EMPLOYMENT AGREEMENT
BETWEEN
FACTORY STORES OF AMERICA, INC.
AND
XXXXXXXXXXX X. XXXXXXXX
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of the 15th day of December,
1995 between FACTORY STORES OF AMERICA, INC., a Delaware corporation (the
"Company"), and XXXXXXXXXXX X. XXXXXXXX (the "Executive") for employment
commencing on the Effective Date (as hereinafter defined).
WITNESSETH:
WHEREAS, the Company desires to employ the Executive, and the Executive
desires to be employed by the Company, on the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties agree as follows:
1. Employment.
(a) The Company hereby employs the Executive as Senior Vice President
and the Executive hereby accepts such employment, on the terms and subject
to the conditions hereinafter set forth.
(b) During the term of his employment under this Employment Agreement,
the Executive shall be and have the title of Senior Vice President and
shall devote his entire business time and all reasonable efforts to his
employment and perform diligently such duties as are customarily performed
by senior vice presidents of companies similar in size to the company,
together with such other duties as may be reasonably requested from time to
time by the Board of Directors of the Company (the "Board"), which duties
shall be consistent with his title and position as set forth above and as
provided in Paragraph 2; provided, however, that business activities by the
Executive with respect to passive investments, so long as such activities
do not, alone or in the aggregate, materially interfere with the
Executive's performance of his duties as described in this Paragraph 1(b),
will not be deemed inconsistent with the requirements of this Paragraph
1.(b)
2. Term and Positions.
(a) Subject to the provisions for termination hereinafter stated, the
term of this Employment Agreement shall begin on December 15, 1995 (the
"Effective Date") and shall continue through the second anniversary of the
Effective Date.
(b) The Executive shall be entitled to serve as Senior Vice President
of the Company. For service as an officer and employee of the Company, the
Executive shall be entitled to the full protection of the applicable
indemnification provisions of the Certificate of Incorporation and Bylaws
of the Company, as
the same may be amended from time to time, which indemnifications shall
remain effective after termination of this Employment Agreement with
respect to Executive's actions and inactions during the term hereof.
(c) If:
(i) the Company materially changes the Executive's duties and
responsibilities as set forth in Paragraphs 1(b) and 2(b) without his
consent;
(ii) the Executive's place of employment or the principal
executive offices of the Company are located more than fifty (50)
miles from the geographical center of Smithfield, North Carolina;
(iii) there occurs a material breach by the Company of any of its
obligations under this Employment Agreement, which breach has not been
cured in all material respects, within ten (10) days after the
Executive gives notice thereof to the Company; or
(iv) there occurs a "change in control" (as hereinafter defined)
of the Company during the term of this Employment Agreement;
then in any such event the Executive shall have the right to terminate his
employment with the Company, but such termination shall not be considered a
voluntary resignation or termination of such employment or of this
Employment Agreement by the Executive but rather a discharge of the
Executive by the Company "without cause" (as defined in Paragraph 5 (a)
(iii)). The Executive may exercise such right of termination at any time
within three (3) months following the occurrence of the applicable event
described in (i), (iii) and (iv) of this Paragraph 2(c), and within six (6)
months following the occurrence of the applicable event described in (ii)
of this Paragraph 2(c).
(d) The Executive shall be deemed not to have consented to any
written proposal calling for a material change in his duties and
responsibilities unless he shall give written notice of his consent
thereto to the Executive Management Committee of the Company within
fifteen (15) days after receipt of such written proposal. If the
Executive shall not have given such consent, the Company shall have
the opportunity to withdraw such proposed material change by written
notice to the Executive given within ten (10) days after the end of
said fifteen (15) day period.
(e) The term "change in control" means the first to occur of the
following events:
i) any person or group of commonly controlled persons owns
or controls, directly or indirectly, fifty percent (50%) or more
of the voting
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control or value of the capital stock of the Company following
the Effective Date;
ii) any person or group of commonly controlled persons
owning less than five percent (5%) of the voting control or value
of the capital stock of the Company within 30 days following the
Effective Date owns or controls, directly or indirectly, more
than twenty percent (20%) of the voting control or value of the
capital stock of the Company; or
iii) following the Effective Date, the stockholders of the
Company approve an agreement to merge or consolidate with another
corporation or other entity resulting (whether separately or in
connection with a series of transactions) in a change in
ownership of twenty percent (20%) or more of the voting control
or value of the capital stock of the Company, or an agreement to
sell or otherwise dispose of all or substantially all of the
Company's assets (including without limitation, a plan of
liquidation or dissolution), or otherwise approve of a
fundamental alteration in the nature of the Company's business;
provided, however, a pledge, hypothecation or other similar
disposition for the purpose of providing collateral security made
at the time the Company enters into a bona fide financing
transaction with a party which at the time of such transaction is
not an affiliate of the Company would not constitute a change in
control.
