Nucor Corporation Form 10-Q June 30, 2001 Exhibit 10.1 EXECUTIVE EMPLOYMENT AGREEMENT THIS AGREEMENT is made and entered into between Nucor Corporation, a Delaware corporation, on behalf of itself and its affiliates (collectively "Nucor"), and Daniel R. DiMicco, a resident of Waxhaw, North Carolina (the "Employee"). WHEREAS, Employee has been employed as an "at-will" employee of Nucor, and the parties wish to formalize their employment relationship in writing and for Nucor to continue Employee's employment under the terms and conditions set forth below; WHEREAS, Employee and Nucor previously entered into an "Agreement Not to Compete" dated as of September 19, 1999; WHEREAS, Employee and Nucor now wish to substitute this Employment Agreement for the previous "Agreement Not to Compete"; NOW, THEREFORE, in consideration for the promises and mutual agreements contained herein, the parties agree as follows: 1. Employment. Nucor agrees to continue to employ Employee in the ---------- position of President and Chief Executive Officer, and Employee agrees to accept continued employment in this position, subject to the terms and conditions set forth in this Agreement. 2. Signing Payment. Nucor will pay Employee a one-time $10,000 amount for --------------- executing this Agreement. This $10,000 will become due and payable to Employee upon Employee's execution of this Agreement. 3. Compensation and Benefits During Employment. Nucor will provide the ------------------------------------------- following compensation and benefits to Employee: (a.) Nucor will pay Employee a base salary of $412,500 per year, paid on a monthly basis, subject to withholding by Nucor and other deductions as required by law. This amount is subject to adjustment up or down by Nucor's Board of Directors at its sole discretion and without notice to Employee. (b.) Employee will be eligible for bonuses based on the Senior Officer Incentive Compensation Plans, as modified from time to time by, and in the sole discretion of, the Board of Directors of Nucor. (c.) Employee will be eligible for those employee benefits that are generally made available by Nucor to its employees. <PAGE> (d.) Employee shall be eligible to participate in the Key Employees Incentive Stock Option Plan (the "Option Plan") in accordance with the applicable terms and conditions of the Option Plan and a Key Employee Stock Option Certificate issued to Employee. 4. Compensation Following Termination. ----------------------------------- (a.) From the date of Employee's termination, whether by Employee or Nucor for any or no reason, Nucor will pay Employee a monthly amount for twenty-four (24) months following Employee's termination. The monthly amount will be computed using the following formula: the amount of Employee's highest base salary level during the prior twelve months multiplied by 3.36 and the product divided by twelve. The payments shall be made at the end of each month following Employee's termination on Nucor's regular monthly payroll date. (b.) In exchange for Nucor's promises in this Section 4 and other good and valuable consideration, Employee agrees to strictly abide by the terms of Sections 10, 11, and 13 of this Agreement. If Employee fails to strictly abide by the terms of Sections 10, 11, and 13 of this Agreement, Nucor may, at its option, do any or all of the following: (i) pursue any legal remedies available to it (including but not limited to injunctive relief, damages, and specific performance), and (ii) declare the monthly payment forfeited with respect to any month during which Employee is in breach of this Agreement. Nucor may declare the monthly payment forfeited if Employee is in breach of this Agreement for any portion of the month at issue, and Employee will not be entitled to a payment for that month. (c.) If Employee is employed by Nucor at the time of Employee's death, Nucor's obligations to make any monthly payments under this Agreement will automatically terminate and Employee's estate and executors will have no rights to payments under this Agreement. If Employee dies during the first twelve months following Employee's termination from employment with Nucor, then Nucor will pay Employee's estate the monthly payments through the end of the twelfth month following Employee's termination. If Employee dies twelve or more months after termination of Employee's employment with Nucor, then Nucor's obligations to make monthly payments under this Agreement will automatically terminate without the necessity of Nucor providing written notice. 5. Duties and Responsibilities; Best Efforts. While employed by Nucor, ------------------------------------------ Employee shall perform such duties for and on behalf of Nucor as may be determined and assigned to Employee from time to time by members of Nucor's Board of Directors. Employee shall devote his full time and best efforts to the business and affairs of Nucor. During the term of Employee's employment with Nucor, Employee will not undertake other paid employment or engage in any other business activity without prior written consent of Nucor. 6. Employment at Will. The parties acknowledge and agree that this ------------------ Agreement does not create employment for a definite term and that Employee's employment with Nucor is terminable by Nucor or Employee at any time, with or without cause and with or without notice, unless otherwise expressly set forth in a separate written agreement executed by Employee and Nucor after the date of this Agreement. <PAGE> 7. Change in Employee's Position. In the event that Nucor transfers, ----------------------------- demotes, promotes, or otherwise changes Employee's compensation or position with Nucor, the restrictions and post-termination obligations of this Agreement shall remain in full force and effect on both parties. 