Exhibit 10.10
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 P.O. Box 29168, Greensboro,
N.C. 27408 (the "Company") and FRANK C. MARCHISELLO, Jr, a resident of North
Carolina, whose address is 600 Brookfield Drive, Gibsonville, NC 27249
("Marchisello").
RECITALS
A. Company and Marchisello entered into an employment agreement dated as
of January 1, 1996.
B. Company has agreed to increase Marchisello's Annualized Base Salary
under the existing employment agreement for the period from July 1, 1998 through
December 31, 1998 from $170,000.00 to $175,000.00.
C. The Parties intend to extend the term of Marchisello's employment and
to modify, amend and restate the Employment Agreement as provided herein.
Now therefore, in consideration of the promises contained herein and
othervaluable consideration, the parties agree as follows:
1. EMPLOYMENT. Company agrees to employ Marchisello during the term of this
Agreement. Marchisello agrees to devote substantial time and attention and his
best efforts to the business affairs of the Company. During the term of his
employment hereunder, Marchisello 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.
The Company is engaged in the development and operation of retail
shopping centers. Marchisello will serve as vice-president/chief financial
officer of the Company and will perform such duties as are assigned to him by
the Company from time to time in all phases of the Company's business.
Marchisello will report to a designated senior executive officer of the Company.
2. TERM. The term of this Agreement as herein amended and restated shall
begin on January 1, 1999 and shall end December 31, 2001 (the "Contract Term")
unless sooner terminated as herein provided. The twelve calendar month period
beginning on January 1, 1999 and ending December 31, 1999 and each calendar year
thereafter through 2001 is sometimes herein referred to as a "Contract Year".
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.
3.1 Annual Base Salary. For each Contract Year beginning on or after
January 1, 1999, Company will pay Marchisello 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
The Annual Base Salary shall be paid in equal monthly or bi-weekly
installments in arrears in accordance with Company's regular pay schedule.
Company will pay and/or withhold for FICA, income and other employee taxes on
compensation payable to Marchisello hereunder as required by law.
3.2 Employee Benefits. Marchisello shall participate in all employee
benefit plans (including plans providing medical, life and disability insurance)
which the Company makes available to its employees generally and for which
Marchisello is eligible, as such Plans may be in effect from time to time.
3.3 Expense Reimbursement. Marchisello will be reimbursed for any
necessary and reasonable expense incurred by Marchisello in performing the
services requested of him by the Company during the term of employment. At least
monthly, Marchisello will submit such records and paid bills supporting the
amount of the expenses incurred and to be reimbursed as the Company shall
reasonably require.
3.4 Severance Pay If Term Not Extended. If Marchisello's employment is
not terminated prior to the end of the Contract Term and if Marchisello offers
to extend the term of his employment by the Company beyond the Contract Term for
one year or more upon substantially the same terms as the last Contract Year of
the Contract Term but the Company elects not to continue Marchisello's
employment, the Company shall pay Marchisello as a severance benefit an amount
equal to one half (1/2) of the Annual Base Salary payable to him for the last
Contract Year of the Contract Term.
4. VACATION. Marchisello shall be entitled to vacation during each Contract
Year for the term of employment hereunder in accordance with Company
policy.
5. TERMINATION. Marchisello's employment by the Company hereunder shall be
terminated upon the occurrence of any of the following events:
(a) If the Company and Marchisello mutually agree to terminate
the employment;
(b) By the Company, in its discretion, in the event of
Marchisello's disability. "Disability" for these purposes shall mean
Marchisello'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. Marchisello will continue to receive compensation hereunder
during such period of disability up to 180 days during any twelve consecutive
calendar months.
(c) By either party in the event of a material breach by the
other party of any of that other party's obligations under this Agreement;
(d) By Company, if Marchisello is convicted of a felony or
engages in conduct or activity that has, or in the Company's reasonably held
belief, will have a material adverse effect upon Company's business or future
prospects;
(e) Upon Marchisello's death;
(f) By the Company for no reason and/or without good cause by
payment of the severance benefit described below.
Upon termination of Marchisello's employment Marchisello shall be
entitled to receive only the compensation accrued but unpaid for the period of
employment prior to the date of such termination and shall not be entitled to
additional compensation except as follows:
(i) if Marchisello's employment is terminated by reason of
his death or disability during the Contract Term, the Company will pay
Marchisello (or the personal representatives of his estate, in the event
of his death) as a death or disability benefit, an amount equal to the
Annual Base Salary payable hereunder for the Contract Year within which
such termination occurs. Such amount shall be paid in 12 equal monthly
installments, with the first installment payable on the last day of the
first calendar month following the calendar month in which Marchisello's
employment is terminated;
(ii) if Company terminates Marchisello's employment for no
reason and/or without good cause pursuant to subparagraph 5(f) or if
Marchisello terminates his employment pursuant to subparagraph 5(c)
because of the Company's material breach of this Agreement, Company
shall pay Marchisello as severance pay an amount equal to the Annual
Base Salary payable hereunder in the Contract Year within which
Marchisello's employment is terminated. Such payment will be made within
thirty (30) days after the date of the termination of Marchisello's
employment.
6. COVENANT AGAINST COMPETITION AND NON-DISCLOSURE.
6.1 Covenant Against Competition. Marchisello covenants and agrees that
during Marchisello's employment and for a period of six (6) months after he
ceases to be employed by Company, Marchisello 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 Marchisello's employment hereunder 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 Marchisello's employment.
6.2 Disclosure of Information. Marchisello 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. Marchisello 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) Marchisello 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.
(b) 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 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.
6.4 Consideration. The covenants against competition and non-disclosure
by Marchisello in this Item are made in consideration of the Company's agreement
to employ Marchisello upon the terms and conditions set forth herein, expressly
including, without limitation, the Company's agreement to pay the severance
amount under the circumstances described in Section . Such covenants against
competition and of non-disclosure by Marchisello in this Item constitute the
material inducement to Company to enter into this Agreement, to make
confidential information developed by Company available to Marchisello and to
pay the salary and bonuses provided for Marchisello herein.
6.5 Company's Remedies. Marchisello 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 Marchisello:
(a) The Company shall be relieved of any further obligation to
Marchisello under the terms of this agreement; and
(b) The Company shall be entitled to an accounting and
repayment of all profits, compensation, commissions, remunerations or other
benefits that Marchisello, 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 Stanley K. Tanger
P.O. Box 29168
Greensboro, N.C. 27402
Marchisello: Frank C. Marchisello, Jr.
600 Brookfield Drive
Gibsonville, N.C. 27249
IN WITNESS WHEREOF, the parties have executed or caused this Agreement
to be executed as of the day and year first above written.
Company:
TANGER PROPERTIES LIMITED PARTNERSHIP, a
North Carolina Limited Partnership
By: TANGER FACTORY OUTLET CENTERS, INC.,
it's sole general partner
By:
STANLEY K. TANGER
Chairman of the Board
Chief Executive Officer
FRANK C. MARCHISELLO, JR.