AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This AMENDED AND
RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is made
and entered into by and between THE WARNACO GROUP, INC., a Delaware
corporation (together with its successors and assigns, the
“Company”), and STANLEY P. SILVERSTEIN (the
“Executive”) to be effective as of the close of
business on December 31, 2008 (the “Effective
Date”).
WHEREAS, the
Company and the Executive (individually, a “Party” and
together the “Parties”) previously entered into this
Agreement as of August 11, 2005 on the terms and conditions
set forth herein; and
WHEREAS, the
Parties wish to amend and restate this Agreement as of the close of
business on December 31, 2008 in a manner which reflects the
Parties best efforts to comply with the provisions of
Section 409A of the Internal Revenue Code of 1986, as amended
from time to time (the “Code”), and its implementing
regulations and guidance (“Section 409A”), and to
make certain other changes;
NOW, THEREFORE, in
consideration of the premises and mutual covenants contained herein
and for other good and valuable consideration, the receipt of which
is mutually acknowledged, the Parties agree as follows:
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(a)
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“Affiliate” of a
specified person or entity shall mean a person or entity that
directly or indirectly controls, is controlled by, or is under
common control with, the person or entity specified.
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(b)
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“Board” shall mean the
Board of Directors of the Company.
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(c)
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“Cause” shall
mean:
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(i) willful misconduct by the
Executive which causes material harm to the Company’s
interests;
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(ii) willful and material
breach of duty by the Executive in the course of his employment,
which, if curable, is not cured within 10 days after
Executive’s receipt of written notice from the
Company;
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(iii) willful failure by the
Executive, after having been given written notice from the Company,
to perform his duties other than a failure resulting from
Executive’s incapacity due to physical or mental illness;
or
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(iv) indictment of the
Executive for a felony, a crime involving moral turpitude or any
other crime involving the business of the Company which, in the
case of such crime involving the business of the Company, is
injurious to the business of the Company.
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For purposes of
this Cause definition, no act or failure to act, on the part of the
Executive, shall be considered willful unless it is done, or
omitted to be done, by him in bad faith and without reasonable
belief that his action was in the best interests of the Company.
The determination to terminate the Executive’s employment for
Cause shall be made by the Board and prior to such determination
the Executive shall have the right to appear before the Board or a
committee designated by the Board.
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(d)
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“Change in Control”
shall mean any of the following:
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(i) any “person”
(as such term is used in Sections 3(a)(9) and 13(d) of the
Securities Exchange Act of 1934) or group of persons acting jointly
or in concert, but excluding a person who owns more than 5% of the
outstanding shares of the Company as of the date of this Agreement,
becomes a “beneficial owner” (as such term is used in
Rule 13d-3 promulgated under that Act), of 50% or more of the
Voting Stock of the Company;
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(ii) all or substantially all
of the assets of the Company are disposed of pursuant to a merger,
consolidation or other transaction (unless the shareholders of the
Company immediately prior to such merger, consolidation or other
transaction beneficially own, directly or indirectly, in
substantially the same proportion as they owned the Voting Stock of
the Company, all of the Voting Stock or other ownership interests
of the entity or entities, if any, that succeed to the business of
the Company); or
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(iii) approval by the
shareholders of the Company of a complete liquidation or
dissolution of all or substantially all of the assets of the
Company.
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For purposes of
this Change in Control definition, “Voting Stock” shall
mean the capital stock of any class or classes having general
voting power, in the absence of specified contingencies, to elect
the directors of the Company.
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(e)
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“Date of Termination”
shall mean:
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(i) if the Executive’s
employment is terminated by the Company, the date specified in the
notice by the Company to the Executive that his employment is so
terminated; provided that for a termination for Cause such notice
is delivered after the Board determination as set forth
in
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(ii) if the Executive
voluntarily resigns his employment, 90 days after receipt by
the Company of written notice that the Executive is terminating his
employment or if the Company shortens the required notice period in
accordance with Section 6(c), the date of termination
specified in such notice;
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(iii) if the Executive’s
employment is terminated by reason of death, the date of
death;
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(iv) if the Executive’s
employment is terminated for Disability, 30 days after written
notice is given as specified in Section 1(f) below; or
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(v) if the Executive resigns
his employment for Good Reason, 30 days after receipt by the
Company of timely written notice from the Executive in accordance
with Section 1(g) below unless the Company cures the event or
events giving rise to Good Reason within 30 days after receipt
of such written notice.