8. Recognition of Nucor's Legitimate Interests. Employee understands and ------------------------------------------- acknowledges that Nucor and its affiliates compete in North America in the research, manufacture, marketing, sale and distribution of steel and steel products, including but not limited to flat-rolled steel, steel shapes, structural steel, steel plate, steel joists and girders, steel deck, steel fasteners, and metal building systems. As part of Employee's employment with Nucor, Employee will be provided significant Confidential Information by Nucor (as defined below). In addition, Employee will have direct contact with Nucor's customers, in which capacity he is expected to develop good relationships with such customers. Employee acknowledges that Nucor's competitors would obtain an unfair advantage if Employee disclosed the Confidential Information to a competitor, used it in a competitor's behalf, or if he were able to exploit the relationships he developed as an employee of Nucor to solicit business on behalf of a competitor. 9. Definition of Confidential Information. As used in this Agreement, -------------------------------------- Confidential Information shall include, without limitation, financial and budgetary information and strategies; plant design, specifications, and layouts; equipment design, specifications, and layouts; product design and specifications; manufacturing processes, procedures, and specifications; data processing or other computer programs; research and development projects; marketing information and strategies; customer lists; vendor lists; information about customer preferences and buying patterns; information about prospective customers, vendors, or business opportunities; information about Nucor's costs and the pricing structure used in sales to customers; information about Nucor's overall corporate business strategy; and technological innovations used in the business. 10. Agreement to Maintain Confidentiality. ------------------------------------- (a.) Except as otherwise provided in this Agreement, during Employee's employment with Nucor and at all times after the termination of Employee's employment, Employee covenants and agrees to treat as confidential and not to negligently or intentionally disclose, and to use only for the advancement of the interests of Nucor, all Confidential Information submitted to the Employee or received, compiled, developed, designed, produced, accessed, or otherwise discovered by the Employee from time to time while employed by Nucor. Employee will not disclose or divulge the Confidential Information to any person, entity, firm or company whatsoever or use the Confidential Information for Employee's own benefit or for the benefit of any person, entity, firm or company other than Nucor. (b.) Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained in the mind or memory of Employee, and whether compiled or created by Employee, Nucor, or any of its affiliates or customers, derives independent economic value from not being readily known to or ascertainable by proper means by others who could obtain economic value from the disclosure or use of the Confidential Information. Employee also acknowledges that reasonable efforts have been put forth by Nucor to maintain the secrecy <PAGE> of the Confidential Information, that the Confidential Information is and will remain the sole property of Nucor or any of its affiliates or customers, as the case may be, and that any retention and/or use of Confidential Information during or after the termination of Employee's employment with Nucor (except in the regular course of performing his duties hereunder) will constitute a misappropriation of the Confidential Information belonging to Nucor. (c.) Employee's obligations under this Section 10 will survive termination of his employment and will continue indefinitely. For purposes of this Section, information shall not be deemed to be "Confidential Information" to the extent that the information (i) is in the public domain, or hereafter becomes generally known or available through no action or omission on the part of Employee; (ii) is furnished to any person by Nucor without restriction on disclosure; (iii) becomes known to the Employee from a source other than Nucor, without a breach of any agreement with Nucor and without any restriction on disclosure; (iv) is required to be disclosed by judicial action, provided, however, that prompt notice of said judicial action shall have been given to Nucor and that efforts to avoid disclosure shall have been exhausted; or (v) is disclosed after written approval for the disclosure has been given by Nucor. 