(Exhibit 10s)
AGREEMENT
This AGREEMENT ("Agreement") effective as of the 1st day of February, 1999, by
and between UNIFI, INC., a New York corporation, with its executive offices in
Greensboro, North Carolina, (hereinafter referred to as "UNIFI" or "Company"),
and XXXXX X. XXXXX, of Yadkin County, North Carolina, (hereinafter referred to
as "XX. XXXXX");
R E C I T A L:
WHEREAS, XX. XXXXX has been a director since 1985 and an executive officer of
UNIFI since 1981, and has headed up the designing and building of the Company's
plants and additions thereto, the installation, maintenance and operation of the
equipment, and other essential areas in relation to the manufacturing of the
Company's products, both domestic and international, and at the present time is
an Executive Vice President and a member of the Board of Directors; and
WHEREAS, XX. XXXXX desires to reduce his workload and has discussed the matter
with management and management, realizing the expertise and ability of XX. XXXXX
in the aforementioned areas, as well as the operations of UNIFI in general, deem
it in the best interest of UNIFI that XX. XXXXX remain in its employment;
NOW, THEREFORE, in consideration of these presents and the mutual agreements
herein contained and intending to be legally bound thereby, the parties agree as
follows:
This Agreement, under Part A, covers the terms and conditions of XX. XXXXX'x
continued employment and, under Part B, sets out the conditions of UNIFI, its
successors and assigns, and XX. XXXXX and his estate, as the case may be, upon
termination of XX. XXXXX'x employment with the Company (severance or
retirement), and Part C sets forth general provisions that apply to both XX.
XXXXX'x continued employment and retirement, and upon execution of this
Agreement, the provisions of Part A, Part B and Part C shall be legally binding
on UNIFI, its successors and assigns, and XX. XXXXX and his estate.
PART A. EMPLOYMENT
Section 1. Employment - UNIFI hereby continues the employment of XX. XXXXX and
XX. XXXXX does hereby accept continued employment in an executive officer's
capacity, with such title as the Board of Directors may designate from time to
time.
Section 2. Term of Employment -
(A) Term - The term of XX. XXXXX'x employment shall be for a period of two (2)
years, commencing on the first day of February, 1999, and terminating on
February 1, 2001 ("Termination Date"), unless earlier terminated as hereinafter
provided in this Part A.
(B) Acceleration - XX. XXXXX'x termination of employment with UNIFI can be
accelerated by XX. XXXXX and UNIFI mutually consenting to the acceleration of
said Termination Date to such earlier date as agreed upon.
Section 3. Duties - XX. XXXXX, during the continuation of his employment, shall
have such duties as assigned to him by the Chief Executive Officer and/or the
President and Chief Operating Officer in the areas of operation and management
in which he is presently engaged, or such duties as might be assigned to him by
the Board of Directors of UNIFI.
Section 4. Consideration - For services rendered by XX. XXXXX during the term of
his continued employment, UNIFI agrees to pay to XX. XXXXX the same base salary
he is receiving
as of the date of this Agreement, subject to being changed from time to time by
the Board of Directors, payable in installments in the same frequency as other
executive officers are paid, plus such additional compensation and bonuses as
may be awarded from time to time to XX. XXXXX by the Board of Directors.
Section 5. Fringe Benefits - This Agreement is not intended to and shall not be
deemed in lieu of any rights, benefits, and privileges to which XX. XXXXX may be
entitled to as an employee of the Company under any retirement, profit sharing,
insurance, hospitalization or other plans which may now be in effect or which
may hereafter be adopted, it being understood that XX. XXXXX shall have the same
rights and privileges to participate in any such plans and benefits provided for
other executive officers or key employees of UNIFI during this period of
employment.
XX. XXXXX during the term of his employment shall be entitled to any other
benefits he was receiving as an employee and executive officer of the Company
prior to the effective date of this Agreement. Provided, however, XX. XXXXX
agrees that he will not be entitled to and waives his right to share in the
contributions, if any, made to the Unifi, Inc. Profit Sharing Plan and Trust
("the Plan") for the fiscal year in which his employment terminates. XX. XXXXX
hereby agrees to indemnify and hold harmless UNIFI, its directors, officers and
employees, as well the Plan, for any amounts that may be assessed against each
and every one of the foregoing for his not sharing in such contribution, if any,
as made to the Plan for fiscal year ended the year in which his employment
terminates.
