EX-10.48





Exhibit 10.48




	 	 	 
	

	 	501 Seventh Avenue, New York, 10018 • (212) 287-8282 • Fax (212) 287-8275 • email: jdubiner@warnaco.com
	 
	 	 
	JAY L. DUBINER
	 	 
	Senior Vice President
	 	 
	General Counsel & Corporate Secretary
	 	 






EMPLOYMENT AGREEMENT




This AGREEMENT (“Agreement”) is made and entered into as of January 31, 2012 (the
“Effective Date”) by and between THE WARNACO GROUP, INC., a Delaware corporation
(together with its successors and assigns, the “Company”), and MARK WHYMAN (the
“Executive”).



W I T N E S S E T H :




WHEREAS, the Company desires to employ the Executive and to enter into an
agreement embodying the terms of such employment and the Executive desires to enter
into this Agreement and to accept such employment, subject to the terms and provisions
of this Agreement; and



WHEREAS, this Agreement as of February 1, 2012 will supersede in its entirety
the Executive’s current employment agreement, dated as of March 16, 2009.



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 Company and the Executive (individually a “Party” and together 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 Warnaco Group, Inc.



(c) “Cause” shall mean:




(i) willful misconduct by the Executive which causes
material harm to the interests of the Company or any of its
Affiliates;




(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;


 


 









 






(iv) indictment of the Executive for a felony, a crime involving
moral turpitude or any crime involving the business of the Company or any of
its Affiliates which, in the case of such crime involving the business of the
Company or any of its Affiliates, is injurious to such business; or




(v) failure of the Executive to give 90 days prior written notice
of a voluntary resignation (other than for Good Reason or Disability), unless
such failure is waived in writing by an authorized officer of the Company or
the Company shortens the notice period in accordance with Section 5(e)
hereof.



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 full Board by no less than majority vote and prior to such determination the Executive
and his legal representatives 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, as amended) 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 Effective Date, becomes a
“beneficial owner” (as such term is used in Rule 13d-3 promulgated under that
Act), of more than 50% 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.


 


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(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 Section l(c) hereof;




(ii) if the Executive voluntarily resigns his employment, 90
days after receipt by the Company of written notice from the Executive
that the Executive is terminating his employment or, if the Company
shortens the required notice period in accordance with Section 5(e), 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 l(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 l(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 120 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
14 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 Chief Commercial Officer;




(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 such that the Executive reports to an
executive officer position (such as Chief Operating Officer or Chief
Financial Officer) other than the executive officer position he was
reporting to immediately prior to the Change in Control;


 


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(iv) the removal by the Company of the Executive as Chief Commercial
Officer of the Company or the failure by the Board to elect or reelect the
Executive as an executive officer of the Company;




(v) requiring the Executive to be principally based at any office or
location more than 50 miles from his current place of employment (for the
purposes of this Agreement, Executive’s current place of employment shall mean
Hong Kong until April 1, 2012, and shall mean New York City from April 2
through the remainder of the Term or such time as the Company shall notify the
Executive otherwise); provided that any relocation (or delay in relocation)
required because of visa or work permit issues in the United States shall not
constitute Good Reason; 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 in writing or as a matter of law 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.
For the avoidance of doubt, the Executive’s Retirement shall not constitute a Good Reason event.



(h) “Notice Period” means the period from the date of a notice of termination as set forth in
Section l(e)(ii) (for a voluntary resignation by the Executive) through the Date of Termination.



(i) “Retirement” shall mean any termination of the Executive’s employment (whether by
the Executive or the Company) on or after the Executive reaches age 65.



(j) “Separation From Service” shall mean a termination of the Executive’s employment in
a manner consistent with Final Treasury Regulations 1.409A-l(h).




2. Position; Term.



During the Term, the Executive shall be employed by the Company as Chief Commercial Officer
and shall perform such duties and responsibilities as determined by the Company’s Chief Executive
Officer or such other executive officer position which the Executive reports to, in all cases
consistent with such position. The Executive shall devote his full business time and attention to
the satisfactory performance of such duties. Anything herein to the contrary notwithstanding,
nothing shall preclude the Executive from (i) subject to 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 7(a)(i)
below), (ii) engaging in charitable activities and community affairs and (iii) managing his
personal investments and affairs, provided that the activities described in the preceding clauses
(i) through (iii) do not materially interfere with the proper performance of the Executive’s duties
and responsibilities hereunder. The term of the Executive’s employment under this Agreement shall
begin on February 1, 2012 and shall end on the Date of Termination (the “Term”).


 


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3. Compensation.



(a) Base Salary. During the Term, the Executive shall be paid an annualized Base
Salary of $700,000 (“Base Salary”), payable in accordance with the regular payroll practices of the
Company, subject to annual review by the Board (or 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 the Compensation Committee of the Board), the term “Base Salary” as used
in this Agreement shall thereafter refer to the increased amount.



(b) Annual Incentive Awards. During the Term (including for fiscal year 2012 and
thereafter), 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
its shareholders), in effect for the applicable fiscal year (“Bonus Plan”). During the Term, the
Executive’s annual incentive award shall have a target of 85% of Base Salary (“Target Bonus”), with
a potential maximum award as set forth in the Bonus Plan. Any bonus shall, in all events, be 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 in the fiscal year immediately following the fiscal year for which the annual incentive
award was earned and no later than March 15th of such year. After any increase in the
Executive’s target annual bonus opportunity as a percentage of Base Salary as approved by the Board
(or the Compensation Committee of the Board), the term “Target Bonus” as used in this Agreement
shall thereafter refer to the increased target opportunity.