11. Noncompetition. --------------- (a.) Employee hereby agrees that for the duration of Employee's employment with Nucor, and for a period of twenty-four (24) months thereafter, Employee will NOT, within the Restricted Territory, do any of the following: (1) Engage directly or indirectly (either as an owner, employee, consultant, or in any similar capacity) in the research, development, manufacture, marketing, sale, or distribution of steel or steel products which are the same as or similar to those in development, manufactured, and/or sold by Nucor on the date of Employee's termination. (2) Solicit or encourage any customers of Nucor (a) with whom Employee had direct contact during the last twelve (12) months of Employee's employment with Nucor, and (b) who remain Nucor customers at the time of solicitation, to purchase steel or steel products from any entity other than Nucor. (3) Encourage, induce, or attempt to induce any employees of Nucor (a) with whom Employee had direct contact during the last twelve (12) months of Employee's employment with Nucor, and (b) who remain employed by Nucor at the time of the attempted inducement, to end their employment relationship with Nucor. (b.) As used in this provision, "Restricted Territory" shall mean the following: (1) The United States, Canada, and Mexico. (2) If the definition in subparagraph (b)(1) is found to be unreasonable with respect to subparagraph (a)(1), (a)(2), or (a)(3) of this Section 11, then with regard to such subparagraph, the term "Restricted Territory" shall mean the United States. <PAGE> (3) If the definitions in subparagraphs (b)(1) and (b)(2) are found to be unreasonable with respect to subparagraph (a)(1), (a)(2), or (a)(3) of this Section 11, then with regard to such subparagraph, the term "Restricted Territory" shall mean each state in the United States in which Nucor has a manufacturing facility or plant on the date of the termination of Employee's employment with Nucor (at the time of entry into this Agreement, these states include North Carolina, South Carolina, Texas, Alabama, Arkansas, Nebraska, Utah, Indiana, and New York). (c.) Employee specifically agrees that the post-termination restrictions in this Section 11 will apply to Employee regardless of whether termination of employment is initiated by Nucor or Employee and regardless of the reason for termination of Employee's employment. Further, Employee acknowledges and agrees that Nucor's payment of the compensation described in Section 4 is intended to compensate Employee for the limitations on Employee's competitive activities described in this Section 11 for the two-year period following Employee's employment with Nucor regardless of the reason for termination. Thus, for example, in the event that Nucor terminates Employee's employment without cause, Employee expressly agrees that the restrictions in this Section 11 will apply to Employee notwithstanding the reasons or motivations of Nucor in terminating Employee's employment. 12. Severability. It is the intention of the parties to restrict the ------------- activities of Employee only to the extent reasonably necessary for the protection of Nucor's legitimate interests. The parties specifically covenant and agree that should any of the provisions in this Agreement be deemed by a court of competent jurisdiction too broad for the protection of Nucor's legitimate interests, the parties authorize the court to narrow, limit or modify the restrictions herein to the extent reasonably necessary to accomplish such purpose. In the event such limiting construction is impossible, such invalid or unenforceable provision shall be deemed severed from this Agreement and every other provision of this Agreement shall remain in full force and effect. 13. Assignment of Intellectual Property Rights. ------------------------------------------- (a.) Employee hereby assigns to Nucor Employee's entire right, title and interest, including copyrights and patents, in any idea, invention, design of a useful article (whether the design is ornamental or otherwise), and any other work of authorship (collectively the "Developments"), made or conceived during Employee's employment by Nucor solely or jointly by Employee, or created wholly or in part by Employee, whether or not such Developments are patentable, copyrightable or susceptible to other forms of protection, where the Developments: (i) relate to Nucor's actual or anticipated business or research or development, or (ii) are suggested by or result from any work performed by Employee on Nucor's behalf. (b.) In connection with any of the Developments assigned in subparagraph (a) above: (i) Employee will promptly disclose them to Nucor's management; and (ii) Employee will, on Nucor's request, promptly execute a specific assignment of title to Nucor or its designee, and do anything else reasonably necessary to enable Nucor or its designee to secure a patent, copyright, or other form of protection therefore in the United States and in any other applicable country. <PAGE> 14. Enforcement. In addition to any other remedies available to Nucor, ------------ the provisions of this Agreement may be enforced by injunction to (a) restrain any violation by Employee, Employee's partners, agents, servants, employers, and employees, and all persons acting for or with Employee, and (b) to compel specific performance of the terms and conditions of this Agreement. Employee represents and acknowledges that in the event of the termination of Employee's employment for any reason, Employee's experience and capabilities are such that Employee can obtain employment and that enforcement of this Agreement by way of injunction will not prevent Employee from earning a livelihood. 