Section 6. Disability and Death - In the event XX. XXXXX becomes permanently
disabled as that term is defined in the Company's group disability insurance
policy covering XX. XXXXX, or dies ("disability or death date") prior to
February 1, 2001, or the agreed upon date provided for in paragraph (B) of
Section 2 above, the date of disability or death shall be the Termination Date
of XX. XXXXX'x employment with the Company.
Section 7. Option Grants - Regarding option grants:
(A) XX. XXXXX was granted options under the Unifi, Inc. 1992 Incentive Stock
Option Plan and the Unifi, Inc. 1996 Incentive Stock Option Plan. Stock option
agreements dated 10/27/92, 10/21/93, 9/22/94, 4/18/95, and 10/22/98 were entered
into in relation to the respective stock option grants. All options which have
not been exercised shall be canceled and the respective stock option agreements
terminated. New stock options will be granted to XX. XXXXX under the Unifi, Inc.
1996 Non-Qualified Stock Option Plan for the number of unexercised shares, at
the purchase price per share, and terminating as set forth in the
above-referenced respective incentive stock option agreements, a copy of the new
Non-Qualified Stock Option Agreement being attached hereto as Exhibit "A".
(B) XX. XXXXX was previously granted stock options under the Unifi, Inc. 1996
Non-Qualified Stock Option Plan and stock option agreements were entered into
with respect to said grants. The stock option agreements will be amended, with a
copy of said amendments being attached hereto as Exhibits "B-1" and "B-2".
PART B. RETIREMENT
Section 1. Retirement - The parties hereto agree that upon the termination of
XX. XXXXX'x employment, as provided in Part A of this Agreement, the provisions
of this Part B are activated upon the Termination Date.
Section 2. Consideration - UNIFI agrees to pay XX. XXXXX the following amounts:
(A) The sum of One Hundred Twenty-Six Thousand Dollars and No/100 ($126,000.00)
within ten (10) days after termination of his employment with UNIFI, to wit:
February 1, 2001 or such earlier date as provided for in Part A above. This
amount shall be paid by check to XX. XXXXX or wired to such account as XX. XXXXX
directs from time to time. This payment will be subject to all applicable
federal and state taxes.
(B) In addition to the payment provided for under (A) above, UNIFI shall pay to
XX. XXXXX the sum of One Million One Hundred Sixty Thousand Dollars and No/100
($1,160,000.00). This amount shall be paid in thirty-six (36) equal monthly
installments of $32,222.22 each on UNIFI's regular salaried payroll dates, with
the first monthly installment being due and payable on February 1, 2001, or the
first day of the month in which XX. XXXXX'x employment is terminated, as
provided in Part A of this Agreement, and a like installment being due and
payable on the same date of each calendar month thereafter, until the sum of
$1,160,000.00 has been paid in full. These payments will be subject to all
applicable federal and state taxes.
Section 3. Medical and Dental Insurance - UNIFI will continue to provide XX.
XXXXX medical and dental coverage similar to medical and dental coverage
provided regular employees covered by the terms of the Unifi, Inc. Employee
Welfare Benefit Plan until the earliest to occur of the last day of the month in
which XX. XXXXX attains the age of sixty-five (65) years or obtains employment
with another company. XX. XXXXX shall be eligible to continue to receive medical
and dental benefits in order that he may obtain coverage for himself and for his
Dependents, as the term "Dependents" is defined in the Medical Plan, and so that
the following shall apply to coverage of XX. XXXXX and his Dependents:
(A) As a condition of coverage of XX. XXXXX, he must pay for each month of
coverage an amount equal to the premium paid for such month by an active
employee for coverage under the Medical Plan. During the time when the Severance
Payment installments are being made, such premiums shall be paid by deductions
from such installments unless UNIFI in its sole discretion agrees otherwise.
Thereafter, such premiums shall be due on the first day of the month to which
they apply, and the medical and dental coverage shall be terminated unless such
premiums are received when due, without any grace period.
(B) As a condition of coverage of a Dependent, XX. XXXXX must pay for each month
of coverage an amount equal to the premium paid for such month by any active
employee for coverage of a Dependent under the Medical Plan. During the time
when the Severance Payment installments are being made, such premiums shall be
paid by deductions from such installments unless UNIFI in its sole discretion
agrees otherwise. Thereafter, such premiums shall be due on the first day of the
month to which they apply, and the medical and dental coverage shall be
terminated unless such premiums are received when due, without any grace period.
