Exhibit 10.34
SEVENTH AMENDMENT
TO
EMPLOYMENT
AGREEMENT
WHEREAS, Casual Male Retail Group,
Inc., (formerly Designs, Inc., “CMRG”) and David A.
Levin (“Executive”) entered into a certain Employment
Agreement dated as of March 31, 2000, as amended by Letter
Agreement dated April 10, 2001, Second Amendment to Employment
Agreement dated January 30, 2003, Third Amendment to
Employment Agreement dated July 9, 2003, Fourth Amendment to
Employment Agreement dated June 29, 2004, Fifth Amendment to
Employment Agreement dated May 9, 2005 and Sixth Amendment to
Employment Agreement dated May 29, 2007 (hereinafter referred
to as the “Agreement”); and
WHEREAS, Company and Executive wish
to amend, modify and/or restate certain terms, provisions,
conditions, and covenants of the Agreement.
NOW, THEREFORE, in consideration of
the foregoing, and of the promises, covenants, conditions and
agreements contained herein, and for One Dollar ($1.00) and for
other good and valuable consideration, the receipt and sufficiency
of which is hereby expressly acknowledged, the Company and
Executive hereby agree to amend the Agreement as
follows:
1. Section 8 through
Section 21, are hereby re-numbered in their entirety to read
Section 9 through Section 22.
2. A new Section 8 of the
Agreement is hereby inserted:
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8.
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COMPLIANCE
WITH SECTION 409A
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(a) General. It is the intention of
both the Company and the Executive that the benefits and rights to
which the Executive could be entitled pursuant to this Agreement
comply with Section 409A of the Code and the Treasury
Regulations and other guidance promulgated or issued thereunder
(“Section 409A”), to the extent that the requirements
of Section 409A are applicable thereto, and the provisions of
this Agreement shall be construed in a manner consistent with that
intention. If the Executive or the Company believes, at any time,
that any such benefit or right that is subject to Section 409A
does not so comply, it shall promptly advise the other and shall
negotiate reasonably and in good faith to amend the timing of such
benefits and rights such that they comply with Section 409A
(with the most limited possible economic effect on the
Executive).
(b) Distributions on Account of
Separation from Service. If and to the extent required to comply
with Section 409A, no payment or benefit required to be paid
under this Agreement on account of termination of the
Executive’s employment shall be made unless and until the
Executive incurs a “separation from service” within the
meaning of Section 409A.
(c) 6 Month Delay for
“Specified Employees”.
(i) If the Executive is a
“specified employee”, then no payment or benefit that
is payable on account of the Executive’s “separation
from service”, as that term is defined for purposes of
Section 409A, shall be made before the date that is six months
after the Executive’s “separation from service”
(or, if earlier, the date of the Executive’s death) if and to
the extent that such payment or benefit constitutes deferred
compensation (or may be nonqualified deferred compensation) under
Section 409A and such deferral is required to comply with the
requirements of Section 409A. Any payment or
benefit delayed by reason of the
prior sentence shall be paid out or provided in a single lump sum
at the end of such required delay period in order to catch up to
the original payment schedule. There shall be added to any payments
that are delayed pursuant to this provision interest at the
prime rate as reported in the Wall Street Journal for the date
on which the Executive Separated from Service
