North Carolina
(State or other jurisdiction of incorporation or organization) |
56-0292920
(I.R.S. Employer Identification No.) |
|
14120 Ballantyne Corporate Place
Suite 350 Charlotte, North Carolina (Address of principal executive offices) |
28277 (Zip Code) |
Large accelerated filer þ | Accelerated filer o |
Non-accelerated filer
o
(Do not check if a smaller reporting company) |
Smaller reporting company o |
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Exhibit 10.2 | ||||||||
Exhibit 10.3 | ||||||||
Exhibit 10.4 | ||||||||
Exhibit 10.5 | ||||||||
Exhibit 10.6 | ||||||||
Exhibit 31.1 | ||||||||
Exhibit 31.2 | ||||||||
Exhibit 32 |
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
For the Quarters and Six Months Ended June 28, 2008 and June 30, 2007
(in thousands, except share and per share data)
Quarter Ended
Six Months Ended
June 28,
June 30,
June 28,
June 30,
2008
2007
2008
2007
$
213,614
$
197,036
$
411,582
$
379,463
133,691
109,435
257,152
212,412
74,568
71,467
147,425
141,082
161
973
157
884
208,420
181,875
404,734
354,378
5,194
15,161
6,848
25,085
860
615
1,465
1,219
4,334
14,546
5,383
23,866
1,626
5,277
2,030
8,725
2,708
9,269
3,353
15,141
(346
)
190
(129
)
69
(217
)
121
$
2,708
$
9,052
$
3,353
$
15,262
$
0.09
$
0.30
$
0.11
$
0.49
$
(0.01
)
$
$
0.09
$
0.29
$
0.11
$
0.49
31,181,000
30,927,000
31,142,000
30,866,000
$
0.09
$
0.30
$
0.11
$
0.49
$
(0.01
)
$
$
0.09
$
0.29
$
0.11
$
0.49
31,807,000
31,414,000
31,701,000
31,308,000
Table of Contents
As of June 28, 2008 (Unaudited) and December 29, 2007
(in thousands, except share data)
June 28,
December 29,
2008
2007
$
1,086
$
8,647
77,127
64,081
45,048
38,659
10,184
9,335
14,415
12,367
147,860
133,089
211,879
205,075
87,549
69,127
6,058
5,712
$
453,346
$
413,003
$
29,030
$
21,169
53,379
53,468
13,958
96,367
74,637
74,000
50,000
26,296
26,874
14,223
14,395
210,886
165,906
26,228
26,011
45,933
41,430
156,665
163,356
13,634
16,300
242,460
247,097
$
453,346
$
413,003
Table of Contents
For the Quarters Ended June 28, 2008 and June 30, 2007
(in thousands, except share data)
Additional
Accumulated Other
Paid-in
Retained
Comprehensive
Shares
Common Stock
Capital
Earnings
Income
Total
30,855,891
$
25,714
$
32,129
$
159,329
$
5,228
$
222,400
15,262
15,262
5,678
5,678
710
710
(105
)
(105
)
21,545
(9,900
)
(9,900
)
162,025
133
2,636
2,769
61
61
54,900
46
1,220
1,266
303
303
28,100
23
1,440
1,463
31,100,916
$
25,916
$
37,728
$
164,752
$
11,511
$
239,907
31,214,743
$
26,011
$
41,430
$
163,356
$
16,300
$
247,097
3,353
3,353
(2,246
)
(2,246
)
(366
)
(366
)
(54
)
(54
)
687
(10,044
)
(10,044
)
98,638
82
1,559
1,641
39,250
33
876
909
542
542
122,031
102
1,526
1,628
31,474,662
$
26,228
$
45,933
$
156,665
$
13,634
$
242,460
Table of Contents
For the Six Months Ended June 28, 2008 and June 30, 2007
(in thousands)
Six Months Ended
June 28, 2008
June 30, 2007
$
3,353
$
15,262
16,105
14,461
2,170
1,767
195
518
(11,503
)
(3,057
)
10,320
28,951
(21,603
)
(22,608
)
321
3,319
(23,931
)
(2,090
)
(45,213
)
(21,379
)
(10,044
)
(9,900
)
1,641
2,769
38,014
(2,239
)
27,372
(7,131
)
(40
)
87
(7,561
)
528
8,647
5,504
$
1,086
$
6,032
$
1,371
$
5,389
$
1,500
$
1,442
Table of Contents
1.
2.
3.
4.
5.
6.
Quarter Ended
Six Months Ended
June 28,
June 30,
June 28,
June 30,
(in thousands)
2008
2007
2008
2007
31,181
30,927
31,142
30,866
626
487
559
442
31,807
31,414
31,701
31,308
95
867
19
Table of Contents
7.
8.
9.
Jurisdiction
Open years
2004 and forward
2003 and forward
2001 and forward
2001 and forward
2004 and forward
2004 and forward
10.
Table of Contents
11.
June 28,
December 29,
(in thousands)
2008
2007
$
25,307
$
21,910
8,981
7,701
15,854
14,297
50,142
43,908
(5,094
)
(5,249
)
$
45,048
$
38,659
12.