(c) Long-Term Incentive Awards. During the Term, the Executive shall be eligible to
participate in the Company’s equity incentive plans (“Stock Incentive Plan”), at the sole
discretion of the Compensation Committee of the Board, provided that the Executive’s award for 2012
shall be granted at the same time such awards are granted to other senior executives. In addition,
in connection with his promotion to Chief Commercial Officer, the Company will make an additional
equity grant to the Executive as soon as practicable following the date he is on the Company’s U.S.
payroll, with a grant date value equal to $100,000. 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.


 


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(d) Supplemental Award. During the Term beginning with fiscal year 2012 and
thereafter, provided the Executive is employed by the Company on the applicable grant date, the
Executive shall be entitled to an annual award with an aggregate grant date value equal to 8% of
the sum of Base Salary plus Annual Bonus as defined in paragraph 3(d) if the Executive will be age
40 and over and less than 50 by the end of the applicable fiscal year, 10% of such amount if the
Executive will be age 50 and over and less than age 60 at 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”). 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 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 (and, in addition, for the Supplemental Award to be awarded in 2012 not
until the Executive is on the U.S. payroll, whereby it will be awarded as soon as administratively
possible) 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 3(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 3(d), shall be
an unfunded obligation to be satisfied from the general funds of the Company. Except as otherwise
provided in Section 5 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 62nd 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 65th birthday, (ii) upon the
Executive obtaining 20 years of “Vesting Service” or (iii) 10th anniversary of the date of grant.
Except as otherwise provided in Section 5 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 62nd birthday or upon the Executive obtaining 5 years of “Vesting
Service” and 100% on the earlier of the Executive’s 65th birthday and upon the Executive obtaining
10 years of “Vesting Service”. In addition, any unvested Adjusted Notional Account shall vest upon
a Change in Control as defined in Section l(d)(i) or (ii) hereof which constitutes a “change in
control event” under Section 409A (as defined below) (“409A Change in Control Event”). For


 


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 purposes
of this Section 3(d), “Vesting Service” shall mean the
period of time that the Executive is employed by the Company as an executive officer. Subject to Section 15(b) hereof, upon vesting
the Career Shares will be delivered to the Executive in the form of Shares. The vested balance in
the Adjusted Notional Account, if any, shall not be distributed to 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 3(d). Upon a 409A Change in Control Event, the vested Adjusted Notional Account,
subject to Section 15(c) hereof, 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 5 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 15(c) 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 of the Internal Revenue
Code of 1986, as amended from time to time (the “Code”), and the regulations promulgated thereunder
(“Section 409A”) as of the date of the Executive’s Separation From Service, such distribution shall
not be made until the first business day of the seventh calendar month following the month in which
the Executive’s Separation From Service occurs. The Executive can elect to delay the time and/or
form of payment of the Adjusted Notional Account under this Section 3(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 consistent with the applicable deferral rules
under Section 409A. At any time during the Term, the Company may elect to provide the same benefits
described in this Section 3(d) to the Executive per the terms of a supplemental retirement plan to
be established by the Company. Any such benefits provided to Executive pursuant to a supplemental
retirement plan shall replace the Supplemental Award described herein in its entirety.




4. 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 and provided the Executive is on the
Company’s U.S. payroll, the Executive shall be entitled to participate in all employee savings and
welfare benefit plans and programs generally made available to the Company’s U.S. senior-level
executives as such plans or programs may be in effect from time to time. During the Term, the
Executive shall also be entitled to a paid annual physical medical exam as approved by the Company
and, provided the Executive is on the Company’s U.S. payroll, Company-paid term life insurance with
a benefit equal to $1 million, provided the Company can obtain such insurance at commercially
reasonable premium levels and the Executive complies with any underwriting requirements by the
insurance provider. During the Term, the Executive shall be entitled to four weeks paid vacation
per calendar year.



(b) Business Expenses. During the Term, the Company shall reimburse the Executive for
all reasonable business expenses incurred by him in performance of his duties hereunder in
accordance with Company policy, including, but not limited to, the proper documentation of such
expenses. The Company’s business travel policy shall apply to the Executive.


 


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(c) Perquisites. During the Term, 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.



(d) General Limitation. Notwithstanding anything elsewhere to the contrary, except to
the extent any reimbursement, payment or entitlement pursuant to this Section 4 or any other
provision of this Agreement 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 payments or 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.



5. 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 the Executive’s employment is terminated without Cause by the
Company (other than due to Disability or Retirement) or the Executive resigns for Good Reason and
Section 5(d) below does not apply, subject to Section 15(c) hereof and delivering a valid Release
as required in Section 5(f) hereof, the Executive shall be entitled to:




(i) payment of Base Salary through the Date of Termination, payable
on the first regularly scheduled payroll date following the Date of
Termination;




(ii) payment of an amount equal to one times Base Salary, payable in
a cash lump sum to the Executive on the 60th day following the Date of
Termination;




(iii) 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 (but in all events in the fiscal year following the fiscal year in
which the Date of Termination occurs and no later than 60 days after the end of
fiscal year in which the Date of Termination occurs);


 


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(iv) immediate vesting as of the Date of Termination of 50% of any
restricted stock (other than the Career Shares) that remains unvested as of the
Date of Termination;




(v) with respect to any stock options granted on or after the
Effective Date and 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;




(vi) continued participation on the same terms as immediately prior
to the Date of Termination for the Executive and his eligible dependents in the
Company’s medical and dental plans in which he and his eligible dependents were
participating immediately prior to the Date of Termination until the earlier of
(a) 12 months following the Date of Termination, and (b) the date, or dates,
the Executive receives coverage under the plans or programs of a subsequent
employer provided that in no event shall there be any gross-up provided by the
Company for any income tax liabilities or otherwise; and




(vii) any amount due the Executive as of the Date of Termination that
remains unpaid by the Company (without duplication of any payment or
entitlement hereunder), payable on the first regularly scheduled payroll date
following the Date of Termination or, if later, in accordance with the
applicable plan or policy.



