SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant (X) Filed by a Party other than the Registrant ( )
Check the appropriate box:
( ) Preliminary Proxy Statement ( ) Confidential, for Use of the
Commission Only (as permitted
by Rule 14a-6(e)(2))
(X) Definitive Proxy Statement
( ) Definitive Additional Materials
( ) Soliciting Material Pursuant to Section 240.14a-11(c) or Section 240.14a-12
FAC Realty, Inc.
(Name of Registrant as Specified in its Charter)
(Name of Person(s) Filing Proxy Statement, if other than Registrant)
Payment of Filing Fee (Check the appropriate box):
(X) No fee required
( ) Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
( ) Fee paid previously with preliminary materials.
( ) Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule, or Registration Statement No.:
3) Filing Party:
4) Date Filed:
April 30, 1997
Dear Stockholder:
On behalf of the Board of Directors, I cordially invite you to attend the Annual
Meeting of Stockholders of FAC Realty, Inc. The meeting will be held on May 29,
1997 at 10:00 a.m. local time at the Homewood Suites Hotel, 100 Macalyson Court,
Cary, North Carolina 27511. The formal notice and proxy statement for this
meeting are attached to this letter.
It is important that you sign, date and return your proxy as soon as possible,
even if you currently plan to attend the Annual Meeting. You may still attend
the Annual Meeting and vote in person if you desire, but returning your proxy
card now will assure that your vote is counted if you are unable to attend. Your
vote, regardless of the number of shares you own, is important.
On behalf of the Board of Directors, I thank you for your cooperation.
Sincerely,
/s/ C. Cammack Morton
C. Cammack Morton
FAC REALTY, INC.
11000 REGENCY PARKWAY, SUITE 300
CARY, NC 27511
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD MAY 29, 1997
NOTICE IS HEREBY GIVEN that the 1997 Annual Meeting of Stockholders of
FAC Realty, Inc., a Delaware corporation (the "Company"), will be held at the
Homewood Suites Hotel, 100 Macalyson Court, Cary, NC 27511, on Thursday, May 29,
1997, at 10:00 a.m., local time, for the following purposes:
1. To elect seven directors to serve until the 1998
annual meeting or until their successors are duly elected and
qualified;
2. To transact such other business as may properly
come before the meeting and any adjournment thereof.
Only stockholders of record at the close of business on March 31, 1997
will be entitled to notice of and to vote at the meeting or any adjournment
thereof.
By Order of the Board of Directors
/s/ Robin W. Malphrus
Robin W. Malphrus, Esq.
SECRETARY
Dated: April 30, 1997
YOUR VOTE IS IMPORTANT NO MATTER HOW LARGE OR SMALL YOUR HOLDINGS MAY
BE. THE PROMPT RETURN OF PROXIES WILL SAVE THE COMPANY THE EXPENSE OF FURTHER
PROXY SOLICITATION. PLEASE MAIL YOUR PROXY TODAY.
1
FAC REALTY, INC.
PROXY STATEMENT
ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON MAY 29, 1997
This Proxy Statement is furnished in connection with the solicitation
by the Board of Directors of FAC Realty, Inc., a Delaware corporation (the
"Company"), of proxies from the holders of the Company's common stock (the
"Common Stock") for use at the 1997 Annual Meeting of Stockholders to be held at
the Homewood Suites Hotel, 100 Macalyson Court, Cary, NC 27511, on Thursday, May
29, 1997 at 10:00 a.m., local time, and at any adjournments or postponements
thereof (the "Annual Meeting"). This Proxy Statement and the accompanying form
of proxy, together with the Company's 1996 Annual Report to Stockholders, are
first being sent to stockholders on or about April 30, 1997.
INFORMATION CONCERNING PROXY
AND PROXY SOLICITATION
The enclosed proxy is solicited on behalf of the Board of Directors.
The giving of a proxy does not preclude the right to vote in person should any
stockholder giving the proxy so desire. Stockholders have a right to revoke
their proxy at any time prior to the exercise thereof, either in person at the
Annual Meeting or by filing with the Company's Secretary at its principal
executive offices a written revocation or duly executed proxy bearing a later
date; however, no such revocation will be effective until written notice of the
revocation is received by the Company at or prior to the Annual Meeting. There
are no dissenters' rights with respect to any of the matters to be acted upon.
The cost of preparing and mailing this Proxy Statement, the Notice of
Annual Meeting of Stockholders and the enclosed proxy will be borne by the
Company. In addition to the use of mail, employees of the Company may solicit
proxies personally and by telephone. Employees will receive no compensation for
soliciting proxies other than their regular salaries. The Company may request
banks, brokers and other custodians, nominees and fiduciaries to forward copies
of the proxy materials to their principals and to request authority for the
execution of proxies.
PURPOSE OF THE MEETING
At the Annual Meeting, the stockholders will consider and vote upon the
following matters:
1. The election of seven directors to serve until
the 1998 annual meeting or until their successors
are duly elected and qualified; and
2. To transact such other business as may properly
come before the meeting and any adjournment thereof.
Unless contrary instructions are indicated on the enclosed proxy, all
shares represented by valid proxies received pursuant to this solicitation will
be voted in favor of the election of the seven nominees named herein. In the
event a stockholder specifies a different choice by means of the enclosed proxy,
all shares held by that stockholder will be voted in accordance with the
specification so made.
OUTSTANDING VOTING SECURITIES AND VOTING RIGHTS
The Board of Directors has set the close of business on March 31, 1997
as the record date (the "Record Date") for determining stockholders of the
Company entitled to notice of and to vote at the Annual Meeting. As of the
Record Date, there were 12,103,155 shares of Common Stock outstanding, all of
which are entitled to one vote on all matters to be acted upon at the Annual
Meeting. The presence in person or by proxy of the holders of a majority of
2
the shares of the Common Stock outstanding as of the Record Date is necessary to
constitute a quorum for the transaction of business at the Annual Meeting.
Directors of the Company are elected by a plurality vote. With respect
to the election of directors, votes may be cast in favor of the nominees or
withheld. Withheld votes and broker non-votes, if any, are not treated as votes
cast and, therefore, will have no effect on this proposal.
