SEPARATION AGREEMENT
This
Separation Agreement (this “Agreement”), is made and entered into by and
between Maidenform, Inc. (“Employer”), Maidenform Brands, Inc. (“Parent” and
collectively with Employer, the “Company”) and Xxxxxx X. Xxxxxx
(“Xxxxxx”).
1. Retirement. Masket
hereby notifies the Company that he is resigning from his employment with the
Company due to his retirement effective March 6, 2009 (the “Retirement
Date”). Effective on the Retirement Date, Masket hereby resigns as an
officer of the Company and any of its subsidiaries and affiliates (collectively,
the “Company Group”) and from any such positions held with any other entities at
the direction of, or as a result of his affiliation with, the Company or any
other member of the Company Group. Masket agrees to promptly execute
and deliver such other documents as the Company shall reasonably request to
evidence such resignations. In addition, Masket hereby agrees and
acknowledges that the Retirement Date shall be the date of his termination from
all other offices, positions, trusteeships, committee memberships and fiduciary
capacities held with, or on behalf of, the Company or any other member of the
Company Group.
2. Transition
Period. During the period prior to the Retirement Date (the
“Transition Period“), Masket agrees that he shall assist the Company in
transitioning his duties to other Company employees and that he shall continue
to perform duties for the Company as requested by Chief Executive Officer of the
Parent (the “CEO”) that are consistent with the duties
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he has
previously performed for the Company. During the Transition Period,
Masket shall continue to receive his Base Salary (as defined in the Employment
Agreement between Masket, Employer and Parent dated as of December 18, 2008 (the
“Employment Agreement”) in accordance with the Employer’s normal payroll
practices and shall remain eligible to participate in the employee benefit
programs and arrangements maintained by the Employer subject to their terms and
conditions. During the Transition Period, Masket shall be entitled to
one (1) week of paid vacation to be taken during the week of February 16, 2009,
without the consent of the CEO, and up to an additional two (2) weeks of paid
vacation with the consent of the CEO. On the Retirement Date, Masket
shall be entitled to receive (i) payment of any accrued but unpaid Base Salary
through the Retirement Date in accordance with the Employer’s normal payroll
practices, (ii) payment for any unused vacation as set forth in this paragraph
as of Retirement Date paid within fifteen (15) days following the Retirement
Date and (iii) such vested benefits or rights which he may have accrued through
the Retirement Date under any benefit plan of the Employer (other than any
severance pay plan maintained by the Employer)
paid or provided in accordance with the terms and conditions of the applicable
plan.
3. Separation
Benefits. In
consideration for Masket executing and not revoking this Agreement, the Employer
hereby agrees to pay and provide to Masket the following payments and benefits
(collectively, the “Separation Benefits”):
a. payment
of an amount equal to $372,395, which amount shall be subject to tax and other
required withholdings and shall be paid in equal periodic installments over a
period of twelve (12) months from the Retirement Date in accordance with the
Em-
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ployer’s normal
payroll policies as if Masket continued to be an employee of the Employer (but
off payroll); and
b. subject
to Masket’s or his dependents’ timely election of COBRA continuation under the
Employer’s group health and dental plans, for a period ending on the earlier of
twelve (12) months following the Retirement Date or Masket’s becoming eligible
for medical and dental benefits from a subsequent employer, the Employer shall
pay to Masket on the first Employer payroll date in each month following the
Retirement 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 Masket 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 Masket’s maximum marginal rates.
In
addition, subject to Masket’s execution, delivery and non-revocation of an
additional release, effective as of the Retirement Date, in favor of the Company
Group and its affiliates, in substantially in the form of Sections 4 through 17
hereof, the Employer hereby agrees to (i) provide to Masket with executive
outplacement services up to a maximum of
$10,000, any such amount to be paid directly by the Employer; provided
that (i) subject to (ii), such benefit shall be provided for a period of not
less than three (3) months commencing on the Retirement Date and (ii) such
benefit shall in any event cease on the earlier of the date Masket obtains
subsequent employment and September 6,
2009; and (ii) extend the COBRA continuation coverage pursuant to
paragraph (b) above for an additional six (6) months, subject to the conditions,
qualifications and limitations contained in paragraph (b).
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Masket is
not required to seek other employment following the Retirement Date and there
shall be no offset against any amounts due Masket under this Agreement on
account of any remuneration attributable to any subsequent employment that
Masket may obtain.