(b) Termination upon Death or due to Disability. In the event the Executive’s
employment is terminated upon death or due to Disability, subject to Section 15(c) hereof, the
Executive (or his estate or legal representative, as the case may be) shall be entitled to:




(i) payment of Base Salary through the Date of Termination, payable
on the first regularly scheduled payroll date following the Date of
Termination;




(ii) 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 (but in all events in the fiscal year following the fiscal year in
which the Date of Termination occurs and no later than 60 days after the end of
fiscal year in which the Date of Termination occurs);




(iii) 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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(iv) 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 3(d) above; and




(v) any amount due the Executive as of the Date of Termination that
remains unpaid by the Company (without duplication of any payment or
entitlement hereunder), payable on the first regularly scheduled payroll date
following the Date of Termination or, if later, in accordance with the
applicable plan or policy.



(c) Termination by the Company for
Cause or a Voluntary Resignation by the Executive.
In the event that the Company terminates the Executive’s employment for Cause or the Executive
voluntarily resigns, the Executive shall be entitled to his Base Salary and employee 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 and failure by the
Executive to provide such notice shall be deemed to be a breach of this Agreement.



(d) Termination without Cause by the Company or Resignation for Good Reason by the
Executive Upon or Following a Change in Control. In the event that the Executive’s employment
is terminated without Cause by the Company (other than due to Disability or Retirement) or the
Executive resigns for Good Reason, in both cases upon or within one year following a Change in
Control, subject to Section 15(c) hereof and delivering a valid Release as required in Section 5(f)
hereof, the Executive shall be entitled to:




(i) payment of Base Salary through the Date of Termination, payable
on the first regularly scheduled payroll date following the Date of
Termination;




(ii) an amount equal to 2 times the sum of (a) Base Salary plus (b)
Target Bonus, payable in a cash lump sum on the 60th day following
the Date of Termination;




(iii) a pro-rata Target Bonus for the year of termination, determined
by multiplying the Target Bonus by a fraction, the numerator of which is the
number of days the Executive was employed by the Company during the year in
which the Date of Termination occurs and the denominator of which is 365,
payable in a cash lump sum on the 60th day following the Date of
Termination;




(iv) immediate vesting as of the Date of Termination of all
outstanding equity awards (other than Career Shares), with any vested and
outstanding stock options granted on or after the Effective Date remaining
exercisable for 24 months following the Date of Termination or the remainder of
the option term, if shorter;


 


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(v) immediate vesting as of the Date of Termination of any
previously granted Supplemental Award, payable in accordance with Section
3(d) above;




(vi) continued participation on the same terms as immediately prior
to the Date of Termination for the Executive and his eligible dependents in the
Company’s welfare benefit plans in which he and his eligible dependents were
participating immediately prior to the Date of Termination until the earlier of
(a) 24 months following the Date of Termination, and (b) the date, or dates,
the Executive receives substantially equivalent coverage under the plans or
programs of a subsequent employer; provided that in no event shall there be any
gross up provided by the Company for any tax liabilities or otherwise; and




(vii) any amount due the Executive as of the Date of Termination that
remains unpaid by the Company (without duplication of any payment or
entitlement hereunder), payable on the first regularly scheduled payroll date
following the Date of Termination or, if later, in accordance with the
applicable plan or policy.



(e) Obligations During Notice Period. In the event that the Executive
voluntarily resigns his employment (other than for Good Reason), the Executive shall continue to be
an employee of the Company during the Notice Period. As such, his fiduciary duties and other
obligations as an employee of the Company shall continue during the Notice Period and the Executive
agrees to cooperate in the transition of his responsibilities during such period. The Company shall
have the right to direct the Executive to no longer come to work, or not to perform any work for
the Company, during the Notice Period and, if the Company so directs, in addition to his fiduciary
duties and other obligations as an employee and his commitments pursuant to Sections 6, 7, 8 and 9
hereof, the Executive agrees to refrain during the Notice Period from contacting any customers,
clients, advertisers, suppliers, agents, professional advisors or employees of the Company or any
of its Affiliates. In the case of a voluntary resignation by the Executive, the Company may shorten
the Notice Period by providing written notice to the Executive, in which event the Executive’s
employment shall terminate on the date stated in such notice; provided that the Company shall
continue to pay the Executive his Base Salary through the end of the original Notice Period.



(f) Exclusivity of Benefits; Releases of Claims. Any payments provided pursuant to
Section 5(a) or Section 5(d) above shall be in lieu of any salary continuation arrangements under
any other severance program of the Company or any Affiliate and, in all events, the Executive shall
not be entitled to duplication of any benefit or entitlement (whether pursuant to this Agreement,
any other plan, policy, arrangement of, or other agreement with, the Company or any Affiliate or
pursuant to law). In order to be entitled to any payments, rights and other entitlements pursuant
to this Agreement or otherwise, the Executive must comply with the covenants and/or
acknowledgements contained in Sections 6, 7, 8 and 9 of this Agreement. As a condition of receiving
the severance and benefits pursuant to Section 5(a) or Section 5(d), as the case may be (except for
those payments or benefits required to be paid or provided by applicable law), the Executive shall
be required to execute and deliver to the Company a general release of
claims in the form attached hereto as Exhibit A (the “Release”) no later than 45 days following the
Date of Termination and not revoke such release within the applicable revocation period. In the
event the Executive revokes the Release, the Executive shall not be entitled to the payments,
rights or other entitlements hereunder other than as required by applicable law.