Table of Contents
Favorable/
Quarter Ended
(Unfavorable)
(dollars in thousands)
June 28, 2008
June 30, 2007
Variance
$
213,614
100.0
%
$
197,036
100.0
%
$
16,578
8.4
%
133,691
62.6
%
109,435
55.5
%
(24,256
)
(22.2
%)
79,923
37.4
%
87,601
44.5
%
(7,678
)
(8.8
%)
74,568
34.9
%
71,467
36.3
%
(3,101
)
(4.3
%)
161
0.1
%
973
0.5
%
812
83.5
%
5,194
2.4
%
15,161
7.7
%
(9,967
)
(65.7
%
860
0.4
%
615
0.3
%
(245
)
(39.8
%)
1,626
0.8
%
5,277
2.7
%
3,651
69.2
%
$
2,708
1.3
%
$
9,269
4.7
%
$
(6,561
)
(70.8
%)
Table of Contents
Favorable/
Six Months Ended
(Unfavorable)
(dollars in thousands)
June 28, 2008
June 30, 2007
Variance
$
411,582
100.0
%
$
379,463
100.0
%
$
32,119
8.5
%
257,152
62.5
%
212,412
56.0
%
(44,740
)
(21.1
%)
154,430
37.5
%
167,051
44.0
%
(12,621
)
(7.6
%)
147,425
35.8
%
141,082
37.2
%
(6,343
)
(4.5
%)
157
884
0.2
%
727
(82.2
%)
6,848
1.7
%
25,085
6.6
%
(18,237
)
(72.7
%)
1,465
0.4
%
1,219
0.3
%
(246
)
(20.2
%)
2,030
0.5
%
8,725
2.3
%
6,695
76.7
%
$
3,353
0.8
%
15,141
4.0
%
$
(11,788
)
(77.9
%)
Table of Contents
Table of Contents
Table of Contents
Table of Contents
1.
Votes For
Votes Withheld
28,936,029
457,605
29,110,950
282,683
28,944,208
449,425
2.
3.
Table of Contents
No.
Description
*
Table of Contents
LANCE, INC.
By:
/s/
Rick D. Puckett
Rick D. Puckett
Executive Vice President, Chief Financial Officer,
Treasurer and Secretary
Company
LANCE, INC. |
||||
By | s/ Earl D. Leake | |||
Earl D. Leake | ||||
Senior Vice President | ||||
Executive
|
||||
s/ David V. Singer | ||||
David V. Singer | ||||
2
STATE OF NORTH CAROLINA | AMENDED AND RESTATED | |
COMPENSATION AND BENEFITS | ||
COUNTY OF MECKLENBURG | ASSURANCE AGREEMENT |
(i) |
A demonstrably willful and deliberate act or failure to
act by Executive (other than as a result of incapacity due to physical
or mental illness) which is committed in bad faith, without reasonable
belief that such action or inaction is in the best interests of the
Company, which causes actual material financial injury to the Company
and which act or inaction is not remedied within fifteen (15) business
days of written notice from the Company; or
|
||
(ii) |
Executives conviction for committing an act of fraud,
embezzlement, theft, or any other act constituting a felony or
involving moral turpitude or causing material harm, financial or
otherwise, to the Company.
|
(i) |
Any Outside Person becomes the Beneficial Owner,
directly or indirectly, of securities of the Company representing
twenty-five percent (25%) or more of the combined voting power of the
Companys then outstanding securities; or
|
||
(ii) |
During any period of two (2) consecutive years (not
including any period prior to the date hereof), individuals who at the
beginning of such period constitute the Board of Directors of the
Company (and any new Director, whose nomination for election by the
Companys stockholders was approved by a vote of at least two-thirds
(2/3) of the Directors then in office who either were Directors at the
beginning of the period or whose nomination for election was so
approved) cease for any reason to constitute a majority of the members
of the Board of Directors of the Company; or
|
||
(iii) |
The stockholders of the Company approve a plan of
complete liquidation of the Company; or
|
2
(iv) |
The consummation of the sale or disposition of all or
substantially all of the Companys assets other than a sale or
disposition of all or substantially all of the Companys assets to an
entity at least sixty percent (60%) of the combined voting power of the
voting securities of which are owned by the stockholders of the Company
in substantially the same proportions as their ownership of the Company
immediately prior to such sale or disposition; or
|
||
(v) |
The consummation of a merger, consolidation, or
reorganization of the Company with or involving any other corporation,
other than a merger, consolidation, or reorganization that would result
in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) or any
parent thereof at least sixty percent (60%) of the combined voting
power of the voting securities of the Company (or such surviving
entity) outstanding immediately after such merger, consolidation, or
reorganization.