(C) The terms of medical and dental coverage for XX. XXXXX and his Dependents at
any given time shall be the terms applicable to active employees and their
Dependents at such time. It is explicitly understood and agreed that any
amendments to or alteration of the Medical Plan (including any amendment
terminating the Medical Plan) may be applicable to XX. XXXXX and his Dependents
without regard to whether the amendment or alteration was adopted or made before
or after the Effective Date, and/or the date XX. XXXXX entered into this
Agreement
and/or chose not to revoke this Agreement. It is explicitly understood and
agreed that a Dependent will lose medical and dental coverage as of the first
day of the month next following XX. XXXXX'x sixty-fifth (65) birthday,
regardless of the Dependent's age, unless the Dependent has lost coverage
earlier. It is explicitly understood and agreed that no benefits under the
Employee Welfare Plan will be provided (including, without limitation, benefits
under the portions of the Welfare Benefit Plan that provide benefits in the
event of disability, life insurance coverage, and accidental death and
dismemberment coverage) except as specifically provided herein.
Section 4. COBRA, etc. - It is understood that this Agreement does not waive or
abrogate XX. XXXXX'x entitlement to health insurance benefits under COBRA or to
vested retirement funds in UNIFI's retirement plan. Any retirement benefits to
which XX. XXXXX is entitled shall be governed by the terms of the retirement
plan.
Section 5. Other Benefits - XX. XXXXX agrees that no provision is granted for
continued vacation pay, automobile allowance, education renewal, tuition
reimbursement, or mobile telephone service after the Termination Date of his
employment, as provided in Part A of this Agreement, and that he will return to
UNIFI all company property, documents, notes, software, programs, data and any
other materials (including any copies thereof) in his possession.
Section 6. Split Dollar Insurance - XX. XXXXX shall have the option to buy the
life insurance policy or policies on his life, currently owned or assigned by or
to UNIFI on a Split Dollar Arrangement, from UNIFI or have the respective policy
or policies continue in effect as follows:
(A) To purchase said policy or policies by paying the amount of the cash
surrender value of the same; or
(B) The amount of the premiums UNIFI has previously paid on said policy or
policies; or
(C) Have the policy or policies continue in effect under Section 9(b)(i) of the
Executive Split Dollar Life Insurance Agreement between UNIFI and XX. XXXXX,
dated July 1, 1990, with UNIFI being obligated to continue paying the premiums
on said policy or policies, provided XX. XXXXX continues to make the required
premium contributions until the Termination Date.
XX. XXXXX must exercise one of the foregoing options by giving UNIFI written
notice thereof at or any time before the Termination Date of his employment, as
provided in Part A of this Agreement. In the event XX. XXXXX elects either
option (A) or option (B), he shall make payment to UNIFI within three (3) months
after the termination of his employment, as provided in Part A of this
Agreement.
Section 7. Taxes - XX. XXXXX will be responsible for any federal, state or local
taxes which may be owed by him by virtue of the receipt of any portion of the
consideration herein provided.
Section 8. Consents of XX. XXXXX - XX. XXXXX agrees that:
(A) The only type of insurance that UNIFI is to provide him is medical and
dental insurance, as provided in Section 2 of this Part B;
(B) He is not entitled to and waives his right to share in the contribution, if
any, made to UNIFI's Profit Sharing Plan and Trust for the fiscal year in which
his employment under Part A terminates. XX. XXXXX hereby agrees to indemnify and
hold harmless UNIFI, its directors, officers and employees, as well as UNIFI's
Profit Sharing Plan and Trust, for any amounts that may be assessed against each
and everyone of the foregoing for his not sharing in such contribution, if any,
made to the Profit Sharing Plan for the fiscal year in which his employment
under Part A terminates.
PART C. MISCELLANEOUS
The provisions of this Part C are applicable during the continued employment of
XX. XXXXX under Part A and his retirement under Part B of this Agreement.
Section 1. Disclosure of Confidential Information - XX. XXXXX agrees that:
(A) For a period of five (5) years from the date of this Agreement, he will not
disclose or make available to any person or other entity any trade secrets,
confidential information, as hereinafter defined, or "know-how" relating to
UNIFI's, its affiliates' and subsidiaries', businesses without written authority
from UNIFI's President or Board of Directors, unless he is compelled to disclose
it by judicial process.
Confidential Information - shall mean all information about UNIFI, its
affiliates or subsidiaries, or relating to any of their products or any phase of
their operations, not generally known to their competitors or which is not
public information, which XX. XXXXX knows or acquired knowledge of during the
term of his employment.