 


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(g) Nature of Payments; No Mitigation.
Any amounts due under this Section 5 are
in the nature of severance payments considered to be reasonable by
the Company and are not in the
nature of a penalty. In the event of termination of his employment for any reason in compliance
with this Agreement, the Executive shall be under no obligation to seek other employment and,
except as specifically provided for in this Section 5 (including, without limitation, Section 5(f)
hereof), there shall be no offset against amounts due to him on account of any remuneration or
benefits provided by any subsequent employment he may obtain which is consistent with Section 7 of
this Agreement.



(h) Resignation. Notwithstanding any other provision of this Agreement, upon the
termination of the Executive’s employment for any reason or, if earlier, upon commencement of the
Notice Period, unless otherwise requested by the Company, the Executive shall immediately resign,
if applicable, from all boards of directors of the Company and of any Affiliate of the Company of
which he may be a member, and as a trustee of, or fiduciary to, any employee benefit plans of the
Company or any Affiliate. The Executive hereby agrees to execute any and all documentation of such
resignations upon request by the Company, but he shall be treated for all purposes as having so
resigned upon termination of his employment or commencement of the Notice Period, as the case may
be, regardless of when or whether he executes any such documentation.



(i) Section 409A. Notwithstanding anything to the contrary in this Agreement or
elsewhere (except for Section 3(d) of this Agreement), if the Executive is a “specified employee”
as determined pursuant to Section 409A as of the date of the Separation From Service and if any
payment, benefit or entitlement provided for in this Agreement or otherwise both (x) constitutes a
“deferral of compensation” within the meaning of Section 409A and (y) cannot be paid or provided in
a manner otherwise provided herein or otherwise without subjecting the Executive to additional tax,
interest or penalties under Section 409A, then any such payment, benefit or entitlement that is
payable during the first six months following the Executive’s Separation From Service shall be paid
or provided to the Executive in a cash lump-sum on 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. In addition, any payment, benefit or entitlement due upon a
termination of the Executive’s employment that represents a “deferral of compensation” within the
meaning of Section 409A (other than any payment due pursuant to Section 3(d) of this Agreement)
shall only be paid or provided to Executive upon a Separation From Service, in which case any
reference to “Date of Termination” in connection with such payment, benefit or entitlement shall be
deemed to be a reference to “Separation From Service”, and the actual payment date within the time
specified in the applicable provision of Section 5 shall be within the Company’s sole discretion.
Notwithstanding anything to the contrary in this Section 5 or otherwise, any payment or benefit
under this Section 5 or otherwise which is exempt from Section 409A pursuant to Final Treasury
Regulation 1.409A-l(b)(9)(v)(A) or (C) shall be paid or provided to the Executive only to the
extent the expenses are not




 


12









 







 incurred
or the benefits are not provided beyond the last day of the second taxable year of the Executive following the taxable year of the Executive in which the
Separation From Service occurs; and provided further that the Company reimburses such expenses no
later than the last day of the third taxable year following the taxable year of the Executive in
which the Separation From Service occurs. Finally, to the extent that the provision of any benefit
pursuant to Section 5(a)(vi) or Section 5(d)(vi) hereof is taxable to the Executive, any such
reimbursement shall be paid to the Executive on or before the last day of the Executive’s taxable
year following the taxable year in which the expense is incurred and such reimbursement shall not
be subject to liquidation or exchange for any other benefit.




6. Protection of Confidential Information and Company Property.



(a) During the Term and thereafter, other than in the ordinary course of performing the
Executive’s duties for the Company or as required in connection with providing any cooperation to
the Company pursuant to Section 9 below, the Executive agrees that the Executive shall not disclose
to anyone or make use of any trade secret or proprietary or confidential information of the Company
or any Affiliate of the Company, including such trade secret or proprietary or confidential
information of any customer or other entity to which the Company owes an obligation not to disclose
such information, which the Executive acquires during the course of the Executive’s employment
(“Confidential Information”), including, but not limited to, records kept in the ordinary course of
business, except when required to do so by a court of law, by any governmental agency having
supervisory authority over the business of the Company or by any administrative or legislative body
(including a committee thereof) with apparent or actual jurisdiction to order the Executive to
divulge, disclose or make accessible such information. “Confidential Information” shall not include
information that (i) was known to the public prior to its disclosure by the Executive; or (ii)
becomes known to the public through no wrongful disclosure by or act of the Executive or any
representative of the Executive. In the event the Executive is requested by subpoena, court order,
investigative demand, search warrant or other legal process to disclose any Confidential
Information, the Executive agrees, unless prohibited by law or Securities and Exchange Commission
regulation, to give the Company’s General Counsel prompt written notice of any request for
disclosure in advance of the Executive’s making such disclosure and the Executive agrees not to
disclose such information unless and until the Company has expressly authorized the Executive to do
so in writing or the Company has had a reasonable opportunity to object to such request or to
litigate the matter (of which the Company agrees to keep the Executive reasonably informed) and has
failed to do so.