Notwithstanding the foregoing provisions of this Paragraph 2, the
ownership or acquisition of capital stock by the Executive, J. Xxxxx
Xxxxxxx, Xx., X. Xxxxxxx Xxxxxx, Xxxxxxx X. Xxxxxxxx, and/or their
respective affiliates, shall not be deemed to result in a "change in
control" of the Company.
3. Compensation.
During the term of his employment under this Employment Agreement the
Company shall, pay or provide, as the case may be, to the Executive the
compensation and other benefits and rights set forth in this Paragraph 3.
(a) The Company shall pay to the Executive a base salary payable in
accordance with the Company's usual pay practices (and in any event no less
frequently than monthly) of One Hundred Twenty-Five Thousand Dollars
($125,000) per annum, to be increased (but not decreased) from time to time
(based upon the performance of the Company and the Executive) as determined
by the Board or the Company's Executive Compensation Committee.
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(b) The Company shall pay to the Executive bonus compensation on a
calendar year basis pursuant to the terms of the incentive compensation
plan established by the Board from time to time, not later than 30 days
following the completion of the audit of the Company's financial statements
for each calendar year, prorated on a per diem basis for partial calendar
years in which the Executive was employed hereunder.
(c) The Company shall provide to the Executive such life, medical,
hospitalization and dental insurance for himself, his spouse and eligible
family members, as may be available to other officers of the Company.
(d) The Executive shall participate in all retirement and other
benefit plans of the Company generally available from time to time to
officers of the Company and for which the Executive qualifies under the
terms thereof (and nothing in this Employment Agreement shall or shall be
deemed to in any way affect the Executive's rights and benefits thereunder
except as expressly provided herein).
(e) The Executive shall be entitled to such periods of vacation and
sick leave allowance each year as are determined by the Company's Executive
Compensation Committee for officers generally.
(f) The Executive shall be entitled to participate in any equity or
other employee benefit plan that is generally available to officers, as
distinguished from general management, of the Company. The Executive's
participation in and benefits under any such plan shall be on the terms and
subject to the conditions specified in the governing document of the
particular plan.
(g) The Company shall reimburse the Executive or provide him with an
expense allowance during the term of this Employment Agreement for travel,
entertainment and other expenses reasonably and necessarily incurred by the
Executive in connection with the Company's business. The Executive shall
furnish such documentation with respect to reimbursement to be paid
hereunder as the Company shall reasonably request.
4. Payment in the Event of Death or Permanent Disability.
(a) In the event of the Executive's death or "permanent disability"
(as hereinafter defined) during the term of his employment under this
Employment Agreement, the Company shall pay to the Executive (or his
personal representatives, heirs, successors and assigns in the event of his
death) an amount equal to two (2) times the Executive's then effective
annual base salary, as determined under Paragraph 3(a), plus a pro rata
portion of the bonus applicable to the calendar year in which such death or
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permanent disability occurs, as such bonus is determined under Paragraph
3(b).
(b) The pro rata portion of the bonus described in Paragraph 4(a)
shall be paid when and as provided in Paragraph 3(b). The remainder of the
benefit to be paid pursuant to Paragraph 4(e) shall be paid within ninety
(90) days after the date of death or permanent disability, as the case may
be.
(c) Except as otherwise provided in Paragraphs 2(b), 3(d), 4(a) and
4(b), in the event of the Executive's death or permanent disability, the
Executive's employment hereunder shall terminate and the Executive shall be
entitled to no further compensation or other benefits under this Employment
Agreement, except as to that portion of any unpaid salary and other
benefits accrued and earned by him hereunder up to and including the date
of such death or permanent disability, as the case may be.
