annual Bonus. As additional compensation for services
rendered, for each Contract Year in which the FFO Per Share shall equal or
exceed the Target, the Executive shall receive an annual bonus ("Annual Bonus)
equal to the sum of (A) $100,000 and (B) the product of (x) the Executive's
Annual Base Salary for such Contract Year and (y) a fraction (which shall not
exceed 1.0) the numerator of which shall be the percentage by which the FFO Per
Share shall exceed the Target for such Contract Year, and the denominator of
which shall be ten percent (10%).
Each Annual Bonus shall be paid no later than 30 days after the
information sufficient to calculate it has been delivered to the Company and the
Partnership by the Company's outside auditors, unless the Executive shall elect
to defer the receipt of such Annual Bonus pursuant to the Executive Deferred
Compensation 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 options granted to the Executive
pursuant to the Company's Stock Option Plan, and the Partnership shall be liable
for the remainder of the cost of the Executive's total compensation (including
options granted to the Executive pursuant to the Partnership's Unit Option
Plan).
The Company Percentage for each Contract Year shall be determined by the Board
of Directors of the Company (in its capacity as 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.
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(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.
(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
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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.
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(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 or Other Employee Benefit: During the
Executive's employment hereunder, the Company shall maintain in force a term
life insurance policy on the Executive or shall provide Executive with another
employee benefit selected by the Executive at an annual cost to the Company of
no more than $17,150. 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) (if
any), an amount sufficient to pay the premiums to maintain such policy(ies) in
force for the remainder of the Contract Term but in no event more than $17,150
each Contract Year.
The Company shall be liable for the Company Percentage (as
described in Section 7(f)) of the annual premium for any such term life
insurance policy and the Partnership shall be liable for the remainder of such
premium. The beneficiary of any 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 Greensboro, North Carolina 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.
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(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 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.
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.
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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 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(b) If to the Company, to:
Xx. Xxxxxxxx Xxxxxxx
Tanger Factory Outlets Centers, Inc.
X.X. Xxx 00000
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(c) If to the Executive, to:
Xx. Xxxxxxx X. Xxxxxx
X.X. Xxx 00000
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, 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
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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
---------------------------------------------
Xxxxxxx X. Xxxxxx
TANGER FACTORY OUTLET CENTERS, INC.,
a North Carolina corporation
By:
-----------------------------------------
XXXXXXXX XXXXXXX, Xx. Vice President
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TANGER PROPERTIES LIMITED PARTNERSHIP
By: Tanger Factory Outlet Centers, Inc.
its general partner
By:
-----------------------------------------
XXXXXXXX XXXXXXX, Xx. Vice President
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 PROPERTIES LIMITED PARTNERSHIP
By: Tanger Factory Outlet Centers, Inc.,
its general partner
By:
-----------------------------------------
XXXXXXXX XXXXXXX, Xx. Vice President
TANGER FACTORY OUTLET CENTERS, INC.,
a North Carolina corporation
By:
-----------------------------------------
XXXXXXXX XXXXXXX, Xx. Vice President
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