|
3
(i) |
As determined in the reasonable, good faith judgment of
Executive, the assignment to Executive of any duties inconsistent with
Executives authorities, duties, responsibilities, and status as Chief
Executive Officer of the Company, or a reduction or alteration in the
nature or status of any of Executives authorities, duties or
responsibilities (including those as a director of the Company) from
those in effect or practice as of one hundred eighty (180) calendar
days prior to the Change in Control, other than an insubstantial and
inadvertent act that is remedied by the Company promptly after receipt
of notice thereof given by Executive;
|
||
(ii) |
The Companys requiring Executive to be based at a
location in excess of fifty (50) miles from the location of Executives
principal job location or office immediately prior to the Change in
Control, except for required travel on the Companys business to an
extent consistent with Executives then present business travel
obligations;
|
||
(iii) |
A reduction by the Company of Executives Base Salary
in effect on the date hereof, or as the same shall be increased from
time to time;
|
||
(iv) |
The failure of the Company to keep in effect any of the
Companys compensation, incentive, health and welfare benefits, or
perquisite programs under which Executive receives value, as such
programs exist immediately prior to the Change in Control; provided,
however, the replacement of an existing program with a new program will
be permissible (and not grounds for a Good Reason termination) if done
for all employees generally and the value to be delivered to Executive
under the new program is at least as great as the value delivered to
Executive under the existing program; or
|
||
(v) |
Any breach by the Company of its obligations under
Paragraph 6 herein or any failure of a successor company to assume and
agree to perform the Companys entire obligations under this Agreement
as required by Paragraph 6 herein, or under the Executive Employment
Agreement or the Restricted Stock Unit Award Agreement.
|
4
5
(i) |
Executives involuntary Termination of Employment
without Cause;
|
||
(ii) |
Executives voluntary Termination of Employment for
Good Reason; or
|
||
(iii) |
The Company, or any successor company, commits a
material breach of any of the provisions of this Agreement.
|
6
(i) |
A lump-sum cash amount equal to the Executives unpaid
Base Salary, accrued vacation pay, unreimbursed business expenses, and
all other items earned by and owed to Executive through and including
the date of Executives Qualifying Termination. Such payment shall
constitute full satisfaction for these amounts owed to Executive.
|
||
(ii) |
A lump-sum cash amount equal to the sum of (A) three
(3) multiplied by Executives Base Salary in effect upon the date of
the Qualifying Termination or, if greater, by Executives Base Salary
in effect immediately prior to the occurrence of the Change in Control
plus (B) three (3) multiplied by the greater of (I) Executives annual
bonus actually earned by Executive (whether or not deferred) during the
bonus plan year which ended immediately prior to the Qualifying
Termination or (II) Executives then-current target bonus opportunity
(stated in terms of a percentage of Base Salary) established under the
Companys Annual Corporate Performance Incentive Plan for Officers (or
any successor plan thereto), if any, for the incentive plan year in
which the date of Executives Qualifying Termination occurs.
|
||
(iii) |
A lump-sum cash amount equal to the greater of (A)
Executives then-current target bonus opportunity (stated in terms of a
percentage of Base Salary) established under the Companys Annual
Corporate Performance Incentive Plan for Officers (or any successor
plan thereto), if any, for the incentive plan year in which the date of
Executives Qualifying Termination occurs, adjusted on a pro rata basis
based on the number of days Executive was actually employed during such
incentive plan year (but in no event shall such target bonus be less
than that in effect for the period immediately prior to the occurrence
of the Change in Control); or (B) the actual bonus earned through the
date of the Qualifying Termination under the Companys Annual Corporate
Performance Incentive Plan for Officers (or any successor plan
thereto), if any, based on the then-current level of goal achievement.
Such payment shall constitute full satisfaction for these amounts owed
to Executive.
|
||
(iv) |
A lump-sum cash amount equal to the product determined
by multiplying (A) the sum of the amounts payable under
|
7
Subparagraphs 4(c) (i), (ii) and (iii) herein by (B) the highest
percentage of Executives compensation (eligible for such
contributions) contributed to Executives account under the Lance,
Inc. Profit-Sharing Retirement Plan and Trust (the Retirement
Plan) during the three (3) consecutive plan years ended immediately
prior to the Qualifying Termination. The source of payment of this
sum shall be the general assets of the Company unless the payment of
such amounts is otherwise permissible from the Retirement Plan
without violating any governmental regulations or statutes
including, but not limited to, ERISA discrimination testing
requirements.
|
|||
(v) |
At the exact same cost to Executive, and at the same
coverage level as in effect as of the date of Executives Qualifying
Termination (subject to changes in coverage levels applicable to all
employees generally), a continuation of Executives (and Executives
eligible dependents) health and dental plan benefits for thirty-six
(36) months from the date of the Qualifying Termination. The
applicable COBRA health and dental benefit continuation period shall
begin coincident with the beginning of this thirty-six (36) month
benefit continuation period. Commencing with the end of the
Executives COBRA period and until the end of the thirty-six (36) month
benefit continuation period, the Executive will recognize taxable
income equal to the difference between the premium actually paid by the
Executive and the premium that would have been paid by a similarly
situated COBRA participant.
|
||
Provided, however, the provision of these health and medical
benefits shall be discontinued prior to the end of the thirty-six
(36) month continuation period to the extent that Executive becomes
covered under the health insurance coverage of a subsequent employer
which does not contain any exclusion or limitation with respect to
any preexisting condition of Executive or Executives eligible
dependents and provides substantially the same coverage as the plan
sponsored by the Company. For purposes of enforcing this offset
provision, Executive shall have a duty to inform the Company if
Executive becomes covered under any such health plan of a subsequent
employer. Executive shall provide, or cause to provide, to the
Company in writing correct, complete, and timely information
concerning the same.