(b) The Executive hereby sells, assigns and transfers to the Company all of the Executive’s
right, title and interest in and to all inventions, discoveries, improvements and copyrightable
subject matter (the “Rights”) which during the period of the Executive’s employment are made or
conceived by the Executive, alone or with others, and which are within or arise out of any general
field of the Company’s business or arise out of any work the Executive performs, or information the
Executive receives regarding the business of the Company, while employed by the Company. The
Executive shall fully disclose to the Company as promptly as available all information known or
possessed by the Executive concerning any Rights, and upon request by the Company and without any
further remuneration in any form to the Executive by the Company, but at the expense of the
Company, execute all applications for patents and for copyright registration, assignments thereof
and other instruments and do all
things which the Company may deem necessary to vest and maintain in it the entire right, title and
interest in and to all such Rights.


 


13









 





(c) The Executive agrees upon termination of employment (whether during or after the
expiration of the Term and whether such termination is at the instance of the Executive or the
Company), and regardless of the reasons therefor, or at any time as the Company may request, the
Executive will promptly deliver to the Company’s General Counsel, and not keep or deliver to anyone
else, any and all of the following which is in the Executive’s possession or control: (i) Company
property (including, without limitation, credit cards, computers, communication devices, home
office equipment and other Company tangible property) and (ii) notes, files, memoranda, papers and,
in general, any and all physical matter and computer files containing confidential or proprietary
information of the Company or any of its Affiliates, including any and all documents relating to
the conduct of the business of the Company or any of its Affiliates and any and all documents
containing confidential or proprietary information of the customers of the Company or any of its
Affiliates, except for (x) any documents for which the Company’s General Counsel has given written
consent to removal at the time of termination of the Executive’s employment and (y) any information
necessary for the Executive to retain for the Executive’s tax purposes (provided the Executive
maintains the confidentiality of such information in accordance with Section 6(a) above).




7. Additional Covenants.



(a) The Executive acknowledges that in the Executive’s capacity in
management the Executive has had or will have a great deal of exposure and access to the trade
secrets of the Company or its Affiliates and other Confidential Information. Therefore, to protect
such trade secrets and other Confidential Information, the Executive agrees as follows:




(i) during the Executive’s employment with the Company or any
Affiliate, including during any Notice Period and for 12 months following
termination of such employment, the Executive shall not, other than in the
ordinary course of performing the Executive’s duties hereunder or as agreed by
the Company in writing, engage in a “Competitive Business,” directly or
indirectly, as an individual, partner, shareholder, director, officer,
principal, agent, employee, trustee, consultant, or in any relationship or
capacity, in any geographic location in which the Company or any of its
Affiliates is engaged in business. The Executive shall not be deemed to be in
violation of this Section 7(a) by reason of the fact that the Executive owns or
acquires, solely as an investment, up to two percent (2%) of the outstanding
equity securities (measured by value) of any entity. “Competitive Business”
shall mean a business engaged in (x) apparel design and/or apparel wholesaling
or (y) retailing in competition with any business that the Company or any of
its Affiliates is conducting at the time of the alleged violation; and


 


14









 






(ii) during the Executive’s employment with the Company or any
Affiliate and for 18 months following termination of such employment for
any reason, including, without limitation, during any
Notice Period, the Executive shall not, other than in the ordinary course of
the Company’s business or with the Company’s prior written consent, directly or
indirectly, solicit or encourage any customer of the Company or any of its
Affiliates to reduce or cease its business with the Company or any such
Affiliate or otherwise interfere with the relationship of the Company or any
Affiliate with its customers.



(b) The Executive agrees that during the Executive’s employment with the Company or any
Affiliate and for 18 months following termination of such employment for any reason, including,
without limitation, during any Notice Period, the Executive shall not, other than in the ordinary
course of the Company’s business or with the Company’s prior written consent, directly or
indirectly, hire any employee of the Company or any of its Affiliates, or solicit or encourage any
such employee to leave the employ of the Company or its Affiliates, as the case may be.



(c) Upon commencement of the Notice Period and following the termination of the Executive’s
employment for any reason, the Executive agrees to refrain from making any statements or comments,
whether oral or written, of a defamatory or disparaging nature to third parties regarding the
Company (which for purposes of this provision shall include an Affiliate of the Company and the
Company’s officers, directors, personnel and products). The Executive, however, shall be entitled
to respond truthfully and accurately to statements about him made publicly by the Company, provided
that such response is consistent with the Executive’s obligation not to make any statements or
comments of a defamatory or disparaging nature as set forth herein.




8. Injunctive and Other Relief.



(a) The Executive acknowledges that the restrictions and commitments set forth in Sections 6,
7 and 9 of this Agreement are necessary to prevent the improper use and disclosure of Confidential
Information and to otherwise protect the legitimate business interests of the Company and any of
its Affiliates. The Executive further acknowledges that the restrictions set forth in Sections 6, 7
and 9 of this Agreement are reasonable in all respects, including, without limitation, duration,
territory and scope of activity. The Executive expressly agrees and acknowledges that any breach or
threatened breach by the Executive or any third party of any obligation by the Executive under this
Agreement, including, without limitation, any breach or threatened breach of Section 6, 7 or 9 of
this Agreement will cause the Company immediate, immeasurable and irreparable harm for which there
is no adequate remedy at law, and as a result of this, in addition to its other remedies, the
Company shall be entitled to the issuance by a court of competent jurisdiction of an injunction,
restraining order, specific performance or other equitable relief in favor of itself, without the
necessity of posting a bond, restraining the Executive or any third party from committing or
continuing to commit any such violation.



