EMPLOYMENT AGREEMENT
AGREEMENT
dated as of May 23, 2008 between MAIDENFORM, INC., a New York corporation with
a
principal place of business at 000 X X.X. Xxxxxxx 0 Xxxxx, Xxxxxx, XX 00000
(the
“Employer”), Xxxxxxxxxxx X. Xxxxx (the “Employee”), and solely for purposes of
Sections 3(c), 4, and 19, Maidenform Brands, Inc. (sometimes hereinafter
referred to as “Parent”).
W
I T N E S S E T H :
WHEREAS,
the Employer wishes to employ the Employee for the period provided in this
Agreement, and the Employee is willing to serve in the employ of the Employer
for such period, upon the terms and conditions hereinafter
provided;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties agree as follows:
1. Employment.
The
Employer hereby employs the Employee and the Employee hereby accepts employment
upon the terms and conditions hereinafter set forth.
2. Term
of Employment.
(a)
The term
of the Employee’s employment under this Agreement shall commence on May 27, 2008
and it shall continue for a period of one year thereafter (the “Initial Term”),
unless this Agreement shall be renewed for an additional term or terms in
accordance with paragraph (b) of this Section 2, or unless earlier terminated
as
provided herein.
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(b) This
Agreement shall automatically be renewed upon the expiration of the Initial
Term
for successive periods of one year each (each an “Additional Term”), unless
either party notifies the other party in writing at least 120 days prior to
the
expiration of the Initial Term or any such Additional Term (the Initial Term
and
each Additional Term are collectively referred to as “Term of
Employment”).
3. Compensation.
(a) Base.
During
the Term of Employment, the Employer shall pay the Employee a base salary at
not
less than an annual rate of Four
Hundred and Twenty-Five Thousand ($425,000.00) Dollars,
in
accordance with the Employer’s normal payroll practices (as increased in
accordance with this Section 3(a), the “Base Salary”). Such Base Salary
shall be reviewed at least annually by the Board of Directors of Maidenform
Brands, Inc. (the “Board”) and the Board may at any time increase (but not
decrease) the Employee’s Base Salary hereunder as the Board may in its sole and
absolute discretion deem reasonable and appropriate.
(b) Incentive
Compensation.
The
Employee shall be a participant in the Maidenform Brands, Inc. 2005 Annual
Performance Bonus Plan (the “Bonus Plan”) for the period from December 30, 2007
through January 3, 2009 (the “2008 Fiscal Year”) with achievement of 100% Actual
Operating Percentage (as defined in the Bonus Plan) paying a bonus of 80% of
Deemed Base Salary (as hereinafter defined), payable in accordance with the
Bonus Plan and based upon such performance goals permitted under the Bonus
Plan,
except that for the 2008 Fiscal Year, Deemed Base Salary (for purposes of
determining Compensation covered by the Bonus Plan for the 2008 Fiscal Year)
shall be Three Hundred Eighteen Thousand Seventy and Fifty ($318,750) Dollars.
For fiscal years thereafter during the Term of Employment, the Employee’s
incentive compensation shall be based upon Compensation as defined in the Bonus
Plan and upon such performance goals permitted under the Bonus Plan and subject
to the conditions set forth in the Bonus Plan.
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(c) Equity
Incentives.
(i) Equity
Incentives Granted on or after the Date Hereof.
Subject
to the approval of the Compensation Committee of the Board of Parent, on the
first business day of the month next following the commencement of employment
with the Employer (the “Grant Date”) Employee shall receive long term incentives
pursuant to the Maidenform Brands, Inc. 2005 Stock Incentive Plan (the “Stock
Incentive Plan”) with a Black-Scholes value of Two Hundred Seventy-Six Thousand
Two Hundred and Fifty ($276,250) Dollars (65% of Annual Base Salary) based
upon
the
closing
stock price of the stock of Parent on the last business day before the Grant
Date
and
calculated consistent with the methodology and assumptions used by the Parent
in
connection with its financial statements, as follows:
(x)
That
number of shares of Restricted Stock equal in value to One Hundred
Thirty- Eight
Thousand One Hundred and Twenty-Five ($138,125) Dollars based upon the closing
stock
price of the stock of Parent on the last business day before the Grant Date;
and
(y) That
number of Non-Tandem Stock Appreciation Rights with a reference price
equal
to
the closing stock price of the stock of Parent on the last business day before
the Grant
Date with a Black-Scholes value of One Hundred Thirty-Eight Thousand One
Hundred
and Twenty-Five ($138,125) Dollars.
3
Such
equity incentives will vest and become exercisable in equal annual installments
on each anniversary of the grant date over a four year period (provided the
Employee is continuously employed by the Employer’s Group (as defined below)
through the applicable vesting date) subject to 100% acceleration of vesting
upon a Change in Control (as defined in the Stock Incentive Plan). Upon the
Employee’s termination of employment by the Employer as a result of non-renewal
of the Term of Employment by the Employer pursuant to Section 2(b) above or
by the Employer without Cause (as defined below) or by the Employee for Good
Reason (as defined below), such equity incentives shall become vested with
respect to the number of shares that would have vested if the Employee’s
employment would have continued for an additional twelve month period. Following
any such termination described in this Section 3(c)(i) or termination due
to the Employee’s Disability or death, equity incentives granted on or after the
date hereof shall remain exercisable until the earlier of (1) the original
expiration date of the option, or (2) one year following such termination
of employment.
