Exhibit 10.33
EXECUTION COPY
SUPPLEMENTAL RETIREMENT AGREEMENT
THIS SUPPLEMENTAL RETIREMENT AGREEMENT (this "Agreement"), is entered by and
between MOTHERS WORK, INC., a Delaware Corporation (the "Company"), and REBECCA
C. MATTHIAS (the "Executive");
WHEREAS, the Executive is presently employed by the Company in a key executive
position and possesses substantial talent, ability and unique business
experience which has been and will continue to be of great value to the Company;
and
WHEREAS, in consideration for the Executive's past contributions to the Company
and her continued service with the Company, the Company desires to provide the
Executive with supplemental retirement benefits upon her cessation of service
with the Company;
NOW, THEREFORE, intending to be legally bound, the parties agree as follows:
1.
DEFINITIONS.
FOR PURPOSES OF THIS AGREEMENT, THE FOLLOWING TERMS
WILL HAVE THE MEANINGS DEFINED BELOW:
(A)
"ACTUARIAL PRESENT VALUE" MEANS, FOR ANY STREAM OF PAYMENTS AS OF
ANY DATE, THE ACTUARIAL PRESENT VALUE OF THOSE PAYMENTS ON THE DATE SPECIFIED,
DETERMINED USING THE 1994 GROUP ANNUITY UNISEX MORTALITY TABLE AND ASSUMING A 6%
RATE OF INTEREST.
(B)
"BENEFIT" MEANS THE BENEFIT PAYABLE TO THE EXECUTIVE PURSUANT TO
THE TERMS OF THIS AGREEMENT.
(C)
"BOARD" MEANS THE BOARD OF DIRECTORS OF THE COMPANY, AS
CONSTITUTED FROM TIME TO TIME; PROVIDED, HOWEVER, THAT IF THE BOARD APPOINTS A
COMMITTEE TO PERFORM SOME OR ALL OF THE BOARD'S ADMINISTRATIVE FUNCTIONS
HEREUNDER, REFERENCES TO THE "BOARD" WILL BE DEEMED TO ALSO REFER TO THAT
COMMITTEE IN CONNECTION WITH MATTERS PERFORMED BY THAT COMMITTEE.
(D)
"CAUSE" WILL HAVE THE SAME MEANING AS IS SET FORTH IN THE
EMPLOYMENT AGREEMENT.
(E)
"CHANGE IN CONTROL" WILL HAVE THE SAME MEANING AS IS SET FORTH IN
THE EMPLOYMENT AGREEMENT.
(F)
"CODE" MEANS THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND
ANY SUCCESSOR THERETO.
(G)
"DEEMED FINAL PAY" MEANS $531,803 (THE "BASE SALARY"), INCREASED
BY 3% PER YEAR ON EACH OCTOBER 1ST THAT OCCURS AFTER THE EFFECTIVE DATE AND
BEFORE THE EXECUTIVE CEASES TO BE EMPLOYED BY THE COMPANY, PROVIDED, HOWEVER,
THAT NO INCREASES TO DEEMED FINAL PAY WILL BE MADE ON OR AFTER OCTOBER 1, 2012.
(H)
"EFFECTIVE DATE" MEANS THE DATE THIS AGREEMENT IS FULLY EXECUTED
BY BOTH PARTIES HERETO.
(I)
"EMPLOYMENT AGREEMENT" MEANS THAT CERTAIN SECOND AMENDED AND
RESTATED EMPLOYMENT AGREEMENT BETWEEN THE EXECUTIVE AND THE COMPANY DATED MARCH
2, 2007, AS AMENDED FROM TIME TO TIME.
(J)
"ERISA" MEANS THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED.
(K)
"GOOD REASON" WILL HAVE THE SAME MEANING AS IS SET FORTH IN THE
EMPLOYMENT AGREEMENT.
(L)
"PLAN ADMINISTRATOR" MEANS THE BOARD.
(M)
"SEPARATION FROM SERVICE" MEANS A SEPARATION FROM SERVICE AS
DEFINED IN PROP. TREAS. REG. § 1.409A-1(H).
(N)
"VESTED PERCENTAGE" MEANS AS OF ANY GIVEN DATE, THAT PORTION OF
THE BENEFIT THAT IS THEN VESTED, AS DETERMINED IN ACCORDANCE WITH SECTION 2
HEREOF.
2.
VESTING OF BENEFIT.
(A)
VESTING BASED ON CONTINUED SERVICE.
SUBJECT TO THE REMAINDER OF
THIS SECTION 2, THE VESTED PERCENTAGE WILL BE DETERMINED AS FOLLOWS:
(I)
THE VESTED