(b) If any restriction set forth in Section 6, 7 or 9 of this Agreement is found by any
arbitrator or court of competent jurisdiction to be unenforceable because it extends for too long a
period of time or over too great a range of activities or in too broad a geographic area, it will
be interpreted to extend over the maximum period of time, range of activities or geographic
area as to which it may be enforceable. If any provision of Section 6, 7 or 9 of this Agreement is
declared to be invalid or unenforceable, in whole or in part, for any reason, such invalidity will
not affect the remaining provisions of such Section which will remain in full force and effect.


 


15









 






9. Cooperation.



Following the Executive’s termination of employment for any reason, upon reasonable request by
the Company, the Executive shall cooperate with the Company or any of its Affiliates with respect
to any legal or investigatory proceeding, including any government or regulatory investigation, or
any litigation or other dispute relating to any matter in which the Executive was involved or had
knowledge during the Executive’s employment with the Company, subject to the Executive’s reasonable
personal and business schedules. The Company shall reimburse the Executive for all reasonable
out-of-pocket costs, such as travel, hotel and meal expenses and reasonable attorneys’ fees,
incurred by the Executive in providing any cooperation pursuant to this Section 9; provided such
expenses shall be paid to the Executive as soon as practicable but in no event later than the end
of the calendar year following the calendar year in which the expenses are incurred, subject in all
cases to the Executive providing appropriate documentation to the Company. The Company shall also
pay the Executive a reasonable per diem amount for the Executive’s time (other than for time spent
preparing for or providing testimony) which shall be based upon the Executive’s Base Salary at the
Date of Termination, with such per diem paid to the Executive in the calendar month following the
month in which he provides such assistance. Any reimbursement or payment under this Section 9 shall
not affect the amount of the reimbursement or payment to the Executive in any other taxable year.
The right to payment or reimbursement pursuant to this Section 9 shall not be liquidated or
exchanged for any other benefit.




10. Tax Matters.



(a) If any amount, entitlement, or benefit paid or payable to the Executive or provided for
his benefit under this Agreement and under any other agreement, plan or program of the Company or
any Affiliate (such payments, entitlements and benefits referred to as a “Payment”) is subject to
the excise tax imposed under Code Section 4999, or any similar federal or state law (an “Excise
Tax”), then notwithstanding anything contained in this Agreement to the contrary, to the extent
that any or all Payments would be subject to the imposition of an Excise Tax, the Payments shall be
reduced (but not below zero) if and to the extent that such reduction would result in the Executive
retaining a larger amount, on an after-tax basis (taking into account federal, state and local
income taxes and the imposition of the Excise Tax), than if the Executive received all of the
Payments (such reduced amount is hereinafter referred to as the “Limited Payment Amount”). The
Company shall reduce or eliminate the Payments by first reducing or eliminating the payments or
benefits payable in cash and then by reducing or eliminating the non-cash payments, in each case in
reverse order beginning with payments or benefits which are to be paid the farthest in time from
the Determination (as defined below).


 


16









 





(b) All calculations under this Section 10 shall be made by a nationally recognized accounting
firm designated by the Company and reasonably acceptable to the Executive (other than the
accounting firm that is regularly engaged by any party who has effectuated a Change in Control)
(the “Accounting Firm”). The Company shall pay all fees and
expenses of such Accounting Firm. The Accounting Firm shall provide its calculations, together with
detailed supporting documentation, both to the Company and the Executive within 45 days after the
Change in Control or the Date of Termination, whichever is later (or such earlier time as is
requested by the Company) and, with respect to the Limited Payment Amount, shall deliver its
opinion to the Executive that he is not required to report any Excise Tax on his federal income tax
return with respect to the Limited Payment Amount (collectively, the “Determination”). Within 5
days of the Executive’s receipt of the Determination, the Executive shall have the right to dispute
the Determination (the “Dispute”). The existence of the Dispute shall not in any way affect the
right of the Executive to receive the Payments in accordance with the Determination. If there is no
Dispute, the Determination by the Accounting Firm shall be final binding and conclusive upon the
Company and the Executive (except as provided in subsection (c) below).



(c) If, after the Payments have been made to the Executive, it is established that the
Payments made to, or provided for the benefit of, the Executive exceed the limitations provided in
subsection (a) above (an “Excess Payment”) or are less than such limitations (an “Underpayment”),
as the case may be, then the provisions of this subsection (c) shall apply. If it is established
pursuant to a final determination of a court or an Internal Revenue Service (the “IRS”) proceeding
which has been finally and conclusively resolved, that an Excess Payment has been made, the
Executive shall repay the Excess Payment to the Company within 20 days following the determination
of such Excess Payment. In the event that it is determined by (i) the Accounting Firm, the Company
(which shall include the position taken by the Company, or together with its consolidated group, on
its federal income tax return) or the IRS, (ii) pursuant to a determination by a court, or (iii)
upon the resolution to the satisfaction of the Executive of the Dispute, that an Underpayment has
occurred, the Company shall pay an amount equal to the Underpayment to the Executive within 10 days
of such determination or resolution together with interest on such amount at the applicable federal
short-term rate, as defined under Section 1274(d) of the Code and as in effect on the first date
that such amount should have been paid to the Executive under this Agreement, from such date until
the date that such Underpayment is made to the Executive.




11. Representations.



The Executive represents and warrants that he has the free and unfettered right to enter into
this Agreement and to perform his obligations under it and that he knows of no agreement between
him and any other person, firm or organization, or any law or regulation, that would be violated by
the performance of his obligations under this Agreement. The Executive agrees that he will not use
or disclose any confidential or proprietary information of any prior employer in the course of
performing his duties for the Company or any of its Affiliates.


