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EXHIBIT 99.1
DAN RIVER INC.
NONQUALIFIED 401(K) AND DEFERRED COMPENSATION PLAN
FOR
HIGHLY COMPENSATED EMPLOYEES AND DIRECTORS
AS EFFECTIVE AS OF JANUARY 1, 2001
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TABLE OF CONTENTS
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ss. 1 EFFECTIVE DATE.............................................................................................. 1
ss. 2 PURPOSE..................................................................................................... 1
2.1. General......................................................................................... 1
2.2. Highly Compensated Employees.................................................................... 1
2.3. Directors....................................................................................... 1
ss. 3 DEFINITIONS................................................................................................. 1
3.1. Account......................................................................................... 1
3.2. Affiliate....................................................................................... 2
3.3. Beneficiary..................................................................................... 2
3.4. Board........................................................................................... 2
3.5. Bonus........................................................................................... 2
3.6. Committee....................................................................................... 2
3.7. Company......................................................................................... 2
3.8. Compensation.................................................................................... 2
3.9. Deferred Compensation Account................................................................... 2
3.10. Director........................................................................................ 2
3.11. Distribution Date............................................................................... 3
3.12. 401(k) Plan..................................................................................... 3
3.13. 401(k) Deferral Account......................................................................... 3
3.14. 401(k) Matching Account......................................................................... 3
3.15. Highly Compensated Employee..................................................................... 3
3.16. Meeting Fees.................................................................................... 3
3.17. Participant..................................................................................... 3
3.18. Plan............................................................................................ 3
3.19. Retainer........................................................................................ 3
3.20. Salary.......................................................................................... 4
ss. 4 ELIGIBILITY................................................................................................. 4
ss. 5 DEFERRAL ELECTIONS.......................................................................................... 4
5.1. Elections....................................................................................... 4
5.2. Effective Deferral Election..................................................................... 5
5.3. Election Deadlines.............................................................................. 5
5.4. Irrevocable Election............................................................................ 5
5.5. Election Revocation............................................................................. 5
5.6. Timing of Credits............................................................................... 5
5.7. Refunds......................................................................................... 6
ss. 6 Matching Contributions...................................................................................... 6
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ss. 7 ADJUSTMENT TO ACCOUNTS..................................................................................... 7
7.1. 401(k) Deferral Account and 401(k) Matching Account............................................. 7
7.2. Deferred Compensation Account................................................................... 7
7.3. Timing.......................................................................................... 7
ss. 8 DISTRIBUTION............................................................................................... 7
8.1. Lump Sum or Installments........................................................................ 7
8.2. Death........................................................................................... 8
8.3. Emergency....................................................................................... 8
8.4. Claims Procedure................................................................................ 8
ss. 9 ADMINISTRATION............................................................................................. 8
9.1. Powers.......................................................................................... 8
9.2. Expenses and Reliance........................................................................... 9
9.3. Statements...................................................................................... 9
9.4. Incompetents.................................................................................... 9
9.5. Address......................................................................................... 9
ss. 10 AMENDMENT AND TERMINATION.................................................................................. 9
ss. 11 MISCELLANEOUS.............................................................................................. 10
11.1. General Assets.................................................................................. 10
11.2. No Liability.................................................................................... 10
11.3. No Assignment; Binding Effect................................................................... 10
11.4. Construction.................................................................................... 10
11.5. No Contract of Employment....................................................................... 10
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DAN RIVER INC.
NONQUALIFIED 401(K) AND DEFERRED COMPENSATION PLAN
FOR
HIGHLY COMPENSATED EMPLOYEES AND DIRECTORS
ss. 1
EFFECTIVE DATE
This Plan has been adopted by the Company effective as of January 1,
2001.
ss. 2
PURPOSE
2.1. General. The purpose of this Plan is to let Highly
Compensated Employees and Directors defer compensation.
2.2. Highly Compensated Employees. This Plan will let each
Highly Compensated Employee elect to make deferrals which exceed the deferrals
the tax law likely will let him or her make under the 401(k) Plan from his or
her Salary or from his or her Bonus and to receive a match on such deferrals
under this Plan in his or her 401(k) Matching Account based on the matching
contribution rate under the 401(k) Plan. This Plan also will let each Highly
Compensated Employee elect to make deferrals to his or her Deferred Compensation
Account.