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(f)
“Disability” shall mean the Executive’s
inability, due to physical or mental incapacity, to substantially
perform his duties and responsibilities for a period of 180
consecutive days as determined by a medical doctor selected by the
Company and reasonably acceptable to the Executive. In no event
shall any termination of the Executive’s employment for
Disability occur until the Party terminating his employment gives
written notice to the other Party in accordance with Section 15
below.
(g)
“Good Reason” shall mean the occurrence of any of the
following without the Executive’s prior written
consent:
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(i) a material diminution by
the Company in the Executive’s authority, duties or
responsibilities as Executive Vice President, Corporate Development
and Chief Administrative Officer or the assignment to the Executive
by the Company of any duties materially inconsistent with such
positions;
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(ii) a reduction in
(A) Base Salary or (B) Target Bonus opportunity as a
percentage of Base Salary;
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(iii) in connection with or
following a Change in Control, a change in reporting structure so
that the Executive reports to someone other than the Chief
Executive Officer of the Company;
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(iv) the removal by the Company
of the Executive as Executive Vice President, Corporate Development
and Chief Administrative Officer or the failure by the Board to
elect or reelect the Executive as an executive officer of the
Company;
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(v) requiring the Executive to
be principally based at any office or location more than 50 miles
from mid-town Manhattan; or
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(vi) the failure of a successor
to all or substantially all of the assets of the Company to assume
the Company’s obligations under this Agreement either as a
matter of law or in writing within 15 days after a merger,
consolidation, sale or similar transaction.
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Anything herein to
the contrary notwithstanding, the Executive shall not be entitled
to resign for Good Reason (i) if the occurrence of the event
otherwise constituting Good Reason is the result of Disability, a
termination by the Company for which notification has been given or
a voluntary resignation by the Executive other than for Good Reason
and (ii) unless the Executive gives the Company written notice
of the event constituting “Good Reason” within
90 days of the occurrence of such event and the Company fails
to cure such event within 30 days after receipt of such
notice.
(h) “Separation
From Service” shall mean a termination of the
Executive’s employment in a manner consistent with Treasury
Regulation Section 1.409A-1(h).
The term of the
Executive’s employment under this Agreement commenced on
August 11, 2005 and shall end at the close of business on the
third anniversary of such date (the “Term”);
provided , however, that the Term shall thereafter be
automatically extended for additional one-year periods, unless
either the Company or the Executive gives the other written notice
at least 180 days prior to the then-scheduled expiration of
the Term that such Party is electing not to so extend the Term (the
initial term plus any extension thereof in accordance herewith
being referred to herein as the “Term”).
Notwithstanding the foregoing, the Term shall end on the date on
which the Executive’s employment is terminated by either
Party in accordance with the provisions herein.
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3.
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Position; Duties and
Responsibilities .
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During the Term,
the Executive shall be employed as Executive Vice President,
Corporate Development and Chief Administrative Officer of the
Company and shall perform such duties and responsibilities as
determined by the Chief Executive Officer. The Executive shall
devote substantially all of his business time and attention to the
satisfactory performance of his duties. Anything herein to the
contrary notwithstanding, nothing shall preclude the Executive from
(i) subject to the reasonable approval of the Board, serving on the
boards of directors of trade associations and/or charitable
organizations or other business corporations (provided such service
is not prohibited under Section 8(a)(i) below),
(ii) engaging in charitable activities and community affairs
and (iii) managing his personal investments and
affairs,
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provided that
the activities described in the preceding clauses (i) through
(iii) do not materially interfere with the proper performance
of his duties and responsibilities hereunder. The Company
acknowledges that as of the Effective Date, the Executive is
employed by the Company as Executive Vice President, International
Strategy and Business Development.
(a)
Base Salary . During the Term, the Executive shall be paid
an annualized Base Salary of $525,000 (“Base Salary”),
payable in accordance with the regular payroll practices of the
Company, subject to annual review by the Board (or its designee,
including the Compensation Committee of the Board) in its sole
discretion. During the Term the Base Salary may not be decreased
without the Executive’s prior written consent. The Executive
shall not be entitled to any compensation for service as an officer
or member of any board of directors of any Affiliate. After any
increase in base salary approved by the Board or its designee, the
term “Base Salary” as used in this Agreement shall
thereafter refer to the increased amount. The Company acknowledges
that as of the Effective Date, Base Salary is $620,000.