4. Duties.
During
the Term of Employment, the Employee shall be engaged as Executive Vice
President and Chief Financial Officer/Chief Operating Officer of Maidenform,
Inc. and its subsidiary companies (hereinafter individually and collectively
along with the Parent called the “Employer’s Group”). The Employee shall have
the responsibility and authority to manage and direct the finance, Information
technology, sourcing, distribution and supply chain activities of the Employer,
subject to the supervision of the Chief Executive Officer and the Boards of
Directors of the Employer and the Parent and, with respect to his role as Chief
Financial Officer, to the Audit Committees of the Boards of Directors of the
Employer and the Parent, as well. In addition, the Employee shall have such
other or more specific responsibilities or duties with respect to the business
of the Employer’s Group consistent with the Employee’s position as Executive
Vice President and Chief Financial Officer /Chief Operating Officer as may
be
determined and assigned to the Employee from time to time by or upon the
authority of the Chief Executive Officer or the Board of Directors of the
Employer or the Parent. The Employee shall report to the Chief Executive Officer
and, with respect to his role as the Chief Financial Officer to the Audit
Committees of the Boards of Directors of the Employer and the Parent, as well.
The Employee shall also serve as an Officer or Director of any member of the
Employer’s Group as requested by the Employer without any additional
compensation therefore other than as specified in this Agreement. The Employer
has Director’s and Officer’s Liability Insurance in effect and will maintain
Director’s and Officer’s Liability Insurance Coverage for benefit of Employee
uninterruptedly in effect during the Term of Employment.
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5. Extent
of Service.
The
Employee agrees to devote his best efforts, energies and skills to the faithful
discharge of the duties and responsibilities attributable to his offices, and
to
this end will devote his full working time and attention to the business and
affairs of the Employer’s Group. Employee shall be based at the Employer’s
Iselin, New Jersey office, but shall perform services hereunder at other
locations as shall be reasonably appropriate. Notwithstanding the foregoing,
it
is understood that the Employee may devote reasonable time and attention
consistent with the practice of other senior executives similarly situated,
to
civic or community affairs and to service on the Board of Directors or Advisory
Board of other non-competing corporations, provided that (i) the Employee shall
serve on no more than two such Corporate Boards or Advisory Boards at any time;
(ii) the Compensation Committee shall have approved such Board memberships,
which approval shall not be unreasonably withheld; and (iii) it does not
interfere in any material way with the performance of his responsibilities
to
the Employer’s Group under this Agreement or create a conflict of interest.
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6. Expenses.
The
Employee is authorized to incur reasonable, ordinary and necessary expenses
in
the performance of his duties hereunder consistent with the Employer’s existing
expense reimbursement policy, as it may be amended from time to time, and the
Employer shall reimburse the Employee for all such expenses upon the
presentation by the Employee, from time to time, of an account of such
expenditures. To the extent any such reimbursements constitute taxable income
to
the Employee for federal income tax purposes, all such reimbursements shall
be
paid in accordance with the Employer’s policy but in no event later than
December 31 of the calendar year next following the calendar year in which
the
expenses to be reimbursed are incurred.
7. Vacation.
The
Employee shall be entitled to twenty (20) days of paid vacation during each
of
the successive twelve (12) month periods comprising the Term of Employment,
or a
pro rata portion thereof for any such successive period which is less than
twelve (12) months. Vacation hereunder shall be taken at times which are
mutually determined by the Employer and the Employee not to interfere, in any
material respect, with the Employee’s performance of his duties
hereunder.
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8. Employee
Benefits.
The
Employee shall be entitled during the Term of Employment to participate in
any
employee benefit program or arrangement maintained by the Employer which is
generally available to other senior employees of the Employer, including any
qualified or non-qualified retirement or deferred compensation arrangements
or
401(k) savings plan, life insurance, medical, long-term disability plans, or
other allowances, including the auto allowance of Seven Hundred ($700) per
month. Such participation shall be in accordance with all applicable terms
and
conditions of such plans or programs, including, without limitation, provisions
respecting the satisfaction of any applicable eligibility periods for plan
participation and the modification or termination of such plans.
9. Termination
of Employment.
Notwithstanding any other provision of this Agreement, the Employee’s employment
under this Agreement may be terminated at any time by the Employer in the event
of:
(A) (i) The
Employee’s conviction for or entry of a plea of guilty or nolo contendere with
respect to a felony or any crime that constitutes a misdemeanor involving moral
turpitude under federal law or the law of any state, (ii) the Employee’s willful
misappropriation of funds or property of the Employer’s Group or other acts of
fraud, dishonesty, self-dealing, any significant violation of any statutory
or
common law duty of loyalty to the Employer’s Group, (iii) the Employee’s
perpetration of an illegal act which causes material economic injury to the
Employer or the Employer’s Group, or (iv) a material breach of this Agreement by
the Employee or the Employee’s failure to perform his duties hereunder in any
material respect, provided that as to (iv), the Employee shall be given written
notice and an opportunity, not to exceed ten (10) days, to effectuate a cure,
provided that such breach or failure is susceptible to cure, as determined
by
the Board or the Board of Directors of the Employer, in good faith (hereinafter
“Cause”).