15. Reasonableness of Restrictions. Employee has carefully considered the ------------------------------ nature and extent of the restrictions upon him and the rights and remedies conferred upon Nucor under Sections 4, 10, 11, 13, and 14 and hereby acknowledges and agrees that the same are reasonable in time and territory, are designed to eliminate competition which would otherwise be unfair to Nucor, do not interfere with Employee's exercise of his inherent skill and experience, are reasonably required to protect the legitimate interests of Nucor, and do not confer a benefit upon Nucor disproportionate to the detriment to the Employee. Employee certifies that he has had the opportunity to discuss this Agreement with such legal advisors as he chooses and that he understands its provisions and has entered into this Agreement freely and voluntarily. 16. Applicable Law. This Agreement shall be interpreted, construed and -------------- governed according to the laws of the State of North Carolina, regardless of choice of law principles to the contrary. Further, Nucor and Employee agree that in any dispute between them jurisdiction and venue are appropriate in Mecklenburg County, North Carolina. 17. Employee to Return Property. Employee agrees that upon (a) the --------------------------- termination of Employee's employment with Nucor, whether by Employee or Nucor for any reason (with or without cause), or (b) the written request of Nucor, Employee (or in the event of the death or disability of Employee, Employee's heirs, successors, assigns and legal representatives) shall return to Nucor any and all property of Nucor, including but not limited to all Confidential Information, notes, data, tapes, computers, lists, reference items, phones, documents, sketches, drawings, software, product samples, rolodex cards, forms, manuals, and equipment, without retaining any copies or summaries of such property. 18. Entire Agreement; Amendments. This Agreement discharges and cancels ---------------------------- all previous agreements and constitutes the entire agreement between the parties with regard to the subject matter hereof. No agreements, representations, or statements of any party not contained herein shall be binding on either party. Further, no amendment or variation of the terms or conditions of this Agreement shall be valid unless in writing and signed by both parties. 19. Assignability. This Agreement and the rights and duties created ------------- hereunder shall not be assignable or delegable by Employee. Nucor may, at its option and without consent of Employee, assign its rights and duties hereunder to any successor entity or transferee of Nucor's assets. 20. Binding Effect. This Agreement shall be binding upon and inure to the -------------- benefit of Nucor and Employee and their respective successors, assigns, heirs and legal representatives. <PAGE> 21. No Waiver. No failure or delay by any party to this Agreement to --------- enforce any right specified in this Agreement will operate as a waiver of such right, nor will any single or partial exercise of a right preclude any further or later enforcement of the right within the period of the applicable statute of limitations. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates specified below. DANIEL R. DIMICCO /s/ Daniel R. DiMicco --------------------------------- Daniel R. DiMicco Date: April 10, 2001 --------------------------- NUCOR CORPORATION By: /s/ Terry S. Lisenby ----------------------------- Its: Executive Vice President ---------------------------- Date: April 10, 2001 --------------------------- </TEXT> </DOCUMENT>
AMENDMENT TO EMPLOYMENT AGREEMENT OF DANIEL R. DIMICCO
THIS AMENDMENT AGREEMENT (this “Agreement”) is made and entered into between Nucor Corporation, a Delaware corporation, on behalf of itself and its affiliates (collectively “Nucor”), and Daniel R. DiMicco (“Employee”).
WHEREAS, Employee and Nucor are parties to an Executive Employment Agreement dated as of April 10, 2001 (the “Employment Agreement”);
WHEREAS, Employee and Nucor desire to amend the Employment Agreement to comply with the requirements of Section 409A of the Internal Revenue Code;
NOW, THEREFORE, in consideration for the promises and mutual agreements contained herein, the parties agree as follows:
1. The following new paragraph 22 is added to the end of the Employment Agreement effective as of November 5, 2007:
“22. Compliance with Code Section 409A. Notwithstanding anything in this Agreement to the contrary, if any amount or benefit that Nucor determines constitutes non-exempt “deferred compensation” for purposes of Section 409A of the Internal Revenue Code of 1986 would otherwise be payable or distributable under this Agreement by reason of Employee’s separation from service, then to the extent necessary to comply with Code Section 409A: (i) if the payment or distribution is payable in a lump sum, Employee’s right to receive payment or distribution of such non-exempt deferred compensation will be delayed until the earlier of Employee’s death or the first day of the seventh month following Employee’s separation from service, and (ii) if the payment, distribution or benefit is payable or provided over time, the amount of such non-exempt deferred compensation or benefit that would otherwise be payable or provided during the six-month period immediately following Employee’s separation from service will be accumulated, and Employee’s right to receive payment or distribution of such accumulated amount or benefit will be delayed until the earlier of Employee’s death or the first day of the seventh month following Employee’s separation from service and paid or provided on the earlier of such dates, without interest, and the normal payment or distribution schedule for any remaining payments, distributions or benefits will commence.”