(d) For purposes of this Employment Agreement, the Executive's
"permanent disability" shall be deemed to have occurred after one hundred
twenty (120) days in the aggregate during any consecutive twelve (12) month
period, or after ninety (90) consecutive days, during which one hundred
twenty (120) or ninety (90) days, as the case may be, the Executive, by
reason of his physical or mental disability or illness, shall have been
unable to discharge his duties under this Employment Agreement. The date of
permanent disability shall be such one hundred twentieth (120th) or
ninetieth (90th) day, as the case may be. In the event either the Company
or the Executive, after receipt of notice of the Executive's permanent
disability from the other, dispute that the Executive's permanent
disability shall have occurred, the Executive shall promptly submit to a
physical examination by the chief of medicine of any major accredited
hospital in the Raleigh, North Carolina, area and, unless such physician
shall issue his written statement to the effect that in his opinion, based
on his diagnosis, the Executive is capable of resuming his employment and
devoting his full time and energy to discharging his duties within thirty
(30) days after the date of such statement, such permanent disability shall
be deemed to have occurred.
5. Termination.
(a) The Employment of the Executive under this Employment Agreement,
and the term hereof, may be terminated by the Company:
(i) on the death or permanent disability (as defined above) of
the Executive;
(ii) for "cause" at any time by action of the Board; or
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(iii) "without cause" at any time by action of the Board.
For purposes hereof, the term "cause" shall mean:
(A): The Executive's fraud, commission of a felony, commission of
an act or series of repeated acts of dishonesty which fraud, felony or
dishonesty is materially inimical to the best interests of the
Company, or which results in material injury to the business
reputation of the Company, or the Executive's willful and repeated
failure to perform his duties under this Employment Agreement, which
failure has not been cured within fifteen (15) days after the Company
gives notice thereof to the Executive; or
(B) The Executive's material breach of any material provision of
this Employment Agreement, which breach has not been cured in all
substantial respects within ten (10) days after the Company gives
notice thereof to the Executive.
For purposes hereof, the term "without cause" shall mean any reason other
than those set forth in subparagraphs (a) (i) and (a) (ii) of this
Paragraph 5.
The exercise by the Company of its rights of termination under this
Paragraph 5 shall be the Company's sole remedy in the event of the
occurrence of the event as a result of which such right to terminate
arises. Upon any termination of this Employment Agreement, the
Executive shall be deemed to have resigned from all offices and
directorships held by the Executive in the Company.
(b) In the event of a termination claimed by the Company to be for
"cause" pursuant to Paragraph 5(a) (ii), the Executive shall have the right
to have the justification for said termination determined by arbitration in
Raleigh, North Carolina. In order to exercise such right, the Executive
shall serve on the Company within thirty (30) days after termination a
written request for arbitration. The Company immediately shall request the
appointment of a single arbitrator by the American Arbitration Association
and thereafter the question of "cause" shall be determined under the rules
of the American Arbitration Association, and the decision of the arbitrator
shall be final and binding on both parties. The parties shall use all
reasonable efforts to facilitate and expedite the arbitration and shall act
to cause the arbitration to be completed as promptly as possible. During
the pendency of the arbitration, the Executive shall continue to receive
all compensation and benefits to which he is entitled hereunder, and if at
any time during the pendency of such arbitration the Company fails to pay
and provide all compensation and benefits to the Executive in a timely
manner the Company shall be deemed to have automatically waived whatever
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rights it then may have had to terminate the Executive's employment for
cause. Expenses of the arbitration shall be borne equally by the parties.
(c) In the event of termination pursuant to subparagraph (a) (i) or
(a) (ii) of this Paragraph 5, except as otherwise provided in Paragraphs
2(b), 3(d), 4(a) and 4(b), as applicable, the Executive shall be entitled
to no further compensation or other benefits under this Employment
Agreement, except as to that portion of any unpaid salary and other
benefits accrued and earned by him hereunder up to and including the
effective date of such termination.
(d) In the event of termination pursuant to Paragraph 2(c) or
subparagraph (a) (iii) of this Paragraph 5, the Executive shall be entitled
to (i) severance pay payable within five (5) days of such termination in a
lump sum equal to the greater of (A) the total amount of unpaid base salary
for the then-unexpired portion of the term of this Employment Agreement, at
the then-effective annual rate of salary, as determined under Paragraph
3(a), and (B) the amount of one year's base salary at the then-effective
annual rate of salary, (ii) a pro rata portion of the bonus described in
Paragraph 4(a) applicable to the calendar year in which such termination
occurs, as such bonus is determined under Paragraph 3(b), and (iii) other
benefits accrued and earned by him hereunder up to and including the
effective date of such termination.
