Exhibit
10.1
Execution
Copy
POLYMER
GROUP, INC.
SEVERANCE
AGREEMENT
THIS SEVERANCE
AGREEMENT is entered into on October 31, 2006, between Polymer
Group, Inc., a Delaware corporation (the “Company”),
and James L. Schaeffer (“Executive”).
WHEREAS, the
Company and Executive are parties to a certain employment agreement
dated as of March 24, 2006 (the “Employment
Agreement”);
WHEREAS, the
Company and Executive are parties to a certain change in control
severance compensation agreement dated as of March 24, 2006 (the
“Change in Control Agreement”);
WHEREAS, the
Company and Executive wish to end the employment
relationship.
In consideration
of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
1.
End of Employment .
(a)
The Company and Executive hereby agree that the employment of
Executive with the Company and its Subsidiaries shall end on
October 31, 2006 (the “Termination Date”).
Executive also agrees that his service as a member of the Board of
Directors and as an officer of the Company and its Subsidiaries
shall end on October 31, 2006. Executive shall take such
actions reasonably requested by the Company in furtherance of the
foregoing to evidence the end of such employment and such service
as a director and/or officer.
(b)
For purposes of this Agreement, “ Subsidiaries ”
shall mean any corporation or other entity of which the securities
or other ownership interests having the voting power to elect a
majority of the board of directors or other governing body are, at
the time of determination, owned by the Company, directly or
through one of more Subsidiaries, including without limitation
those entities set forth on Annex I attached hereto.
2.
Compensation and Benefits .
(a)
Salary . Executive shall be entitled to receive his
base salary through the Termination Date. As payment of
severance under this Agreement, Executive shall be entitled to
receive an amount equal to his base salary until December 20, 2006
(the “Payment End Date”). Executive shall not be
entitled to receive any amounts of base salary for any period after
the Payment End Date. Such severance payments shall be made
bi-weekly in accordance with the Company’s current payroll
practices. Executive shall not be entitled to any additional
payment for unused vacation days or paid time off days.
(b)
Expenses . The Company shall reimburse Executive for
all reasonable business expenses incurred by him prior to the
Termination Date which were incurred in the course of performing
his duties and responsibilities which are consistent with the
Company’s policies in effect from time to time with respect
to travel, entertainment and other business expenses, subject to
the Company’s requirements with respect to reporting and
documentation of such expenses.
(c)
Bonus . Executive shall not be entitled to receive any
amounts that may have been due to him under the Employment
Agreement or pursuant to any Company bonus plan in respect of a
bonus for the current fiscal year.
(d)
Vested Restricted Stock and Vested Stock Options . As
additional payment of severance payments under this Agreement,
Executive shall be entitled to the vested portion of his restricted
stock grants, totaling 46,618 shares (prior to the reduction for
the shares withheld by the Company in payment of taxes on behalf of
Executive totaling 15,836 shares, for a current total holding of
30,782 shares), subject to the terms and conditions of the 2005
Restricted Stock Plan, and to the vested portion of the stock
options grants totaling 48,750 stock options, subject to the terms
and conditions of the 2003 Stock Option Plan; provided that the
provisions of Section 2(c)(ii) of the Restricted Stock Grant
concerning service and performance vested shares and Section 2(b)
of the Restricted Stock Grant concerning immediately vested shares,
and the provisions of Section 6(d)(iii) of the 2003 Stock Option
Plan, in each case covering forfeitures on certain terminations,
shall not apply to the shares and options referred to in this
sentence; provided further, that Executive shall be free to sell
his shares of restricted stock commencing on December 21,
2006. All other grants of restricted stock and stock options
are hereby forfeited and cancelled. All shares of restricted
stock previously withheld by the Company in satisfaction of amounts
due for taxes resulting from the grant of shares of restricted
stock shall remain with the Company.
(e)
Withholding . All amounts payable to Executive as
compensation hereunder shall be subject to all required and
customary withholding by the Company.