Any equity incentives granted to Masket prior to
the Retirement Date shall vest, be exercisable or be forfeited in accordance
with the terms and conditions set forth in the applicable award agreement
regarding Masket’s retirement from the Company. The Company acknowledges and
agrees that for purposes of the 2005 Stock Incentive Plan, the Committee (as
defined in such plan) has approved Masket’s treatment as “Retired” under the
terms of such plan.
4. Masket
acknowledges and agrees that he had the opportunity to review and consider this
Agreement, including the Separation Benefits, for a period of at least
twenty-one (21) days. Masket also acknowledges and agrees that he has
had the opportunity during such period to discuss this Agreement and the
Separation Benefits fully with whomsoever he wished, and was advised that he
could consult an attorney of his own choice and had a reasonable opportunity to
do so and that he has freely and voluntarily elected to take advantage of the
Separation Benefits.
5. In
consideration for the Separation Benefits, the sufficiency of which Masket
hereby acknowledges, and, other than claims for accrued, vested benefits under
any employee benefit plan of the Company (including vested stock options) or for
any of his rights pursuant to Section 19 of the Employment Agreement, and except
as provided in paragraph 7, Masket fully and finally waives, discharges, and
releases the Company and the other members of the
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Company
Group and its and their current, former and future subsidiaries, divisions,
related entities, employee benefit plans and funds, and its and their respective
current, former and future directors, officers, shareholders, employees,
attorneys, and agents (whether acting as agents for the Company or any other
member of the Company Group or in their individual capacities) (herein
collectively referred to as the “Released Parties”), from any and all claims of
whatsoever nature, known and unknown, whether in law or in equity, which he or
anyone acting through him, his estate or on his behalf ever had, now have or may
have against the Released Parties by reason of any actual or alleged act,
omission, transaction, practice, conduct, occurrence or other matter up to and
including the date he signs this Agreement, provided, however, that the
foregoing shall not be deemed to waive any indemnification rights Masket may
have pursuant to applicable law, the Certificates of Incorporation or Bylaws of
the Company or under any Directors and Officers Liability Insurance
Policy.
6. Without
limiting the generality of the foregoing paragraph, but subject to the
limitations set forth in paragraph 6 hereof and except as provided in paragraph
7, this Agreement is intended to and shall release the Released Parties from any
and all claims arising out of or in connection with Masket’s employment with the
Company 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 (including the Older Worker Benefit Protection Act), as amended,
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
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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, the New Jersey Family Leave Act, the Millville Dallas
Airmotive Plant Job Loss Notification Act, as amended) relating to or arising
out of Masket’s 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.
7. Rights and Claims
Preserved. Nothing in this Agreement shall prevent Masket from
filing a charge with the United States Equal Employment Opportunity Commission
(“EEOC”) or from cooperating with the EEOC; however, Masket hereby
acknowledges and agrees that he shall not accept, and shall not be entitled to
retain, any compensation or other relief recovered by the EEOC on his behalf as
a result of such charge with respect to any matter covered by this
Agreement. Nothing in this Agreement shall prevent Masket from filing
a lawsuit challenging the validity of his waiver of federal age discrimination
claims under the Age Discrimination in Employment Act and the Older Workers
Benefit Protection Act.
8. OWBPA. The
release in paragraph 6 of this Agreement includes a waiver of claims against the
Company under the Age Discrimination in Employment Act (“ADEA”) and
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the Older
Workers Benefit Protection Act (“OWBPA”). Therefore, pursuant to the
requirements of the ADEA and the OWBPA, Masket specifically acknowledge the
following:
(a) that
he has been advised to consult with an attorney of my choosing concerning the
legal significance of this Agreement;
(b) that
this Agreement is written in a manner that he understands;
(c) that
the Separation Benefits are adequate and sufficient for his entering into this
Agreement and consists of benefits to which he is not otherwise
entitled;
(d) that
he has been afforded twenty-one (21) days to consider this Agreement before
signing it (although he may sign it at any time prior to those 21 days) and that
any changes to this Agreement subsequently agreed upon by the parties, whether
material or immaterial, do not restart this period for consideration;
and
(e) that
he has been advised that during the seven (7) day period after he signs the
Agreement, he may revoke his acceptance of this Agreement by delivering written
notice to the Company, 000 X X.X. Xxxxxxx 0, Xxxxxx XX 00000 attention: Xxxxx X.
Xxxxxxx, Senior Vice President, Human Resources, and that this Agreement shall
not become effective or enforceable until after the revocation period has
expired.