(b)
Annual Incentive Awards . During the Term, the Executive
shall be eligible to receive an annual incentive award (provided
the Executive was employed continuously during the applicable
fiscal year) pursuant to the Company’s Incentive Compensation
Plan, as amended (or such other annual incentive plan as may be
approved by the Company’s shareholders), in effect for the
applicable fiscal year (“Bonus Plan”). The
Executive’s annual incentive award for fiscal year 2005 and
thereafter shall have a target of 85% of Base Salary (“Target
Bonus”), with a potential maximum award as set forth in the
Bonus Plan, in all events based on the Executive’s
achievement of annual performance and other targets approved by the
committee administering the Bonus Plan. The amount and payment of
any annual incentive award shall be determined in accordance with
the Bonus Plan and shall be payable to the Executive when bonuses
for the applicable performance period are paid to other senior
executives of the Company, but in all events no later than the
60 th
day following the end of the
applicable fiscal year for which the Annual Bonus has been earned.
After any increase in the Executive’s target annual bonus
opportunity as a percentage of Base Salary as approved by the Board
(or its designee), the term “Target Bonus” as used in
this Agreement shall thereafter refer to the increased target
opportunity. The Company acknowledges that as of the Effective
Date, Target Bonus is 85% of Base Salary.
(c)
Long-Term Incentive Awards . During the Term, the Executive
shall be eligible to participate in the Company’s equity
incentive plans, including, without limitation, the 2003 and 2005
Stock Incentive Plans, as amended from time to time, and such other
long-term incentive plan(s) as may be approved by the
Company’s shareholders from time to time (“Stock
Incentive Plan”). Except as otherwise provided herein, all
equity grants shall be governed by the applicable equity plan
and/or award agreement. The Executive shall be subject to the
equity ownership, retention and other requirements applicable to
senior executives of the Company.
(d)
Supplemental Award . During the Term beginning with fiscal
year 2005, provided the Executive is employed by the Company, the
Executive shall be entitled to an annual award with an aggregate
grant date value equal to 10% of the sum of Base Salary plus
Annual
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Bonus as
defined in this Section 4(d) if the Executive will be less than age
60 by the end of the applicable fiscal year and 13% of such amount
if the Executive will be age 60 or older by the end of the
applicable fiscal year (“Supplemental Award”), with the
first such award being made no later than 60 days after
August 11, 2005. For this purpose, Base Salary shall be the
Base Salary paid to the Executive for the fiscal year prior to the
award year and Annual Bonus shall be the annual bonus awarded to
the Executive by the Board for such prior fiscal year. The
Supplemental Award shall not be awarded to the Executive until
after the determination by the Board of the Executive’s
annual bonus for the prior fiscal year (but in no event later than
60 days thereafter for any award made after fiscal year 2005)
and 50% of the value of the Supplemental Award shall be awarded in
the form of restricted shares pursuant to the applicable Stock
Incentive Plan (“Career Shares”) and 50% shall be
awarded in the form of a credit to a bookkeeping account maintained
by the Company for the Executive’s account (the
“Notional Account”). Any Career Shares awarded
hereunder shall be governed by the applicable Stock Incentive Plan
and, if applicable, any award agreement. For purposes of this
Section 4(d), each Career Share shall be valued at the closing
price of a share of the Company’s common stock
(“Share”) on the date that the Supplemental Award is
made. For the Notional Account, the Company shall select the
investment alternatives available to the Executive under the
Company’s 401(k) plan. The balance in the Notional Account
shall periodically be credited (or debited) with the deemed
positive (or negative) return based on returns of the permissible
investment alternative or alternatives under the Company’s
401(k) plan as selected in advance by the Executive (and in
accordance with the applicable rules of such plan or investment
alternative) to apply to such Notional Account, with such deemed
returns calculated in the same manner and at the same times as the
return on such investment alternative(s). The Company’s
obligation to pay the amount credited to the Notional Account,
including any return thereon provided for in this
Section 4(d), shall be an unfunded obligation to be satisfied
from the general funds of the Company. Except as otherwise provided
in Section 6 below or the applicable Stock Incentive Plan and
provided that the Executive is employed by the Company on such
vesting date, any Supplemental Award granted in the form of Career
Shares will vest as follows: 50% of the Career Shares will vest on