2. Except as expressly or by necessary implication amended hereby, the Employment Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates specified below.
EX-10 2 dex10.htm AMENDED AND RESTATED SEVERANCE PLAN
AMENDED AND RESTATED SEVERANCE PLAN
FOR SENIOR OFFICERS AND GENERAL MANAGERS
ESTABLISHMENT OF PLAN
Effective April 1, 2002, Nucor Corporation established a severance benefit policy for senior officers and general managers. At its meeting on September 5, 2007, the Compensation and Executive Development Committee of Nucor Corporation’s Board of Directors approved, and Nucor Corporation subsequently implemented on October 1, 2007, a formal plan document (the “Severance Plan”) setting forth the terms and provisions of the severance policy to comply with the requirements of Section 409A of the Code and to meet other current needs. Nucor Corporation now desires to amend and restate the Severance Plan in its entirety for the purposes of, among other things, clarifying the circumstances under which benefits are payable under the Severance Plan.
Now, therefore, as of the Effective Date, Nucor Corporation hereby amends and restates the Severance Plan in its entirety to read as follows:
As used herein, the following words and phrases shall have meanings set forth below unless the context clearly indicates otherwise:
2.1 “Base Salary” shall mean the amount a Participant is entitled to receive from the Company or a Subsidiary in cash as wages or salary on an annualized basis in consideration for his or her services, (i) including any such amounts which have been deferred and (ii) excluding all other elements of compensation such as, without limitation, any bonuses, commissions, overtime, health benefits, perquisites and incentive compensation.
2.2 “Board” shall mean the Board of Directors of the Company.
2.3 “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
2.4 “Committee” shall mean the Compensation and Executive Development Committee of the Board.
2.5 “Company” shall mean Nucor Corporation, a Delaware corporation and any successor thereto.
2.6 “Compete” shall mean to engage in the design, research, development, manufacture, marketing, sale or distribution of products that are the same as, or substantially similar to, products that are being designed, researched, developed, manufactured, marketed, sold or distributed by the Company or a Subsidiary.
2.7 “Date of Termination” shall mean the date of a Participant’s separation from service with the Company and all Subsidiaries. For purposes of the Plan, the term “separation from service” shall be defined as provided in Section 409A of the Code and applicable regulations.
2.8 “Effective Date” shall mean September 3, 2008.
2.9 “Employee” shall mean any person, including a member of the Board, who is employed by the Company or a Subsidiary.
2.10 “Month’s Base Pay” shall mean the Participant’s Base Salary divided by twelve (12).
2.11 “Participant” shall mean an Employee who meets the eligibility requirements of Section 3.1.
2.12 “Plan” shall mean the Nucor Corporation Severance Plan for Senior Officers and General Managers as set forth herein and as amended from time to time.
2.13 “Severance Benefits” shall mean the payments and benefits provided in accordance with Section 4.2 of the Plan.
2.14 “Specified Employee” shall mean an Employee who, as of the Employee’s Date of Termination, is a key employee of the Company. An Employee shall be a “key employee” for this purpose during the twelve (12) month period beginning April 1 each year if the Employee met the requirements of Section 416(i)(1)(A)(i), (ii) or (iii) of the Code (applied in accordance with the regulations thereunder and disregarding Section 416(i)(5) of the Code) at any time during the twelve (12) month period ending on the December 31 immediately preceding the Employee’s Date of Termination.
2.15 “Subsidiary” shall mean any corporation (other than the Company), limited liability company, or other business organization in an unbroken chain of entities beginning with the Company in which each of such entities other than the last one in the unbroken chain owns stock, units, or other interests possessing fifty percent (50%) or more of the total combined voting power of all classes of stock, units, or other interests in one of the other entities in that chain.