EXECUTIVE OFFICERS OF THE COMPANY
The following table sets forth certain information with respect to the
current executive officers of the Company.
NAME AGE POSITION
C. Cammack Morton 45 President and Chief Executive
Officer
Patrick M. Miniutti 49 Executive Vice President and Chief
Financial Officer
Christopher G. Gavrelis 43 Senior Vice President - Management
Connell L. Radcliff 42 Senior Vice President - Development
Michaela M. Twomey 45 Senior Vice President and General
Counsel
C. Cammack Morton joined the Company in December 1995 as Chief Operating
Officer and was elected President and a Director in January 1996. Effective
January 1, 1997, Mr. Morton became the Company's Chief Executive Officer. Prior
to his affiliation with the Company, Mr. Morton served as the Managing Director
of Rothschild Realty, Inc. ("Rothschild") and President and Chief Executive
Officer of the Charter Oak Group, Ltd. (the "Charter Oak Group"), a subsidiary
of Rothschild engaged in the development and management of factory outlet
centers. He joined Rothschild in 1987 as Vice President, was promoted to Senior
Vice President in 1989 and to Managing Director in 1991. To resolve certain
personal financial matters arising out of a limited partner obligation to the
general partner of a real estate partnership, Mr. Morton filed a petition for
relief under Chapter 11 of the United States Bankruptcy Code in March 1994.
After settling with the general partner, the bankruptcy case was dismissed in
June 1994. Mr. Morton is the immediate past president of the Developers of
Outlet Centers, the leading trade organization for the owners and operators of
factory outlet centers. He also serves on the Editorial Advisory Board of
SHOPPING CENTER WORLD and on the Advisory Board of VALUE RETAIL NEWS, a unit of
the International Council of Shopping Centers.
Patrick M. Miniutti joined the Company as Executive Vice President,
Chief Financial Officer and Director in August 1996. Prior to his affiliation
with the Company, Mr. Miniutti served for three years as Executive Vice
President, Chief Financial Officer and Trustee of Crown American Realty Trust.
Prior thereto, Mr. Miniutti held senior financial positions for a combined 12
years with New Market Companies, Inc., Western Development Corporation
(predecessor to The Mills Corporation) and Cadillac Fairview Corporation
Limited, which was preceded by ten years in public accounting, principally with
national firms. Mr. Miniutti is a member of the American Institute of Certified
Public Accountants and a former member of its Real Estate Accounting Committee
which was responsible for promulgating most of the real estate accounting rules
in practice today.
Christopher G. Gavrelis joined the Company in December 1995 and was
named Senior Vice President in January 1996. Prior to his affiliation with the
Company, Mr. Gavrelis was Vice President of the Charter Oak Group for
approximately four years. From 1989 to 1991, Mr. Gavrelis served as regional
property manager for McArthur/Glen Realty Corp. (now HGI Realty, Inc.), a
company engaged in the development and operation of factory outlets centers. Mr.
Gavrelis is responsible for the Company's management, administration and
construction activities.
3
Connell L. Radcliff has served as Senior Vice President of the Company
since its organization in April 1993. Mr. Radcliff joined North-South Management
Corporation (a predecessor company) as Vice President - Leasing in 1989. From
1987 to 1989, Mr. Radcliff was a real estate broker for The Shopping Center
Group, a real estate brokerage firm specializing in national tenant
representation. Mr. Radcliff is responsible for the Company's development
activities.
Michaela M. Twomey joined the Company as Senior Vice President and
General Counsel in August 1996. Ms. Twomey was previously with Morrison &
Foerster LLP in Washington, D.C. for eleven years where she served as principal
outside counsel to the Charter Oak Group since its inception. Prior thereto, she
practiced primarily real estate law for seven years. Ms. Twomey is a member of
the bars of the District of Columbia and Virginia as well as the Real Property,
Probate and Trust Law Section of the American Bar Association.
4
BENEFICIAL OWNERSHIP
BY MANAGEMENT. The following table sets forth certain information
regarding the beneficial ownership of Common Stock of the Company as of March
31, 1997 by the: (a) Chief Executive Officer; (b) other current executive
officers named on the Summary Compensation Table; (c) certain former executive
officers named on the Summary Compensation Table; (d) directors; and (e) current
executive officers and directors as a group. Except as otherwise described in
the notes below, the following beneficial owners have sole voting power and sole
investment power with respect to all shares of Common Stock set forth opposite
their name.
AMOUNT AND NATURE OF PERCENT
BENEFICIAL OWNERSHIP OF CLASS (1)
C. Cammack Morton.................. 210,100(2) 1.39%
Patrick M. Miniutti................ 136,500(3) *
Christopher G. Gavrelis............ 29,667(4) *
Connell L. Radcliff................ 121,891(5) *
Robert O. Amick.................... 4,324(6) *
B. Mayo Boddie, Sr................. 5,124(6) *
J. Richard Futrell, Jr............. 3,824(7) *
John W. Gildea..................... 885,557(8) 5.85%
Theodore E. Haigler, Jr............ 4,134(9) *
J. Dixon Fleming, Jr............... 373,582(10) 2.47%
All current executive officers and 1,774,703(11) 11.72%
directors as a group (10 persons)..
(1) An asterisk (*) indicates less than one percent. Class includes the
common stock equivalents of the Series A Convertible Preferred Stock of
the Company ("Convertible Preferred Stock") and warrants convertible into
Common Stock.
(2) Includes 108,000 shares of restricted stock as to which Mr. Morton
has sole voting power, and 100,000 shares subject to presently
exercisable options.
(3) Includes 96,500 shares of restricted stock as to which Mr. Miniutti
has sole voting power, and 40,000 shares subject to presently
exercisable stock options.
(4) Includes 22,667 shares of restricted stock as to which Mr. Gavrelis
has sole voting power, and 7,000 shares subject to presently
exercisable stock option.
(5) Includes 6,000 shares of restricted stock as to which Mr. Radcliff
has sole voting power, and 30,750 shares subject to presently
exercisable stock options.
(6) Includes 2,000 shares subject to presently exercisable stock options.
(7) Includes 2,000 shares subject to presently exercisable stock
options and 200 shares held by a trust established for the benefit of
Mr. Futrell.