the earlier of the Executive’s 62 nd birthday or upon the Executive’s obtaining
15 years of “Vesting Service” and 100% of the
Career Shares will vest on the earliest of (i) the
Executive’s 65 th birthday, (ii) upon the Executive’s
obtaining 20 years of “Vesting Service” or
(iii) the 10 th anniversary of the date of grant. Except as
otherwise provided in Section 6 below, and provided that the
Executive is employed by the Company on such vesting date, any
Supplemental Award granted as a credit to the Notional Account (as
adjusted for any returns thereon) (“Adjusted Notional
Account”)) shall vest as follows: 50% on the earlier of the
Executive’s 62 nd birthday or upon the Executive’s obtaining
5 years of “Vesting Service” and 100% on the
earlier of the Executive’s 65 th birthday and upon the Executive’s
obtaining 10 years of “Vesting Service”. For
purposes of this Section 4(d), “Vesting Service”
shall mean the period of time that the Executive is employed by the
Company as an executive officer, provided that for these purposes
only the Executive’s service from February 4, 2003 on
will be counted. Subject to Section 17(b) hereof, upon vesting the
Career Shares will be delivered in the form of Shares to the
Executive. In addition, any unvested Adjusted Notional Account
shall vest upon a Change in Control as defined in
Section 1(d)(i) or (ii) hereof which also qualifies as a
“change in control event” under Section 409A
(“409A Change in Control Event”). The vested balance in
the Adjusted Notional Account, if any, shall not be distributed
to
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the Executive
until there has been a Separation From Service or, if earlier,
there has been a 409A Change in Control Event and, at such time,
shall only be distributed at the earliest time that satisfies the
requirements of this Section 4(d). Upon a 409A Change in
Control Event, the vested Adjusted Notional Account shall be paid
to the Executive in a lump-sum cash payment. In addition, if the
Executive’s employment is terminated for any reason, after
taking into account Section 6 hereof, any unvested
Supplemental Awards (whether in the form of Career Shares or the
Adjusted Notional Account) shall be forfeited and any vested
balance in the Adjusted Notional Account, subject to Section 17(b)
hereof, shall be paid to the Executive in a cash lump-sum payment
immediately following the Executive’s Separation From
Service; provided, however, that if the Executive is a
“specified employee” as determined pursuant to
Section 409A as of the date of the Executive’s
Separation From Service, such distribution shall not be made until
the earlier of the Executive’s death or the first business
day of the seventh calendar month following the month in which the
Executive’s Separation From Service occurs; provided,
further, that if the Executive’s employment is terminated due
to Disability and such Disability satisfies the requirements of
Section 409A(a)(2)(C) of the Code or the Treasury Regulations
implementing such section, then such distribution may be made upon
Separation From Service without regard to whether the Executive was
a “specified employee” at such time. The Executive can
elect to delay the time and/or form of payment of the Adjusted
Notional Account under this Section 4(d), provided such
election is delivered to the Company in writing at least
12 months before the scheduled payment date for such payment
and the new payment date for such payment is not earlier than
(i) the Executive’s death, (ii) the
Executive’s “disability” which satisfies the
requirements of Section 409A(a)(2)(C) of the Code and its
implementing regulations, or (iii) five (5) years from
the originally scheduled payment date. Upon the expiration or
termination of the Term, the vesting and payment dates in this
Section 4(d) (without regard to Section 6, except as otherwise
expressly provided in Section 6(d) of this Agreement) and the
election right in this Section 4(d) shall continue to apply to any
outstanding Supplemental Award.
(a)
Employee Benefit Programs . During the Term, subject to the
Company’s right to amend, modify or terminate any benefit
plan or program, the Executive shall be entitled to participate in
all employee savings and welfare benefit plans and programs made
available to the Company’s senior-level executives on a basis
no less favorable than provided to other similarly-situated
executives, as such plans or programs may be in effect from time to
time, including, without limitation, savings and other retirement
plans or programs, medical, dental, hospitalization, short-term and
long-term disability and life insurance plans, accidental death and
dismemberment protection and travel accident insurance. During the
Term, the Executive shall also be entitled to a paid annual
physical medical exam as approved by the Company and Company-paid
term life insurance with a benefit equal to $1 million,
provided the Company can obtain such insurance at commercially
reasonable premium levels. The Executive shall be entitled to four
weeks paid vacation per calendar year.