(B) Documents - under no circumstances shall XX. XXXXX remove from UNIFI's
offices any of UNIFI's books, records, documents, customer lists, or any copies
of such documents without UNIFI's written consent, nor shall he make any copies
of UNIFI's books, records, documents, or customer lists for use outside of
UNIFI, except as specifically authorized in writing by the President or Board of
Directors of UNIFI.
Section 2. Non-Compete - XX. XXXXX agrees that he will not directly or
indirectly, for a period of five (5) years from the date of this Agreement, own
any interest in, other than ownership of less than two percent (2%) of any class
of stock of a publicly held corporation, manage, operate, control, being
employed by, render advisory services to, act as a consultant to, participate
in, assessed or be connected with any competitor, as hereinafter defined, unless
approved by the President of UNIFI.
Competitor - shall mean any company engaged in the business of developing,
producing, or distributing a product similar to any product produced by UNIFI,
its affiliates or subsidiaries, prior to the date of this Agreement.
Section 3. Right of First Refusal - XX. XXXXX agrees to provide UNIFI with a
written offer of First Right of Refusal of any product or technology developed
by him for a company he owns, has an interest in, or is employed by during the
five (5) year covenant not to compete period provided in Section 1 of this Part
C. UNIFI will, within fifteen (15) days after receipt of said offer, give XX.
XXXXX written notice of its acceptance or counteroffer thereof.
Section 4. Breach - XX. XXXXX acknowledges that compliance with Sections 1, 2
and 3 of this Part C is necessary to protect UNIFI's businesses and goodwill; a
breach of said paragraph will do irreparable and continual damage to UNIFI and
an award of monetary damages would not
be adequate to remedy such harm; therefore, in the event he breaches or
threatens to breach this Agreement, UNIFI shall be entitled to both a
preliminary and permanent injunction in order to prevent the continuation of
such harm and monetary damages, in so far as they can be determined, including,
without limitation, all reasonable costs and attorneys fees, incurred by UNIFI
in enforcing the provisions of this Agreement. Provided, however, that XX. XXXXX
shall have thirty (30) days within which to cure any breach of the provisions of
Sections 3 and 4 of this Part C. Nothing in this Agreement however, shall
prohibit UNIFI from also pursuing any other remedies.
Section 5. Releases and Waivers of Each Party - The parties hereto agree as
follows:
(A) XX. XXXXX hereby fully and unconditionally releases and discharges all
claims and causes of action which he or his heirs, personal representatives or
assigns ever had, or now have, or hereafter may have (based on events
transpiring on or before the Termination Date set forth in Part A hereof)
against UNIFI, its subsidiaries and their respective officers, directors,
employees, counsel and agents, in each case past or present, of whatsoever kind
and nature, in law, equity or otherwise, arising out of or in any way connected
with his employment, association or other involvement with UNIFI; and
(B) UNIFI hereby fully and unconditionally releases and discharges all claims
and causes of action which it, its successors or assigns ever had, or now have,
or hereafter may have (based on events transpiring on or before the Termination
Date set forth in Part A hereof) against XX. XXXXX, his heirs, personal
representatives or assigns, in each case past or present, of whatsoever kind and
nature, in law, equity or otherwise, arising out of or in any way connected with
his employment, association or other involvement with UNIFI.
Section 6. Waiver of Rights - If, in one or more instances, either party fails
to insist that the other party perform any of the terms of this Agreement, such
failure shall not be construed as a waiver by such party of any past, present,
or future right granted under this Agreement, and the obligations of both
parties under this Agreement shall continue in full force and effect.
Section 7. Termination - This Agreement shall terminate and UNIFI shall have no
further obligations or responsibility under this Agreement except as provided in
this section, upon the occurrence of any of the following events:
(A) UNIFI and XX. XXXXX mutually agree in writing to terminate this Agreement.
(B) The death of XX. XXXXX, subject to the payment of any sums due XX. XXXXX at
the time of his death by UNIFI under Part A of this Agreement and the
outstanding amount payable to XX. XXXXX or his estate under Section 2 of Part B,
and the payment of any sums due XX. XXXXX'x estate or other designated
beneficiaries under any life, disability or other insurance programs or policies
of UNIFI, covering XX. XXXXX.
(C) UNIFI may terminate this Agreement immediately on XX. XXXXX'x breach of any
provisions of the disclosure of confidential information, documents, and
covenant not to compete, in Sections 1, 2 and 3 of this Part C.
