SEPARATION
AGREEMENT
This Separation Agreement (this
“Agreement”), is made and entered into by and between
Maidenform, Inc. (“Employer”), Maidenform Brands, Inc.
(“Parent” and collectively with Employer, the
“Company”) and Steven N. Masket
(“Masket”).
1.
Retirement . Masket hereby notifies the Company
that he is resigning from his employment with the Company due to
his retirement effective March 6, 2009 (the “Retirement
Date”). Effective on the Retirement Date, Masket
hereby resigns as an officer of the Company and any of its
subsidiaries and affiliates (collectively, the “Company
Group”) and from any such positions held with any other
entities at the direction of, or as a result of his affiliation
with, the Company or any other member of the Company
Group. Masket agrees to promptly execute and deliver
such other documents as the Company shall reasonably request to
evidence such resignations. In addition, Masket hereby
agrees and acknowledges that the Retirement Date shall be the date
of his termination from all other offices, positions, trusteeships,
committee memberships and fiduciary capacities held with, or on
behalf of, the Company or any other member of the Company
Group.
2.
Transition Period . During the period prior to
the Retirement Date (the “Transition Period“), Masket
agrees that he shall assist the Company in transitioning his duties
to other Company employees and that he shall continue to perform
duties for the Company as requested by Chief Executive Officer of
the Parent (the “CEO”) that are consistent with the
duties
he has
previously performed for the Company. During the
Transition Period, Masket shall continue to receive his Base Salary
(as defined in the Employment Agreement between Masket, Employer
and Parent dated as of December 18, 2008 (the “Employment
Agreement”) in accordance with the Employer’s normal
payroll practices and shall remain eligible to participate in the
employee benefit programs and arrangements maintained by the
Employer subject to their terms and conditions. During
the Transition Period, Masket shall be entitled to one (1) week of
paid vacation to be taken during the week of February 16, 2009,
without the consent of the CEO, and up to an additional two (2)
weeks of paid vacation with the consent of the CEO. On
the Retirement Date, Masket shall be entitled to receive (i)
payment of any accrued but unpaid Base Salary through the
Retirement Date in accordance with the Employer’s normal
payroll practices, (ii) payment for any unused vacation as set
forth in this paragraph as of Retirement Date paid within fifteen
(15) days following the Retirement Date and (iii) such vested
benefits or rights which he may have accrued through the Retirement
Date under any benefit plan of the Employer (other than any
severance pay plan maintained by the Employer) paid or provided in
accordance with the terms and conditions of the applicable
plan.
3.
Separation Benefits . In consideration for Masket
executing and not revoking this Agreement, the Employer hereby
agrees to pay and provide to Masket the following payments and
benefits (collectively, the “Separation
Benefits”):
a. payment
of an amount equal to $372,395, which amount shall be subject to
tax and other required withholdings and shall be paid in equal
periodic installments over a period of twelve (12) months from the
Retirement Date in accordance with the Em-
ployer’s normal payroll policies as
if Masket continued to be an employee of the Employer (but off
payroll); and
b. subject
to Masket’s or his dependents’ timely election of COBRA
continuation under the Employer’s group health and dental
plans, for a period ending on the earlier of twelve (12) months
following the Retirement Date or Masket’s becoming eligible
for medical and dental benefits from a subsequent employer, the
Employer shall pay to Masket on the first Employer payroll date in
each month following the Retirement Date an amount equal to 100% of
the monthly premium for such COBRA coverage for the applicable
month. The foregoing payments shall each be a bonus to
Masket subject to tax and other required withholdings and each such
payment shall include a gross-up payment in an amount equal to all
such applicable taxes at Masket’s maximum marginal
rates.
In addition, subject to Masket’s
execution, delivery and non-revocation of an additional release,
effective as of the Retirement Date, in favor of the Company Group
and its affiliates, in substantially in the form of Sections 4
through 17 hereof, the Employer hereby agrees to (i) provide to
Masket with executive outplacement services up to a maximum of
$10,000, any such amount to be paid directly by the Employer;
provided that (i) subject to (ii), such benefit shall be provided
for a period of not less than three (3) months commencing on the
Retirement Date and (ii) such benefit shall in any event cease on
the earlier of the date Masket obtains subsequent employment and
September 6, 2009; and (ii) extend the COBRA continuation coverage
pursuant to paragraph (b) above for an additional six (6) months,
subject to the conditions, qualifications and limitations contained
in paragraph (b).
Masket is not required to seek other employment
following the Retirement Date and there shall be no offset against
any amounts due Masket under this Agreement on account of any
remuneration attributable to any subsequent employment that Masket
may obtain.
Any equity incentives granted to Masket prior to
the Retirement Date shall vest, be exercisable or be forfeited in
accordance with the terms and conditions set forth in the
applicable award agreement regarding Masket’s retirement from
the Company. The Company acknowledges and agrees that
for purposes of the 2005 Stock Incentive Plan, the Committee (as
defined in such plan) has approved Masket’s treatment as
“Retired” under the terms of such plan.
4. Masket
acknowledges and agrees that he had the opportunity to review and
consider this Agreement, including the Separation Benefits, for a
period of at least twenty-one (21) days. Masket also
acknowledges and agrees that he has had the opportunity during such
period to discuss this Agreement and the Separation Benefits fully
with whomsoever he wished, and was advised that he could consult an
attorney of his own choice and had a reasonable opportunity to do
so and that he has freely and voluntarily elected to take advantage
of the Separation Benefits.
5. In
consideration for the Separation Benefits, the sufficiency of which
Masket hereby acknowledges, and, other than claims for accrued,
vested benefits under any employee benefit plan of the Company
(including vested stock options) or for any of his rights pursuant
to Section 19 of the Employment Agreement, and except as provided
in paragraph 7, Masket fully and finally waives, discharges, and
releases the Company and the other members of the
Company Group
and its and their current, former and future subsidiaries,
divisions, related entities, employee benefit plans and funds, and
its and their respective current, former and future directors,
officers, shareholders, employees, attorneys, and agents (whether
acting as agents for the Company or any other member of the Company
Group or in their individual capacities) (herein collectively
referred to as the “Released Parties”), from any and
all claims of whatsoever nature, known and unknown, whether in law
or in equity, which he or anyone acting through him, his estate or
on his behalf
