EMPLOYMENT AGREEMENT
Execution
Copy
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”), Xxxxxxx Xxxxxx (the “Employee”), and solely for purposes
of Sections 3, 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 continue to employ the Employee for the period provided
in this Agreement, and the Employee is willing to continue 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 the date hereof 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.
(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. (b) Base. During
the Term of Employment, the Employer shall pay the Employee a base salary at not
less than an annual rate of Five Hundred and Seventy-Five Thousand ($575,000.00)
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
Compensation Committee (the “Compensation Committee”) of the Board of Directors
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.
(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 125% of Base Salary, payable in accordance with
the Bonus Plan. 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).
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(c) Equity
Incentives. Any equity Incentives granted to Employee in the
sole discretion of the Compensation Committee on or after the date
hereof 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 Maidenform Brands, Inc. 2005 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) or termination due to the Employee’s Disability (as defined
below) 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, (i) the Employee shall be engaged as the Chief
Executive Officer of Maidenform, Inc., Parent and their subsidiary companies
(hereinafter individually and collectively called the “Employer’s
Group”). The Employee shall have the responsibility and authority
commensurate with such positions subject to the supervision of the
Board. In addition, the Employee shall have such other or more
specific responsibilities or duties with respect to the business of the Employer
consistent with the Employee’s posi-
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tion as
Chief Executive Officer as may be determined and assigned to the Employee from
time to time by or upon the authority of the Board. The Employee
shall report to the Board. 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.
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 and its New York City 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 boards 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.
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 paid in accordance with the
Employer’s normal
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payroll
practices. 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”).
(B) The
Employee’s death; or
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(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 which termination shall
automatically occur on the date of 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 under this Section 9 or under
Section 10(b) is referred to as the “Termination Date”).
10. Payments Upon Termination of
Employment. (c) In the event the
Employee’s employment under this Agreement is terminated for any reason
specified in Section 9 above the Term of Employment shall terminate as of the
Termination Date 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 or
provided 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
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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 in accordance with the applicable bonus plan 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.
(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
upon notice by the Employee for Good Reason following the expiration of the cure
period under Section 10(c) 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 though 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 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, subject to the Employee’s execution, and delivery and
non-revocation of a release in accordance
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with
Section 10(e), 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:
(1) Payment
of a lump sum (subject to tax and other required withholdings), payable within
sixty (60) days following the Termination Date, equal to the sum
of:
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(i)
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one
and one-half (1.5) times his Base Salary (as in effect on the Termination
Date); plus
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(ii)
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(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 (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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(2) 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(d),
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.
(3) In
addition, the Employer will provide the Employee with outplacement services up
to a maximum of $10,000, any such amount to be paid directly by the Employer;
provided that such benefit shall cease on the date the Employee obtains
subsequent employment and in no event will be provided beyond the last day of
the second year following the year in which the Termination Date
occurs.
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; or
(3) Relocation
of the Employee to a location outside a radius of 50 miles of the Employer’s
Iselin, New Jersey office; or its New York, NY office;
(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. 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.
(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
bene-
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fits 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
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(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.
(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.
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
Em-
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ployee’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.
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
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delivered
to the Employer or such subsidiary or affiliate promptly upon the expiration or
termination of the Term of Employment.
(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 eighteen
(18) 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;
(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
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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:
Xxxxxxx
Xxxxxx
At the
address on file with the Employer
With a
copy to:
Xxxxxxx
X. Xxxxxx
Of
Counsel
Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP
The
Xxxxxx Building
000
Xxxxxx Xxxxxx
Xxx
Xxxxxxxxx, XX 00000
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.
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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. Without limiting the generality of the foregoing, this
Agreement, so long as it becomes effective under Section 2(a) above,
supersedes the Employment Agreement dated as of June 14, 2005 between the
Employer and the Employee which, upon the beginning of the Term of Employment
hereunder, shall have no further force or effect. 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
-20-
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. 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. Without limiting the generality of the foregoing, the
lump sum payment set forth in Section 10(b)(1) is intended to be exempt from
Code Section 409A in accordance with Treasury Regulation Section
1.409A-1(b)(4).
(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.
-21-
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
|
MAIDENFORM,
INC.
|
|||||
| By: |
/s/
Xxxxxx X. Xxxxxx
|
/s/
Xxxxxxx X. Xxxxxx
|
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|
Xxxxxx
X. Xxxxxx
|
Xxxxxxx
Xxxxxx
|
||||
|
Executive
Vice President, General Counsel &
Secretary
|
|
||||
Solely
with respect to Sections 3, 4, and
19:
| Maidenform Brands, Inc. | |||||
| By: |
/s/
Xxxxxx X. Xxxxxx
|
|
|||
|
Xxxxxx
X. Xxxxxx
|
|
||||
|
Executive
Vice President, General Counsel &
Secretary
|
|
||||
-22-
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 December 18, 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, and except as provided in paragraph 5 of this Waiver and
Release, I fully and finally waive, discharge, and release Maidenform, Inc., the
Parent (as defined in the Employment Agreement) and their current, former and
future subsidiar-
A-1
ies,
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.
3. Without
limiting the generality of the foregoing paragraph, but subject to the
limitations set forth in Section 2 hereof and except as provided in
paragraph 5 of this Waiver and Release, 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 (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 em-
A-2
ployee
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, the New Jersey Family Leave Act, the
Millville Dallas Airmotive Plant Job Loss Notification Act, as amended) 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.
4. Rights
and Claims Preserved. Nothing in this Agreement prevents me
from filing a charge with the United States Equal Employment Opportunity
Commission ("EEOC") or from cooperating with the EEOC; however, I understand and
agree that I shall not accept, and shall not be entitled to retain, any
compensation or other relief recovered by the EEOC on my behalf as a result of
such charge with respect to any matter covered by this
Agreement. Nothing in this Agreement prevents me from filing a
lawsuit challenging the validity of my waiver of federal age discrimination
claims under the Age Discrimination in Employment Act and the Older Workers
Benefit Protection Act.
A-3
5. OWBPA. The
release in paragraph 3 of this Agreement includes a waiver of claims against the
Company under the Age Discrimination in Employment Act ("ADEA") and the Older
Workers Benefit Protection Act ("OWBPA"). Therefore, pursuant to the
requirements of the ADEA and the OWBPA, I specifically acknowledge the
following:
(a) that
I am and have 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 I understand;
(c) that
the consideration set forth in Section 10 of the Employment Agreement is
adequate and sufficient for my entering into this Agreement and consists of
benefits to which I am not otherwise entitled;
(d) that
I have been afforded twenty-one (21) days to consider this Agreement before
signing it (although I 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
I have been advised that during the seven (7) day period after I sign the
Agreement, I may revoke my acceptance of this Agreement by delivering written
notice to the Company, 000 X X.X. Xxxxxxx 0, Xxxxxx XX 00000 attention: Xxxxxx
X. Xxxxxx,
A-4
General
Counsel, and that this Agreement shall not become effective or enforceable until
after the revocation period has expired.
6. 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)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;
(ii)I have not incurred any injury or
disability precluding regular employment as a result of my employment at the
Company;
(iii)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;
(iv)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
A-5
subsequent
proceeding in which the parties allege a breach of this Waiver and Release;
and
7. 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.
8. (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.
A-6
9. 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.
10. (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.
(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.
11. 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, 7, 8, 9 or 10 shall constitute a material breach of this Waiver
and Release as to which the Company may seek all relief available under the
law.
A-7
12. 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-8
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-9