Section 8. Survival - The obligations contained in Sections 1, 2, 3, and 4, of
this Part C shall survive the termination of this Agreement. In addition, the
termination of this Agreement shall not affect any of the rights or obligations
of either party arising prior to, or at the time of, the
termination of this Agreement, or which may arise by any event causing the
termination of this Agreement.
Section 9. Notices - Any notice required or permitted to be given under this
Agreement shall be sufficient, if in writing and if sent by registered or
certified mail, postage prepaid, or telecopier to:
XXXXX X. XXXXX
0000 Xxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
and to:
UNIFI, INC.
Attn: Xxxxxx X. Xxxxx, III
0000 X. Xxxxxxxx Xxxxxx (27410)
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Section 10. Assignment - The rights and obligations of UNIFI under this
Agreement shall inure to the benefit of and be binding upon its successors and
assigns; provided, however, that this Agreement is not assignable by UNIFI
except as part of a merger, consolidation or sale of all or substantially all of
UNIFI's assets as a going business to any other corporation or business
organization. UNIFI agrees that it will not merge into, consolidate with, or
sell all or substantially all of its assets to any other corporation or business
organization unless such successor or purchaser specifically agrees to assume
and be bound by all of the terms and conditions of this Agreement or
arrangements are made between UNIFI and XX. XXXXX to secure UNIFI's obligations
under this Agreement.
This Agreement may not be assigned or otherwise transferred by XX. XXXXX.
Section 11. Applicable Law - This Agreement shall be interpreted and construed
under the laws of North Carolina.
Section 12. Entire Agreement - This instrument contains the entire agreement of
the parties. It may not be changed or altered, except by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
Section 13. Arbitration - In the event of any differences of opinion or
disputes, between XX. XXXXX and UNIFI, with respect to the construction or
interpretation of this Agreement or the alleged breach thereof, which can not be
settled amicably by agreement of the parties, such disputes shall be submitted
to and determined by arbitration by a single arbitrator in the City of
Greensboro, North Carolina, in accordance with the rules of the American
Arbitration Association and judgment upon the award shall be final, binding and
conclusive upon the parties and may be entered in the highest court, state or
federal, having jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under their
respective hands and seals as of the day and year first above written.
XXXXX X. XXXXX (SEAL)
XXXXX X. XXXXX
Witness:
UNIFI, INC.
BY: XXXXXX X. XXXXX, III
Attest:
XXXXXXXX XXXXXXX, XX.
Xxxxxxxx Xxxxxxx, Xx.
Secretary
UNIFI, INC. Exhibit "A"
1998 NON-QUALIFIED STOCK OPTION AGREEMENT
THIS OPTION AGREEMENT, effective the 31st day of January, 1999, by and between
UNIFI, INC., a New York corporation (hereinafter called "Corporation"), and
XXXXX X. XXXXX, a Director and Executive Officer of the Corporation (hereinafter
called "Optionee").
The Board of Directors considers the Optionee to be eligible and it desirable
that he be granted an option to acquire shares of common stock of the
Corporation under the Unifi, Inc. 1996 Non-Qualified Stock Option Plan (the
"Plan"), adopted by the Board of Directors on April 18, 1996,
and ratified and approved by the Shareholders of the Corporation at their Annual
Meeting held on October 24, 1996.
NOW, THEREFORE, in consideration of these premises, it is agreed as follows:
Section 1. Grant of Option. The Corporation hereby grants to Optionee the right,
privilege, and option to purchase 111,145 shares of its common stock in the
manner and subject to the conditions hereinafter set forth.
Section 2. Time of Exercise of Option. The Option granted under Section 1 of
this Agreement shall be in increments, at a purchase price, vest, exercisable
and expire as follows:
(A) 15,000 shares, at a purchase price of $24.667 per share, vest and are
exercisable immediately upon execution of this Agreement, subject to the
provisions of Section 5 hereof, and expire on October 27, 2002;
(B) 10,000 shares, at a purchase price of $24.375 per share, vest and are
exercisable immediately upon execution of this Agreement, subject to the
provisions of Section 5 hereof, and expire on October 21, 2003;
(C) 21,145 shares, at a purchase price of $23.875 per share, vest and are
exercisable immediately upon execution of this Agreement, subject to the
provisions of Section 5 hereof, and expire on September 22, 2004;
(D) 50,000 shares, at a purchase price of $25.25 per share, vest and are
exercisable immediately upon execution of this Agreement, subject to the
provisions of Section 5 hereof, and expire on April 18, 2005; and
(E) 15,000 shares, at a purchase price of $16.3125 per share, vest and are
exercisable immediately upon the execution of this Agreement, subject to the
provisions of Section 5 hereof, and expire on October 22, 2008.