2.16 “Year of Service” shall mean a twelve (12) month period of employment, including periods of authorized vacation, authorized leave of absence and short-term disability leave, with the Company or a Subsidiary, including any successors thereto, but excluding any predecessors thereof. In determining a Participant’s Years of Service, all of the Participant’s separate periods of employment shall be aggregated and then converted to years and a fraction of a year.
3.1 Participation. Each Employee who is determined by the Committee to be a Senior Officer or a General Manager of the Company shall be eligible to be a Participant in the Plan.
3.2 Duration of Participation. A Participant shall cease to be a Participant in the Plan when he or she no longer is a Senior Officer or a General Manager of the Company. Notwithstanding the foregoing, a Participant who has become entitled to receive Severance Benefits as set forth in Section 4.1 shall remain a Participant in the Plan until the full amount of the Severance Benefits and any other amounts payable under the Plan have been paid to the Participant.
4.1 Right to Severance Benefits. A Participant shall be entitled to receive Severance Benefits from the Company as provided in Section 4.2, if (i) on the Date of Termination, he is a Senior Officer or General Manager of the Company (as determined in the Committee’s sole discretion), (ii) the Participant’s employment with the Company or a Subsidiary is terminated for any reason, including due to the Participant’s death, disability, voluntary retirement, involuntary termination or resignation, and (iii) the Participant executes a Non-Competition and Non-Solicitation Agreement and a Waiver and Release Agreement as provided in Article V.
4.2 Severance Benefits.
(a) General. If a Participant’s employment is terminated in circumstances entitling him or her to Severance Benefits as provided in Section 4.1, the Company shall pay such Participant Severance Benefits in an amount equal to the greater of (i) six (6) Month’s Base Pay or (ii) the product of (A) one Month’s Base Pay and (B) the number of the Participant’s Years of Service through the Date of Termination; provided that, if the Participant is under age fifty-five (55) as of the Date of Termination, the Participant’s Severance Benefits shall not be less than the sum of the value as of the Date of Termination of the Participant’s forfeitable deferred common stock units credited to the Participant’s deferral account under the Company’s Senior Officers Long-Term Incentive Plan and the Participant’s forfeitable shares of restricted stock awarded under the Senior Officers Long-Term Incentive Plan. (For the avoidance of doubt, the minimum amount of Severance Benefits payable to a Participant who is under age fifty-five (55) as of the Date of Termination shall not include the value of the Participant’s forfeitable deferred common stock units credited to the Participant’s deferral account under the Company’s Senior Officers Annual Incentive or the value of any forfeitable restricted stock units or forfeitable shares of restricted stock awarded to the Participant under the Company’s 2005 Stock Option and Award Plan). A Participant’s Severance Benefits shall be reduced and offset, but not below zero, by any severance pay or pay in lieu of notice required to be paid to such Employee under applicable law, including, without limitation, the Worker Adjustment and Retraining Notification Act or any similar state or local law. Severance Benefits shall be paid at the time and in the form described in Section 4.2(b).
(b) Time and Form of Payment. If a Participant’s employment with the Company is terminated for any reason other than the Participant’s death, the Participant’s Severance Benefits shall be paid to the Participant in twenty-four (24) equal monthly installments, without interest or other increment thereon, commencing as of the first month following the Participant’s Date of Termination; provided, however, if the Participant is a Specified Employee as of the Participant’s Date of Termination, the Severance Benefits that would otherwise be payable during the six (6) month period immediately following the Participant’s Date of Termination shall be accumulated and the Participant’s right to receive payment of such accumulated amount will be delayed until the seventh month following the Participant’s Date of Termination and paid during such month, without interest, and the normal payment schedule for the remaining Severance Benefits will commence. If the Participant dies during the twenty-four (24) month installment payment period, the remaining payments that would have been paid to the Participant shall be paid to the Participant’s estate in a single sum payment as soon as practicable (but in any event within ninety (90) days) following the Participant’s death. In the event a Participant dies while employed by the Company or a Subsidiary, the eligibility requirements set forth in Section 4.1(iii) shall be deemed satisfied and the Participant’s Severance Benefits shall be paid to the Participant’s estate in a single sum payment as soon as practicable (but in any event within ninety (90) days) following the Participant’s death.