 


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12. Indemnification and Liability Insurance.



The Company hereby agrees during, and after termination of, his employment to indemnify
the Executive and hold him harmless, both during the Term and thereafter, to the fullest
extent permitted by law and under the certificate of incorporation and by-laws of the Company
against and in respect of any and all actions, suits, proceedings, claims, demands,
judgments, costs, expenses (including reasonable attorneys’ fees), losses, amounts paid in
settlement to the extent approved by the Company, and damages resulting from the Executive’s good
faith performance of his duties as an officer or director of the Company or any Affiliate of the
Company. The Company shall reimburse the Executive for expenses incurred by him in connection with
any proceeding hereunder upon written request from the Executive for such reimbursement and the
submission by the Executive of the appropriate documentation associated with these expenses. Such
request shall include an undertaking by the Executive to repay the amount of such advance or
reimbursement if it shall ultimately be determined that he is not entitled to be indemnified
hereunder against such costs and expenses. The Company shall use commercially reasonable efforts to
obtain and maintain directors’ and officers’ liability insurance covering the Executive to the same
extent as the Company covers its other officers and directors.




13. Resolution of Disputes.



Except as otherwise provided in Section 8 above, any controversy, dispute or claim arising
under or relating to this Agreement, the Executive’s employment with the Company or any Affiliate
or the termination thereof shall, at the election of the Executive or the Company (unless otherwise
provided in an applicable Company plan, program or agreement), be resolved by confidential, binding
and final arbitration, to be held in the borough of Manhattan in New York City in accordance with
the rules and procedures of the Commercial Arbitration Rules of the American Arbitration
Association. Judgment upon the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof and shall be binding upon the Parties. The Executive consents to the personal
and exclusive jurisdiction of the courts of the State of New York (including the United States
District Court for the Southern District of New York) in any proceedings hereunder, including,
without limitation, any proceeding for equitable relief. The Executive further agrees not to
interpose any objection for improper venue in any such proceeding. Each Party shall be responsible
for its own costs and expenses, including attorneys’ fees, and neither Party shall be liable for
punitive or exemplary damages, provided that if the Executive substantially prevails with respect
to all claims that are the subject matter of the dispute, his costs, including attorneys’ fees,
shall be borne by the Company and if such costs are not reimbursed by the Company in a dispute
exempt pursuant to Treasury Regulation 1.409A-1(b)(11) then such payment shall be made by the
Company to the Executive in the year following the year in which the dispute is resolved.




14. Notices.



Any notice given to a Party shall be in writing and shall be deemed to have been given (i)
when delivered personally, (ii) three days after being sent by certified or registered mail,
postage prepaid, return receipt requested or (iii) two days after being sent by overnight courier
(provided that a written acknowledgement of receipt is obtained by the overnight courier), with any
such notice duly addressed to the Party concerned at the address indicated below or to such other
address as such Party may subsequently designate by written notice in accordance with this Section
14:



	 	 	 	 	 
	 

	 	If to the Company:
	 	The Warnaco Group, Inc.
	 

	 	 	 	501 Seventh Avenue
	 

	 	 	 	New York, New York 10018
	 

	 	 	 	Attention: General Counsel
	 
	 	 	 	 
	 

	 	If to the Executive:
	 	The most recent address in the Company’s records.






 


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15.
Miscellaneous Provisions.



(a) This Agreement shall be governed by and construed and interpreted in accordance with the
laws of New York without reference to principles of conflicts of law; provided, however, that
Federal law shall apply to the interpretation or enforcement of the arbitration provisions of
Section 13 hereof.



(b) This Agreement contains the entire understanding and agreement between the Parties
concerning the subject matter hereof and, as of February 1, 2012, shall supersede all prior
agreements, understandings, discussions, negotiations and undertakings, whether written or oral,
between the Parties with respect thereto (including the employment agreement between the Parties
dated as of March 16, 2009 but not including any equity awards or related equity agreements that
remain outstanding as of January 31, 2012 which shall be governed by the applicable provisions of
any prior employment and/or equity agreement, as applicable). This Agreement may not be terminated
and no provision of this Agreement may be amended unless such termination or amendment is agreed to
in writing and signed by the Executive and an authorized officer of the Company. No waiver by
either Party of any breach by the other Party of any condition or provision contained in this
Agreement to be performed by such other Party shall be deemed a waiver of a similar or dissimilar
condition or provision at the same or any prior or subsequent time. The respective rights and
obligations of the Parties hereunder, including, without limitation, Section 6 (protection of
confidential information and company property), Section 7 (additional covenants), Section 8
(injunctive and other relief), Section 9 (cooperation) and Section 13 (resolution of disputes)
shall survive any termination of the Executive’s employment for whatever reason, to the extent
necessary to the intended preservation of such rights and obligations.



(c) The Company may withhold from any amounts, payments or benefits under this Agreement such
Federal, state, local or other taxes as shall be required to be withheld pursuant to any applicable
law or regulation.



(d) This Agreement shall be binding upon and inure to the benefit of the Parties and their
respective successors, heirs (in the case of the Executive) and assigns. No rights or obligations
of the Executive under this Agreement may be assigned or transferred by the Executive other than
his rights to compensation and benefits, which may be transferred only by will, operation of law or
in accordance with any applicable Company plan, program or agreement.



(e) In the event that any provision or portion of this Agreement shall be determined to be
invalid or unenforceable by an arbitrator or court of competent jurisdiction for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.