Section 3. Method of Exercise. The Option shall be exercised by written notice
directed to Xx. Xxxxxx X. Xxxxx, III, Senior Vice President and Chief Financial
Officer of the Corporation, or Xx. Xxxxxx X. Xxxx, or such other Officer as
hereafter designated by the Board of Directors ("Designated Officer") at the
Corporation's principal office in Greensboro, North Carolina, or at such other
office as the Corporation may designate. Such notice shall (a) set forth the
number of full shares which are being exercised, (b) be signed by the person
exercising the Option, (c) be accompanied by a certified or other check
acceptable to the Corporation made payable to the order of the Corporation for
the full purchase price of such shares or by a certificate or certificates of
Unifi, Inc. common stock, the fair market value of which on the New York Stock
Exchange at the close of business on the date said notice is received by the
Corporation, shall equal or exceed the Option price, said certificate or
certificates being duly endorsed, and (d) be accompanied by a signed investment
representation letter as provided in Section 8 hereof. Such exercise shall be
effective only when said properly executed notice accompanied by check or stock
certificates, as referred to above, are received by Xx. Xxxxx, Xx. Xxxx, or such
other Designated Officer as the Corporation may from time to time designate for
such purpose. The certificate or certificates for the shares issued upon the
exercise of an Option or part thereof and any shares delivered to the
Corporation under subparagraph (c) of this Section 3, in excess of the Option
price shall be issued or reissued, as the case may be, in the name of the person
exercising the Option, and shall be
delivered to such person. All shares issued as provided herein, will be fully
paid and non-assessable.
Section 4. Withholding. Optionee, upon the exercise of an Option granted to him
under this Agreement, shall pay to the Corporation in cash the amount of any tax
or other amount required by any governmental authority to be withheld and paid
over by the Corporation to such authority for the account of such Optionee.
Notwithstanding the foregoing, the Optionee may satisfy this obligation in whole
or in part, and any other local, state or federal income tax obligations
resulting from the exercise or the surrender of an Option, by electing to
deliver to the Corporation shares owned by the Optionee at the time of the
exercise or surrender, or to have the Corporation withhold shares from the
shares to which the Optionee is entitled. The number of shares to be delivered
or withheld shall have a fair market value as of the date the amount of tax to
be withheld is determined, those being withheld being as nearly equal to (but
not exceeding) the amount of such obligation being satisfied as possible.
Section 5. Termination of Option. Except as herein otherwise stated, the Option
to the extent not heretofore exercised shall terminate upon the first to occur
of the following dates:
(A) In the event of the death of the Optionee, the Administrator of the deceased
Optionee's estate, the Executor under his Last Will and Testament, or the person
or persons to whom the stock Option shall have been validly transferred by such
Executor or Administrator pursuant to the Last Will and Testament or the
Intestacy Succession Laws of North Carolina shall have the right within six (6)
months of the date of the Optionee's death, but not beyond the expiration date
of the Option, to exercise such Option to the extent exercisable by the Optionee
at the date of his death, except that the Board of Directors may, in its
discretion, accelerate the date for exercising all or any part of the Option
which was not otherwise exercisable on the Optionee's death or Termination Date;
and
(B) The expiration dates for the number of shares set forth in Sections 2(A),
(B), (C), (D) and (E) hereof.
Section 6. Reclassification, Consolidation, or Merger. If and to the extent that
the number of issued shares of common stock of the Corporation shall be
increased or reduced by change in par value, split up, reclassification,
distribution of a dividend payable in stock, or the like, the number of shares
subject to option and the Option price per share shall be proportionately
adjusted.
If the Corporation is reorganized or consolidated or merged with another
corporation, Optionee shall be entitled to receive options covering shares of
such reorganized, consolidated, or merged company in the same proportion, at an
equivalent price, and subject to the same conditions. For purposes of the
preceding sentence, the excess of the aggregate fair market value of the shares
subject to the option immediately after the reorganization, consolidation, or
merger over the aggregate option price of such shares shall not be more than the
excess of the aggregate fair market value of all shares subject to the Option
immediately before such reorganization, consolidation, or merger over the
aggregate Option price of such shares, and the new option or assumption of the
old Option shall not give Optionee additional benefits which he did not have
under the old Option, or deprive him of benefits which he had under the old
Option.