2.3. Directors. This Plan will let each Director elect to
defer all or a part of his or her Retainer or Meeting Fees to his or her
Deferred Compensation Account.
ss. 3
DEFINITIONS
3.1. Account for purposes of this Plan shall mean the
bookkeeping account maintained by the Company on its books and records at the
Committee's direction to show for each Participant as of any date all
contributions made by or on behalf of such Participant under this Plan, any
adjustments made in accordance with ss. 7, and any distributions to such
Participant under ss. 8, which Account may include three sub-accounts--a 401(k)
Deferral Account, a Deferred Compensation Account and a 401(k) Matching Account.
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3.2. Affiliate for purposes of this Plan shall mean any
organization designated as such by the Committee and, if the Committee
designates an organization as an "Affiliate", the Committee shall designate the
first date as of which such organization shall be treated as an Affiliate and,
further, the Committee shall have the right to terminate such designation at any
time after such date.
3.3. Beneficiary for purposes of this Plan shall mean for
each Participant the person designated as such by the Participant on the form
provided for this purpose or, if no such person is so designated or if no such
person survives the Participant, the Participant's estate.
3.4. Board for purposes of this Plan shall mean the Board
of Directors of the Company.
3.5. Bonus for purposes of this Plan shall mean a Highly
Compensated Employee's total cash bonus as set by the Company or an Affiliate
for a calendar year and as determined before any deductions are made for any
reason from such bonus.
3.6. Committee for purposes of this Plan shall mean the
Compensation Committee of the Board or its delegate.
3.7. Company for purposes of this Plan shall mean Dan
River Inc. and any successor to Dan River Inc.
3.8. Compensation for purposes of this Plan shall have the
same meaning given such term under the 401(k) Plan.
3.9. Deferred Compensation Account for purposes of this
Plan shall mean the sub-account maintained under a Participant's Account to show
the portion of his or her deferrals elected under ss. 5 which have been credited
to this sub-account.
3.10. Director for purposes of this Plan shall mean for any
calendar year any individual (other than an individual who is an employee of the
Company) who is a member of the Board for such year.
3.11. Distribution Date for purposes of this Plan shall
mean for each Participant the date set by the Committee for the distribution of
his or her Account, which date shall be as soon as practicable after the
Committee determines that a Highly Compensated Employee's employment with the
Company or an Affiliate has terminated (or such Affiliate's status as such has
been terminated) or a Director's status as such has terminated.
3.12. 401(k) Plan for purposes of this Plan shall mean the
Dan River Inc. 401(k) Plan, as amended from time to time.
3.13. 401(k) Deferral Account for purposes of this Plan
shall mean the sub-account maintained under a Participant's Account to show the
portion of his or her deferrals elected under ss. 5 which have been credited to
this sub-account.
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3.14. 401(k) Matching Account for purposes of this Plan
shall mean the sub-account maintained under a Participant's Account to show the
credits which have been made to such sub-account.
3.15. Highly Compensated Employee for purposes of this Plan
shall mean for each calendar year (1) each employee of the Company or an
Affiliate who is treated as a "Highly Compensated Employee" under the 401(k)
Plan for such current calendar year as a result of his or her ownership in the
Company or his or her compensation from the Company or an Affiliate in the
immediately preceding calendar year and (2) each other employee of the Company
or an Affiliate (i) who was first employed by the Company or an Affiliate in
such current calendar year or in such immediately preceding calendar year and
(ii) who would have been treated as a Highly Compensated Employee under the
401(k) Plan for such current calendar year as a result of his or her
compensation from the Company or an Affiliate in the immediately preceding
calendar year if his or her compensation in such immediately preceding calendar
year has been the same as his or her compensation in the current calendar year.
3.16. Meeting Fees for purposes of this Plan shall mean the
fees which are payable to a Director exclusively for attending a meeting of the
Board or a meeting of a committee of the Board.
3.17. Participant for purposes of this Plan shall mean an
individual for whom an Account is maintained under this Plan.
3.18. Plan shall mean this Dan River Inc. Nonqualified
401(k) and Deferred Compensation Plan for Highly Compensated Employees and
Directors, as amended from time to time.
3.19. Retainer for purposes of this Plan shall mean all
fees which are payable to a Director for services as a member of the Board
except Meeting Fees.
3.20. Salary for purposes of this Plan shall mean a
Participant's total base salary and commissions as set by the Company or an
Affiliate for a calendar year as determined before any deductions are made for
any reason from any such salary and commissions.
ss. 4
ELIGIBILITY
Each employee of the Company or an Affiliate who is a Highly
Compensated Employee for a calendar year after 2000 and who is designated by the
Committee as eligible to participate in this Plan for such year and each
individual who is a Director for a calendar year after 2000 may participate in
this Plan for such calendar year if he or she timely makes a deferral election
under ss. 5 for such calendar year.