|
|||
(vi) |
At no expense to Executive, standard outplacement
services for Executive from a nationally recognized outplacement firm
of Executives selection, for a period of up to one (1) year from the
date of Executives Qualifying Termination. However, such
|
8
services shall be at the Companys expense to a maximum amount not
to exceed ten percent (10%) of Executives Base Salary as of the
date of Executives Qualifying Termination. In no event shall
reimbursement for eligible outplacement expenses be made to the
Executive later than the end of the third calendar year following
the year of the Executives Termination of Employment.
|
|||
(vii) |
Notwithstanding the provisions of any stock plan or
award agreement to the contrary, all stock options held by Executive
shall vest upon a Qualifying Termination and, with respect to all such
vested stock options then held by Executive, Executive shall have a
post-termination exercise period of one year following the Qualifying
Termination, or such greater period as provided by the applicable stock
plan or award agreement, but in no event exceeding the original
expiration date of the stock options.
|
9
10
11
12
13
Company
Lance, Inc. |
||||
By | s/ Earl D. Leake | |||
Earl D. Leake | ||||
Senior Vice President | ||||
Executive
|
||||
s/ David V. Singer | ||||
David V. Singer | ||||
14
Company
LANCE, INC. |
||||
By | s/ Earl D. Leake | |||
Earl D. Leake | ||||
Senior Vice President | ||||
Executive
|
||||
s/ David V. Singer | ||||
David V. Singer | ||||
2
STATE OF NORTH CAROLINA
|
AMENDED AND RESTATED | |
|
COMPENSATION AND BENEFITS | |
COUNTY OF MECKLENBURG
|
ASSURANCE AGREEMENT |
(i) |
A demonstrably willful and deliberate act or failure to
act by Executive (other than as a result of incapacity due to physical
or mental illness) which is committed in bad faith, without reasonable
belief that such action or inaction is in the best interests of the
Company, which causes actual material financial injury to the Company
and which act or inaction is not remedied within fifteen (15) business
days of written notice from the Company; or
|
||
(ii) |
The Executives conviction for committing an act of
fraud, embezzlement, theft, or any other act constituting a felony
involving moral turpitude or causing material harm, financial or
otherwise, to the Company.
|
(i) |
Any Outside Person becomes the Beneficial Owner,
directly or indirectly, of securities of the Company representing
twenty-five percent (25%) or more of the combined voting power of the
Companys then outstanding securities; or
|
||
(ii) |
During any period of two (2) consecutive years (not
including any period prior to the date hereof), individuals who at the
beginning of such period constitute the Board of Directors of the
Company (and any new Director, whose nomination for election by the
Companys stockholders was approved by a vote of at least two-thirds
(2/3) of the Directors then in office who either were Directors at the
beginning of the period or whose nomination for election was so
approved) cease for any reason to constitute a majority of the members
of the Board of Directors of the Company; or
|
||
(iii) |
The stockholders of the Company approve: (i) a plan of
complete liquidation of the Company; or (ii) an agreement for the sale
or disposition of all or substantially all of the Companys assets
other than a sale or disposition of all or substantially all of the
Companys assets to an entity at least sixty percent (60%) of the
combined voting power of the voting securities of which are owned by
the stockholders of the Company in substantially the same proportions
as their ownership of the Company immediately prior to such sale or
disposition; or
|
2
(iv) |
The stockholders of the Company approve a merger,
consolidation, or reorganization of the Company with or involving any
other corporation, other than a merger, consolidation, or
reorganization that would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) or any parent thereof at least
sixty percent (60%) of the combined voting power of the voting
securities of the Company (or such surviving entity) outstanding
immediately after such merger, consolidation, or reorganization.
|
(i) |
The assignment of Executive to duties inconsistent with
Executives authorities, duties, responsibilities, and status as an
officer of the Company, or a reduction or alteration in the nature or
status of Executives authorities, duties or responsibilities from
those in effect as of one hundred eighty (180) calendar days prior to
the Change in Control, other than an insubstantial and inadvertent act
that is remedied by the Company promptly after receipt of notice
thereof given by Executive;
|
3
(ii) |
The Companys requiring Executive to be based at a
location in excess of fifty (50) miles from the location of Executives
principal job location or office immediately prior to the Change in
Control, except for required travel on the Companys business to an
extent consistent with Executives then present business travel
obligations;
|
||
(iii) |
A reduction by the Company of Executives Base Salary
in effect on the date hereof, or as the same shall be increased from
time to time;
|
||
(iv) |
The failure of the Company to keep in effect any of the
Companys compensation, health and welfare benefits, or perquisite
programs under which Executive receives value, as such programs exist
immediately prior to the Change in Control; provided, however, the
replacement of an existing program with a new program will be
permissible (and not grounds for a Good Reason termination if done for
all employees generally and the value to be delivered to Executive
under the new program is at least as great as the value delivered to
Executive under the existing program); or
|
||
(v) |
Any breach by the Company of its obligations under
Paragraph 6 herein or any failure of a successor company to assume and
agree to perform the Companys entire obligations under this Agreement
as required by Paragraph 6 herein.
