AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
Effective as of December 29,
2008
This Agreement is entered into and made
effective as of December 29, 2008 (the “Effective
Date”) between Tanger Properties Limited Partnership
(the “Company”) and JOSEPH NEHMEN (the
“Executive”). The Company and the Executive
are sometimes referred to individually as a “Party” and
collectively as the “Parties”.
RECITALS
A. The
Company and the Executive have agreed upon the terms and conditions
of the Executive’s employment by the
Company. Company and Executive entered into an
Employment Agreement dated January 1, 1995 which was amended and
restated as of January 1, 1999, July 1, 2003, and January 1, 2008
(the “Prior Agreement”).
B. The
Parties intend to set forth herein the entire agreement between
them with respect to Executive’s employment by the
Company. The Parties intend to modify, amend and restate
their Prior Agreement upon the terms and conditions set forth
herein.
Now therefore in consideration of the foregoing
recitals and the promises contained herein the Parties agree as
follows:
1. EMPLOYMENT AND
DUTIES .
1.1
Employment . During the Contract Term (as
defined herein), the Company will employ the Executive and the
Executive shall serve the Company as a full-time employee upon and
subject to the terms and conditions of this
Agreement. The Executive’s employment hereunder
may be terminated before the end of the Contract Term only as
provided in Section 5 of this Agreement.
1.2 Position and
Responsibilities . Executive has been elected and is
currently serving as Senior Vice President of
Operations. During the Executive’s employment
hereunder, his primary duties, functions, responsibilities and
authority will include overseeing the operations of the
Company’s retail facilities. Further, Executive
shall perform such other duties as are assigned to him by the Chief
Executive Officer, Chief Operating Officer and/or the Board of
Directors.
1.3 Time and
Effort . During the Contract Term, Executive shall
be employed on a full-time basis and shall devote his best efforts
and substantially all of his attention, business time and effort
(excluding sick leave, vacation provided for herein and reasonable
time devoted to civic and charitable activities) to the business
and affairs of the Company.
Notwithstanding the foregoing provisions of this
Section, Executive 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
(b) For Dolgin &
Associates (a firm in which Executive 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. PERIOD OF
EMPLOYMENT .
2.1 Initial
Contract term . The period of employment pursuant to
the Prior Agreement began on January 1, 2008 (the
“Commencement Date”) and shall extend through December
31, 2010 (the “Initial Contract Term”), unless earlier
terminated as provided in Section 5 or extended as provided in this
Section 2. The calendar year beginning January 1, 2008
and each calendar year thereafter during the Contract Term is
sometimes herein referred to as a “Contract
Year”.
2.2 Extended
Contract Term . On January 1, 2009, the Contract
Term shall be automatically extended by one year, 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) Executive’s
employment has been earlier terminated as provided in Section 5 or
(ii) the Company gives written notice to 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 Executive’s employment has not been
terminated as provided in Section 5 and if the Company has not
given written notice to Executive at least 180 days prior to
January 1, 2010 that the Contract Term will not be extended, on
January 1, 2010, the Contract Term will be extended to and
including December 31, 2012.
If the Contract Term is extended as provided
herein, Executive’s employment may be terminated (other than
upon expiration) only as provided in Section
5. References herein to the “Contract Term”
shall refer to the Initial Contract Term as extended pursuant to
this Section 2.
3.1 Base Salary
. As compensation for Executive’s services
performed pursuant to this Agreement, Employer will pay Executive
an “Annual Base Salary” of $295,470 for the Contract
Year beginning January 1, 2008 and, with respect to each Contract
Year thereafter an amount agreed upon by Executive and the Company
but not less than $295,470. The Annual Base Salary shall
be paid in equal installments in arrears in accordance with
Employer’s regular pay schedule.
3.2 Bonus or
Incentive Compensation . As additional compensation
for services rendered, the Executive shall receive such bonus or
bonuses as the Company’s Board of Directors may from time to
time approve including without limitation awards under the
Company’s Incentive Award Plan. Such bonuses may
be payable in cash (a “Cash Bonus”) and/or in the form
of equity based compensation as allowed under the Company’s
Incentive Award Plan, provided, however, that any Cash Bonus shall
be payable on or prior to the fifteenth (15
th ) day of the third (3 rd )
calendar month following the end of the calendar year with respect
to which such Cash Bonus relates.
4.1 Executive
Benefit Plans . Executive shall participate in the
employee benefit plans (including group medical and dental plans, a
group term life insurance plan, a disability plan and a 401(k)
Savings plan) generally applicable to employees of the Company, as
those plans may be in effect from time to time.
4.2 Expenses
. Subject to Section 10.2(e), the Company shall promptly
reimburse the Executive for all reasonable travel and other
business expenses incurred by the Executive in the performance of
his duties to the Company hereunder. Executive shall
observe and comply with the Company’s policies with respect
to such reimbursements as in effect from time to
time. At least monthly, Executive will submit such
records and paid bills supporting the amount of the expenses
incurred and to be reimbursed as the Company shall reasonably
request or as shall be required by applicable laws.