(f)
Insurance . Until September 21, 2007, the Company
shall, at its expense, pay both the employer and employee portion
of the premiums for group medical, dental and vision insurance at
the level and with the coverage in effect for Executive and his
dependants and beneficiaries immediately prior to the Termination
Date. Executive shall only be responsible for the deductible
or co-pay obligations under such insurance programs. The
Company shall pay the conversion premium under the group life
insurance plan to convert the existing group life insurance
coverage of Executive into an individual policy with the same level
of coverage as in effect immediately prior to the Termination Date,
with an initial term through September 21, 2007. The Company
shall also pay to Executive for each month during the period
beginning on the Termination Date and ending on September 21, 2007,
an amount equal to the amount the Company was paying on behalf of
Executive to provide coverage under the Company’s long-term
disability plan. Executive shall also be entitled to receive
the continuation of his group medical, dental and vision insurance
coverage as provided under the provisions of the Consolidated
Omnibus Budget Reconciliation Act (“COBRA”) beginning
on March 21, 2007, and continuing until September 21, 2008.
For the period between March 21, 2007 and
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September 21, 2007, the Company shall pay the
employer and employee portions of the coverage under COBRA, other
than any co-pay or deductible payments required under such
insurance. The Company’s obligation hereunder with
respect to the foregoing benefits shall be limited to the extent
that the Executive obtains any such benefits pursuant to a
subsequent employer’s benefit plans, in which case the
Company may reduce the coverage of any benefits it is required to
provide the Executive hereunder so long as the aggregate coverage
and benefits of the combined benefit plans is no less favorable to
the Executive than the coverages and benefits required to be
provided hereunder. This subsection (f) shall not be
interpreted so as to limit any benefits to which the Executive, his
dependants or beneficiaries may otherwise be entitled under any of
the Company’s employee benefit plans, programs or practices
following the termination of employment of the Executive, including
without limitation, any applicable retiree medical and life
insurance benefits. The Company may offset any amounts
Executive owes it or its Subsidiaries against any amounts it or its
Subsidiaries owes Executive hereunder.
(g)
Return of Car . Executive has returned his company car
to the Company, together with all keys, owner’s manuals and
other documents relating to ownership or maintenance.
3.
Confidential Information .
(a)
Obligation to Maintain Confidentiality . Executive
acknowledges that the continued success of the Company and its
Subsidiaries, depends upon the use and protection of a large body
of confidential and proprietary information. All of such
confidential and proprietary information existing prior hereto, now
existing or to be developed in the future will be referred to in
this Agreement as “ Confidential Information
.” Confidential Information will be interpreted as
broadly as possible to include all information of any sort (whether
merely remembered or embodied in a tangible or intangible form)
that is (i) related to the Company’s or its
Subsidiaries’ current or potential business and (ii) is
not generally or publicly known. Confidential Information
includes, without specific limitation, the information,
observations and data obtained by him during the course of his
employment by the Company and its Subsidiaries concerning the
business and affairs of the Company and its Subsidiaries,
information concerning acquisition opportunities in or reasonably
related to the Company’s or its Subsidiaries’ business
or industry of which Executive becomes aware during such
employment, the persons or entities that are current, former or
prospective suppliers or customers of any one or more of them
during Executive’s employment, as well as development,
transition and transformation plans, methodologies and methods of
doing business, strategic, marketing and expansion plans, including
plans regarding planned and potential sales, financial and business
plans, employee lists and telephone numbers, locations of sales
representatives, new and existing programs and services, prices and
terms, customer service, integration processes, requirements and
costs of providing service, support and equipment. Therefore,
Executive agrees that he shall not disclose to any unauthorized
person or use for his own account any of such Confidential
Information, unless and to the extent that any Confidential
Information (i) becomes generally known to and available for
use by the public other than as a result of Executive’s acts
or omissions to act or (ii) is required to be disclosed
pursuant to any applicable law or court order. Executive
agrees to deliver to the Company all memoranda, notes, plans,
records, reports and other documents (and copies thereof) relating
to
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the
business of the Company or its Subsidiaries (including, without
limitation, all Confidential Information) that he may then possess
or have under his control.