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(B) The
Employee’s death; or
(C) The
Employee’s inability due to any physical or mental condition of the Employee, to
perform his duties hereunder for a period of ninety (90) consecutive days or
one
hundred twenty (120) days (whether or not consecutive) within any twelve (12)
month period (hereinafter “Disability”);
by
written notice to the Employee (except that notice of termination shall not
be
required in the case of the Employee’s death) specifying the event relied upon
for such termination and the effective date of such termination (the effective
date of any termination of employment hereunder is referred to as the
“Termination Date”).
10. Payments
Upon Termination of Employment.
(a)
In the
event the Employee’s employment under this Agreement is terminated for any
reason specified in Section 9 above this Agreement shall terminate and be deemed
cancelled and the Employer shall be under no obligation hereunder either to
continue the Employee’s employment or to provide the Employee with any payment
or benefit of any kind whatsoever, except for the Employee’s Base Salary through
the Termination Date paid in accordance with the Employer’s normal payroll
practices and such vested benefits or rights which the Employee may have accrued
through the Termination Date hereunder or under any benefit plan of Employer
(other than any severance pay plan maintained by the Employer) paid in
accordance with the terms and conditions of the applicable plan. In addition,
in
the event of termination pursuant to 9(B) or (C) above, the Employer shall
also
pay the amount of any incentive compensation as described in Section 3(b) hereof
to which the Employee would have been entitled for the year of termination
had
the Employee’s employment not terminated, prorated to the Termination Date based
on the number of days actually employed during the applicable year, payable
when
such incentive compensation would be payable to other employees for that year
and based upon actual results and the Employer’s financial performance for the
full applicable year. In addition, in the event of termination pursuant to
9(B)
or (C) above, the Employee shall be entitled to benefits under any group life
insurance or disability insurance benefits provided in accordance with the
Employer’s welfare benefit plans.
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(b) The
Employee’s employment under this Agreement may also be terminated on fifteen
(15) days’ prior notice by the Employer not for Cause and it may be terminated
by the Employee for Good Reason if circumstances constituting Good Reason exist,
and neither of such terminations of employment shall be a breach of this
Agreement by the Employer so long as the benefits set forth below are provided
to the Employee. In the event that the Employee’s employment with the Employer
is terminated by the Employer as a result of non-renewal of the Term of
Employment pursuant to Section 2(b) above or terminated by the Employer
without Cause or by the Employee for Good Reason, then, in addition to the
Employee’s Base Salary through the Termination Date and such vested benefits or
rights which the Employee may have accrued through the Termination Date
hereunder or under any benefit plan of the Employer (other than any severance
pay plan maintained by the Employer), subject to the Employee’s execution,
delivery and non-revocation of a release, to the fullest extent permitted by
law
in favor of the Employer’s Group (and its affiliates) in substantially the form
attached hereto as Exhibit “A”, as may be modified to take into account changes
in applicable law and any other changes as
are
legally necessary at the time of execution to make it enforceable (the
“Release”),
the
Employee will be entitled to the following:
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(1) Payment
of an amount equal to the sum of his Base Salary (as in effect on the
Termination Date), plus, in the event such termination occurs after the end
of
Fiscal 2008, an amount equal to one times his average annual bonus (taking
into
account all annual bonuses paid under Section 3(b) hereof for the applicable
year) over the three fiscal years immediately preceding his termination of
employment, determined by annualizing the bonus actually paid with respect
to
any partial year (which, with respect to the 2008 Fiscal Year will be deemed
to
have been paid for 9 months of service). For purposes of clarity, if there
have
been fewer than three fiscal years immediately preceding any such termination,
the average of such annual bonuses will be calculated using as a denominator
the
actual number of fiscal years in which he has worked for the Employer. This
amount shall be subject to tax and other required withholdings and, subject
to
any delays required pursuant to Sections 10(d) and 10(e), will be payable in
equal periodic installments over a period of twelve (12) months from the
Termination Date paid in accordance with the Employer’s normal payroll policies
as if the Employee continued to be an employee of the Employer (but off
payroll).
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(2) In
the
event such termination occurs during Fiscal 2008, payment of an amount equal
to
the bonus the Employee would have been entitled for Fiscal 2008 had the
Employee’s employment not terminated, prorated to the Termination Date based on
the number of days actually employed during Fiscal 2008 and based upon actual
results and the Employer’s financial performance for Fiscal 2008, and, subject
to any delays required pursuant to Sections 10(d) and 10(e), payable when such
bonus would be payable to other employees for Fiscal 2008.
