Exhibit 10.9
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is executed and made
effective as of January 1, 1999 between TANGER PROPERTIES LIMITED PARTNERSHIP, a
North Carolina Limited Partnership, whose address is X.X. Xxx 00000, Xxxxxxxxxx,
X.X. 00000 (the "Company") and XXXXXX NEHMEN, ("Nehmen") a resident of North
Carolina, whose address is 000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, XX. 00000.
RECITALS
A. Company and Nehmen entered into an Employment Agreement dated January 1,
1995.
B. The parties intend to extend the term of Nehmen's employment and to modify,
amend and restate the Employment Agreement upon the terms and conditions set
forth herein
Now therefore, in consideration of the promises contained herein and
other valuable consideration, the parties agree as follows:
1. EMPLOYMENT. Company agrees to employ Nehmen during the term of this
Agreement. Nehmen agrees to devote full time and attention and his best efforts
to the business affairs of the Company. Except as provided in the last paragraph
of this Section, during the term of his employment hereunder, Nehmen shall not
perform services for others as a consultant, employee or otherwise and shall not
engage in the conduct of any other trade or business.
Company is engaged in the development and operation of retail shopping
centers. Nehmen will serve as the Company's Vice President of Operations and
will perform duties assigned to him by the Company in all phases of the
Company's business which are generally performed by executives holding similar
positions.
Notwithstanding the foregoing provisions of this Section, Nehmen may
perform consulting or employment services which do not materially interfere with
the performance of his duties as a full time employee of the Company as follows:
A. For a purchaser of any of the assets or capital stock of Merchants
Wholesalers of Missouri, Inc. (the company in which he was formerly a part owner
and with whom he was employed) in connection with the purchaser's conduct of a
business for the wholesale and retail sale of cigarettes, candy, tobacco and
similar items and so long as the purchaser is not engaged in activities which
are in competition with the business currently conducted by the Company; and
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B. For Xxxxxx & Associates (a firm in which Nehmen owns an interest) in
connection with that firm's conduct of the business of providing tax
consultation and advice and so long as that firm is not engaged in activities
which are in competition with the business currently conducted by the Company.
2. TERM. The term of Nehmen's employment pursuant to this Agreement as herein
amended and restated shall begin on January 1, 1999 (the "Commencement Date")
and shall end on December 31, 2001 (the "Contract Term") unless sooner
terminated or extended as herein provided. The twelve calendar month period
beginning on the Commencement Date and on each anniversary of the Commencement
Date during the Contract Term, including any extension thereof, is sometimes
herein referred to as a "Contract Year".
On each anniversary of the Commencement Date, the term of the Agreement
shall be automatically extended by one year (but not beyond December 31, 2004)
unless Nehmen's employment has been terminated on or prior to that Anniversary
Date as herein provided. For purposes of illustration, on January 1, 2000, the
Contract Term will be automatically extended to December 31, 2002. On January 1,
2001, the Contract Term shall be automatically extended until December 31, 2003.
This Agreement shall survive any merger, acquisition or cessation of
business by the Company and shall remain binding upon any successor of the
Company or transferee of the Company's business.
3. COMPENSATION. For each Contract Year beginning on or after January 1, 1999,
Employer will pay Employee for services performed pursuant to this Agreement an
"Annual Base Salary" as follows:
CONTRACT YEAR ANNUAL BASE SALARY
1999 $190,000.00
2000 $200,000.00
2001 $210,000.00
2002 not less than $210,000.00
2003 not less than $210,000.00
2004 not less than $210,000.00
The Annual Base Salary shall be paid in equal installments in arrears in
accordance with Company's regular pay schedule.
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The Company will provide Nehmen with any medical, disability or life
insurance benefits in accordance with any such plans provided by the Company for
other employees and for which Nehmen is eligible.
Nehmen will be reimbursed for any necessary and reasonable expense
incurred by him in performing the services requested of him by the Company
during the term of employment. At least monthly, Nehmen will submit such records
and paid bills supporting the amount of the expenses incurred and to be
reimbursed as the Company shall reasonably require.