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ss. 5
DEFERRAL ELECTIONS
5.1. Elections.
(a) Highly Compensated Employees.
(1) 401(k) Deferral Account. A Highly
Compensated Employee who is
described in ss. 4 may elect
annually under this ss. 5 on the
form provided for this purpose to
defer (in 1% increments) for credit
to his or her 401(k) Deferral
Account a percentage of his or her
Salary otherwise payable to him or
to her by the Company each pay day
during any calendar year and a
percentage of his or her Bonus
otherwise payable to him or to her
during such calendar year. The
percentage for each Highly
Compensated Employee's Salary for
each calendar year may be set in
writing by the Committee before the
beginning of such calendar year
and, if the Committee sets such
percentage before the beginning of
such year, such percentage shall
remain in effect for the entire
calendar year. If the Committee
fails to set such percentage in
writing before the beginning of a
calendar year, such percentage
shall be from 1% to 10%. The
percentage for a Highly Compensated
Employee's Bonus shall be from 1%
to 15%.
(2) Deferred Compensation Account. A
Highly Compensated Employee who is
described in ss. 4 may elect
annually under this ss. 5 on the
form provided for this purpose to
defer (in 1% increments) for credit
to his or her Deferred Compensation
Account all or any portion of his
or her Salary or Bonus otherwise
payable to him or to her during
such calendar year which is not
deferred under ss. 5.1(a)(1).
(b) Directors. A Director who is described in
ss. 4 may elect annually under this ss. 5 on
the form provided for this purpose to defer
(in 1% increments) for credit to his or her
Deferred Compensation Account all or any
portion of his or her Retainer and Meeting
Fees, or Retainer or Meeting Fees, otherwise
payable to him by the Company for any
calendar year.
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5.2. Effective Deferral Election. Any annual deferral
election described in ss. 5.1 shall become effective for a calendar year only if
the related election form is completed and filed with the Committee by the
deadline set forth in ss. 5.3.
5.3. Election Deadlines.
(a) General Rule. A deferral election under
this ss. 5 shall be effective for a calendar
year only if delivered to the Committee
before the beginning of such calendar year.
(b) Special Rule. If an individual first becomes
eligible to participate in this Plan during
a calendar year, his or her deferral
election under this ss. 5 for such calendar
year shall be effective for such calendar
year if delivered to the Committee before
the end of the 30 day period which starts on
the date the individual first becomes
eligible to participate in this Plan, but
such election shall not apply to any Salary,
Bonus, Retainer or Meeting Fee which is
otherwise payable before the end of such 30
day period.
5.4. Irrevocable Election. Any election made under this
ss. 5 which is effective for any calendar year shall be irrevocable for the
calendar year for which the election is made.
5.5. Election Revocation. An election which has become
effective for any calendar year automatically shall be revoked effective as of
the first day of the immediately following calendar year.
5.6. Timing of Credits. The deferrals elected under this
ss. 5 shall be credited to a Participant's Account as of the date the related
Salary, Bonus, Retainer or Meeting Fee would have been payable to the Highly
Compensated Employee or Director absent an effective deferral election under
this ss. 5.
5.7. Refunds. The Committee shall have the right to let
any employee of the Company make a deferral election under this ss. 5 for any
calendar year if the Committee reasonably believes that he or she will be a
Highly Compensated Employee for such calendar year. However, if the Committee
thereafter determines that he or she is not a Highly Compensated Employee, the
Committee promptly shall revoke such election and shall direct the Company to
refund (without interest) any deferrals made for such calendar year to such
employee.
ss. 6
Matching Contributions
The Company as of each date in each calendar year that a
credit is made to a Highly Compensated Employee's 401(k) Deferral Account under
ss. 5 shall credit a contribution to his 401(k) Matching Account equal to "A"
plus "B" minus "C", where
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"A" equals 50% of the credit made as of such date to such
Participant's 401(k) Deferral Account to the extent that such
credit is based on the first 2% of his or her Salary and the
first 2% of his or her Bonus, if any, otherwise payable as of
such date,
"B" equals 25% of the credit made as of such date to such
Participant's 401(k) Deferral Account to the extent that such
credit is based on the next 4% of his or her Salary and the
next 4% of his or her Bonus, if any, otherwise payable as of
such date, and
"C" equals the matching contribution which would have been
made to the Participant's account as of such date under the
401(k) Plan (after taking into account all the terms,
conditions and limitations under the terms of such plan with
respect to making matching contributions) if the Participant
had elected to contribute the "matching percentage" of his or
her Compensation to the 401(k) Plan for such calendar year.