|
4
5
(i) |
Executives involuntary Termination of Employment
without Cause;
|
||
(ii) |
Executives voluntary Termination of Employment for
Good Reason;
|
||
(iii) |
Executives voluntary Termination of Employment, with
or without Good Reason, during the thirteenth (13th) calendar month
following the month during which the Change in Control occurs; or
|
||
(iv) |
The Company, or any successor company, commits a
material breach of any of the provisions of this Agreement.
|
6
(i) |
A lump-sum cash amount equal to the Executives unpaid
Base Salary , accrued vacation pay, unreimbursed business expenses, and
all other items earned by and owed to the Executive through and
including the date of Executives Qualifying Termination. Such payment
shall constitute full satisfaction for these amounts owed to Executive.
|
||
(ii) |
A lump-sum cash amount equal to the sum of (A) three
(3) multiplied by the Executives Base Salary in effect upon the date
of the Qualifying Termination or, if greater, by Executives Base
Salary in effect immediately prior to the occurrence of the Change in
Control plus (B) three (3) multiplied by the greater of (I) Executives
annual bonus actually earned by Executive (whether or not deferred)
during the bonus plan year which ended immediately prior to the
Qualifying Termination or (II) Executives then-current target bonus
opportunity (stated in terms of a percentage of Base Salary)
established under the Companys Annual Corporate Performance Incentive
Plan for Officers (or any successor plan thereto), if any, for the
incentive plan year in which the date of Executives Qualifying
Termination occurs.
|
||
(iii) |
A lump-sum cash amount equal to the greater of (A) the
Executives then-current target bonus opportunity (stated in terms of a
percentage of Base Salary) established under the Companys Annual
Corporate Performance Incentive Plan for Officers (or any successor
plan thereto), if any, for the incentive plan year in which the date of
Executives Qualifying Termination occurs, adjusted on a pro rata basis
based on the number of days Executive was actually employed during such
incentive plan year (but in no event shall such target bonus be less
than that in effect for the period immediately prior to the occurrence
of the Change in Control); or (B) the actual bonus earned through the
date of the Qualifying Termination under the Companys Annual Corporate
Performance Incentive Plan for Officers (or any successor plan
thereto), if any, based on the then-current level of goal achievement.
Such payment shall constitute full satisfaction for these amounts owed
to Executive.
|
||
(iv) |
A lump-sum cash amount equal to the product determined
by multiplying (A) the sum of the amounts payable under Subparagraphs
4(c) (i), (ii) and (iii) herein by (B) the highest percentage of
Executives compensation (eligible for such contributions) contributed
to the Executives account under the
|
7
Lance, Inc. Profit-Sharing Retirement Plan and Trust (the
Retirement Plan) during the three (3) consecutive plan years ended
immediately prior to the Qualifying Termination. The source of
payment of this sum shall be the general assets of the Company
unless the payment of such amounts is otherwise permissible from the
Retirement Plan without violating any governmental regulations or
statutes including, but not limited to, ERISA discrimination testing
requirements.
|
|||
(v) |
At the exact same cost to Executive, and at the same
coverage level as in effect as of the date of Executives Qualifying
Termination (subject to changes in coverage levels applicable to all
employees generally), a continuation of the Executives (and
Executives eligible dependents) health insurance coverage for
thirty-six (36) months from the date of the Qualifying Termination.
The applicable COBRA health insurance benefit continuation period shall
begin coincident with the beginning of this thirty-six (36) month
benefit continuation period. Commencing with the end of the
Executives COBRA period and until the end of the thirty-six (36) month
benefit continuation period, the Executive will recognize taxable
income equal to the difference between the premium that the Executive
actually pays and the premium that would be paid by a similarly
situated COBRA participant.
|
||
Provided, however, the provision of these health insurance benefits
shall be discontinued prior to the end of the thirty-six (36) month
continuation period to the extent that Executive becomes covered
under the health insurance coverage of a subsequent employer which
does not contain any exclusion or limitation with respect to any
preexisting condition of Executive or Executives eligible
dependents. For purposes of enforcing this offset provision,
Executive shall have a duty to inform the Company if Executive
becomes covered under any such health insurance of a subsequent
employer. Executive shall provide, or cause to provide, to the
Company in writing correct, complete, and timely information
concerning the same.
|
|||
(vi) |
At no expense to Executive, standard outplacement
services for Executive from a nationally recognized outplacement firm
of Executives selection, for a period of up to two (2) years from the
date of Executives Qualifying Termination. However, such services
shall be at the Companys expense to a maximum amount not to exceed
twenty percent (20%) of the Executives Base Salary as of the date of
Executives Qualifying Termination
.