(3) In
addition, if the Employee or his dependents are otherwise eligible for COBRA
continuation of group health plan coverage and the Employee (or his dependents)
timely elect such coverage, then for a period of twelve (12) months following
the Termination Date, subject to any delays required pursuant to Sections 10(d)
and 10(e), the Employer shall pay to the Employee on the first Employer payroll
date in each month following the Termination Date an amount equal to 100% of
the
monthly premium for such COBRA coverage for the applicable month. The foregoing
payments shall each be a bonus to the Employee subject to tax and other required
withholdings and shall be grossed up to reflect all applicable taxes at the
Employee’s maximum marginal rates.
Notwithstanding
the foregoing, nothing in this Agreement shall be construed to require the
Employee to seek other employment following the termination of his employment
hereunder and there shall be no offset against any amounts due the Employee
under this Agreement on account of any remuneration attributable to any
subsequent employment that Employee may obtain.
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(c) For
the
purposes of this Agreement “Good Reason” shall mean the occurrence of any of the
following events without the Employee’s consent:
(1) The
assignment to the Employee of duties that constitute a material diminution
of
his authority, duties, or responsibilities (including reporting
requirements);
(2) A
material diminution in the Employee’s Base Salary;
(3) Relocation
of the Employee to a location outside a radius of 50 miles of the Employer’s
Iselin, New Jersey office; or
(4) Any
other
action or inaction by the Employer that constitutes a material breach of this
Agreement
provided
that
within
ninety (90) days after the initial existence of such event,
the
Employer shall be given notice and an opportunity, not less than thirty (30)
days, to effectuate a cure for such asserted “Good Reason” by the
Employee.
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(d) A
termination of employment shall not be deemed to have occurred for purposes
of
any provision of this Agreement providing for the payment of any amounts or
benefits upon or following a termination of employment unless such termination
is also a “separation from service” within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”)
and
the regulations and guidance promulgated thereunder (collectively “Code
Section 409A”)
and,
for purposes of any such provision of this Agreement, references to a
“termination,” “termination of employment” or like terms shall mean “separation
from service.” If Employee is deemed on the date of termination of his
employment to be a “specified employee”, within the meaning of that term under
Code Section 409A(a)(2)(B) and using the identification methodology selected
by
the Employer from time to time, or if none, the default methodology, then with
regard to any payment or the providing of any benefit made subject to this
Section 10(d), to the extent such payment and benefits exceed the Separation
Pay
Limit (as defined herein) and is required to be delayed in compliance with
Code
Section 409A(a)(2)(B), such payment or benefit shall not be made or provided
prior to the earlier of (i) the expiration of the six-month period measured
from
the date of the Employee’s “separation from service” and (ii) the date of the
Employee’s death. On the first day of the seventh month following the date of
the Employee’s “separation from service” or, if earlier, on the date of his
death, all payments delayed pursuant to this Section 10(d) (whether they would
have otherwise been payable in a single sum or in installments in the absence
of
such delay) shall be paid or reimbursed to Employee in a lump sum, and any
remaining payments and benefits due under this Agreement shall be paid or
provided in accordance with the normal payment dates specified for them herein.
For purposes of this Agreement, the “Separation
Pay Limit”
means
two times the lesser of: (i) the Employee’s annualized compensation based on the
Employee’s annual rate of pay for the Employee’s taxable year preceding the
taxable year in which the Employee’s termination of employment occurs; and (ii)
the maximum amount that may be taken into account under a tax-qualified plan
pursuant to Code Section 401(a)(17) for the year in which the Employee
terminates employment.
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(e) The
Employer shall provide the Release to the Employee within seven (7) business
days following the date of termination. In
order
to receive the payments and benefits provided in Section 10(b)(1), (2) and
(3),
the
Employee shall
be
required to sign the Release within 21 or 45 days after the date it is provided
to him, as required by applicable law, and not revoke it within the seven day
period following the date on which it is signed. All payments delayed pursuant
to the foregoing, except to the extent delayed pursuant to Section 10(d), shall
be paid to the Employee in a lump sum on the first Employer payroll date on
or
following the sixtieth (60th)
day
after the date of termination, and any remaining payments due under this
Agreement shall be paid or provided in accordance with the normal payment dates
specified for them herein.
11. Confidentiality.
The
Employee recognizes and acknowledges that the Proprietary Information (as
hereinafter defined) is a valuable, special and unique asset of the Employer.
As
a result, during the Term of Employment and thereafter, the Employee shall
not,
without the prior written consent of the Board, for any reason, either directly
or indirectly, divulge to any third party (except as may be required to further
the interests of the Employer) or use for his own benefit, or for any purpose
other than the exclusive benefit of the Employer, any and all confidential,
proprietary, business and technical information or trade secrets of the
Employer’s Group (“Proprietary Information”) revealed, obtained or developed in
the course of his employment with the Employer’s Group. Such Proprietary
Information shall include but shall not be limited to, marketing and development
plans, confidential cost and pricing information, identities of customers and
suppliers, the relationship of the Employer’s Group with actual or prospective
customers who are engaged in discussions with the Employer’s Group, the needs
and requirements of any such customers, and any other confidential information
relating to the business of the Employer’s Group, provided that nothing herein
contained shall restrict the Employee’s ability to make such disclosures during
the course of his employment as may be necessary or appropriate to the effective
and efficient discharge of his duties hereunder or such disclosures as may
be
required by law; and further provided that nothing herein contained shall
restrict Employee from divulging or using for his own benefit or for any other
purpose any Proprietary Information which is readily available to the general
public so long as such information did not become available to the general
public as a direct or indirect result of Employee’s breach of this Section
11.