Company will pay and/or withhold for FICA, income and other employee
taxes on compensation payable to Nehmen hereunder as required by law.
4. VACATION. Nehmen shall be entitled to a vacation during each Contract Year
for the term of employment hereunder of similar length and taken under similar
circumstances as the vacation taken by other members of the Company's senior
management team.
5. TERMINATION; SEVERANCE BENEFITS.
A. Termination. Nehmen's employment by the Company hereunder shall be
terminated as follows:
1. Death. Nehmen's employment hereunder shall terminate upon his
death.
2. Disability. Nehmen's employment hereunder shall terminate upon
his "Disability". "Disability" for these purposes shall mean Nehmen's inability
through physical or mental illness or other cause to perform any of the material
duties assigned to him by the Company for a period of one hundred and eighty
(180) days or more within any twelve consecutive calendar months. Nehmen will
receive the compensation provided for hereunder during any period of sickness or
disability prior to the termination of his employment;
3. For Cause. The Company may terminate Nehmen's employment
hereunder for "Cause". For purposes of this Agreement, the Company shall have
"Cause" to terminate Nehmen's employment hereunder upon (i) a finding by the
Board that he has materially harmed the Company through a material act of
dishonesty in the performance of his duties hereunder, (ii) his conviction of a
felony involving moral turpitude, fraud or embezzlement, or (iii) a finding by
the Board of Directors that Nehmen has failed to perform his material duties
under this Agreement (other than a failure due to disability) after written
notice specifying the failure and a reasonable opportunity to cure (it being
understood that if his failure to perform is not of a type requiring a single
action to cure fully, that he may commence the cure promptly after such written
notice and thereafter diligently prosecute such cure to completion).
4. Good Reason. Nehmen may terminate his employment hereunder for
"Good Reason". Nehmen shall have "Good Reason" to terminate his employment in
the event of any
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material adverse change in his job title, duties, responsibilities, perquisites
granted hereunder, or authority without his consent, the relocation of the
Company headquarters outside of the Greensboro, North Carolina metropolitan area
without his consent, or a material breach of this Employment Agreement by the
Company.
5. Without Cause. With Board approval, the Company may terminate
Nehmen's employment hereunder without Cause upon 30 days notice.
6. Resignation without Good Reason. Nehmen may terminate his
employment without Good Reason upon 90 days written notice to the Company.
B. Notice of Termination. Any termination of Nehmen's employment
hereunder by the Company or Nehmen (other than by reason of Nehmen'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 Nehmen's employment under the
provision indicated and (iii) specifies the effective date of the termination.
X. Xxxxxxxxx Benefits. Upon termination of Nehmen's employment, Nehmen
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 except as follows:
1. Termination Without Cause or For Good Reason. If Nehmen's
employment shall be terminated by the Company without Cause (pursuant to Section
5.A.5) or by Nehmen for Good Reason (pursuant to Section 5.A.4), the Company
shall continue to pay Nehmen his Annual Base Salary and to provide all Benefits
to Nehmen provided for under this Agreement until the date that his employment
is terminated. In addition, the Company shall pay Nehmen as liquidated damages
an amount equal to three (3) times the Annual Base Salary payable to him for the
Contract Year in which his employment is terminated. Such amount shall be paid
at the same time and in the same manner as the Annual Base Salary would have
been paid if Nehmen's employment had not terminated.
2. Termination by Death or Disability. If Nehmen's employment is
terminated by reason of his death or Disability, the Company will pay Nehmen
(or, in the event of his death, his wife, Xxxxx Nehmen or, if she is not living,
his estate) as severance pay, an amount equal to his Base Annual Salary that he
was receiving when his employment was terminated. Such amount shall be paid in
12 equal monthly installments beginning with the first calendar month after the
month in which the employment is terminated. If Nehmen's employment is
terminated after the tenth anniversary of the Commencement Date because of his
death or disability during any extension of the term, the death or disability
severance benefit provided in this paragraph shall not be paid.
