AMENDMENT NUMBER ONE TO EMPLOYMENT AGREEMENT
Execution
Copy
AGREEMENT
dated as of December 12, 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”), Xxxxxx X. Xxxx (the “Employee”).
WHEREAS,
the parties entered into an Employment Agreement dated as of May 11, 2004 (the
Employment Agreement”); and
Whereas
on July 28, 2008, Xx. Xxxx voluntarily relinquished the position of Chief
Executive Officer of the Employer and Parent; and
WHEREAS,
the parties wish to amend the agreement to comply with Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”) and the
regulations and guidance promulgated thereunder (collectively “Code Section
409A”);
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties agree as follows:
1. Section
10(b)(2) of the Employment Agreement is amended to read in its entirety, as
follows:
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 eighteen (18) months following
the Termination Date, subject to any delay required pursuant to Section 10(g),
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 each such payment shall include a gross-up
payment in an amount equal to all such applicable taxes at the Employee’s
maximum marginal rates.
2. The
following provisions are added to the Employment Agreement as a new Section 10
(f), to read in its entirety, as follows:
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
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(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 pursuant to Section 10 (b) of the
Agreement, no such payment or reimbursement, including any related gross-up
payment, will be made prior to the earlier of (i) the expiration of the
six-month period measured from the date of Employee’s separation from service;
or (ii) the date of Employee’s death, and on the first
Employer payroll date occurring on or following the first day of the
seventh (7th) month
following the date of the Employee’s separation from service, or, if earlier, on
the date of the Employee’s death, the amount of all payments or reimbursements
delayed pursuant to this sentence (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 reimbursements pursuant to Section 10 (b) of
this Agreement shall be paid or provided in
accordance with the normal payment dates specified for them therein and
any gross-up payment shall be paid to Employee by no later than the end of the
calendar year in which he pays the related tax.
3. A
new Section 22 is hereby added to the Employment Agreement, to read in its
entirety, as follows:
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.
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(c) To
the extent any reimbursement of costs or expenses provided for in this Agreement
constitutes taxable income to the Employee for federal income tax purposes, all
such reimbursements shall be made no later than December 31 of the calendar year
next following the calendar year in which the expenses to be reimbursed are
incurred.
4. Capitalized
terms used in this Amendment Number One and not otherwise defined have the
meaning set forth in the Employment Agreement. Except as expressly set forth
herein, the Employment Agreement shall remain unmodified and in full force and
effect.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
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Maidenform,
Inc.
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/s/
Xxxxxxx X. Xxxxxx
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/s/
Xxxxxx X. Xxxx
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Xxxxxxx
X. Xxxxxx
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Xxxxxx
X. Xxxx
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Chief
Executive Officer
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