(b)
Ownership of Intellectual Property . Executive agrees
to make prompt and full disclosure to the Company or its
Subsidiaries, as the case may be, of all ideas, discoveries, trade
secrets, inventions, innovations, improvements, developments,
methods of doing business, processes, programs, designs, analyses,
drawings, reports, data, software, firmware, logos and all similar
or related information (whether or not patentable and whether
or not reduced to practice) that relate to the Company’s or
its Subsidiaries’ actual or anticipated business, research
and development, or existing or future products or services and
that are conceived, developed, acquired, contributed to, made, or
reduced to practice by Executive (either solely or jointly with
others) while employed by the Company or its Subsidiaries and for a
period thereafter ending on September 21, 2007 (collectively,
“ Work Product ”). Any copyrightable work
falling within the definition of Work Product shall be deemed a
“work made for hire” under the copyright laws of the
United States, and ownership of all rights therein shall vest in
the Company or its Subsidiary. To the extent that any Work
Product is not deemed to be a “work made for hire,”
Executive hereby assigns and agrees to assign to the Company or
such Subsidiary all right, title and interest, including without
limitation, the intellectual property rights that Executive may
have in and to such Work Product. Executive shall promptly
perform all actions reasonably requested by the Board to establish
and confirm the Company’s or such Subsidiary’s
ownership (including, without limitation, providing testimony and
executing assignments, consents, powers of attorney, and other
instruments).
(c)
Third Party Information . Executive understands that the
Company and its Subsidiaries have received from third parties
confidential or proprietary information (“ Third Party
Information ”) subject to a duty on the Company’s
and its Subsidiaries’ part to maintain the confidentiality of
such information and to use it only for certain limited
purposes. Without in any way limiting the provisions of
Section 3(a) above, Executive will hold Third Party
Information in the strictest confidence and will not disclose to
anyone (other than personnel of the Company or its Subsidiaries who
need to know such information in connection with their work for the
Company or such Subsidiaries) or use, such Third Party Information
unless expressly authorized by a member of the Board in
writing.
4.
Non-Compete, Non-Solicitation .
(a)
In further consideration of the compensation to be paid to
Executive hereunder, Executive acknowledges that during the course
of his employment with the Company and its Subsidiaries he became
familiar with the Company’s trade secrets and with other
Confidential Information concerning the Company and its
predecessors and its Subsidiaries and that his services shall be of
special, unique and extraordinary value to the Company and its
Subsidiaries, and therefore, Executive agrees that, from the date
of this Agreement until September 21, 2007 (the “
Noncompete Period ”), he shall not directly or
indirectly own any interest in, manage, control, participate in,
consult with, render services for, or in any manner engage in any
business competing with the businesses of the Company or its
Subsidiaries, as such businesses exist or were in process during
his employment by the Company and its Subsidiaries, within any
geographical area in which the Company or its Subsidiaries engage
or
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plan to engage in such businesses.
Nothing herein shall prohibit Executive from being a passive owner
of not more than 2% of the outstanding stock of any class of a
corporation which is publicly traded, so long as Executive has no
active participation in the business of such corporation. In
the event Executive is approached by a third party that is not a
competitor of the Company and asked to advise such third party with
respect to a potential acquisition of the Company, Executive may
request the consent of the Company to act in such capacity and the
Company will consider such request in good faith.
(b)
During the Noncompete Period, Executive shall not directly or
indirectly through another person or entity (i) induce or attempt
to induce any employee of the Company or any Subsidiary to leave
the employ of the Company or such Subsidiary, or in any way
interfere with the relationship between the Company or any
Subsidiary and any employee thereof, (ii) hire any person who was
an employee of the Company or any Subsidiary at any time during his
employment by the Company and its Subsidiaries or (iii) induce or
attempt to induce any customer, supplier, licensee, licensor,
franchisee or other business relation of the Company or any
Subsidiary to cease doing business with the Company or such
Subsidiary, or in any way interfere with the relationship between
any such customer, supplier, licensee or business relation and the
Company or any Subsidiary (including, without limitation, making
any negative or disparaging statements or communications regarding
the Company or its Subsidiaries).