4.3 Other Benefits Payable. The Severance Benefits provided pursuant to Section 4.2 shall be provided in addition to, and not in lieu of, all other accrued or earned and vested but deferred compensation, rights, options or other benefits which may be owed to a Participant upon or following the Participant’s Date of Termination.
NON-COMPETITION AND NON-SOLICITATION AGREEMENT;
WAIVER AND RELEASE AGREEMENT
5.1 Non-Competition and Non-Solicitation Agreement. As a condition to the receipt of Severance Benefits, a Participant shall enter into an agreement in form and content reasonably satisfactory to the Committee pursuant to which the Participant agrees to refrain, for a reasonable period of time following the Participant’s Date of Termination, from (i) competing with the Company, (ii) soliciting or influencing any customer or prospective customer of the Company to alter its business with the Company or to do business with another company, (iii) soliciting or offering employment to any employee of the Company, or (iv) disclosing any confidential information or trade secrets of the Company.
5.2 Waiver and Release Agreement. As a condition to the receipt of Severance Benefits, a Participant must submit a signed Waiver and Release Agreement in form and content reasonably satisfactory to the Committee on or within forty-five (45) days of the Participant’s Date of Termination. A Participant may revoke the signed Waiver and Release Agreement
within seven (7) days of signing. Any such revocation must be made in writing and must be received by the Committee within such seven (7) day period. A Participant who timely revokes a Waiver and Release Agreement shall not be eligible to receive Severance Benefits under the Plan.
5.3 Effect of Breach. In the event a Participant breaches any agreement entered into in accordance with Section 5.1 or fails to sign a Waiver and Release Agreement in accordance with Section 5.2, the Committee may require the Participant to (i) immediately forfeit any portion of the Severance Benefits that is then outstanding and (ii) return to the Company all or some of the economic value of the Severance Benefits that was realized or obtained by the Participant prior to the breach.
SUCCESSOR TO COMPANY
This Plan shall bind any successor of the Company, its assets or its businesses (whether direct or indirect, by purchase, merger, consolidation or otherwise), in the same manner and to the same extent that the Company would be obligated under this Plan if no succession had taken place. In the case of any transaction in which a successor would not by the foregoing provision or by operation of law be bound by this Plan, the Company shall require such successor expressly and unconditionally to assume and agree to perform the Company’s obligations under this Plan, in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place. The term “Company,” as used in this Plan, shall mean the Company as hereinbefore defined and any successor or assignee to the business or assets which by reason hereof becomes bound by this Plan.
DURATION, AMENDMENT AND TERMINATION
7.1 Amendment and Termination. The Plan may be terminated or amended in any respect by resolution adopted by a majority of the Committee.
7.2 Form of Amendment. The form of any amendment or termination of the Plan shall be a written instrument signed by a duly authorized officer or officers of the Company, certifying that the amendment or termination has been approved by the Committee. An amendment of the Plan in accordance with the terms hereof shall automatically effect a corresponding amendment to all Participants’ rights hereunder. A termination of the Plan, in accordance with the terms hereof, shall automatically effect a termination of all Participants’ rights and benefits hereunder.
7.3 Code Section 409A Compliance. The Company intends for the Plan to comply with Section 409A of the Code. In the event that the Company reasonably determines that any Plan provision or procedure does not comply with Code Section 409A, the Company shall adopt such Plan amendments or adopt other policies or procedures that will bring the Plan and its administration into compliance with Code Section 409A; provided that any such Plan amendment, policy or procedure shall not reduce any Participant’s benefits or rights under the Plan.
8.1 Employment Status. This Plan does not constitute a contract of employment or impose on the Company or any Subsidiary any obligation to retain the Participant as an Employee, to change the status of the Participant’s employment, or to change the Company’s policies or those of its subsidiaries’ regarding termination of employment.
8.2 Validity and Severability. The invalidity or unenforceability of any provision of the Plan shall not affect the validity or enforceability of any other provision of the Plan, which shall remain in full force and effect, and any prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
8.3 Governing Law. The validity, interpretation, construction and performance of the Plan shall in all respects be governed by the laws of North Carolina, without reference to principles of conflict of law.
