EMPLOYMENT AGREEMENT
BETWEEN
FAC REALTY, INC.
AND
XXXXXXXX X. XXXXXX
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of the 22nd day of July,
1996 between FAC REALTY, INC., a Delaware corporation (the "Company"), and
Xxxxxxxx X. Xxxxxx (the "Executive") for employment commencing on the Effective
Date (as hereinafter defined).
W I T N E S S E T H:
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 her employment under this Employment
Agreement, the Executive shall be and have the title of Senior Vice President
and shall devote her entire business time and all reasonable efforts to her
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 her 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 her
duties as described in this Paragraph l(b), will not be deemed inconsistent with
the requirements of this Paragraph l(b).
2. Term and Positions.
(a) Subject to the provisions for termination hereinafter
stated, the term of this Employment Agreement shall begin on August 12, 1996
(the "Effective Date") and shall continue through the first 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 l(b) and 2(b)
without her 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 her
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 her duties and
responsibilities unless she shall give written notice of her 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 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
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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 her 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 Thousand
Dollars ($100,000) per annum plus an amount to be agreed upon for major
transactions which are out of the ordinary day-to-day operation of our
business and which may substantially exceed the core time commitment,
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.
(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, dental and other insurance for herself, her
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
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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 her employment
under this Employment Agreement, the Company shall pay to the Executive
(or her personal representatives, heirs, successors and assigns in the
event of her 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 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(a) 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 her physical or mental disability or
illness, shall have been unable to discharge her duties under this
Employment Agreement. The date of
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permanent disability shall be such one hundred twentieth (120th) or
ninetieth (9Oth) 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 her written statement to the effect that in
her opinion, based on her diagnosis, the Executive is capable of
resuming her employment and devoting her full time and energy to
discharging her 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
(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 her 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.
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(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
she 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 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 six month'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 her duties
and responsibilities during the time when she is employed under this Employment
Agreement. In light of such reliance and expectation on the part of the Company,
during the time when she is employed under this Employment Agreement and if the
Executive's employment is terminated voluntarily by the
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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 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 her 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 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.
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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 1986, 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 she 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 4,384
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 (331/3)
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 her employment by the Company or termination 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 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
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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 she 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
her heirs, personal representatives and assigns.
(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 her 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 her 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:
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If to the Executive:
Xxxxxxxx X. Xxxxxx
0000 Xxx Xxxxx Xxxx
XxXxxx, XX 00000
If to the Company:
Xxxxx Xxxxxxxx, Esq.
FAC Realty, Inc.
000 X. Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
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 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.
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement
on the day and year first set forth above.
FAC Realty, Inc., a Delaware corporation
By: /s/ X. Xxxxxxx Xxxxxx
X. Xxxxxxx Xxxxxx
President
/s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
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