 


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(f) The headings and subheadings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or construction of any
provision of this Agreement.



(g) This Agreement may be executed in two or more counterparts.



[Signatures on next page.]



 


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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	THE WARNACO GROUP, INC.

 	 
	 	By:  	/s/ Jay Dubiner
 	 
	 	 	Name:  	Jay Dubiner 	 
	 	 	Title:  	SVP, General Counsel & Corporate Secretary 	 
	 
	 	THE EXECUTIVE

 	 
	 	/s/ Mark Whyman
 	 
	 	Mark Whyman 	 



 


21









 





Exhibit A




AGREEMENT AND RELEASE OF CLAIMS




THIS AGREEMENT AND RELEASE is executed by the undersigned (the “Executive”) as of the date
hereof.



WHEREAS, the Executive and The Warnaco Group, Inc. (the “Company”) entered into an employment
agreement dated January 31, 2012 (the “Employment Agreement”);



WHEREAS, the Executive has certain entitlements pursuant to the Employment Agreement subject
to the Executive’s executing this Agreement and Release and complying with its terms.



NOW, THEREFORE, in consideration of the payments set forth in Section 5 of the
Employment Agreement and other good and valuable consideration, the Executive agrees as
follows:



The Executive, on behalf of himself and his dependents, heirs, administrators, agents,
executors, successors and assigns (the “Executive Releasors”), hereby releases and forever
discharges the Company and its affiliated companies and their past and present parents,
subsidiaries, successors and assigns and all of the aforesaid companies’ past and present officers,
directors, employees, trustees, shareholders, representatives and agents (the “Company Releasees”),
from any and all claims, demands, obligations, liabilities and causes of action of any kind or
description whatsoever, in law, equity or otherwise, whether known or unknown, that any Executive
Releasor had, may have had or now has against the Company or any other Company Releasee as of the
date of execution of this Agreement and Release arising out of or relating to the Executive’s
employment relationship, or the termination of that relationship, with the Company (or any
affiliate), including, but not limited to, any claim, demand, obligation, liability or cause of
action arising under any Federal, state, or local employment law or ordinance (including, but not
limited to, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal Pay
Act, the Americans With Disabilities Act of 1991, the Workers Adjustment and Retraining
Notification Act, the Employee Retirement Income Security Act (other than any claim for vested
benefits), the Family and Medical Leave Act, and the Age Discrimination in Employment Act, as
amended by the Older Workers’ Benefit Protection Act (“ADEA”)), tort, contract, or alleged
violation of any other legal obligation (collectively “Released Executive Claims”). In addition, in
consideration of the promises and covenants of the Company, the Executive, on behalf of himself and
the other Executive Releasors, further agrees to waive any and all rights under the laws of any
jurisdiction in the United States, or any other country, that limit a general release to any of the
foregoing actions, causes of action, claims or charges that are known or suspected to exist in the
Executive’s favor as of the date of this Agreement and Release. Anything to the contrary
notwithstanding in this Agreement and Release or the Employment Agreement, nothing herein shall
release any Company Releasee from any claims or damages based on (i) any right or claim that arises
after the date of this Agreement and Release pertaining to a matter that arises after such date,
(ii) any right the Executive may have to enforce
Sections 5, 10 and 12 of the Employment Agreement,
(iii) any right or claim the Executive may have to benefits or equity awards that have accrued or
vested as of the Date of Termination or any right pursuant to any qualified retirement plan or (iv)
any right the Executive may have to be
indemnified by the Company to the extent such indemnification by the Company or any Affiliate is
permitted by applicable law or the Company’s by-laws.


 


22









 





The Executive understands that nothing in this Agreement and Release shall be construed to
prohibit him from filing a charge with, or participating in any investigation or proceeding
conducted by, the Equal Employment Opportunity Commission, the National Labor Relations Board,
and/or by any federal, state or local agency. Notwithstanding the foregoing, the Executive hereby
waives any and all rights to recover monetary damages in any charge, complaint, or lawsuit filed by
him or by anyone else of his behalf based on events occurring prior to the date of this Agreement
and Release.



The Executive agrees that he shall continue to be bound by, and will comply with, the
provisions of Sections 6, 7, 9 and 13 of the Employment Agreement and the provisions of such
sections, along with Section 8 of the Employment Agreement, shall be incorporated fully into this
Agreement and Release.



The Executive acknowledges that he has been provided a period of at least 21 calendar days (45
calendar days in the case of any termination covered by Section 7(f)(l)(F)(ii) of ADEA) in which to
consider and execute this Agreement and Release. The Executive further acknowledges and understands
that he has seven calendar days from the date on which he executes this Agreement and Release to
revoke his acceptance by delivering to the Company written notification of his intention to revoke
this Agreement and Release in accordance with Section 14 of the Employment Agreement. This
Agreement and Release becomes effective when signed unless revoked in writing and in accordance
with this seven-day provision. To the extent that the Executive has not otherwise done so, the
Executive is advised to consult with an attorney prior to executing this Agreement and Release.



This Agreement and Release shall be governed by and construed and interpreted in accordance
with the laws of New York without reference to principles of conflicts of law. Capitalized terms,
unless defined herein, shall have the meaning ascribed to such terms in the Employment Agreement.



IN WITNESS WHEREOF, the Executive has executed this Agreement and Release as of the date
hereof.



	 	 	 	 	 
	 

	 	/s/ Mark Whyman
	 	 
	 

	 	 	 	 
	 

	 	Mark Whyman	 	 
	 
	 	 	 	 
	 

	 	Date: 1/31/12	 	 







 


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