The "matching percentage" for each Highly Compensated Employee
for each calendar year may be set in writing by the Committee
before the beginning of such calendar year and, if the
Committee sets such percentage before the beginning of such
year, such percentage shall remain in effect for the entire
calendar year. If the Committee fails to set such "matching
percentage" in writing before the beginning of a calendar
year, such percentage shall be 5%.
A Participant's interest in his or her 401(k) Matching Account will be forfeited
or vested to the same extent that his or her matching contributions under the
401(k) Plan are forfeited or vested upon a termination of his or her employment
with the Company or an Affiliate.
ss. 7
ADJUSTMENT TO ACCOUNTS
7.1. 401(k) Deferral Account and 401(k) Matching Account.
The credits made to each Participant's 401(k) Deferral Account and 401(k)
Matching Account shall be adjusted to reflect the hypothetical investment of
such accounts, and the Committee in its discretion may based such adjustments on
the actual performance of the investments elected by the Participant under the
401(k) Plan or on the performance of such other hypothetical investments as the
Committee decides to make available for this purpose under this Plan. The
Company at the direction of the Committee may establish sub-accounts as a part
of each Participant's 401(k) Deferral Account and 401(k) Matching Account to
show all such adjustments.
7.2. Deferred Compensation Account. The credits made to
each Participant's Deferred Compensation Account shall be adjusted periodically
based on
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the interest credit rate set from time to time by the Committee. The Committee
from time to time shall advise Participants of such interest credit rate.
7.3. Timing. The adjustments to an Account described in
this ss. 7 shall start as of the date a credit is first made to such Account
under ss. 5 or ss. 6 and shall continue until the date the Participant's Account
has been fully distributed pursuant to ss. 8.
ss. 8
DISTRIBUTION
8.1. Lump Sum or Installments. The Company shall
distribute, or shall begin to distribute, a Participant's Account as of his or
her Distribution Date. A Participant shall have the right (on the form provided
for this purpose) to elect whether the distribution of his or her Account shall
be made in a lump sum or in installments, and his or her Account shall be
distributed in accordance with such election if the election is effective on his
or her Distribution Date. An election shall be effective on a Participant's
Distribution Date if such Distribution Date is on or after the first anniversary
of the date the related election form is delivered to the Committee and, if such
Distribution Date is on or after the first anniversary of the date more than one
election form has been delivered to the Committee, the effective election shall
be the election made on the last such election form delivered to the Committee.
If a Participant fails to make an election or no election is effective on a
Participant's Distribution Date, the distribution shall be made in a lump sum. A
Participant shall have the right to elect that his Account be distributed in
either:
(a) a lump sum; or
(b) monthly installments paid over a period
which does not exceed 10 years, where the
amount of each such monthly installment
shall be determined by dividing the balance
in a Participant's Account immediately
before the date as of which such installment
is paid by the number of monthly
installments then remaining to be paid
(including in such number the then payable
monthly installment).
If a Participant's Account is $10,000 or less on his or her Distribution Date,
such Account automatically shall be paid in a lump sum.
8.2. Death. If a Participant dies before the complete
distribution of his or her Account, any remaining balance shall be distributed
to the Participant's Beneficiary in the distribution form then in effect for
such Participant's Account if such Beneficiary is an individual. If such
Beneficiary is not an individual, then the distribution shall be made in a lump
sum as soon as practicable following the date of the Participant's death.
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8.3. Emergency. If a Participant incurs an emergency which
is reasonably unforeseeable, the Participant may make a written request to the
Committee for an emergency distribution from his or her Account. An
unforeseeable emergency is a severe financial hardship to the Participant
resulting from a sudden and unexpected illness or accident, the destruction or
loss of the Participant's home or property due to an act of God or any other
similar extraordinary and reasonably unforeseeable circumstances arising as a
result of events reasonably beyond the control of the Participant, as determined
in the sole discretion of the Committee. A distribution made under this ss. 8.3
shall be made only to the extent the Committee determines that such distribution
is reasonably needed to satisfy the Participant's emergency.
