EX-10.49





Exhibit 10.49




Second Amendment to Employment Agreement




This Second Amendment to the employment agreement by and between THE WARNACO GROUP, INC., a
Delaware corporation (together with its successors and assigns, the “Company”), and JAY DUBINER
(the “Executive”), dated as of August 11, 2008, as amended (the “Agreement”) is made and entered
into on the date written below. All definitions not defined herein have the meaning ascribed to
such terms in the Agreement.



WHEREAS, the Company and the Executive desire to amend the Agreement to ensure that Section
3(d) of the Agreement relating to the Supplemental Awards conforms with the same provisions for
other executive officers;



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 agree as follows:



1. Section 3(d) of the Agreement is amended by replacing such provision in its entirety with the
following:



(d) Supplemental Award. During the Term beginning with fiscal year 2008, 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 6% of the sum of Base Salary plus
Annual Bonus as defined in this paragraph 3(d) if the Executive will be less than age 40 by the end
of the applicable fiscal year, 8% of such amount 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”), with the first such award pro-rated to reflect the number of full months of service by the
Executive in fiscal year 2008. 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 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 1(d)(i) or (ii)
hereof which also qualifies as a “change in control event” under Section 409A (“409A Change in
Control Event”). For 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(b) 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(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 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. Upon the expiration or termination of the
Term, the vesting and payment dates in this Section 3(d) (without regard to Section 5, except as
otherwise expressly provided in Section 5(d) of this Agreement) and the election right in this
Section 3(d) shall continue to apply to any outstanding Supplemental Award.



2. Except as otherwise set forth herein, the Agreement continues in full force and effect.


 


 









 





IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date written below.



	 	 	 	 	 
	 	THE WARNACO GROUP, INC.

 	 
	 	By:  	/s/ Helen McCluskey
 	 
	 	 	Name:  	Helen McCluskey 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	THE EXECUTIVE

 	 
	 	/s/ Jay Dubiner
 	 
	 	JAY DUBINER 	 



Date:
February 27, 2012