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3. Termination For Cause of Without Good Reason. If Nehmen's
employment hereunder is terminated by the Company for Cause or by Nehmen without
Good Reason, Nehmen shall not be paid any severance compensation.
6. COVENANT AGAINST COMPETITION AND NON-DISCLOSURE.
A. Covenant Against Competition. Nehmen covenants and agrees that during
Nehmen's employment and for a period of one year after he ceases to be employed
by Company, Nehmen shall not, directly or indirectly, as an employee, employer,
shareholder, proprietor, partner, principal, Agent, consultant, advisor,
director, officer, or in any other capacity, engage in the development or
operation of a retail shopping facility within a radius of one hundred (100)
miles of any retail shopping facility owned or operated by the Company at any
time during Nehmen's employment hereunder or in any state in which the Company
owns or operates a retail shopping facility or within a radius of one hundred
(100) miles of any site for which Company has made an offer to purchase for the
development of a retail shopping facility by the Company prior to the date of
the termination of Nehmen's employment. Notwithstanding the foregoing, Nehmen
may continue to perform the consulting services permitted by the third paragraph
of Section 1 of this Agreement.
B. Disclosure of Information. Nehmen acknowledges that in and as a
result of his employment hereunder, he will 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. Nehmen covenants and agrees that he shall not, at any time during or
following the term of his employment, directly or indirectly, divulge or
disclose for any purpose whatsoever any such confidential information that has
been obtained by, or disclosed to, him as a result of his employment by Company.
C. Reasonableness of Restrictions.
1. Nehmen has carefully read and considered the foregoing
provision of this Item, and, having done so, agrees that the
restrictions set forth in these paragraphs, 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.
2. In the event that, notwithstanding the foregoing, any of the
provisions of this Item shall be held invalid or unenforceable, 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 Item 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
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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.
D. Consideration. The covenants against competition and non-disclosure
by Nehmen in this Item are made in consideration of the Company's agreement to
employ Nehmen upon the terms and conditions set forth herein. Such covenants
against competition and of non-disclosure by Nehmen in this Item constitute the
material inducement to Company to enter into this Agreement, to make
confidential information developed by Company available to Nehmen and to pay the
salary and bonuses provided for Nehmen herein.
E. Company's Remedies. Nehmen covenants and agrees that if he shall
violate any of his covenants or agreements contained in this Item 6, then 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 Nehmen:
1. The Company shall be relieved of any further obligation to
Nehmen under the terms of this agreement; and
2. The Company shall be entitled to an accounting and repayment
of all profits, compensation, commissions, remunerations or other
benefits that Nehmen, directly or indirectly, has realized and/or may
realize as a result of, growing out of or in connection with, any such
violation.
The foregoing rights and remedies of the Company shall be cumulative and
the election by the Company to exercise any one or more of them shall not
preclude the Company's exercise of any other rights described above or otherwise
available under applicable principals of law or equity.
7. NOTICES.
Any notice required or permitted to be given pursuant to this Agreement
shall be hand delivered or sent by certified mail, return receipt requested, to
the address of the party to whom it is directed as set forth below:
Company: Tanger Properties Limited Partnership
c/o Xxxxxxx X. Xxxxxx
X.X. Xxx 00000
Xxxxxxxxxx, X.X. 00000
Nehmen: Xxx Nehmen
000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
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IN WITNESS WHEREOF, the parties have executed or caused this Agreement
to be executed as of the day and year first above written.
TANGER PROPERTIES LIMITED PARTNERSHIP, a
North Carolina Limited Partnership
By: TANGER FACTORY OUTLET CENTERS, INC.,
it's sole general partner
By: _________________________________
XXXXXXX X. XXXXXX,
Chairman of the Board
Chief Executive officer
_______________________________ (SEAL)
XXXXXX NEHMEN
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