In no event shall reimbursement
for eligible outplacement expenses be made to
|
8
the Executive later than the end of the third calendar year
following the year of the Executives Termination of Employment.
|
|||
(vii) |
For the purposes of calculating Severance Benefits,
Executives employment bonus of $
shall not be considered an
annual or target bonus.
|
9
10
11
Company
Lance, Inc. |
||||
By | ||||
Executive
|
||||
[SEAL] | ||||
12
STATE OF NORTH CAROLINA
|
AMENDED AND RESTATED
EXECUTIVE |
|
COUNTY OF MECKLENBURG | SEVERANCE AGREEMENT |
(a) |
Cause
means:
|
(i) |
Executives failure to devote his
best efforts and substantially full time during normal
business hours to the discharge of the duties and
responsibilities of
|
Executives position reasonably assigned to him, other
than during reasonable periods of vacation and other
reasonable leaves of absence commensurate with
Executives position and length of service; or
|
|||
(ii) |
A material and willful breach of
Executives fiduciary duties to the Company and its
stockholders; or
|
||
(iii) |
In connection with the discharge
of Executives duties with the Company, one or more material
acts of fraud or dishonesty or gross abuse of authority; or
|
||
(iv) |
Executives commission of any
willful act involving moral turpitude which materially and
adversely affects (A) the name and good will of the Company
or (B) the Companys relationship with its employees,
customers or suppliers; or
|
||
(v) |
Executives habitual and
intemperate use of alcohol or drugs to the extent that the
same materially interferes with Executives ability to
competently, diligently and substantially perform the duties
of his employment.
|
(b) |
Compensation and Benefits Assurance Agreement
means
that certain Compensation and Benefits Assurance Agreement between Executive
and the Company entered into on November 7, 1997, as amended.
|
||
(c) |
Current Annual Salary
means the amount of Base
Salary actually paid to Executive during the 52-week year immediately prior to
his Termination of Employment.
|
||
(d) |
Disability
means the inability, by reason of
physical or mental infirmity or both, of an apparently permanent nature of
Executive to perform satisfactorily the duties then assigned to him or the
duties of any other executive position to which the Board is willing to assign
him; Disability must be determined by the Board and shall be based upon
certification of such Disability by an independent qualified physician or
other credible medical evidence, if available.
|
2
(e) |
Payment Period
means the time beginning with the
Period following the Period in which Executives Termination of Employment
occurs and ending upon the earlier of (i) the end of the Period during which
occurs the fifteenth anniversary of the date of Executives Termination of
Employment or (ii) the last day of the Companys fiscal year during which
occurs the seventy-fifth anniversary of Executives birth.
|
||
(f) |
Period
means the Companys accounting period as
hereinafter described. In accordance with the provisions of §441(f) of the
Internal Revenue Code of 1986, as amended, the Company uses a fiscal year
varying from 52 to 53 weeks ending on the last Saturday in December in each
year, which fiscal year consists of 13 accounting periods of 4 weeks each,
except that in a year consisting of 53 weeks, the last accounting period
consists of 5 weeks. In the event that the Company changes its fiscal year
for income tax purposes, the Company shall have the right to alter and adjust
payment dates under Paragraph 3 of this Agreement to coincide with its then
existing accounting period, provided, however, that under no circumstances
shall the Company have the right to adjust such payment dates hereunder to
dates more than 31 days apart.
|
||
(g) |
Retire
and
Retirement
mean any
Termination of Employment (including on account of death or Disability) on or
after the Retirement Date.
|
||
(h) |
Retirement Benefit
means a lump sum amount equal to
the current value of a stream of periodic payments payable to Executive in
each Period during the Payment Period, such periodic payments determined as
follows:
|
(i) |
multiplying Executives Current Annual Salary by five (5),
and
|
||
(ii) |
divide said product so obtained by
the number of full Periods during the Payment Period.
|
(i) |
Such stream of payments would commence with
the Period following the Period in which the Termination Date occurred
and would continue through the end of the Payment Period;
|
3
(ii) |
Such present value shall be determined by
using the interest rate equal to the yield on the 10-year United
States Treasury Bond on the Termination Date; and
|
||
(iii) |
Such present value shall be determined
without any discount for mortality.
|
(i) |
Retirement Date
means the earlier of:
|
(i) |
the last day of the Companys
fiscal year during which Executive attains the age of sixty
(60) years (i.e., December 31, 2011);
|
||
(ii) |
the date of Executives death
while employed by the Company; or
|
||
(iii) |
the date of Executives
Termination of Employment by reason of Executives
Disability.
|
(j) |
Severance Multiple
means the lesser of (i) two and
one half (2
1
/
2
) or (ii) the quotient obtained by dividing (A) the number of
full months between Executives Termination of Employment and the last day of
the Companys fiscal year during which Executive will attain the age of sixty
(60) years (i.e., December 31, 2011) by (B) 12.
|
||
(k) |
Stock
Options
means Executives options to purchase shares of the Companys common stock pursuant to options granted to Executive
by the Company prior to Executives Termination of Employment, which options
are otherwise vested in Executive on the date of his Termination of Employment
and remain unexercised upon the expiration of such options in accordance with
their terms upon or subsequent to Executives Termination of Employment.
|
||
(l) |
Termination Date
means the date of Executives
Termination of Employment.
|
||
(m) |
Termination of Employment
means any termination of
employment (as defined in Section 409A of the Code and the
|
4
Companys administrative policies, if any) with either the Company or any
successor to the Company that acquires all or substantially all of the
business and/or assets of the Company (whether direct or indirect, by
purchase, merger, consolidation or otherwise); provided, however, no
termination of employment shall be deemed to have occurred by reason of
such an acquisition unless there is either (i) a termination of employment
with both the Company and such successor or (ii) a termination of
employment with the Company and no successive employment by such
successor.
|
|||
(n) |
Value
with reference to Executives Stock Options
means the estimated present value of the Stock Options determined on the basis
of a Black-Scholes valuation calculation using the price of the shares of
the Companys common stock and comparable U.S. Treasury Strip Rates with a
term equivalent to the remaining term of the respective Stock Options as
reported in the
Wall Street Journal
for the date of Executives Termination of
Employment, using the dividends paid during the twelve month period
immediately prior to the date of Executives Termination of Employment and
using a stock price volatility factor as reflected in the Companys most
recent proxy statement.
|
5
(a) |
Benefits Payable
.