8.4. Claims Procedure. If a Participant makes a claim for
the distribution of his or her Account and the Committee denies such claim, the
Committee shall effect such denial in accordance with the claims procedure
regulations set forth under the Employee Retirement Income Security Act of 1974,
as amended, for claims under a deferred compensation plan and shall provide the
Participant the opportunity to appeal any such denial in accordance with such
regulations.
ss. 9
ADMINISTRATION
9.1. Powers. This Plan shall be administered by the
Committee, and the Committee shall have the absolute and complete authority,
duty and power to interpret and construe the provisions of this Plan as the
Committee deems appropriate, including the final authority to determine
eligibility for benefits under this Plan, and to take any other action in
connection with the operation or administration of this Plan which the Committee
deems fair and appropriate under the circumstances. The Committee shall maintain
Plan records, make the requisite calculations and authorized distributions.
Interpretations, determinations, regulations and calculations made by the
Committee shall be final and binding on all affected persons.
9.2. Expenses and Reliance. Any expenses incurred in the
administration of this Plan shall be paid by the Company. The Committee shall be
entitled to rely on all tables, valuations, certificates, opinions, data and
reports furnished by any actuary, accountant, controller, counsel or other
person employed or retained by the Committee with respect to this Plan.
9.3. Statements. The Committee shall furnish individual
annual statements of Account balances to each Participant and each Beneficiary
in such form as determined by the Committee.
9.4. Incompetents. If the Committee determines that an
individual is unable to manage his or her financial affairs, the Committee may
pay such individual's Account to a conservator or other person legally charged
with such individual's care, or to the institution then contributing toward or
providing for the care and maintenance of
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such individual. Any such payment shall constitute a complete discharge of any
liability of the Company, the Committee and this Plan for such individual.
9.5. Address. Each Participant shall keep the Committee
informed of his or her current address and the current address of his or her
Beneficiary. The Committee shall not be obligated to search for any person. If
such person is not located within three (3) years after the date on which
payment of the Participant's benefits payable under this Plan may first be made,
payment may be made as though the Participant or his or her Beneficiary had died
at the end of such three-year period.
ss. 10
AMENDMENT AND TERMINATION
The Company reserves the right to amend or terminate this Plan at any
time by action of the Committee. The Committee upon the termination of this Plan
shall have the right in its sole discretion to accelerate the timing of
distributions and make all distributions in the form of a lump sum. No amendment
or termination shall directly or indirectly reduce the balance of any Account as
of the effective date of such amendment or termination. No additional
contributions will be made to a Participant's Account under this Plan after
termination of this Plan, but adjustments under ss. 7 shall continue to be
credited to the Account of each Participant under this Plan until the entire
Account has been fully distributed to such Participant or to his or her
Beneficiary.
ss. 11
MISCELLANEOUS
11.1. General Assets. All distributions to, or on behalf
of, a Participant under this Plan shall be made from the Company's general
assets, and any claim by a Participant or by his or her Beneficiary against the
Company for any distribution under this Plan shall be treated the same as a
claim of any general and unsecured creditor of the Company.
11.2. No Liability. No Participant and no Beneficiary shall
have the right to look to, or have any claim whatsoever against, any officers,
director, employee or agent of the Company or any member of the Committee in his
or her individual capacity for the distribution of any Account.
11.3. No Assignment; Binding Effect. No Participant or
Beneficiary shall have the right to alienate, assign, commute or otherwise
encumber an Account for any purpose whatsoever, whether through a domestic
relations order or otherwise, and any attempt to do so shall be disregarded as
completely null and void. The provisions of this Plan shall be binding on each
Participant and Beneficiary and on the Company.
11.4. Construction. This Plan shall be construed in
accordance with the laws of the Commonwealth of Virginia except to the extent
such laws are preempted by
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federal law. Headings and subheadings have been added only for convenience of
reference and shall have no substantive effect whatsoever. All references to
sections shall be to sections to this Plan. All references to the singular shall
include the plural and all references to the plural shall include the singular.
All definitions in this Plan shall apply exclusively to this Plan.
11.5. No Contract of Employment. A Director's or Highly
Compensated Employee's participation in this Plan shall not constitute a
contract of employment or a right to continue to serve on the Board for any
particular term or for any particular rate of compensation, and participation in
this Plan shall have no bearing whatsoever on such term or compensation or on
any other conditions of employment or for membership on the Board.
DAN RIVER INC.
BY:
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TITLE:
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