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12. Property
and Inventions.
(a) All
Proprietary Information shall be and remain the sole property of the Employer.
During the Term of Employment, and thereafter, Employee shall not remove from
the Employer’s Group offices or premises any documents, records, notebooks,
files, correspondence, reports, memoranda or similar materials of or containing
information of the type identified in Section 11 hereof, or other materials
or
property of any kind unless necessary or appropriate in accordance with his
duties and responsibilities hereunder and, in the event that such materials
or
property are removed, all of the foregoing shall be returned to their proper
files or places of safekeeping as promptly as reasonably possible after the
removal shall serve its specific purpose. Employee shall not make, retain,
remove and/or distribute any copies of any of the foregoing for any reason
whatsoever except as may be necessary in the discharge of his assigned duties;
and upon the termination of his employment with the Employer, he shall leave
with or return to the Employer all originals and copies of the foregoing then
in
his possession, whether prepared by Employee or by others.
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(b) The
Employee acknowledges that all developments, including, without limitation,
inventions, patentable or otherwise, discoveries, improvements, patents, trade
secrets, designs, reports, computer software, flow charts and diagrams,
procedures, data, documentation, ideas and writings and applications thereof
relating to the business or planned business of the Employer or any of its
subsidiaries or affiliates that, alone or jointly with others, the Employee
may
conceive, create, make, develop, reduce to practice or acquire during the Term
of Employment (or while employed with the Employer prior the Term of Employment)
(collectively, the “Developments”) are works made for hire and shall remain the
sole and exclusive property of the Employer and the Employee hereby assigns
to
the Employer all of his right, title and interest in and to all such
Developments. The Employee shall promptly and fully disclose all future material
Developments to the Board and, at any time upon request and at the expense
of
the Employer, shall execute, acknowledge and deliver to the Employer all
instruments that the Employer shall prepare, give evidence and take all other
actions that are necessary or desirable in the reasonable opinion of the
Employer to enable the Employer to file and prosecute applications for and
to
acquire, maintain and enforce all letters patent, trademark registrations or
copyrights covering the Developments in all countries in which the same are
deemed necessary by the Employer. All memoranda, notes, lists, drawings,
records, files, computer tapes, programs, software, source and programming
narratives and other documentation (and all copies thereof) made or compiled
by
the Employee or made available to the Employee concerning the Developments
or
otherwise concerning the business or planned business of the Employer or any
of
its subsidiaries or affiliates shall be the property of the Employer or such
subsidiary or affiliate and shall be delivered to the Employer or such
subsidiary or affiliate promptly upon the expiration or termination of the
Term
of Employment.
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(c) The
provisions of this Section shall, without any limitation as to time, survive
the
expiration or termination of the Employee’s employment hereunder, irrespective
of the reason for any termination.
13. Covenant
not to Compete and Non-Solicitation.
In
consideration for the benefits and payments described herein and other good
and
valuable consideration, the Employee shall not, during the Term of Employment
and for a period of twelve (12) months after his employment terminates for
any
reason, engage in any of the following directly or indirectly without the prior
written consent of the Board:
(a) engage
or
participate in any business activity directly competitive with the business
of
the Employer’s Group as conducted upon the termination of the Employee’s
employment with the Employer or proposed to be conducted at such
time;
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(b) become
interested in (as owner, stockholder, lender, partner, co-venturer, director,
officer, employee, agent, consultant or otherwise) any person, firm,
corporation, association or other entity engaged in any business that is, taken
as a whole, directly competitive with the business of the Employer’s Group as
conducted upon the termination of the Employee’s employment (or proposed to be
conducted at such time) with the Employer, or become interested in (as owner,
stockholder, lender, partner, co-venturer, director, officer, employee, agent,
consultant or otherwise) any subsidiary or division of the business of any
person, firm, corporation, association or other affiliate where such portion
of
such business is directly competitive with the business of the Employer’s Group
as conducted upon termination of the Employee’s employment with the Employer (or
proposed to be conducted at such time). Notwithstanding the foregoing, nothing
contained in this Section 13 shall prohibit the Employee from (i) holding not
more than five percent (5%) of the outstanding securities of any class of any
publicly-traded company, or (ii) after the Term of Employment engaging or
participating in or having an interest in (as owner, stockholder, lender,
partner, co-venturer, director, officer, employee, agent, consultant or
otherwise) any subsidiary or division of the business of any person, firm,
corporation, association or other affiliate where such portion of such business
is not directly competitive with the business of the Employer’s Group as
conducted upon termination of the Employee’s employment with the Employer (or
proposed to be conducted at such time), provided Employee does not breach the
provisions of Section 13 (c) or (d) or (e), hereof;
(c) solicit
or attempt to solicit either directly or indirectly any customer of the
Employer’s Group with whom the Employer’s Group shall have dealt regularly at
any time during the one (1) year period immediately preceding the termination
of
the Employee’s employment with the Employer for the purpose of offering or
selling any products or services which are identical, substantially similar
or
comparable to the products or services then offered to the customer by the
Employer’s Group;
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(d) influence
or attempt to influence any supplier, customer, or potential customer of the
Employer’s Group to terminate or modify any written or oral agreement or course
of dealing with the Employer’s Group; or
(e) (i)
influence or attempt to influence any person to terminate or modify his
employment (or other service relationship) with the Employer’s Group, or (ii)
employ or retain directly or indirectly, any person employed or retained by
the
Employer’s Group as an employee or other service provider at any time during the
six (6) month period preceding the effective date of the Employee’s
termination.
