AMENDMENT NUMBER ONE TO EMPLOYMENT AGREEMENT
AMENDMENT
NUMBER ONE TO EMPLOYMENT AGREEMENT
AGREEMENT
dated as of December 18, 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 1, 2, 3 and 4, Maidenform Brands, Inc. (sometimes
hereinafter referred to as “Parent”).
WHEREAS,
the parties entered into an Employment Agreement dated as of May 23, 2008 (the
Employment Agreement”); and
WHEREAS,
the parties wish to amend the agreement;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties agree as follows:
1. The
last sentence of Section 3(a) is hereby amended to read in its entirety, as
follows:
“Such
Base Salary shall be reviewed at least annually by the Compensation Committee
(the “Compensation Committee”) of the Board of Maidenform Brands, Inc. (the
“Board”) and the Compensation Committee may at any time increase (but not
decrease) the Employee’s Base Salary hereunder as the Compensation Committee may
in its sole and absolute discretion deem reasonable and
appropriate.
2. The
last sentence of Section 3(b) of the Employment Agreement is hereby amended, to
read in its entirety, as follows:
For
fiscal years thereafter during the Term of Employment, the Employee’s incentive
compensation shall be based on such performance goals permitted under the Bonus
Plan (or any successor plan thereto) and subject to the conditions set forth in
the Bonus Plan (or any successor plan thereto).
3. At
the beginning of the second paragraph of Section 3 (c) (i), after the words,
“Such equity incentives” shall be inserted the words, “and any other equity
incentives granted to Employee in the sole discretion of the Compensation
Committee on or after the date hereof”
4. The
first sentence of Section 4 of the Employment Agreement is hereby amended, to
read in its entirety, as follows:
During
the Term of Employment, the Employee shall be engaged as Executive Vice
President and Chief Financial Officer/Chief Operating Officer of Maidenform,
Inc., Parent and their subsidiary companies (hereinafter individually and
collectively called the “Employer’s Group”).
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5. Section
10(b)(1) of the Employment Agreement is hereby amended, to read in its entirety,
as follows:
(1) Payment
of an amount equal to the sum of:
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(i)
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his
Base Salary (as in effect on the Termination Date), plus to the extent
applicable
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(ii)
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in
the event such termination occurs after the end of the 2008 Fiscal Year,
(x) in the event such termination is a termination by the Employer without
Cause or by the Employee for Good Reason within two (2) years following
the consummation of a Change in Control (a “Post-CIC Termination”), an
amount equal to one times the greater of (I) 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) (the
“3-year Average Bonus Amount”) and (II) his target bonus for the year in
which the termination occurs; or (y) in the event such termination is a
termination by the Employer without Cause or by the Employee for Good
Reason that is not a Post-CIC Termination, an amount equal to one times
the lesser of (I) the 3-year Average Bonus Amount and (II) his target
bonus for the year in which the termination
occurs.
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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). For purposes of clarity, if there have been fewer than
three fiscal years immediately preceding the Employee’s termination, the 3-year
Average Bonus Amount will be calculated using as a denominator the actual number
of fiscal years in which he has worked for the Employer.
6. Section
10 (b) (2) of the Agreement is hereby amended to read, in its entirety, as
follows:
In the
event such termination occurs before the end of the 2008 Fiscal Year, (x) in the
event such termination is a termination by the Employer without Cause or by the
Employee for Good Reason that is a Post-CIC Termination, an amount equal to one
times the greater of (I) an amount equal to the bonus the Employee would
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have been
entitled for the 2008 Fiscal Year had the Employee’s employment not terminated,
prorated to the Termination Date based on the number of days actually employed
during the 2008 Fiscal Year and based upon actual results and the Employer’s
financial performance for the 2008 Fiscal Year (the “2008 Actual Bonus Amount”),
and (II) his target bonus for the 2008 Fiscal Year; or (y) in the event such
termination is a termination by the Employer without Cause or by the Employee
for Good Reason that is not a Post-CIC Termination, an amount equal to one times
the lesser of (I) the 2008 Actual Bonus Amount and (II) his target bonus for the
2008 Fiscal Year, in each case subject to any delays required pursuant to
Sections 10(d) and 10(e), payable when such bonus would be payable to other
employees for the 2008 Fiscal Year.
7. Section
10 (c) of the Agreement is hereby amended to add the following sentence at the
end thereof:
Employee’s
resignation hereunder for Good Reason shall not occur later than, (i) in the
event such resignation for Good Reason is a Post-CIC Termination, one (1) year
following the initial date on which the event Employee claims constitutes Good
Reason occurred, or (ii) in the event such resignation for Good Reason is not a
Post-CIC Termination, one hundred thirty (130) days following the initial date
on which the event Employee claims constitutes Good Reason
occurred.
8. 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.
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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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| BY |
/s/
Xxxxxxx X. Xxxxxx
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/s/
Xxxxxxxxxxx X. Xxxxx
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Xxxxxxx
Xxxxxx
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Xxxxxxxxxxx
X. Xxxxx
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Chief
Executive Officer
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solely as
to Section 1, 2, 3 and 4 of this amendment
| BY |
/s/
Xxxxxxx X. Xxxxxx
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Xxxxxxx
Xxxxxx
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Chief
Executive Officer
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