Exhibit 10.1
[Execution Copy]
POLYMER GROUP,
INC.
SEPARATION
AGREEMENT
THIS SEPARATION AGREEMENT is entered
into on April 8, 2008, between Polymer Group, Inc., a
Delaware corporation (the “Company”), and Willis C.
Moore, III (“Executive”).
WHEREAS, the Company and Executive
are parties to a certain employment agreement entered into on
March 24, 2006, as amended by Amendment No. 1 to
Employment Agreement entered into on March 30, 2007 (the
employment agreement, as so amended, is referred to herein as the
“Employment Agreement”);
WHEREAS, the Company and Executive
are parties to a certain change in control severance compensation
agreement entered into on January 23, 2008 (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
April 22, 2008 (the “Resignation Date”).
Executive also agrees that his service as an officer of the Company
and its Subsidiaries shall end on the earlier of the appointment of
a successor or April 22, 2008. 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 an officer. Executive shall also provide such services as
reasonably necessary to ensure a smooth and orderly transition for
two weeks immediately following the date of this Agreement through
and including the Resignation Date.
(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 Resignation Date. As payment of
severance under this Agreement, Executive shall be entitled to
receive his monthly base salary in an amount equal to $32,935.50
(the “Base Salary Payments”), until April 22, 2010
(the “Payment End Date”). Executive shall not be
entitled to receive any
Base Salary Payments for any
period after the Payment End Date. Such Base Salary Payments
shall be made bi-weekly in accordance with the Company’s
current payroll practices; provided that the first such payment
shall be on October 23, 2008, and shall cover the six-month
period between the date hereof and such first payment date.
Executive shall also be entitled to an additional payment for
unused vacation days or unused paid time off days, which payment
shall be made immediately following the Resignation
Date.
(b)
Expenses . The Company shall reimburse Executive for
all reasonable business expenses incurred by him prior to the
Resignation Date which were incurred in the course of performing
his duties and responsibilities and 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 also be entitled to receive
his pro-rated target bonus for the Company’s current fiscal
year, calculated by multiplying (x) a fraction, the numerator
of which shall be the number of calendar days in fiscal 2008 from
December 30, 2007, through the Resignation Date, and the
denominator of which shall be 365, by (y) $197,613, which
amount equals $61,720 (the “Pro-Rated Bonus Payment”,
which together with the Base Salary Payments are referred to herein
as the “Severance Payments”). The Pro-Rated Bonus
Payment shall be made on October 23, 2008. Executive
shall not be entitled to receive any other 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 or any
subsequent fiscal year. The amounts payable under Sections
2(a) and 2(c) shall not be reduced by the amount of any
compensation Executive receives with respect to any other
employment through the Payment End Date.
(d)
Vested Restricted Stock and Vested Stock Options .
Executive shall be entitled to the vested portion of his restricted
stock grants, totaling 21,020 shares (after reduction for shares
withheld by the Company in payment of taxes on behalf of
Executive), subject to the terms and conditions of the 2005
Restricted Stock Plan, and to the vested portion of the stock
options grants totaling 55,000 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, and agrees to only exercise any stock options and
sell the underlying shares of common stock, commencing on the
earlier to occur of (x) July 21, 2008 and (y) the
opening of the Company’s trading window, if any, applicable
to all Company insiders following the filing of the Company’s
Quarterly Report on Form 10-Q for the Company’s 2008
first fiscal quarter. The Company agrees that any change that
is generally made to any of the terms and conditions of the stock
options issued under the 2003 Stock Option Plan or the shares
issued upon exercise and that is applicable to all employee holders
of such stock options or shares shall also be made available to the
stock options or shares held by Executive. All other grants
of restricted stock and stock options are hereby forfeited and
cancelled. All shares of
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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 April 22, 2009, the Company
shall, at its expense, pay both the employer and employee portion
of the premiums for group medical, dental and hospitalization
insurance at the level and with the coverage in effect for
Executive and his dependants and beneficiaries immediately prior to
the Resignation Date. Executive shall only be responsible for
the deductible or co-pay obligations under such insurance
programs. Executive shall also be entitled to receive the
continuation of his group medical, dental and hospitalization
insurance coverage as provided under the provisions of the
Consolidated Omnibus Budget Reconciliation Act
(“COBRA”) beginning on April 22, 2009, and
continuing until October 22, 2010, at his sole cost and
expense. 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; provided, that any changes or amendments to
such plans that are applicable to other employees of the Company
covered by such plans shall also apply to Executive and his
dependents and beneficiaries. 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.
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
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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 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 April 22, 2010 (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.
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4.
Non-Compete, Non-Solicitation .
(a)
In further consideration of the compensation to be paid to
Executive hereunder, including the Severance Payments, 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 April 22, 2010 (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 plan to engage in such
businesses. Nothing herein shall prohibit Executive from
(i) 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 or (ii) from owning an interest
in, managing, controlling, participating in, consulting with, or
rendering services for a company in the textile and apparel
industry so long as the company does not manufacture, market, or
sell nonwoven products. 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.
(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
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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.
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:
Willis C. Moore, III
2024 Beverly Drive
Charlotte, N.C. 28207
Notices to the Company:
Polymer Group, Inc.
9335 Harris Corners Parkway, Suite 300
Charlotte, NC 28269
Attn: General Counsel
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With a copy to:
H. Kurt von Moltke, P.C.
Kirkland & Ellis LLP
200 East Randolph Drive
Chicago, IL 60601
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
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