14. Specific
Performance.
The
Employee acknowledges that the services to be rendered by the Employee are
of a
special, unique and extraordinary character and, in connection with such
services, the Employee will have access to confidential information vital to
the
Employer’s business and the business of its subsidiaries and affiliates. By
reason of this, the Employee acknowledges consents and agrees that if the
Employee violates any of the provisions of Sections 11, 12 or 13 hereof,
the Employer would sustain irreparable injury and that money damages would
not
provide adequate remedy to the Employer and that, in addition to any other
remedies the Employer might have, including money damages, the Employer shall
be
entitled to have Sections 11, 12 and 13 specifically enforced by any court
having jurisdiction by means of any and all equitable remedies. The provisions
of Sections 10, 11, 12, 13, 14, 16 and 19 shall survive the termination of
this Agreement.
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15. Notices.
Any
notice required or permitted to be given under this Agreement shall be
sufficient if in writing, and shall be delivered personally by telecopier or
by
courier providing for next day delivery or sent by registered or certified
mail
return receipt requested to the following addresses:
To
the
Employer:
Maidenform,
Inc.
000
X
X.X. Xxxxxxx 0 Xxxxx
Xxxxxx,
Xxx Xxxxxx 00000
Attention:
Xxxxxx
X.
Xxxxxx
Telecopier:
000-000-0000
To
the
Employee:
Xxxxxxxxxxx
Xxxxx
At
the
address on file with the Employer
With
a
copy to:
Any
such
notices shall be deemed given, if personally, upon delivery; if sent by
certified or registered mail, 3 days after deposit (postage pre-paid) with
the U.S. Mail Service; if by courier service providing for next day delivery,
the next day following deposit with such courier; and, if telecopied, when
telecopied. Any party may change the address for notices by sending written
notice of such change of address in accordance with this Section
15.
20
16. Benefits.
This
Agreement shall inure to the benefit of and shall be binding upon the Employer
and its successors and assigns, and upon the Employee, his heirs and legal
representatives. This Agreement and all rights and obligations hereunder
are
personal to the Employee and shall not be assignable.
17. Entire
Agreement.
This
Agreement embodies the entire agreement of the parties concerning the subject
matter hereof and supersedes any prior or contemporaneous agreements or
understandings in connection therewith. The Agreement may be amended or modified
only by a written instrument executed by both parties hereto.
18. Severability.
If any
term or provision of this Agreement is held by a court of competent jurisdiction
to be invalid or unenforceable, the remainder of the terms and provisions
of
this Agreement shall remain in full force and effect and shall in no way
be
affected or invalidated. To the extent required to enforce any provision
of this
Agreement, such provision may be reformed in order to preserve its validity
if
it would otherwise be held unenforceable.
19. Indemnification.
The
indemnification provisions in the Parent’s Amended and Restated Certificate of
Incorporation covering officers of the Parent and the Employer shall apply
to
the Employee in his capacity as an employee (or former employee), such
indemnification to be in addition to any other indemnification right in favor
of
the Employee.
20. Withholding.
The
Employer may deduct and withhold from any amounts which it is otherwise
obligated to pay hereunder any amount which it may determine it is required
to
deduct or withhold pursuant to any applicable statute, law, regulation or
order
of any jurisdiction whatsoever.
21
21. Governing
Law.
This
Agreement shall be subject to, and governed, construed and enforced in
accordance with, the laws of the State of New York, without giving effect
to the
principles thereof relating to the conflict of laws.
22. Section
409A.
(a) Although
the Employer does not guarantee the tax treatment of any particular payment
or
benefit, it is intended that the provisions of this Agreement provide for
payments or benefits that either comply with, or are exempt from, Code Section
409A, and all provisions of this Agreement shall be construed in a manner
consistent with the requirements for avoiding taxes or penalties under Code
Section 409A.
(b) With
regard to any installment payments provided for herein, each installment
thereof
shall be deemed a separate payment for purposes of Code Section
409A.
22
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
|
MAIDENFORM,
INC.