Section 7. Restrictive Legend. The certificates issued under this Option, upon
exercise thereof by the Optionee, shall carry a restrictive legend as follows:
The shares evidenced by this certificate have not been registered under the
Federal Securities Act of 1933 ("the '33 Act"), as amended, and may not be
hypothecated, sold, transferred or otherwise
disposed of in the absence of a registration under the '33 Act or an exemption
from registration under applicable security laws, including Rule 144 under the
'33 Act, or an opinion from counsel satisfactory to the Corporation prior to the
proposed transaction that registration is not required under the '33 Act.
Section 8. Purchase For Investment. By accepting this Option, the Optionee
agrees that any shares of common stock purchased upon the exercise of this
Option shall be acquired for investment and not for distribution, and that each
notice of the exercise of any portion of this Option shall be accompanied by the
following representation in writing signed by him or such other person as may be
exercising this Option under the provisions of paragraph (A) of Section 5
hereof:
I hereby warrant and represent that the shares being acquired by me pursuant
hereto are being acquired by me with my own funds for investment for my own
account and not with a view to offer for sale, or for sale in connection with
the distribution or transfer thereof. I further warrant and represent that I am
neither participating in or have a direct or indirect participation in the
distribution or transfer of such shares, nor am I participating in or have a
participation in the direct or indirect underwriting of any such distribution or
transfer of the shares.
Section 9. Listing of Shares. Although the shares reserved for issue under the
"Unifi, Inc. 1996 Non-Qualified Stock Option Plan", of which the Option shares
are a part, have been registered with the Securities and Exchange Commission and
listed on the New York Stock Exchange, the Optionee covenants, agrees, warrants
and represents that PRIOR to any proposed sale, pledge, hypothecation, gift or
transfer, for value or otherwise, of any or all of the shares or any interest
therein of any shares received upon exercising this Option (transfer), he shall:
(A) give written notice to the Corporation expressing his desires to effect a
transfer and describe in detail such proposed transfer;
(B) deliver to the Corporation such other information in relation to the
proposed transfer as the Corporation may request.
The Corporation thereafter, if, in the opinion of the Designated Officer or the
Corporation's counsel the transfer cannot be made without further registration
under the Act and/or applicable State Securities Laws, shall promptly notify
Optionee in writing, and the transfer shall not be made unless such registration
is then in effect.
The Corporation reserves the right to file such further registration of the
stock covered by the Plan as it deems necessary with the Securities and Exchange
Commission and New York Stock Exchange, and in connection therewith, to make any
changes to the provisions of this Agreement as necessary to affect such future
action.
Section 10. Rights Prior to Exercise of the Option. This Option is
nontransferable by the Optionee, except in the event of his death, as provided
in paragraph (A) of Section 5, and during his lifetime is exercisable only by
him. Optionee shall have no right as a Shareholder with respect to the Option
shares until payment of the Option price, and delivery to him of such shares as
herein provided.
Section 11. SEC Rules and Regulations. The Option granted to the Optionee, by
the Board of Directors under this Agreement, is intended to meet the eligibility
requirements of the Securities and Exchange Commission's ("SEC") proposed new
Rule 16b-3 issued October 1995, entitled
"Transactions Between an Issuer and its Directors or Officers". Dependent upon
future actions of the SEC, the Option may not be exempt under Rule 16b-3 and,
therefore, may be subject to Rule 16b, the so-called "Short Swing Profit Rule",
which provides for the disgorgement of any profits realized by the Optionee, as
an insider, from the purchase and sale (or sale and purchase) of any of the
Corporation's common stock within a six month period. The Corporation recommends
that the Optionee consult with counsel, or Xx. Xxxxxx X. Xxxxx, III, or Xx.
Xxxxxx X. Xxxx of the Corporation, prior to exercising an Option.
Section 12. Binding Effect. All rights of the Optionee hereunder are subject to
the terms and provisions of the Unifi, Inc. 1996 Non-Qualified Stock Option
Plan, and to such interpretive rules and regulations relating to the Plan as may
be prescribed from time to time by the Board of Directors of the Corporation.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be duly
executed by its Officers, and the Optionee has hereunto set his hand and seal.
UNIFI, INC.