(e) In no event shall the Executive have or be deemed to have any duty
to seek employment or otherwise mitigate damages with respect to any
amounts or benefits due to him upon termination of this Employment
Agreement provided in this Paragraph 5, nor shall any such amount or
benefit be reduced by reason of any other compensation or benefits which
the Executive may earn following termination of this Employment Agreement.
6. Covenants and Confidential Information.
(a) The Executive acknowledges the Company's reliance and expectation
of the Executive's continued commitment to performance of his duties and
responsibilities during the time when he is employed under this Employment
Agreement. In light of such reliance and expectation on the part of the
Company, during the time when he is employed under this Employment
Agreement and if the Executive's employment is terminated voluntarily by
the Executive or by the Company pursuant to Paragraph 5(a) (ii), for the
period after such termination through the date this Employment Agreement
would have otherwise terminated but for such termination (and, as to clause
(ii) of this subparagraph (a), at any time during and after the term of
this Employment Agreement), the Executive shall not, directly or
indirectly, do either of the following;
(i) Own, manage, control or participate in the ownership,
management, or control of, or be employed or
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engaged by or otherwise affiliated or associated as a consultant,
independent contractor or otherwise with, any other corporation,
partnership, proprietorship, firm, association or other business
entity engaged in the business of, or otherwise engage in the business
of, acquiring, owning, developing or managing factory outlet shopping
centers; provided, however, that the ownership of not more than one
percent (1%) of any class of publicly traded securities of any entity
shall not be deemed a violation of this covenant; or
(ii) Disclose, divulge, discuss, copy or otherwise use or suffer
to be used in any manner, in competition with, or contrary to the
interests of, the Company, any confidential information relating to
the Company's operations, properties or otherwise to its particular
business or other trade secrets of the Company, it being acknowledged
by the Executive that all such information regarding the business of
the Company compiled or obtained by, or furnished to, the Executive
while the Executive shall have been employed by or associated with the
Company is confidential information and the Company's exclusive
property; provided, however, that the foregoing restrictions shall not
apply to the extent that such information (A) is obtainable in the
public domain or known in the industry generally, (B) becomes
obtainable in the public domain or known in the industry generally,
except by reason of the breach by the Executive of the terms hereof,
(C) was not acquired by the Executive in connection with his
employment or affiliation with the Company, (D) was not acquired by
the Executive from the Company or its representatives, or (E) is
required to be disclosed by rule of law or by order of a court or
governmental body or agency.
(b) The Executive agrees and understands that the remedy at law for
any breach by him of this Paragraph 6 may be inadequate and that the
damages flowing such breach are not readily susceptible to being measured
in monetary terms. Accordingly, it is acknowledged that, upon adequate
proof of the Executive's violation of any legally enforceable provision of
this Paragraph 6, the Company may be entitled to immediate injunctive
relief and may obtain a temporary order restraining any threatened or
further breach. Nothing in this Paragraph 6 shall be deemed to limit the
Company's remedies at law or in equity for any breach by the Executive of
any of the provisions of this Paragraph 6 which may be pursued or availed
of by the Company.
(c) The Executive has carefully considered the nature and extent of
the restrictions upon him and the rights and remedies conferred upon the
Company under this Paragraph 6, and hereby acknowledges and agrees that the
same are reasonable in time and territory, are designed to eliminate
competition which otherwise would be unfair to the Company, do not stifle
the
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inherent skill and experience of the Executive, would not operate as a bar
to the Executive's sole means of support, are fully required to protect the
legitimate interests of the Company and do not confer a benefit upon the
Company disproportionate to the detriment to the Executive.
7. Stock Options. The Executive shall receive stock options under the
company's 1993 Employee Stock Incentive Plan (the "Option Plan") to purchase up
to 35,000 shares of the Company's common stock. Such options shall be eligible
to qualify as "incentive stock options" under Section 422 of the Internal
Revenue Code of 1956, as amended. The Company shall cause the shares underlying
such options to be registered on Form S-8 as soon as practicable after the date
of grant. The shares will be listed on the New York Stock Exchange (the "NYSE")
and will be freely tradable subject to the applicable provisions of Rule 144
promulgated under the Securities Act of 1933, as amended (the "Securities Act").
As soon as practicable following approval of the option grant by the Company's
Executive Compensation Committee, the Company and the Executive shall enter into
a Stock Option Agreement in a form mutually agreed upon by the Company and the
Executive providing that such options shall vest at the rate of twenty Percent
(20%) on the date of grant and an additional twenty percent (20%) on each of the
next four anniversaries of the date of grant, provided that at each date of
vesting he is employed by the Company, and upon vesting shall be exercisable at
any time or times during the ten year period following the date of grant at an
option price equal to the closing price of the Company's common stock on the
NYSE on the business day immediately preceding the effective date of the Stock
Option Agreement.
