EXHIBIT 10.1.3
[NOTE: XXXXXXX X. XXXXXXX, XXXXXXX X. XXXXXXX, XX. AND XXXXXX X. XXXXXX ENTERED
INTO SUCH AGREEMENTS ON AUGUST 24, 2005, AND THE TERMS OF THEIR AGREEMENTS IN
PARAGRAPH 3 BELOW ARE 18 MONTHS.]
FORM OF
DELTA WOODSIDE INDUSTRIES, INC.
DELTA XXXXX, INC.
DELTA XXXXX MARKETING, INC.
TERMINATION OF DEFERRED COMPENSATION ARRANGEMENT
This Termination of Deferred Compensation Arrangement (this
"Agreement") is effective as of the ____ day of August, 2005 by and between
Delta Woodside Industries, Inc. ("DWI"), Delta Xxxxx, Inc. ("Delta Xxxxx"),
Delta Xxxxx Marketing, Inc. ("DMM"; together with DWI and Delta Xxxxx, the
"Companies") and the undersigned individual ("Employee").
WHEREAS, Employee currently is an employee of one of the Companies and is
entitled to certain benefits under the Delta Woodside Group Deferred
Compensation Plan for Key Managers (the "Plan"); and
WHEREAS, the Companies propose to terminate the Plan with respect to Employee,
subject to the terms and conditions of this Agreement, and Employee hereby
accepts the termination of the Plan with respect to Employee, subject to the
terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the mutual covenants and representations made
herein, the parties agree as follows:
1. THIS AGREEMENT SHALL ONLY BE EFFECTIVE IF EXECUTED BY EMPLOYEE AND
DELIVERED TO THE COMPANIES NOT LATER THAN SEPTEMBER __, 2005 [14 DAYS AFTER
DELIVERY TO EMPLOYEE].
2. Upon execution by Employee and subject to the terms and conditions of this
Agreement, the Plan is hereby terminated with respect to Employee. The
Companies shall pay Employee all of Employee's vested and accrued but
unpaid benefits under the Plan as soon as reasonably practicable following
the date of this Agreement (and in any event not later than 45 days after
the date of this Agreement).
3. Employee agrees that, for the period of [eighteen months or as determined
by formula] from the date of this Agreement (the "Term"), Employee will
continue to serve in Employee's current position as a full-time employee of
the Company by whom Employee is currently employed ("Employer"); provided,
however, that, Employee may, by written notice to Employer, terminate
Employee's obligations under this Section 3 for Good Reason. In addition,
an Employee who is not an executive officer may retire prior to the end of
the Term if Employee has reached age 65, provided that this shall not
affect the duration of the Employee's obligations under Section 4.
4. Employee agrees that, if prior to the end of the Term (i) Employee
terminates his or her employment other than for Good Reason or (ii)
Employer terminates Employee's employment for Cause, Employee shall be
bound to the following provisions for the remaining portion of the Term:
A. Employee covenants and agrees not to directly or indirectly (in
Employee's individual capacity or on behalf of any third party)
compete with any Company by working in a position or performing duties
that are the same or similar as that or those that Employee currently
holds or performs for Employer on behalf of a competing company that
is in the business of selling or manufacturing products in competition
with any Company (other than as a passive investor owning less than a
5% equity interest), including without limitation as a proprietor,
partner, investor, shareholder, director, officer, employee,
consultant or independent contractor or otherwise, in: (i) any part of
the world or any state or region or county in the United States, its
territories or Puerto Rico in which any Company sold or delivered
product during Employer's 2005 fiscal year; or (ii) the Southeastern
United States (including, Alabama, Florida, Georgia, Louisiana,
Mississippi, North Carolina, South Carolina, Tennessee or Virginia);
or (iii) South Carolina; or (iv) Greenville County, South Carolina.
B. Employee covenants and agrees not to directly or indirectly (in
Employee's individual capacity or on behalf of any third party)
solicit, influence, contact, sell to, service or deal with ("Solicit")
any Customer (or provide information or assistance to a third party
that would enable or help such third party to Solicit a Customer) for
the purpose of: (i) providing products to such Customer that are
competitive with or similar to the products manufactured or sold by
any Company in competition (directly or indirectly) with any Company;
or (ii) diverting or attempting to divert from any Company all or part
of the business of the Customer or reducing or attempting to reduce
the amount of product sold by any Company to such Customer. For the
purposes of this section, "Customer" shall mean any actual customer of
any Company (i) that Employee Solicited during Employee's employment
with Employer, or (ii) that Employee knows purchased product from any
Company, or knows has been Solicited by or on behalf of any Company,
at any time since July 1, 2004, or (iii) with respect to which
Employee has had access to the pricing, purchasing or similar
information developed by any Company.
5. Employee acknowledges that, notwithstanding any other provision of this
Agreement, Employer may terminate Employee's employment at any time for any
or no reason, with or without notice.
6. For purposes of this Agreement:
A. "Cause" for termination occurs when Employee (i) is convicted or
pleads guilty or nolo contendere to a felony or misdemeanor involving
fraud, embezzlement, theft or dishonesty or other criminal conduct;
(ii) commits any act of fraud or dishonesty with respect to any of the
Companies; (iii) takes other action that is likely, in the reasonable
good faith judgment of Employer, to have a material adverse effect
upon the Companies or Employee's ability to represent Employer; (iv)
materially breaches or willfully fails or refuses to perform and
discharge Employee's duties, responsibilities and obligations assigned
to Employee by Employer, or repeatedly fails to follow (or
insubordination concerning) reasonable directives and performance
standards established by Employer; (v) commits any act of moral
turpitude or willful misconduct or misappropriation that is intended
to result in personal enrichment of Employee at the expense of any of
the Companies or that has a material adverse impact on the business or
reputation of the Companies; (vi) intentionally causes material damage
to the property or business of the Companies; or (vii) violates or
breaches any provision of this Agreement.
B. "Good Reason" for Employee to terminate employment occurs if any of
the following conditions is not cured within 30 days after written
notice of such condition is given by Employee to Employer: (a) A
reduction in Employee's cash compensation from Employee's cash
compensation in effect at the date of this Agreement; or (b) A
material reduction in Employee's position, duties or authority with
Employer.
7. None of the Companies makes any representation as to the tax consequences
to Employee of executing this Agreement. Employee understands that he or
she should consult with Employee's personal tax advisor if Employee wishes
to receive any assurances regarding such tax consequences.
8. This Agreement is the entire agreement between the parties with respect to
the subject matter addressed herein, and supersedes any prior or
contemporaneous oral or written agreements or understandings. This
Agreement shall not be construed to affect any entitlement Employee may or
may not have with respect to severance or vacation pay. This Agreement may
not be amended except by written amendment duly executed by the party
against whom such amendment is to be enforced.
9. This Agreement shall be governed by the laws of South Carolina without
regard to the application of the principles of conflicts of laws.
Executed as of the date first above written.
DELTA WOODSIDE INDUSTRIES, INC. DELTA XXXXX, INC.
By: ________________________ By: ________________________
Name: ______________________ Name: ______________________
Title: _____________________ Title: _____________________
DELTA XXXXX MARKETING, INC.
By:_________________________
Name:_______________________
Title:______________________
I hereby accept the termination of the Plan with respect to myself, subject to
the terms and conditions of this Agreement, and I agree to this Agreement.
PARTICIPANT
____________________________
Name: ______________________