The Company and Executive have
previously entered into the Compensation and Benefits Assurance Agreement. In
no event shall any payments or benefits be made to or provided to Executive
under the terms of this Agreement upon Executives Termination of Employment
after a Change in Control and prior to Executives Retirement Date except for
the benefits expressly provided for in Paragraph 2 of this Agreement.
|
||
(b) |
Funding of Grantor Trust
.
Upon the occurrence of a
Change in Control, in order to provide a source of payment of the benefits
payable under Paragraph 2, the Company shall fund an irrevocable grantor
trust maintained pursuant to a trust agreement with an institutional trustee
selected by the Company. The amount funded by the Company shall equal the
current value of the retirement benefits determined as of the date of the
Change in Control pursuant to the provisions of Paragraph 1(h) above
|
(a) |
A single cash payment in an amount equal to the Severance
Multiple multiplied by the sum of (i) the highest Base Salary paid to
Executive during his employment by the Company plus (ii) the Executives
then-current target bonus opportunity (stated in terms of a percentage of Base
Salary) established under the Companys Annual Corporate Performance Incentive
Plan for Officers (or any successor plan thereto), if any, in effect on the
Termination Date, which payment shall be made within thirty (30) days after
the Termination Date.
|
6
(b) |
Payment of the benefits expressly provided for in Paragraph 2
of this Agreement.
|
||
(c) |
A single cash payment in an amount equal to Executives
unpaid Base Salary, accrued vacation pay, unreimbursed business expenses, and
all other items earned by and owed to Executive through the Termination Date.
|
||
(d) |
A single cash payment in an amount equal to the greater of
(i) the Executives then-current target bonus opportunity (stated in terms of
a percentage of Base Salary) established under the Companys Annual Corporate
Performance Incentive Plan for Officers (or any successor plan thereto), if
any, for the incentive plan year in which the Termination Date occurs,
adjusted on a pro-rata basis based on the number of days Executive was
actually employed during such incentive plan year or (ii) the actual bonus
earned through the Termination Date under the Companys Annual Corporate
Performance Incentive Plan for Officers (or any successor plan thereto), if
any, based on the then-current level of goal achievement; which payment shall
be made at the same time as the payments are made to the Companys other
employees under the Companys Annual Corporate Performance Incentive Plan for
Officers (or any successor plan thereto), if any, for the incentive plan year
during which the Termination Date occurs.
|
||
(e) |
Conveyance of possession and title to the Company-owned
automobile, if any, used by Executive in connection with his employment
immediately prior to the Termination Date within thirty (30) days after such
Termination Date.
|
||
(f) |
A single cash payment of the Value of the Stock Options,
which payment shall be paid within ten (10) days following the expiration of
such Stock Options.
|
||
(g) |
Medical Insurance coverage for Executive until Executive
reaches the age of sixty (60) (July 24, 2011) or his earlier death under such
terms and conditions as are most closely comparable to the Plan B or HMO
coverage option provided Executive under the Companys Group Medical Benefits
Plan on the Termination Date and as shall be thereafter customarily provided
by the Company to the Companys executives from time to time during such
period. During this period, Executive shall be entitled to obtain at
Executives expense such optional coverages, such as dental coverage and
family/dependent medical coverage, under the Companys Group Medical Benefits
Plan as are available for the Companys employees generally. After age sixty
(60) Executive
|
7
may elect to obtain at Executives expense coverage as a retiree under
such Group Medical Benefits Plan, if any, as may be then available to the
Companys retired executives. Commencing with the end of the Executives
COBRA period and until the Executive reaches age sixty (60), for each
month that such coverage is in place, Executive will recognize taxable
income equal to the difference between the premium actually paid by the
Executive and the premium that would be paid by a similarly situated COBRA
participant.
|
|||
(h) |
Life Insurance, accidental death and dismemberment insurance
and disability insurance for Executive until Executive reaches age sixty (60)
(July 24, 2011) or his earlier death under such terms and conditions that are
reasonably comparable to the coverages provided Executive under the Companys
plans for such insurance on the Termination Date and as shall be thereafter
customarily provided by the Company to Companys executives from time to time
during such period.
|
||
(i) |
Indemnification of Executive from any claims asserted against
Executive arising out of the prior performance of Executives duties with the
Company or its Affiliates to the same extent as the Company indemnifies
retired officers or directors of the Company.
|
||
(j) |
Payment of Executives vested interest under the Company
sponsored qualified profit sharing and 401(k) Plans when and as provided in,
and otherwise subject to, the terms, provisions and conditions of said Plans,
and nothing in this Agreement shall modify or override the terms, provisions
and conditions of such Plans.
|
||
(k) |
At no expense to Executive, standard outplacement services
for Executive from a nationally recognized outplacement firm of Executives
selection, for a period of up to two (2) years from the Termination Date.