(8) Includes 4,000 shares held by Mr. Gildea's spouse as custodian for their
children as to which Mr. Gildea disclaims beneficial ownership, 111,111
shares of common stock equivalents of Convertible Preferred Stock as to
which Mr. Gildea has sole voting power and 746,666 shares of common stock
equivalents of Convertible Preferred Stock and warrants convertible into
20,000 shares of Common Stock owned by Network Fund III, Ltd.
("Network"). Mr. Gildea is a director of Network and a Managing Director
of Gildea Management Company, which has an investment advisory agreement
with Network.
5
(9) Includes 2,000 shares subject to presently exercisable stock options and
ten shares held by Mr. Haigler as a custodian under the Uniform Gifts to
Minors Act.
(10) Includes 64,270 shares subject to presently exercisable options
and 100 shares held by Mr. Fleming's spouse.
(11) Includes 250,020 shares subject to presently exercisable options,
857,777 shares of common stock equivalents of Convertible Preferred
Stock and warrants convertible into 20,000 shares of common stock.
BY OTHERS. The following table sets forth certain information regarding
each person or entity known by the Company to be the beneficial owner of more
than 5% of the Company's Common Stock as of March 31, 1997.
NAME AND ADDRESS OF AMOUNT AND NATURE OF PERCENT
BENEFICIAL OWNER BENEFICIAL OWNERSHIP OF CLASS (1)
Jeffrey B. Citrin(2) 807,222(3) 5.33%
950 Third Avenue
17th Floor
New York, NY 10022
(1) Class includes the common stock equivalents of the Convertible Preferred
Stock and warrants convertible into Common Stock.
(2) Based upon a Schedule 13D dated July 22, 1996 filed with the Securities
and Exchange Commission (the "SEC").
(3) Includes 547,222 shares of common stock equivalents as to which
Blackacre Capital Group, L.P. possess voting and investment control
and warrants convertible into 260,000 shares of Common Stock as to
which Blackacre Bridge Capital, L.L.C. is the record holder. Jeffrey
B. Citrin is the President of Blackacre Capital Management Corp., the
general partner of Blackacre Capital Group, L.P. and the managing member
of Blackacre Bridge Capital, L.L.C.
6
PROPOSAL 1
ELECTION OF DIRECTORS
The Bylaws give the Board of Directors the power to set the number of
directors at no less than three nor more than fifteen. The number of directors
presently is set at seven. B. Mayo Boddie, Sr., presently a director of the
Company, has advised the Company that he will retire from the Board as of the
date of the Annual Meeting. William D. Eberle has been nominated to succeed Mr.
Boddie. Six incumbent directors have been nominated for reelection for one-year
terms expiring at the 1998 Annual Meeting of Stockholders or until their
successors are duly elected and qualified. Unless marked otherwise, proxies
received will be voted for the election of each of the nominees named below. If
any nominee becomes unable or unwilling to serve before the Annual Meeting, the
shares represented by proxy will be voted for a substitute nominee designated by
the Board of Directors. Alternatively, the size of the Board may be reduced
accordingly. The Board of Directors has no reason to believe that any of the
nominees will be unwilling or unable to serve if elected as a director. The
nominees for election at the Annual Meeting are set forth below.
NAME AGE PRINCIPAL OCCUPATION DIRECTOR SINCE
C. Cammack Morton 45 President and Chief Executive 1996
Officer of the Company
Patrick M. Miniutti 49 Executive Vice President and 1996
Chief Financial Officer of the
Company
Robert O. Amick 64 President of The Amick Group 1993
William D. Eberle 73 Chairman of Manchester --
Associates, Ltd.
J. Richard Futrell, Jr. 66 Former Chairman and Chief 1993
Executive Officer of Centura
Banks, Inc.
John W. Gildea 53 Managing Director of Gildea 1996
Management Company and Advisor
for The Network Funds
Theodore E. Haigler, Jr. 72 Former President and Chief 1993
Executive Officer of
Burroughs-Wellcome Co.
For information on the business experience of Messrs. Morton and
Miniutti, see "Executive Officers."
Robert O. Amick is the President of The Amick Group, a financial
consulting firm that he founded in 1992. Mr. Amick served as Vice President and
Controller of J.C. Penney Co., Inc. from 1982 to 1992 and was a director of J.C.
Penney Business Services, Inc. from 1985 to 1992. Mr. Amick also is a director
of Protection Mutual Insurance Company and Park P.M. Company.
William D. Eberle was a founder of Boise Cascade and is Chairman of
Manchester Associates, Ltd., a venture capital and international consulting firm
and is Of Counsel to the law firm of Kaye, Scholer, Fierman, Hays & Handler. Mr.
Eberle is also Chairman of the Board of America Service Group Inc., a health
care services company, Showscan Entertainment, Inc., a movie-based software and
technology company, and Barry's Jewelry, Inc., a retail jewelry chain, and is a
director of Ampco-Pittsburgh Corp., a steel fabrication equipment company,
7
Fiberboard Corporation, a timber manufacturer, Mitchell Energy and Development,
a gas and oil company, and Mid-States PLC, an autoparts distributor
headquartered in Nashville, TN.
J. Richard Futrell, Jr. is the retired Chairman and Chief Executive
Officer of Centura Banks, Inc., a position he held from 1989 to 1993. He
currently serves as a member of Centura's board of directors and its executive
committee.
John W. Gildea has been Managing Director of Gildea Management Company
and affiliates since 1990. From 1986 to 1990, he was Senior Vice President of
Donaldson, Lufkin & Jenrette. Mr. Gildea also is President of Gildea Investment
Co, an investment advisory firm, since 1983. He is a director of America Service
Group, Inc., UNC, Inc., and Barry's Jewelers.
Theodore E. Haigler, Jr. served as the President, Chief Executive
Officer and a director of Burroughs- Wellcome Co. (now Glaxo Wellcome, Inc.), a
pharmaceutical company, from 1986 until his retirement in 1989. Mr. Haigler was
a director of Tenax Corporation and CCB Financial Corporation, a bank holding
company, from 1974 to 1995.
THE BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE "FOR" ALL OF THE
ABOVE-LISTED NOMINEES FOR ELECTION AS DIRECTORS.