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxx
|
/s/
Xxxxxxxxxxx X. Xxxxx
|
|
|
Xxxxxx
X. Xxxx
|
Xxxxxxxxxxx
X. Xxxxx
|
||
|
Chief
Executive Officer
|
|||
Solely
with respect to Sections 3(c),
4,
and
19:
|
By:
|
/s/
Xxxxxx X. Xxxx
|
|
Xxxxxx
X. Xxxx
|
|
|
Chief
Executive Officer
|
|
23
Exhibit
“A”
FULL
AND FINAL WAIVER AND RELEASE OF CLAIMS
1. I
have
had the opportunity to review and consider this Full and Final Waiver and
Release of Claims (“Waiver and Release”), and information on the benefits
available to me in accordance with the Employment Agreement between Maidenform,
Inc. and me dated as of May 23, 2008, as the same may have been amended
from time to time (“Employment Agreement”) for a period of at least twenty-one
(21) days. I also have had the opportunity during such period to discuss
this
Waiver and Release and such benefit information fully with whomsoever I wished,
and have been advised that I could consult an attorney of my own choice and
have
had a reasonable opportunity to do so. I have freely and voluntarily elected
to
take advantage of the severance benefits under the Employment
Agreement.
2. In
consideration for the payments and benefits available to me under the Employment
Agreement following the termination of my employment as set forth in Section
10
of the Employment Agreement, the sufficiency of which are hereby acknowledged,
and, other than claims for accrued, vested benefits under any employee benefit
plan of Maidenform, Inc. (including vested stock options) or for any of the
Employer’s obligations or my rights pursuant to Section 10 and 19 of the
Employment Agreement, I fully and finally waive, discharge, and release
Maidenform, Inc., the Parent (as defined in the Employment Agreement) and
their
current, former and future subsidiaries, divisions, related entities, employee
benefit plans and funds, and their respective current, former and future
directors, officers, shareholders, employees, attorneys, and agents (whether
acting as agents for Maidenform, Inc., Parent or in their individual capacities)
(herein collectively referred to as “the Company”), from any and all claims of
whatsoever nature, known and unknown, whether in law or in equity, which
I or
anyone acting through me, my estate or on my behalf ever had, now have or
may
have against the Company by reason of any actual or alleged act, omission,
transaction, practice, conduct, occurrence or other matter up to and including
the date I sign this Waiver and Release, provided, however, that the foregoing
shall not be deemed to waive any indemnification rights I may have pursuant
to
applicable law, the Certificates of Incorporation or Bylaws of the Company
or
under any Directors and Officers Liability Insurance Policy.
A-1
3. Without
limiting the generality of the foregoing paragraph, but subject to the
limitations set forth in Section 2 hereof, this Waiver and Release is
intended to and shall release the Company from any and all claims arising
out of
or in connection with my employment with Maidenform, Inc. and with the
termination or decision to terminate said employment, including but not limited
to (i) any claim under the Age Discrimination in Employment Act, Title VII
of
the Civil Rights Act of 1964, The Civil Rights Act of 1866, or any other
Civil
Rights Act, the Americans with Disabilities Act, the Employee Retirement
Income
Security Act of 1974 (excluding claims for accrued, vested benefits under
any
employee benefit pension plan of the Company in accordance with the terms
and
conditions of such plan and applicable law), and the Family and Medical Leave
Act; (ii) any other claim (whether based on federal, state, or local law,
statutory or decisional including, but not limited to the New York State
Human
Rights Law, the New York City Administrative Code, New Jersey Civil Rights
Act
or the New Jersey Law Against Discrimination) relating to or arising out
of my
employment, the terms and conditions of such employment, the termination
of such
employment, and/or any of the events relating directly or indirectly to or
surrounding the termination of that employment, including but not limited
to
breach of contract (express or implied), wrongful discharge, detrimental
reliance, defamation, emotional distress or compensatory or punitive damages;
and (iii) any claim for attorneys’ fees, costs, disbursements and/or the
like.