9. In
order to induce the Employer to extend the Separation Benefits to him, Masket
hereby represent and warrant to the Company as follows:
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(i)no other promise, inducement, threat,
agreement or understanding of any kind or description whatsoever has been made
with or to him by any person or entity whomsoever to cause him to execute this
Agreement;
(ii)he has not incurred any injury or
disability precluding regular employment as a result of his employment at the
Company;
(iii)he is not eligible for reinstatement or
reemployment or employment with the Company at any time in the future and
covenants that he will not seek resumed employment or any other remunerative
relationship, including without limitation any form of independent contractor or
consultant relationship with the Company; and
(iv)this Agreement 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
him. Masket agrees that this Agreement may only be used as evidence
in a subsequent proceeding in which the parties allege a breach of this
Agreement.
10. Masket
agrees that he will not disparage or encourage or induce others to disparage the
Company. For the purposes of this Agreement, 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.
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11. (a) Masket
agrees that he will reasonably cooperate with the Company and its counsel,
taking into account his professional obligations to any subsequent employer and
his personal obligations, in connection with any investigation, administrative
proceeding or litigation relating to any matter that occurred during his
employment in which he was involved or of which he has knowledge.
(b) Masket
agrees that, in the event he is 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 his employment by the
Company, he will give prompt notice of such request to the Company’s general
counsel with a copy to the CEO, each 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.
12. Masket
represents that he has returned (or will return on or prior to the Retirement
Date) 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.
13. (a) The
terms and conditions of this Agreement are and shall be deemed to be
confidential, and shall not be disclosed by any party to any person or entity
without the prior written consent of the other party, except if required by
law. Notwithstanding the forego-
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ing,
Masket may disclose this Agreement to his 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 this Agreement. Masket further represent that he has not disclosed
the terms and conditions of this Agreement to anyone other than his attorneys,
accountants and/or immediate family members.
(b) Masket
hereby acknowledges and reaffirms his continuing obligations under Sections 11,
12 and 13 of the Employment Agreement relating to confidentiality, return of
property, developments, noncompetition and nonsolicitation and the Employer’s
rights under Section 14 of the Employment Agreement. The Company hereby acknowledges that any all rights
Masket has to indemnification or advancement as of the execution of this
Agreement shall continue in full force and effect and not be adversely impacted
by this Agreement in any respect.
14. Masket
also expressly acknowledge that in the event that a court of competent
jurisdiction determines that this Agreement is illegal, void or unenforceable,
he agrees to execute a release or waiver that is legal and
enforceable. Additionally, Masket agrees that any breach by him of
paragraphs 5, 6, 9, 11, 12 or 13 shall constitute a material breach of this
Agreement as to which the Company may seek all relief available under the
law.
15. Except as specifically set forth herein, the Employment
Agreement is superseded by this
Agreement.
16. This
Agreement is binding upon, and shall inure to the benefit of, the parties and
their respective heirs, executors, administrators, successors and
assigns.
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17. This
Agreement 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.
18. The
parties hereby acknowledge and agree that Masket’s retirement from the Company
shall constitute 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”). 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. With regard to any installment
payments provided for herein, each installment thereof shall be deemed a
separate payment for purposes of Code Section 409A.
FINALLY,
MASKET ACKNOWLEDGES AND AGREES THAT HE HAS CAREFULLY READ THIS AGREEMENT, KNOWS
AND UNDERSTANDS THE AGREEMENT AND HAS SIGNED THIS AGREEMENT AS HIS OWN FREE ACT
AND DEED.
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the dates
set forth below.
| MAIDENFORM, INC. | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxx | |
| Xxxxxxx X. Xxxxxx | |||
| Chief Executive Officer | |||
| Date: | January 16, 2009 | ||
| MAIDENFORM BRANDS, INC. | |||
| By: | /s/ Xxxxxxx X. Xxxxxx | ||
| Xxxxxxx X. Xxxxxx | |||
| Chief Executive Officer | |||
| Date: | January 16, 2009 | ||
| /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx | |||
| Date: | January 16, 2009 | ||
On this
16th
day of January 2009, before me personally came Xxxxxx X. Xxxxxx to be known and
known to me to be the person described and who executed the foregoing Agreement,
and he duly acknowledged to me that he executed the same.
|
/s/
Xxxxxxxxxx Xxxxxxx
|
|
|||
|
Notary
Public Stamp & Seal:
|
|
|||
|
|
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