INFORMATION REGARDING MEETINGS AND COMMITTEES OF THE BOARD OF DIRECTORS
The Board of Directors has an Audit Committee and an Executive
Compensation Committee. The Board of Directors does not have a nominating
committee. During the year ended December 31, 1996, the Board of Directors held
five meetings, the Audit Committee held four meetings and the Executive
Compensation Committee held three meetings. Each director attended at least 75%
of the Board of Directors and assigned committee meetings held during 1996.
AUDIT COMMITTEE. The Audit Committee, which consists of Messrs. Amick,
Futrell and Haigler, makes recommendations concerning the engagement of
independent public accountants, reviews the plans and results of the audit
engagement, approves professional services provided and fees charged by the
independent public accountants, reviews the independence of the independent
public accountants and determines the adequacy of the Company's internal
accounting controls.
EXECUTIVE COMPENSATION COMMITTEE. The Executive Compensation Committee,
which consists of Messrs. Haigler, Amick and Boddie, determines the compensation
of the executive officers and administers the Stock Incentive Plan.
COMPENSATION OF DIRECTORS
The Company pays an annual fee of $12,000 to directors who are not
employees of the Company, plus a fee of $1,000 for each Board of Directors or
assigned committee meeting attended. The annual fee is payable in equal
installments at each regular quarterly meeting. Under the Company's 1995 Outside
Directors' Stock Award Plan one-half of the annual fee is paid in shares of
Common Stock. Each non-employee director also is reimbursed for expenses
incurred in attending meetings of the Board of Directors and assigned
committees. Employees of the Company who are directors receive no additional
compensation for their service as directors.
INFORMATION REGARDING INDEPENDENT PUBLIC ACCOUNTANTS
Ernst & Young LLP ("Ernst & Young") served as independent auditors for
the Company for the fiscal year 1996. The Audit Committee of the Board of
Directors presently is reviewing the performance of the independent certified
public accountants and thus has not selected a public accountant for fiscal year
1997 for ratification by the stockholders. Representatives of Ernst & Young are
expected to present at the Annual Meeting. They will be given an opportunity to
make a statement if they desire to do so, and will be available to respond to
appropriate questions.
8
EXECUTIVE COMPENSATION
The following table sets forth the compensation of (i) the Chief
Executive Officer, (ii) the three most highly compensated executive officers
other than the Chief Executive Officer who were serving as executive officers at
December 31, 1996 and (iii) one former executive officer (collectively, the
"Named Executive Officers") for services rendered in all capacities during 1996.
SUMMARY COMPENSATION TABLE
LONG-TERM
ANNUAL COMPENSATION
COMPENSATION AWARDS
----------------------------- ------------------------------
RESTRICTED SECURITIES ALL OTHER
SALARY BONUS STOCK UNDERLYING COMPENSATION
NAME AND PRINCIPAL POSITION YEAR ($) ($) AWARD($) OPTIONS (#) ($)
- --------------------------------- ---------- ------------- --------------- -------------- --------------- -----------------
C. Cammack Morton 1996 287,692 112,500(1) 900,000(2) 300,000 3,570(3)
President and Chief 1995 11,458 -- -- -- --
Executive Officer
Patrick M. Miniutti 1996 70,769(4) 40,625(1) 776,250(2) 200,000 50,000(5)
Executive Vice President and
Chief Financial Officer
Christopher G. Gavrelis 1996 129,742 37,500(1) 166,670(2) 35,000 1,163(3)
Senior Vice President 1995 5,208 -- -- -- --
-Management
Connell L. Radcliff 1996 181,923 37,500(1) -- -- 3,750(3)
Senior Vice President - 1995 158,654 41,250 -- 18,000 3,332(3)
Development 1994 150,000 -- -- -- 3,173(3)
J. Dixon Fleming, Jr. 1996 300,173 -- (900,000)(6) -- 770,750(7)
Former Chairman and 1995 297,000 75,625 900,000 25,000 4,442(3)
Chief Executive Officer 1994 275,000 -- -- -- 3,808(3)
(1) The 1996 bonuses were paid in the form of restricted stock; at the time
of the award the market price of Common Stock was $6.25 per share. The
restricted stock issued in lieu of cash bonuses is subject to a
three-year cliff vest.
(2) Pursuant to employment agreements entered into between the Company and
Messrs. Morton, Miniutti and Gavrelis, restricted stock of 90,000,
90,000 and 16,667 shares, respectively, were issued to each executive.
The value of the restricted stock is based on the market price of
Common Stock at the date of grant. At December 31, 1996, the market
value of such shares was $596,250 for Messrs. Morton and Miniutti and
$110,419 for Mr. Gavrelis.
(3) Consists of matching contributions to the Company's 401(k) Retirement
and Savings Plan.
(4) Mr. Miniutti joined the Company in August 1996 and, therefore, his
salary for 1996 represents only a portion of the year (see
"Employment Agreements").
(5) Allowance for relocation expenses paid by the Company.
9
(6) Restricted stock of 90,000 shares originally awarded as a
long-term incentive with a market value of $10.00 per share
Common Stock on the date of grant pursuant to Mr. Fleming's
employment agreement. Such shares were cancelled upon his
termination as an officer and director of the Company. Mr.
Fleming received the equivalent value of 16,000 shares, or
approximately $100,000, pursuant to his employment agreement,
which is included as other compensation (see Note (7) below).
(7) Includes amounts accrued as of December 31, 1996 representing
the remaining value of Mr. Fleming's employment contract (see
"Executive Compensation -- Severance Agreements") and matching
contributions to the Company's 401(K) Retirement and Savings
Plan.
STOCK OPTIONS
The following table provides certain information regarding the stock
options granted during 1996 to the Named Executive Officers.