A-2
4. In
order
to induce the Company to extend the payments and benefits available to me
under
the Employment Agreement, I hereby represent and warrant to the Company as
follows:
(i)
I
voluntarily elect to take advantage of Section 10 of the Employment Agreement
and execute this Waiver and Release and have had at least twenty-one (21)
days
to consider and review this Waiver and Release;
(ii)
no
other
promise, inducement, threat, agreement or understanding of any kind or
description whatsoever has been made with or to me by any person or entity
whomsoever to cause me to execute this Waiver and Release;
(iii)
I
fully
understand the meaning and intent of this Waiver and Release;
A-3
(iv)
I
fully
understand and acknowledge that the payments and other benefits provided
pursuant to Section 10 of the Employment Agreement, (A) are, except as
expressly set forth herein, in full discharge of any and all liabilities
and
obligations of the Company to me, monetarily or with respect to employee
benefits or otherwise, including but not limited to any and all obligations
arising under any alleged written or oral employment agreement, policy, plan
or
procedure of the Company and/or any alleged understanding or arrangement
between
me and the Company; and (B) exceed any payment, benefit, or other thing of
value to which I might otherwise be entitled under any policy, plan or procedure
of the Company and/or any agreement between me and the Company without the
execution of this Waiver and Release;
(v)
I
have
not incurred any injury or disability precluding regular employment as a
result
of my employment at the Company;
(vi)
I
am not
eligible for reinstatement or reemployment or employment with the Company
at any
time in the future and covenant that I will not seek resumed employment or
any
other remunerative relationship, including without limitation any form of
independent contractor or consultant relationship with the Company;
(vii)
this
Waiver and Release is not intended, and shall not be construed, as an admission
that the Company has violated any federal, state or local law (statutory
or
decisional), ordinance or regulation, breached any contract or committed
any
wrong whatsoever against me. I agree that this Waiver and Release may only
be
used as evidence in a subsequent proceeding in which the parties allege a
breach
of this Waiver and Release; and
A-4
(viii)
I
understand that this Waiver and Release will be final and binding on me on
the
eighth (8th)
day
following the date I sign this document (“Release Effective Date”) unless I
properly revoke the election I have made in this document by delivering to
the
Company a written notice of revocation, by facsimile transmission to (000)
000-0000 and by certified mail, return receipt requested, addressed to
Maidenform, Inc. at 000 X X.X. Xxxxxxx 0 Xxxxx, Xxxxxx, XX
00000, Attention: Xxxxxx X. Xxxxxx, Esq., on or before the close of
business on the seventh (7th)
day
following the date on which I sign this Waiver and Release (the “Revocation
Period”). If the last day of the Revocation Period falls on a Saturday, Sunday
or holiday, the last day of the Revocation Period will be deemed to be the
next
business day. In the event I do not accept this Waiver and Release as set
forth
above, or in the event I revoke this Waiver and Release during the Revocation
Period, this Waiver and Release, including but not limited to the obligation
of
the Company to provide the payments and benefits described in Section 10
of the
Employment Agreement, shall be deemed automatically null and void.
5. I
agree
that I will not disparage or encourage or induce others to disparage the
Company. For the purposes of this Waiver and Release, the term “disparage”
includes, without limitation, comments or statements to the press and/or
media,
the Company or any individual or entity with whom the Company has a business
relationship which would adversely affect in any manner (i) the conduct of
the
business of the Company (including, without limitation, any business plans
or
prospects) or (ii) the business reputation of the Company.
A-5
6. (a)
I
agree that I will cooperate with the Company and its counsel in connection
with
any investigation, administrative proceeding or litigation relating to any
matter that occurred during my employment in which I was involved or of which
I
have knowledge.
(b) I
agree
that, in the event I am subpoenaed by any person or entity (including, but
not
limited to, any government agency) to give testimony (in a deposition, court
proceeding or otherwise) which in any way relates to my employment by the
Company, I will give prompt notice of such request to Xxxxxx X. Xxxxxx (or
his successor) at 000 X X.X. Xxxxxxx 0 Xxxxx, Xxxxxx, XX 00000, and, unless
required by court order, will make no disclosure until the Company has had
a
reasonable opportunity to contest the right of the requesting person or entity
to such disclosure.
7. I
represent that I have returned (or will return) to the Company all property
belonging to the Company, including but not limited to laptop, cell phone,
keys,
card access to the building and office floors, Employee Handbook, phone card,
Rolodex (if provided by the Company), computer user name and password, disks
and/or voicemail code.
8. (a)
The
terms and conditions of this Waiver and Release are and shall be deemed to
be
confidential, and shall not be disclosed by me to any person or entity without
the prior written consent of the Company, except if required by law, and
to my
accountants, attorneys and/or immediate family members, provided that, to
the
maximum extent permitted by applicable law, rule or regulation, they agree
to
maintain the confidentiality of the aforesaid documents. I further represent
that I have not disclosed the terms and conditions of the aforesaid documents
to
anyone other than my attorneys, accountants and/or immediate family
members.
A-6
(b)
I
hereby acknowledge and reaffirm my continuing obligations under Sections
11, 12
and 13 of the Employment Agreement relating to confidentiality, return of
property, developments, noncompetition and nonsolicitation.
9. I
also
expressly acknowledge that in the event that a court of competent jurisdiction
determines that this Waiver and Release is illegal, void or unenforceable,
I
agree to execute a release or waiver that is legal and enforceable.
Additionally, I agree that any breach by me of paragraphs 2, 3, 5, 6, 7 or
8
shall constitute a material breach of this Waiver and Release as to which
the
Company may seek all relief available under the law.
10. This
Waiver and Release is binding upon, and shall inure to the benefit of, the
parties and their respective heirs, executors, administrators, successors
and
assigns.
11. This
Waiver and Release shall be construed and enforced in accordance with the
laws
of the State of New York without regard to the principles of conflict of
laws.
FINALLY,
I HAVE CAREFULLY READ THIS WAIVER AND RELEASE, KNOW AND UNDERSTAND THE WAIVER
AND RELEASE AND HAVE SIGNED THIS WAIVER AND RELEASE AS MY OWN FREE ACT AND
DEED.
A-7
IN
WITNESS WHEREOF, the undersigned has executed and sealed this Waiver and
Release
as of the date set forth below before a notary public.
|
SIGNATURE
|
Sworn
to
and subscribed before me this day of _______________
|
|
|
Notary
Public Stamp & Seal:
|
A-8
