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AMENDED AND RESTATED EMPLOYMENT AGREEMENT

Employee Retention Agreement

AMENDED AND RESTATED EMPLOYMENT AGREEMENT | Document Parties: WARNACO GROUP, INC You are currently viewing:
This Employee Retention Agreement involves

WARNACO GROUP, INC

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Title: AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Date: 3/2/2009
Industry: Apparel/Accessories     Sector: Consumer Cyclical

AMENDED AND RESTATED EMPLOYMENT AGREEMENT, Parties: warnaco group  inc
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Ex. 10.30

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”).

W I T N E S S E T H :

     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:

 

1.

 

Certain Definitions .

 

(a)

 

“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.

 

 

(b)

 

“Board” shall mean the Board of Directors of the Company.

 

 

(c)

 

“Cause” shall mean:

 

 

 

 

(i) willful misconduct by the Executive which causes material harm to the Company’s interests;

 

 

 

 

(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;

 

 

 

 

(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.

     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.

 

(d)

 

“Change in Control” shall mean any of the following:

 

 

 

(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;

 

 

 

 

(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

 

 

 

 

(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.

     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.

 

(e)

 

“Date of Termination” shall mean:

 

 

 

 

(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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Section 1(c) hereof;

 

 

 

(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;

 

 

 

 

(iii) if the Executive’s employment is terminated by reason of death, the date of death;

 

 

 

 

(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

 

 

 

 

(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.

          (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:

 

 

 

(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;

 

 

 

 

(ii) a reduction in (A) Base Salary or (B) Target Bonus opportunity as a percentage of Base Salary;

 

 

 

 

(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;

 

 

 

 

(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

 

 

 

 

(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.

     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).

 

2.

 

Term of Employment .

     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.

 

3.

 

Position; Duties and Responsibilities .

     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.

 

4.

 

Compensation .

          (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.

 

5.

 

Employee Benefits .

          (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:

 

 

 

(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);

 

 

 

 

(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;

 

 

 

 

(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

 

 

 

 

(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.

          (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:

 

 

 

(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);

 

 

 

 

(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

 

 

 

 

(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.

          (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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