OPTION GRANTS IN LAST FISCAL YEAR
INDIVIDUAL GRANTS
----------------------------------------------------------
NUMBER OF POTENTIAL REALIZABLE
SECURITIES PERCENT OF TOTAL VALUE AT ASSUMED
UNDERLYING OPTIONS GRANTED ANNUAL RATES OF STOCK
OPTIONS TO EMPLOYEES EXERCISE PRICE APPRECIATION FOR
GRANTED IN FISCAL YEAR PRICE EXPIRATION OPTION TERM($)(1)
NAME (#) (%) ($) DATE 5% ($) 10% ($)
-------------------------------------------------------------------------------------------------------------------
C. Cammack Morton 300,000(2) 48.8% 10.25 2/14/06 1,935,000 4,902,000
Patrick M. Miniutti 200,000(3) 32.5% 8.625 8/26/06 1,085,000 2,749,000
Christopher G. Gavrelis 35,000(3) 5.7% 10.25 2/14/06 225,750 571,900
(1) In accordance with SEC rules, these columns show gains that
might exist for the respective options, assuming the market
price of the Company's Common Stock appreciates from the date of
grant over a period of ten years at annualized rates of five and
ten percent, respectively. If the stock price does not increase
above the exercise price at the time of exercise, realized value
to the named executives from these options will be zero.
(2) 100,000 option shares vested upon grant with the remainder at
20% per year.
(3) 20% vested upon grant with the remainder at 20% per year.
The following table sets forth certain information concerning
the number of shares of Common Stock underlying options held by each of
the Named Executive Officers and the value of such options at December
31, 1996.
10
FISCAL YEAR-END OPTION VALUES
NUMBER OF VALUE OF
SECURITIES UNDERLYING IN-THE-MONEY
UNEXERCISED OPTIONS OPTIONS AT
AT FISCAL FISCAL YEAR-END
YEAR-END (#) ($)
EXERCISABLE/ EXERCISABLE/
NAME UNEXERCISABLE UNEXERCISABLE
- -------------------------- -------------------------- -------------------------
C. Cammack Morton 100,000/200,000 --
Patrick Miniutti 40,000/160,000 --
Christopher G. Gavrelis 7,000/28,000 --
Connell L. Radcliff 30,750/32,500 --
J. Dixon Fleming, Jr. 64,270/50,180 --
LONG-TERM COMPENSATION
The following table sets forth certain information regarding long-term
incentive awards made to the Named Executive Officers during 1996 in the form of
Restricted Stock.
LONG-TERM INCENTIVE PLANS--AWARDS IN LAST FISCAL YEAR
PERFORMANCE OR
NUMBER OF OTHER PERIOD UNTIL
NAME SHARES (#) MATURATION OR PAYOUT
- -------------------------- ------------------------ ---------------------------
C. Cammack Morton 90,000 10 years (1)
Patrick M. Miniutti 90,000 10 years (1)
Christopher G. Gavrelais 16,667 3 years (2)
J. Dixon Fleming, Jr. 90,000 10 years (3)
(1) Awards increased to 150,000 shares and 120,000 shares, respectively,
subsequent to December 31, 1996 for Messrs. Morton and Miniutti with
vesting to occur in ten equal annual installments, provided Mr. Morton
and Mr. Miniutti continue to be employed by the Company.
(2) Vesting to occur in three equal annual installments, provided Mr.
Gavrelis continues to be employed by the Company.
(3) The 90,000 shares awarded to Mr. Fleming were canceled upon his
termination as an officer and director of the Company.
EMPLOYMENT AGREEMENTS
ANNUAL COMPENSATION AND BASIC TERMS. The Company is a party to
employment agreements with Messrs. Morton, Miniutti, Gavrelis and Radcliff.
The agreements with Messrs. Morton and Miniutti were entered into in December
1995 and August 1996, respectively, and provide for an initial three-year term
which is automatically extended for an additional year at the end of each year
of the agreement, subject to the right of either party to terminate as of the
end of the then-existing three-year term by giving one year's prior written
notice. The agreement with Mr. Gavrelis was entered into in December 1995 and
provides for an initial two-year term. The
11
agreement with Mr. Radcliff was entered into in May 1993 and provided for an
initial two-year term, which has been extended through May 1997. If the
employment of any executive is terminated due to "change of control" an
additional two years will added to the unexpired term of the respective
agreements. Pursuant to their respective agreements, each executive is
required to devote his entire business time to the Company and is prohibited
from competing with the Company for a period of one year following termination
of employment. Pursuant to recent actions by the Independent Directors,
following consultations with an executive compensation consultant retained by
the Executive Compensation Committee, as more fully described in the Executive
Compensation Committee Report on Executive Compensation, the employment
agreements will be revised to reflect current base annual salaries as follows:
Mr. Morton - $330,000; Mr. Miniutti - $225,000; Mr. Gavrelis - $160,000; and
Mr. Radcliff - $182,000. In addition, Messrs. Morton and Miniutti will receive
30,000 shares and 15,000 shares of restricted stock as part of their annual
compensation, respectively, based on an equivalent cash value of approximately
$200,000 and $100,000, respectively. The number of restricted shares issued
annually will be adjusted on March 1st of each year based on the then market
price of the stock. Such restricted stock will be subject to a one year cliff
vest. The base annual salaries are subject to periodic increases based upon
the performance of the Company and the executive. Messrs. Morton and Miniutti
each agreed to take the raises in their base salaries for 1997 in the form of
restricted stock, which will be subject to a three year cliff vest, in the
amounts of 6,000 shares and 4,500 shares, respectively. In addition, they have
agreed to take all future raises in the form of restricted stock subject to
similar vesting provisions. If the employment of any executive is terminated
"without cause" (as defined in the respective agreements), such executive will
be entitled to (i) the greater of the base salary payable to the executive for
the remainder of the then existing employment term or one year's base salary,
(ii) in the case of Messrs. Morton and Miniutti, the product of the number of
years representing the unexpired term of the agreement and an amount equal to
the average bonuses paid to such executive over the three years immediately
prior to termination, and in the case of Messrs. Gavrelis and Radcliff, a pro
rata portion of any incentive compensation or bonus payable for the years of
termination and (iii) certain other accrued benefits.