(c)
If, at the time of enforcement of this paragraph 4, a court shall
hold that the duration, scope or area restrictions stated herein
are unreasonable under circumstances then existing, the parties
agree that the maximum duration, scope or area reasonable under
such circumstances shall be substituted for the stated duration,
scope or area and that the court shall be allowed to revise the
restrictions contained herein to cover the maximum period, scope
and area permitted by law. Executive acknowledges that the
restrictions contained in this paragraph 4 are reasonable and that
he has reviewed the provisions of this Agreement with his legal
counsel.
(d)
In the event of the breach or a threatened breach by Executive of
any of the provisions of this paragraph 4, the Company would suffer
irreparable harm, and in addition and supplementary to other rights
and remedies existing in its favor, the Company shall be entitled
to specific performance and/or injunctive or other equitable relief
from a court of competent jurisdiction in order to enforce or
prevent any violations of the provisions hereof (without posting a
bond or other security). In addition, in the event of an
alleged breach or violation by Executive of this paragraph 4, the
Noncompete Period shall be tolled until such breach or violation
has been duly cured. Executive acknowledges that the
restrictions contained in paragraph 4 are reasonable and that he
has reviewed the provisions of this Agreement with his legal
counsel.
5.
Release . Executive shall execute the general release
dated as of the date hereof (the “Release”) attached as
Exhibit A hereto. Without otherwise limiting the
Company’s rights and subject to and in further consideration
of Executive’s obligations under the terms of this Agreement,
the Company agrees that it will not, except to the extent required
by law, require Executive to repay or otherwise seek recovery from
Executive of any salary or bonus amounts paid to, or vested
restricted stock or vested stock options granted to, Executive by
the Company during Executive’s employment with the
Company.
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6.
Executive’s Representations . Executive hereby
represents and warrants to the Company that (i) the execution,
delivery and performance of this Agreement by Executive do not and
shall not conflict with, breach, violate or cause a default under
any contract, agreement, instrument, order, judgment or decree to
which Executive is a party or by which he is bound, (ii) Executive
is not a party to or bound by any employment agreement, noncompete
agreement or confidentiality agreement with any other person or
entity and (iii) upon the execution and delivery of this Agreement
by the Company, this Agreement shall be the valid and binding
obligation of Executive, enforceable in accordance with its
terms. Executive hereby acknowledges and represents that he
has consulted with independent legal counsel regarding his rights
and obligations under this Agreement and that he fully understands
the terms and conditions contained herein.
7.
Notices . Any notice provided for in this Agreement
shall be in writing and shall be either personally delivered, sent
by reputable overnight courier service or mailed by first class
mail, return receipt requested, to the recipient at the address
below indicated:
Notices to
Executive:
James L. Schaeffer
2331 Mount Isle Harbor Drive
Charlotte, N.C. 28214
With a copy to:
William H. Sturges
Partner
Shumaker, Loop & Kendrick, LLP
128 South Tryon Street
Suite 1800
Charlotte, NC 28202
Notices to the Company:
Polymer Group, Inc.
9335 Harris Corners Parkway, Suite 300
Charlotte, NC 28269
Attn: General Counsel
With a copy
to:
H. Kurt von Moltke,
P.C.
Kirkland & Ellis LLP
200 East Randolph Drive
Chicago, IL 60601
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or such other address
or to the attention of such other person as the recipient party
shall have specified by prior written notice to the sending
party. Any notice under this Agreement shall be deemed to
have been given when so delivered, sent or mailed.
8.
Severability . Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of
this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction,
such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement or any action in any other
jurisdiction, but this Agreement shall be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained
herein.
9.
Complete Agreement . This Agreement, those documents
expressly referred to herein and other documents of even date
herewith, including the Release referred to in Section 5, embody
the complete agreement and understanding among the parties and
supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may
have related to the subject matter hereof in any way.
10.
Termination of Employment Agreement; Termination of Change in
Control Agreement. The Compa
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