8. Restricted Stock. The Executive shall receive a grant of 16,667 shares
(the "Restricted Shares") of restricted common stock of the Company ("Common
Stock") granted under the Company's 1996 Restricted Stock Plan. Prior to
vesting, the Restricted Shares will be registered under the Securities Act on
Form S-8, will be listed on the NYSE and following vesting thereof will be
freely tradable subject to applicable provisions of Rule 144 promulgated under
the Securities Act. With respect to said grant, the Company and the Executive
shall enter into a Restricted Stock Agreement in a form mutually agreed upon by
the Company and the Executive providing that (i) the Restricted Shares shall
vest in three equal installments of thirty-three and one-third percent (33 1/3%)
per year provided the Executive continues to be employed by the Company,
commencing on the one-year anniversary date of the Effective Date and (ii) upon
the Executive's death or permanent disability (as defined in Paragraph 4(d))
during his employment by the Company or termxnation of the Executive's
employment pursuant to (or, in the case of termination at any time following the
expiration of this Employment Agreement, for the reasons set forth in) Paragraph
2(c) or Paragraph 5(a) (iii), all unvested Restricted Shares shall
(notwithstanding the requirement of continued employment in
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subparagraph (i) above), upon such termination of employment, immediately vest.
9. Representations and Warranties of the Company.
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all
requisite corporate power and authority to enter into, execute and deliver
this Employment Agreement, fulfill its obligations hereunder and consummate
the transactions contemplated hereby.
(b) The execution and delivery of, performance of obligations under,
and consummation of the transactions contemplated by, this Employment
Agreement have been duly authorized and approved by all requisite corporate
action by or in respect of the Company, and this Employment Agreement
constitutes the legally valid and binding obligation of the Company,
enforceable by the Executive in accordance with its terms.
(c) No provision of the Company's governing documents or any agreement
to which it is a party or by which it is bound or of any material law or
regulation of the kind usually applicable and binding upon the Company
prohibits or limits its ability to enter into, execute and deliver this
Employment Agreement, fulfill its respective obligations hereunder and
consummate the transactions contemplated hereby.
10. Miscellaneous.
(a) The Executive represents and warrants that he is not a party to
any agreement, contract or understanding whether employment or otherwise,
which would restrict or prohibit him from undertaking or performing
employment in accordance with the terms and conditions of this Employment
Agreement.
(b) The provisions of this Employment Agreement are severable and if
any one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions and any
partially unenforceable provision to the extent enforceable nevertheless
shall be binding and enforceable.
(c) The rights and obligations of the Company under this Employment
Agreement shall inure to the benefit of, and shall be binding on, the
Company and its successors and assigns, and the rights and obligations of
the Executive under this Employment Agreement shall inure to the benefit
of, and shall be binding upon, the Executive (other than obligations to
perform services and to refrain from competition and disclosure of
confidential information) and his heirs, personal representatives and
assigns.
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(d) Any controversy or claim arising out of or relating to this
Employment Agreement, or the breach thereof, shall be settled by
arbitration in accordance with the Rules of the American Arbitration
Association then pertaining in the City of Raleigh, North Carolina, and
judgment upon the award rendered by the arbitrator or arbitrators may be
entered in any court having jurisdiction thereof. The arbitrator or
arbitrators shall be deemed to possess the powers to issue mandatory orders
and restraining orders in connection with such arbitration; provided,
however, that nothing in this Paragraph 9(d) shall be construed so as to
deny the Company the right and power to seek and obtain injunctive relief
in a court of equity for any breach or threatened breach by the Executive
of any of his covenants contained in Paragraph 6 hereof.
(e) Any notice to be given under this Employment Agreement shall be
personally delivered in writing or shall have been deemed duly given when
received after it is posted in the United States mail, postage prepaid,
registered or certified return receipt requested, and if mailed to the
Company, shall be addressed to its principal place of business, attention:
Chairman, and if mailed to the Executive, shall be addressed to him at his
home address last known on the records of the Company, or at such other
address or addresses as either the Company or the Executive may hereafter
designate in writing to the other. All notices provided for hereunder to
the parties shall be accompanied by simultaneous copy of such notice sent
to the attorneys for such parties, as follows:
If to the Executive:
Xxxxxxx Xxxxxxxx, Esq.