LONG-TERM COMPENSATION. Subsequent to December 31, 1996, in recognition
of the increases in their responsibilities and after consultation with an
executive compensation consultant, the Independent Directors replaced the
previous long-term incentive plan awards of 90,000 shares of restricted stock
for Messrs. Morton and Miniutti with grants of 150,000 shares and 120,000
shares, respectively. These grants are being issued pursuant to the Company's
1996 Restricted Stock Plan. These restricted shares will vest in ten equal
annual installments commencing on March 1, 1997, provided each executive
continues to be employed by the Company. If the Company (i) does not extend
the executive's employment agreement beyond its initial three-year term; or
(ii) terminates the executive "without cause" (as defined in their respective
employment agreements) all unvested shares of restricted stock will become
fully vested. The executives will be entitled to receive dividends on only the
vested shares. Mr. Gavrelis was awarded 16,667 shares of restricted stock
which vests in three equal annual installments commencing December 14, 1996,
provided he continues to be employed by the Company.
In addition, the employment agreements for Messrs. Morton, Miniutti and
Gavrelis provide for the grant of options to purchase 300,000, 200,000 and
35,000 shares of the Common Stock, respectively. The Company granted the
options to Messrs. Morton and Gavrelis at an exercise price of $10.25 per
share and at $8.625 per share for Mr. Miniutti, based upon the market price of
the Common Stock on the date of grant. The options for Mr. Morton vest on the
following schedule: 100,000 shares at date of grant and 20% of the remainder
per year thereafter. The options for Messrs. Miniutti and Gavrelis vest at the
rate of 20% at date of grant and 20% per year thereafter.
SEVERANCE AGREEMENTS
The Company is also party to an employment agreement with Mr. Fleming,
which stipulates an annual base salary of $285,000. Mr. Fleming's employment
as chief executive officer of the Company terminated effective December 31,
1996 and he resigned as chairman effective February 15, 1997. The Company
agreed to treat his departure as a termination without cause pursuant to the
terms of his employment agreement with the Company. Pursuant to such
agreement, Mr. Fleming is entitled to severance payments through December 1998
that are expected to aggregate approximately $600,000. He will also be
entitled to certain other benefits. In addition, pursuant to the agreement,
Mr. Fleming waived his rights with respect to 90,000 shares of restricted
stock of the Company, however, he is entitled to receive the equivalent value
of 16,000 shares, or approximately $100,000 as
12
additional compensation. Mr. Fleming and the Company also agreed to modify the
non-competition provisions of Mr. Fleming's employment agreement to permit Mr.
Fleming's ownership, management, control or participation in the development
of outlet shopping centers located outside the United States.
The Company was party to employment agreements with David A. Hodson,
John M. Slocum and R. Kenneth Langston, all former officers of the Company. In
1995, the Company entered into severance agreements with the three former
officers which provided them with certain severance payments, which the
Company recorded as an expense in 1995. The severance agreements also provided
for the vesting of certain stock options and the continued participation in
the Company's medical and dental insurance plans.
CHANGE IN CONTROL ARRANGEMENTS
Under the employment agreements, termination "without cause" includes
any termination resulting from a "change in control" of the Company. The term
"change in control" generally is defined under the employment agreements to
include the first to occur of the following: (i) any person or group owns or
controls 50% or more of the outstanding Common Stock, (ii) any person or group
who owned less than 5% of the outstanding Common Stock on the date of the
agreement owns 20% or more of the outstanding Common Stock or (iii) the
stockholders of the Company approve a business combination that will result in
a change in ownership of 20% or more of the outstanding Common Stock. Upon the
occurrence of a "change in control" of the Company all non-vested Restricted
Stock will become immediately vested.
In addition, upon the occurrence of a "change in control" of the Company
(as defined in the Option Plan), all non-vested stock options granted thereunder
become immediately vested and exercisable in full. "Change in control" generally
is defined under the Option Plan to occur at such time as any person or group
beneficially owns at least 25% of the outstanding Common Stock.
EXECUTIVE COMPENSATION COMMITTEE REPORT ON EXECUTIVE COMPENSATION
The philosophy of the Executive Compensation Committee (the
"Committee") with respect to the compensation of the Company's executive
officers is (i) to provide a competitive total compensation package that enables
the Company to attract and retain qualified executives and align the
compensation of such executives with the Company's overall business strategies
and (ii) to provide each executive officer with a significant equity stake in
the Company, which serves to align compensation with the interests of
stockholders. To this end, the Committee determines executive compensation
consistent with a philosophy of compensating executive officers based on their
responsibilities and the Company's performance in attaining financial and
non-financial objectives. The primary components of the Company's executive
compensation program are (i) base salaries, (ii) bonuses for executive officers;
(iii) stock options and (iv) restricted stock. Each of these elements is
discussed below.
BASE SALARIES. The annual base salaries of each of the Named Executive
Officers have been established pursuant to employment agreements entered into
between each officer and the Company. The annual base salaries provided in the
agreements are subject to periodic increases to be determined by the Committee
in its discretion based upon (i) a qualitative and quantitative review of the
performance of the Company (including consideration of factors such as funds
from operation) and the executive and (ii) the compensation of executives with
similar responsibilities employed by companies similar in size, and that
generally are considered to be comparable to the Company. The Committee has
engaged a national executive compensation consultant for the purpose of
obtaining comparative information and advice on each of the components of
executive compensation. The Committee believes that the majority of the
Company's executive officers are at or near the average for base salaries and
total compensation as compared to that of the Company's peers. The Committee
would like to increase base salaries to the 75th percentile level in the future.
See "Employment Agreements - Annual Compensation and Basic Terms."
BONUSES. In connection with the Company's initial public offering, the
Company disclosed that it intended to implement a bonus plan for its executive
officers and certain key employees. Pursuant to the proposed bonus plan, covered
individuals would be able to earn cash bonuses if the Company's funds from
operations (which generally represent net income (loss), excluding gains
(losses) from sales of property, plus certain noncash items, primarily
depreciation and amortization) per share increased by more than five percent
from the previous year's
13
level. The Committee believes that in the future this plan should be replaced
with a Management By Objectives ("MBO") plan based on Company and individual
performance. The weighting between Company performance and individual
performance would be determined on the basis of position and responsibilities.
The performance targets would be determined for both Company performance and
individual performance. The amount of the bonus received would be based on the
MBO plan performance versus the established targets for each employee. Achieving
the targets would result in bonuses ranging from 10% to 45% of base salary, with
maximum bonuses ranging from 20% to 75% of base salary for performance
achievements greater than the targets.