4.3 Vacation
. Executive shall have the number of days of paid
vacation during each calendar year that are provided to employees
of the Company with the same number of years of service as
Executive has pursuant to the Company’s vacation policy
described in the Company’s employee handbook in effect on the
first day of that calendar year.
5. TERMINATION OF
EMPLOYMENT .
5.1 Termination
Circumstances . Executive’s employment
hereunder may be terminated prior to the end of the Contract Term
by the Company or the Executive, as applicable, without any breach
of this Agreement only under the following
circumstances:
(a) Death
. Executive’s employment hereunder shall terminate
upon his death.
(b) Disability
. The Company may terminate Executive’s employment
upon his Disability.
(c) Cause
. The Company may terminate the Executive’s
employment hereunder for Cause.
(d) Good Reason
. Executive may terminate his employment for Good
Reason.
(e) Without
Cause . The Company may terminate Executive’s
employment hereunder other than for Cause for any or no reason upon
30 days notice.
(f) Resignation
without Good Reason . The Executive may resign his
employment without Good Reason upon 90 days written notice to the
Company.
Except as may otherwise be expressly provided in
Section 7.1(a) or in any written agreement between the Company and
Executive with respect to the issuance of awards under the
Company’s Incentive Award Plan, upon termination of
Executive’s employment, Executive shall be entitled to
receive only the compensation accrued but unpaid for the period of
employment prior to the date of such termination of employment and
shall not be entitled to additional compensation. Such
accrued compensation shall be paid in accordance with the
Company’s ordinary payment practices and, in any event, on or
prior to the fifteenth (15 th )
day of the third (3 rd )
calendar month following the end of the calendar year in which the
date of termination occurs.
5.2 Notice of
Termination . Any termination of the
Executive’s employment hereunder by the Company or by the
Executive (other than by reason of the Executive’s death)
shall be communicated by a notice of termination to the other party
hereto. For purposes of this Agreement, a “notice
of termination” shall mean a written notice which (i)
indicates the specific termination provision in the Agreement
relied upon, (ii) sets forth in reasonable detail any facts and
circumstances claimed to provide a basis for termination of the
Executive’s employment under the provision indicated and
(iii) specifies the effective date of the termination.
6. AGREEMENT NOT
TO COMPETE .
6.1 Covenant
Against Competition . Executive agrees that during
the term of Executive’s employment hereunder and (i) if
Executive’s employment is terminated by the Company for Cause
or by Executive without Good Reason, for one hundred eighty (180)
days after the date of such termination or (ii) if Executive
receives the Severance Payment described in Section 7.1(a) if this
Agreement because of a termination of his employment by the Company
without Cause or by Executive for Good Reason, from the date of
such termination through the first anniversary of such termination
date, Executive shall not, directly or indirectly, as an employee,
employer, shareholder, proprietor, partner, principal, agent,
consultant, advisor, director, officer, or in any other
capacity,
(1) engage in
activities involving the development or operation of a
manufacturers outlet shopping center which is located within a
radius of fifty (50) miles of a retail shopping facility which,
within the 365 day period ending on the date of the termination of
Executive’s employment hereunder, was owned (with an
effective ownership interest of 50% or more), directly or
indirectly, by the Company or was operated by the
Company;
(2) engage in
activities involving the development or operation of a
manufacturers outlet shopping center which is located within a
radius of fifty (50) miles of any site which, within the 365 day
period ending on the date of the termination of Executive’s
employment hereunder, the Company or its affiliate negotiated to
acquire and/or lease for the development or operation of a retail
shopping facility;
(3) engage in
activities involving the development or operation of any other type
of retail shopping facility which is located within a radius of
five (5) miles of, and competes directly for tenants with, a retail
shopping facility which, within the 365 day period ending on the
date of the termination of Executive’s employment hereunder,
was (i) under development by the Company or its affiliate; (ii)
owned (with an effective ownership interest of 50% or more),
directly or indirectly, by the Company; or (iii) operated by the
Company.
6.2 Disclosure of
Information . Executive acknowledges that in and as
a result of his employment hereunder, he may be making use of,
acquiring and/or adding to confidential information of a special
and unique nature and value relating to such matters as financial
information, terms of leases, terms of financing, financial
condition of tenants and potential tenants, sales and rental income
of shopping centers and other specifics about Company’s
development, financing, construction and operation of retail
shopping facilities. Executive covenants and agrees that
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.
6.3 Reasonableness
of Restrictions .
(a) Executive has
carefully read and considered the foregoing provision of this
Section, and, having done so, agrees that the restrictions set
forth in this Section, including but not limited to the time period
of restriction set forth in the covenant against competition are
fair and reasonable and are reasonably required for the protection
of the interests of Company and its officers, directors and other
employees.
(b) In the event that,
notwithstanding the foregoing, any of the provisions of this
Section shall be held inv