8.4 Named Fiduciary; Administration. The Company is the named fiduciary of the Plan, with full authority to control and manage the operation and administration of the Plan, acting through the Committee and the Board.
8.5 Claims Procedure. If an Employee or former Employee makes a written request alleging a right to receive benefits under the Plan or alleging a right to receive an adjustment in benefits being paid under the Plan, the Company shall treat it as a claim for benefits. All claims for Severance Benefits under the Plan shall be sent to the Human Resources Department of the Company and must be received within thirty (30) days after the Date of Termination. If the Company determines that any individual who has claimed a right to receive Severance Benefits under the Plan is not entitled to receive all or any part of the benefits claimed, it will inform the claimant in writing of its determination and the reasons therefor in terms calculated to be understood by the claimant. The notice will be sent within thirty (30) days of the written request, unless the Company determines additional time, not exceeding forty-five (45) days, is needed. The notice shall make specific reference to the pertinent Plan provisions on which the denial is based, and describe any additional material or information that is necessary. Such notice shall, in addition, inform the claimant what procedure the claimant should follow to take advantage of the review procedures set forth below in the event the claimant desires to contest the denial of the claim. The claimant may, within ninety (90) days thereafter, submit in writing to the Company a notice that the claimant contests the denial of his or her claim by the Company and desires a further review. The Company shall, within thirty (30) days thereafter, review the claim and authorize the claimant to appear personally and review pertinent documents and submit issues and comments relating to the claim to the persons responsible for making the determination on behalf of the Company. The Company will render its final decision with specific reasons therefor in writing and will transmit it to the claimant within thirty (30) days of the written request for review, unless the Company determines additional time, not exceeding thirty (30)
days, is needed, and so notifies the Participant. If the Company fails to respond to a claim filed in accordance with the foregoing within thirty (30) days or any such extended period, the Company shall be deemed to have denied the claim.
8.6 Unfunded Plan Status. This Plan is intended to be an unfunded plan. All payments pursuant to the Plan shall be made from the general funds of the Company and no special or separate fund shall be established or other segregation of assets made to assure payment. No Participant or other person shall have under any circumstances any interest in any particular property or assets of the Company as a result of participating in the Plan. Notwithstanding the foregoing, the Company may (but shall not be obligated to) create one or more grantor trusts, the assets of which are subject to the claims of the Company’s creditors, to assist it in accumulating funds to pay its obligations under the Plan.
8.7 Tax Withholding. Any payment provided for hereunder shall be paid net of any applicable tax withholding required under federal, state, local or foreign law.
8.8 Nonalienation of Benefits. Except as otherwise specifically provided herein, amounts payable under the Plan shall not be subject to any manner of anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, charge, garnishment, execution or levy of any kind, either voluntary or involuntary, including any liability which is for alimony or other payments for the support of a spouse or former spouse, or for any other relative of a Participant, prior to actually being received by the person entitled to payment under the terms of the Plan. Any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge, garnish, execute or levy upon, otherwise dispose of any right to amounts payable hereunder, shall be null and void.
8.9 Facility of Payment.
(a) If a Participant is declared an incompetent, and a conservator, guardian, or other person legally charged with his or her care has been appointed, any Severance Benefits to which such individual is entitled may be paid or provided to such conservator, guardian, or other person legally charged with his or her care;
(b) If a Participant is declared, or the Company reasonably believes the Participant to be, incompetent, and a conservator, guardian, or other person legally charged with his or her care has not been appointed, the Company may (i) require the appointment of a conservator or guardian, (ii) distribute amounts to his or her spouse, with respect to a Participant who is married, or to such other relative of an unmarried Participant for the benefit of such Participant, or (iii) otherwise distribute such amounts directly to or for the benefit of such Participant.
8.10 Gender and Number. Except when the context indicates to the contrary, when used herein masculine terms shall be deemed to include the feminine, and plural the singular.
8.11 Headings. The headings of Articles and Sections are included solely for convenience of reference, and are not to be used in the interpretation of the provisions of the Plan.
IN WITNESS WHEREOF, the undersigned, being a duly authorized officer of the Company, hereby certifies that the foregoing Amended and Restated Severance Plan for Senior Officers and General Managers has been ratified and approved by the Board.
Terry S. Lisenby
Chief Financial Officer, Treasurer and Executive Vice President