However, such services shall be at the Companys expense to a maximum amount
not to exceed twenty percent (20%) of the Executives Base Salary as of the
Termination Date. In no event shall reimbursement for eligible outplacement
expenses be made to the Executive later than the end of the third calendar
year following the year of the Termination Date.
|
8
(a) |
Executives voluntary Termination of Employment prior to his
Retirement Date, or
|
||
(b) |
Executives involuntary Termination of Employment for Cause
prior to his Retirement Date, or
|
||
(c) |
Executives Termination of Employment, whether voluntary or
involuntary, with or without Cause, prior to his Retirement Date and following
a Change in Control.
|
9
[CORPORATE SEAL] | Lance, Inc. | |||||||
|
||||||||
ATTEST:
|
By | s/ David V. Singer | ||||||
|
||||||||
s/ R. D. Puckett |
David V. Singer
President |
|||||||
Secretary
|
||||||||
|
||||||||
s/ Earl D. Leake | SEAL] | |||||||
Earl D. Leake |
10
1. |
I have reviewed this quarterly report on Form 10-Q of Lance, Inc.;
|
|
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect to the period
covered by this report;
|
|
3. |
Based on my knowledge, the financial statements, and other financial information included in
this report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in this
report;
|
|
4. |
The registrants other certifying officer(s) and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and have:
|
a) |
Designed such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure that material
information relating to the registrant, including its consolidated subsidiaries, is
made known to us by others within those entities, particularly during the period in
which this report is being prepared;
|
||
b) |
Designed such internal control over financial reporting, or caused such
internal control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally
accepted accounting principles;
|
||
c) |
Evaluated the effectiveness of the registrants disclosure controls and
procedures and presented in this report our conclusions about the effectiveness of the
disclosure controls and procedures, as of the end of the period covered by this report
based on such evaluation; and
|
||
d) |
Disclosed in this report any change in the registrants internal control over
financial reporting that occurred during the registrants most recent fiscal quarter
(the registrants fourth fiscal quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially affect, the registrants
internal control over financial reporting; and
|
5. |
The registrants other certifying officer(s) and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrants auditors and the
audit committee of the registrants board of directors (or persons performing the equivalent
functions):
|
a) |
All significant deficiencies and material weaknesses in the design or operation
of internal control over financial reporting which are reasonably likely to adversely
affect the registrants ability to record, process, summarize and report financial
information; and
|
||
b) |
Any fraud, whether or not material, that involves management or other employees
who have a significant role in the registrants internal control over financial
reporting.
|
/s/ David V. Singer | ||||
David V. Singer | ||||
President and Chief Executive Officer |
1. |
I have reviewed this quarterly report on Form 10-Q of Lance, Inc.;
|
|
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect to the period
covered by this report;
|
|
3. |
Based on my knowledge, the financial statements, and other financial information included in
this report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in this
report;
|
|
4. |
The registrants other certifying officer(s) and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and have:
|
a) |
Designed such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure that material
information relating to the registrant, including its consolidated subsidiaries, is
made known to us by others within those entities, particularly during the period in
which this report is being prepared;
|
||
b) |
Designed such internal control over financial reporting, or caused such
internal control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally
accepted accounting principles;
|
||
c) |
Evaluated the effectiveness of the registrants disclosure controls and
procedures and presented in this report our conclusions about the effectiveness of the
disclosure controls and procedures, as of the end of the period covered by this report
based on such evaluation; and
|
||
d) |
Disclosed in this report any change in the registrants internal control over
financial reporting that occurred during the registrants most recent fiscal quarter
(the registrants fourth fiscal quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially affect, the registrants
internal control over financial reporting; and
|
5. |
The registrants other certifying officer(s) and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrants auditors and the
audit committee of the registrants board of directors (or persons performing the equivalent
functions):
|
a) |
All significant deficiencies and material weaknesses in the design or operation
of internal control over financial reporting which are reasonably likely to adversely
affect the registrants ability to record, process, summarize and report financial
information; and
|
||
b) |
Any fraud, whether or not material, that involves management or other employees
who have a significant role in the registrants internal control over financial
reporting.
|
/s/ Rick D. Puckett | ||||
Rick D. Puckett | ||||
Executive Vice President, Chief Financial Officer, Treasurer and Secretary |
(1) |
The Report fully complies with the requirements of section 13(a) or 15(d) of the
Securities Exchange Act of 1934; and
|
||
(2) |
The information contained in the Report fairly presents, in all material
respects, the
financial condition and results of operations of the Company.
|
/s/
David V. Singer
|
/s/ Rick D. Puckett | |
|
||
David V. Singer
|
Rick D. Puckett | |
President and Chief Executive Officer
|
Executive Vice President, Chief Financial Officer, | |
July 25, 2008
|
Treasurer and Secretary | |
|
July 25, 2008 |