In February 1997, the Committee determined that it was appropriate to
provide for bonuses for 1996 in accordance with the intent of the foregoing
bonus plan based primarily upon an increase in the funds from operations for
1996 of $2.1 million, or 17%, from 1995. The bonuses were paid in the form of
restricted stock to the officers of the Company in lieu of a cash bonus which
shares are subject to a three year cliff vest and represent 150% of an
equivalent cash bonus of an average of 20% of the salaries for the officers.
STOCK OPTIONS. The Company established an Employee Stock Incentive Plan
(the "Stock Incentive Plan") in 1993 for the purpose of attracting and retaining
the Company's executive officers and other employees. A maximum of 1,100,000
shares of Common Stock are reserved for issuance under the Stock Incentive Plan.
The Stock Incentive Plan allows for the grant of "incentive" and "nonqualified"
options (within the meaning of the Internal Revenue Code) that are exercisable
at a price equal to the closing price of the Common Stock on the New York Stock
Exchange on the trading day immediately preceding the date of grant. All of the
Company's executive officers are eligible to receive options to purchase shares
of Common Stock granted under the Stock Incentive Plan. The Committee believes
that stock option grants are a valuable motivating tool and provide a long-term
incentive to management. The Committee also believes that issuing stock options
to executives benefits the Company's stockholders by encouraging executives to
own the Company's stock, thus aligning executive pay with stockholder interests.
Options for 615,000 shares were granted during 1996 to primarily new executive
officers as an inducement for them to enter into employment agreements with the
Company. (See "Employment Agreements - Long-Term Compensation.")
RESTRICTED STOCK. The Company established the FAC Realty, Inc. 1996
Restricted Stock Plan (the "Restricted Plan"), reserving 350,000 shares of
Common Stock for issuance thereunder, to give the Committee more flexibility in
designing equity-based compensation arrangements to attract, motivate and retain
executives and other key employees. Such equity-based compensation is designed
to more closely align the financial interests of management with that of the
shareholders. Pursuant to recent action by the Board of Directors, the Company
has reserved an additional 150,000 shares of Common Stock for issuance under the
Restricted Plan. The Restricted Plan, which is administered by the Committee,
provides for the grant of restricted stock awards to any new or existing
employee of the Company, including executive officers. Awards under the
Restricted Plan typically will be subject to various vesting schedules ranging
from one to ten years from the date of grant. The Restricted Plan permits the
Committee to customize the vesting schedule by deferring the commencement date,
lengthening the vesting period and/or conditioning vesting upon the achievement
of specified performance goals. During 1996, the Company granted 196,667 shares
of restricted stock to three senior executive officers as an inducement for them
to enter into employment agreements with the Company. (See "Employment
Agreements - Long-Term Compensation.") The Committee determined that these
grants were appropriate features of the compensation arrangements designed to
attract and retain these executive officers.
CHIEF EXECUTIVE OFFICER'S COMPENSATION. C. Cammack Morton's
compensation for 1996 as the Company's President and Chief Operating Officer
consisted of an annual base salary of $285,000, which is subject to periodic
increases to be determined by the Committee in its discretion based upon (i) a
qualitative and quantitative review of the performance of the Company (including
consideration of factors such as funds from operations) and Mr. Morton and (ii)
the compensation of executives with similar responsibilities employed by
companies similar in size, and that generally are considered to be comparable to
the Company. Effective January 1, 1997, Mr. Morton became the Company's Chief
Executive Officer. See "Employment Agreements - Annual Compensation and Basic
Terms." In addition, consistent with the intent of the bonus plan discussed
above under "Bonuses", the Committee granted a bonus to Mr. Morton for 1996
based on the Company's performance of 18,000 shares of restricted stock subject
to a three-year cliff vest which had a market value at date of grant of
$112,500.
14
The employment agreement with J. Dixon Fleming, Jr., the Company's
former chairman and chief executive officer, which consisted of a base salary of
$285,000 in 1996, was terminated. (See "Severance Agreements.")
SECTION 162(M) OF THE INTERNAL REVENUE CODE. The Company does not
expect Section 162(m) of the Internal Revenue Code of 1986, as amended (the
"Code"), to affect the deductibility for federal income tax purposes of the
compensation of the Company's executive officers in 1996. In the future, the
Company intends to review periodically the applicability of Section 162(m) to
the Company's compensation programs, including its potential impact on stock
options and restricted stock awarded to executive officers, and, if considered
appropriate, to develop a policy with respect to the Company's compliance with
Section 162(m).
The Compensation Committee is pleased to submit this report to the
stockholders.
Theodore E. Haigler, Jr., Chairman
B. Mayo Boddie, Sr.
Robert O. Amick
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
During 1996, the following individuals (none of whom was or had been an
officer or employee of the Company) served on the Company's Executive
Compensation Committee: Theodore E. Haigler, Jr., Robert O. Amick and B. Mayo
Boddie, Sr. There were no interlocks with other companies within the meaning of
the SEC's proxy rules during 1996.
CERTAIN TRANSACTIONS
On May 5, 1995 the Company purchased three parcels of land near its
Smithfield, North Carolina factory outlet center totaling 4.94 acres for
$735,000 from two partnerships, of which former executive officers and their
affiliates are general partners. The parcels were used as part of the expansion
of the Smithfield center.
In 1994, the Company's Board of Directors approved acquisition of
certain land adjacent to one of the Company's existing outlet centers for
potential expansion of that center. The cost of the land acquisition was
$400,000. The seller of the land was a partnership whose partners include former
executive officers of the Company.
During 1993, the Company acquired a 19 acre tract of land in a
non-monetary transaction from a partnership whose partners include two former
executive officers of the Company. The recorded value of the land was $748,000.
In return for the land, the Company assumed certain outstanding debt and the
remaining purchase price was settled by reducing amounts owed to the Company by
a tenant whose majority owners were also partners in the partnership. A review
of this transaction resulted in J. Dixon Fleming, Jr., the Company's former
Chairman and Chief Executive officer, agreeing to permit the Company to satisfy
a $0.6 million asset valuation issue by offsetting amounts otherwise owed to Mr.