Xxxxx Cummis Xxxxxxxxx Xxxxx
Tischman Xxxxxxx & Xxxxx, P.A.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
If to the Company;
Xxxxxxx X. Hope, Esq.
Xxxxx & xxx Xxxxx, PLLC
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Notices sent by Federal Express or similar overnight delivery service or by
facsimile transmissions shall also constitute due notice under this
paragraph 9(e), effective upon receipt thereof.
(f) The failure of either party to enforce any provision or provisions
of this Employment Agreement shall not in any way be construed as a waiver
of any such provision or provisions as to any future violations thereof,
nor prevent that party thereafter from enforcing each and every other
provision of this Employment Agreement. The rights granted the parties
herein
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are cumulative and the waiver of any single remedy shall not constitute a
waiver of such party's right to assert all other legal remedies available
to it under the circumstances.
(g) This Employment Agreement supersedes all prior agreements and
understandings between the parties made prior to the date hereof and may
not be modified or terminated orally. No modification, termination or
attempted waiver shall be valid unless in writing and signed by the party
against whom the same is sought to be enforced.
(h) This Employment Agreement shall be governed by and construed
according to the laws of the State of North Carolina.
(i) Captions and paragraph headings used herein are for convenience
and are not a part of this Employment Agreement and shall not be used in
construing it.
(j) Where necessary or appropriate to the mean hereof, the singular
and plural shall be deemed to include each other, and the masculine,
feminine and neuter shall be deemed to include each other.
(k) This Employment Agreement may be executed in multiple
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument. This Employment
Agreement may be executed by facsimile signature.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement on
the day and year first set forth above.
FACTORY STORES OF AMERICA, INC., a
Delaware corporation
By: /s/ J. XXXXX XXXXXXX, XX.
-----------------------------------
J. Xxxxx Xxxxxxx, Xx., Chairman
and Chief Executive Officer
/s/ XXXXXXXXXXX X. XXXXXXXX
----------------------------------------
Xxxxxxxxxxx X. Xxxxxxxx
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FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT dated this 30th day of May,
1997, effective as of March 1, 1997, by and between FAC REALTY, INC. (formerly
Factory Stores of America, Inc.) (the "Company") and XXXXXXXXXXX X. XXXXXXXX
(the "Executive").
RECITALS
A. The Company and the Executive entered into that certain Employment
Agreement with an Effective Date of December 15, 1995 (the "Agreement").
B. The Company and the Executive desire to amend the Agreement, to, among
other things, extend the term thereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows.
AGREEMENT
1. All capitalized terms shall be deemed to have the meaning ascribed to
them in the Agreement.
2. Section 2(a) of the Agreement shall be amended by deleting "the second
anniversary of the Effective Date" and substituting "February 28, 1999 in its
place and stead. The following shall also be added to the end of Section 2(a):
"In the event of a "change in control" (as hereinafter defined) the term of this
Employment Agreement shall be extended until February 25, 2001.
3. Section 2(c) of the Agreement shall be amended by deleting "Smithfield,
North Carolina" and substituting "Cary, North Carolina" in its place and stead.
4. Section 3(a) of the Agreement shall be amended by deleting "One Hundred
Twenty-Five Thousand Dollars ($125,000)" and substituting "One Hundred Sixty
Thousand Dollars ($160,000)" in its place and stead.
5. Section 10(a) of the Agreement shall be amended by deleting "Xxxxxxx X.
Hope, Esq., Xxxxx & Xxx Xxxxx, PLLC, NationsBank Corporate Center, 000 Xxxxx
Xxxxx Xxxxxx, Xxxxx 00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000" and substituting
"General Counsel, FAC Realty Trust, 00000 Xxxxxxx Xxxxxxx, Xxxx, Xxxxx Xxxxxxxx
00000" in its place and stead.
6. Except as otherwise modified herein, all other provisions of the
Agreement are hereby ratified and affirmed.
IN WITNESS WHEREOF, the parties hereto set their hand and seal as of the
effective date hereof.
FAC REALTY, INC.
By: /s/ X. XXXXXXX XXXXXX
-------------------------------------
X. Xxxxxxx Xxxxxx
President and Chief Executive Officer
/s/ XXXXXXXXXXX X. XXXXXXXX
-----------------------------------------
XXXXXXXXXXX X. XXXXXXXX