(b)
Business Expenses . During the Term, the Executive is
authorized to incur reasonable expenses in carrying out his duties
and responsibilities under this Agreement and the Company shall
promptly reimburse him for all business and entertainment expenses
incurred in
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connection with
carrying out the business of the Company, subject to documentation
in accordance with the Company’s policy. The Executive shall
be entitled to first class air travel when traveling on Company
business.
(c)
Perquisites . The Executive shall be entitled to perquisites
provided to other senior-level executives, including a monthly car
allowance of up to a maximum of $1,000.
Notwithstanding
anything elsewhere to the contrary, except to the extent any
reimbursement, payment or entitlement pursuant to this
Section 5 does not constitute a “deferral of
compensation” within the meaning of Section 409A,
(i) the amount of expenses eligible for reimbursement or the
provision of any in-kind benefit (as defined in Section 409A)
to the Executive during any calendar year will not affect the
amount of expenses eligible for reimbursement or provided as
in-kind benefits to the Executive in any other calendar year,
(ii) the reimbursements for expenses for which the Executive
is entitled shall be made on or before the last day of the calendar
year following the calendar year in which the applicable expense is
incurred and (iii) the right to payment or reimbursement or
in-kind benefits may not be liquidated or exchanged for any other
benefit.
6.
Termination of Employment . The Term of this Agreement and
the Executive’s employment hereunder shall terminate as of
the Date of Termination in the following circumstances:
(a)
Termination Without Cause by the Company or Resignation for Good
Reason by the Executive . In the event that during the Term the
Executive’s employment is terminated without Cause by the
Company (other than due to Disability) or the Executive resigns for
Good Reason and Section 6(d) below does not apply, the Executive
shall be entitled to:
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(i) an amount equal to the Base
Salary which would have been paid the Executive from the Date of
Termination through the expiration of the Term (without regard to
its earlier termination hereunder) if he had remained employed, but
in no event more than 2 times or less than 1 times Base Salary,
payable in a cash lump sum to the Executive as soon as practicable
following the Date of Termination (but in no event later than
60 days following such date);
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(ii) immediate vesting as of
the Date of Termination of 50% of any restricted stock (other than
Career Shares) that remains unvested as of the Date of
Termination;
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(iii) with respect to any stock
options granted on or after August 11, 2005 which are vested
and outstanding as of the Date of Termination, continued
exercisability for 12 months following the Date of Termination
or the remainder of the option term, if shorter; and
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(iv) continued participation
for the Executive and his eligible dependents in the
Company’s welfare benefit plans in which he and
his
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eligible
dependents were participating immediately prior to the Date of
Termination until the earlier of (a) the end of the applicable
Term (without regard to its earlier termination hereunder), but in
no event more than 24 months or less than 12 months
following the Date of Termination, or (b) the date, or dates,
the Executive receives equivalent coverage under the plans and
programs of a subsequent employer.
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(b)
Termination upon Death or due to Disability . In the event
that during the Term the Executive’s employment is terminated
upon death or due to Disability, the Executive (or his estate or
legal representative, as the case may be) shall be entitled
to:
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(i) a pro-rata annual bonus
determined by multiplying the amount of the annual bonus the
Executive would have received had his employment continued through
the end of the fiscal year in which the Date of Termination occurs
by a fraction, the numerator of which is the number of days during
such fiscal year that the Executive was employed by the Company and
the denominator of which is 365, payable when bonuses for such
fiscal year are paid to other Company executives (which payment
date shall be no earlier than January 1 st and no later than
March 15 th of the year following the year in
which the Date of Termination occurs);
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(ii) immediate vesting as of
the Date of Termination of 50% of any restricted stock (other than
Career Shares) that remains unvested as of the Date of Termination;
and
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(iii) immediate vesting as of
the Date of Termination of 50% of any previously granted
Supplemental Award that remains unvested as of the Date of
Termination, payable in accordance with Section 4(d)
above.
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(c)
Termination by the Company for Cause or a Voluntary Resignation
by the Executive . In the event that during the Term the
Company terminates the Executive’s employment for Cause or
the Executive voluntarily resigns, the Executive shall be entitled
to his Base Salary and benefits through the Date of Termination. A
voluntary resignation by the Executive of his employment shall be
effective upon 90 days prior written notice by the Executive
to the Company (“Notice Period”), subject to earlier
termination by the Company
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