Fleming pursuant to his employment agreement (see "Severance Agreements") or by
the acceptance from Mr. Fleming of some other cash or value equivalent. The
Company has recently entered into an agreement with Mr. Fleming to sell to him
the 19 acre land tract for the sum of $750,000 which would satisfy the asset
valuation issue. The consummation of this transaction is secured by the unpaid
severance amounts due to Mr. Fleming. Also in settling the terms of Mr.
Fleming's severance and non-competition restrictions, $0.25 million of his
severance was applied to certain advertising expenses incurred by the Company.
The Company has granted Mr. Fleming an option to purchase the Company's
interest in a project to develop international outlet centers for an amount
equal to the Company's total costs plus interest. Mr. Fleming has also agreed to
be responsible for the costs of the project in excess of $250,000. The option
expires on December 31, 1997. In the event such option is not exercised, the
Company has agreed to negotiate a similar option, exercisable in 1998 for the
greater of (i) the fair market value of such investment, or (ii) $250,000 plus
interest.
15
PERFORMANCE GRAPH
Set forth is a line graph comparing the yearly percentage change in the
Company's cumulative total return on the Common Stock with the cumulative total
return of a hypothetical investment in each of the Standard & Poor's Composite -
500 Index (the "S&P Index") and the NAREIT Equity REIT Total Return Index (the
"REIT Index") based on the respective market prices of each such investment on
the dates shown below, assuming an initial investment of $100 in the Common
Stock on June 3, 1993 (the date of the Company's initial public offering) and
the reinvestment of dividends.
FAC REALTY TRUST. INC.
(A Performance Graph appears here with the following plot points:)
6/93 12/93 12/94 12/95 12/96
FAC Realty Trust, Inc. $100 $104 $97 $68 $37
S & P 500 $100 $105 $106 $146 $180
NAREIT Equity REIT $100 $101 $104 $120 $163
* Initial public offering completed in June 1993
OTHER MATTERS
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE. Section 16(a)
of the Securities Exchange Act of 1934, as amended, requires the Company's
directors, executive officers and owners of more than 10% of the Company's
Common Stock ("10% beneficial owners") to file with the SEC and the New York
Stock Exchange initial reports of ownership and reports of changes in ownership
of Common Stock and other equity securities of the Company. Executive officers,
directors and 10% beneficial owners are required by SEC regulations to furnish
the Company with copies of all forms they file pursuant to Section 16(a). Based
solely on a review of the copies of such forms received by it and on written
representations from certain reporting persons, the Company believes that during
the year ended December 31, 1996, all required Section 16(a) reports were filed
on a timely basis.
OTHER BUSINESS. The Board knows of no other business to be brought
before the Annual Meeting. If, however, any other business should properly come
before the Annual Meeting, including matters incident to the Annual Meeting, the
persons named in the accompanying proxy will vote proxies as in their discretion
they deem appropriate with respect to such matters.
STOCKHOLDERS MAY OBTAIN WITHOUT CHARGE A COPY OF THE COMPANY'S ANNUAL
REPORT ON FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 1996, FILED WITH THE
SEC, INCLUDING THE FINANCIAL STATEMENTS AND SCHEDULES THERETO, WITHOUT THE
ACCOMPANYING EXHIBITS, BY WRITING TO INVESTOR RELATIONS, FAC REALTY, INC., 11000
REGENCY PARKWAY, SUITE 300, CARY, NORTH CAROLINA 27511. A LIST OF EXHIBITS IS
INCLUDED IN THE FORM 10-K, AND EXHIBITS ARE AVAILABLE FROM THE COMPANY UPON
PAYMENT TO THE COMPANY OF THE COSTS OF FURNISHING THEM.
STOCKHOLDER PROPOSALS FOR 1998 ANNUAL MEETING
Any stockholder proposals intended to be presented at the Company's
1998 Annual Meeting of Stockholders must be received by the Company at 11000
Regency Parkway, Suite 300, Cary, North Carolina 27511 on or before December 15,
1997 for inclusion in the Company's proxy statement and form of proxy relating
to the 1998 Annual Meeting of Stockholders.
By Order of the Board of Directors
/s/ Robin W. Malphrus
ROBIN W. MALPHRUS, ESQ.
SECRETARY
Dated: April 30, 1997
16
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APPENDIX
FAC REALTY, INC.
PROXY
for
Annual Meeting of Stockholders, May 29, 1997
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS
The undersigned hereby appoints Robert O. Amick, J. Richard Futrell, Jr.
and Theodore E. Haigler, Jr., or any of them, with full power of substitution,
the attorney and proxy of the undersigned, to appear and to vote all of the
shares of common stock of FAC Realty, Inc. (the "Company") which the
undersigned would be entitled to vote if personally present at the Annual
Meeting of Stockholders of the Company to be held at the Homewood Suites Hotel,
100 Macalyson Court, Cary, NC 27511, on Thursday, May 29, 1997, at 10:00 a.m.,
Eastern Time, and any adjournment thereof.
Receipt of copies of the Annual Report to Stockholders, the Notice of the
Annual Meeting of Stockholders and the Proxy Statement dated April 30, 1997,
is hereby acknowledged.
This Proxy will be voted in accordance with the instructions marked herein,
and in accordance with the recommendation of the Board of Directors if no
instructions to the contrary are marked herein. If any other business is
transacted at the Annual Meeting (including matters incident to the conduct
of the Annual Meeting), this Proxy will be voted in the discretion of, and
in accordance with, the best judgment of the proxies (no other business is
currently known).
1. The election of seven directors of the Company to serve until the 1998
Annual Meeting or until their successors are duly elected and qualified:
Nominees: C. Cammack Morton, Patrick M. Miniutti, Robert O. Amick,
William D. Eberle, J. Richard Futrell, Jr., John W. Gildea,
Theodore E. Haigler, Jr.
FOR WITHHOLD
(Instruction: To withhold authority to vote for any individual nominee, print
the nominee's name for which authority is withheld below.)
Note: Please date and sign exactly as the name appears on this proxy. Joint
owners should each sign. If the signer is a corporation, please sign full
corporate name by a duly authorized officer. Executors, trustees, etc.
should give full title as such.
Dated:_____________________
___________________________
Signature
___________________________
Signature
Please mark boxes in blue or
black ink.
Please return promptly in the
enclosed envelope which requires
no postage if mailed in the
U.S.A.