BY: XXXXXX X. XXXXX, III
Attest:
C. XXXXXXXX XXXXXXX, XX.
Secretary
XXXXX X. XXXXX
Optionee
UNIFI, INC. Exhibit "B-1"
1996 NON-QUALIFIED STOCK OPTION AMENDMENT
THIS FIRST AMENDMENT, effective the 31st day of January, 1999, to the 1996
Non-Qualified Stock Option Agreement, effective April 18, 1996 ("Option
Agreement") by and between UNIFI, INC., a New York corporation (hereinafter
called "Corporation"), and XXXXX X. XXXXX, a Director and Executive Officer of
the Corporation (hereinafter called "Optionee");
W I T N E S S E T H:
WHEREAS, the Optionee was granted an option under the 1996 Non-Qualified Stock
Option Plan ("Plan"), as adopted by the shareholders of the Corporation, said
option being granted in the Option Agreement effective April 18, 1996, which is
being amended herein as follows: Section 4 of the Option Agreement effective
April 18, 1996 shall be deleted and rewritten as follows:
Section 4. Termination of Option. Except as herein otherwise stated, the Option
to the extent not heretofore exercised shall terminate upon the first to occur
of the following dates:
(a) In the event of the death of the Optionee, the Administrator of the deceased
Optionee's estate, the Executor under his Last Will and Testament, or the person
or persons to whom the stock Option shall have been validly transferred by such
Executor or Administrator pursuant to the Last Will and Testament or the
Intestacy Succession Laws of North Carolina shall have the right within six (6)
months of the date of the Optionee's death, but not beyond the expiration date
of the Option, to exercise such Option to the extent exercisable by the Optionee
at the date of his death, except that the Board of Directors may, in its
discretion, accelerate the date for exercising all or any part of the Option
which was not otherwise exercisable on the Optionee's death or Termination Date;
and
(b) April 17, 2006, being the expiration of ten (10) years from the effective
date of the option granted hereunder.
IN WITNESS WHEREOF, the Corporation has caused this First Amendment to be duly
executed by its Officers, and the Optionee has hereunto set his hand and seal.
UNIFI, INC.
BY: XXXXXX X. XXXXX, III
Attest:
C. XXXXXXXX XXXXXXX, XX.
Secretary
XXXXX X. XXXXX (SEAL)
Optionee
UNIFI, INC. Exhibit "B-2"
1996 NON-QUALIFIED STOCK OPTION AMENDMENT
THIS FIRST AMENDMENT, effective the 31st day of January, 1999, to the 1996
Non-Qualified Stock Option Agreement, effective April 17, 1997 ("Option
Agreement") by and between UNIFI, INC., a New York corporation (hereinafter
called "Corporation"), and XXXXX X. XXXXX, a Director and Executive Officer of
the Corporation (hereinafter called "Optionee");
W I T N E S S E T H:
WHEREAS, the Optionee was granted an option under the 1996 Non-Qualified Stock
Option Plan ("Plan"), as adopted by the shareholders of the Corporation, said
option being granted in the Option Agreement effective April 17, 1997, which is
being amended herein as follows; Section 5 of the Option Agreement effective
April 17, 1997 shall be deleted and rewritten as follows:
Section 5. Termination of Option. Except as herein otherwise stated, the Option
to the extent not heretofore exercised shall terminate upon the first to occur
of the following dates:
(a) In the event of the death of the Optionee, the Administrator of the deceased
Optionee's estate, the Executor under his Last Will and Testament, or the person
or persons to whom the stock Option shall have been validly transferred by such
Executor or Administrator pursuant to the Last Will and Testament or the
Intestacy Succession Laws of North Carolina shall have the right within six (6)
months of the date of the Optionee's death, but not beyond the expiration date
of the Option, to exercise such Option to the extent exercisable by the Optionee
at the date of his death, except that the Board of Directors may, in its
discretion, accelerate the date for exercising all or any part of the Option
which was not otherwise exercisable on the Optionee's death or Termination Date;
and
(b) April 17, 2007, being the expiration of ten (10) years from the effective
date of the option granted hereunder.
IN WITNESS WHEREOF, the Corporation has caused this First Amendment to be duly
executed by its Officers, and the Optionee has hereunto set his hand and seal.
UNIFI, INC.
BY: XXXXXX X. XXXXX, III
Attest:
C. XXXXXXXX XXXXXXX, XX.
Secretary
XXXXX X. XXXXX (SEAL)
Optionee
