EXHIBIT 10.1
THIRD AMENDMENT TO SECOND AMENDED AND
RESTATED EMPLOYMENT AGREEMENT
THIRD AMENDMENT TO SECOND AMENDED AND
RESTATED EMPLOYMENT AGREEMENT (this “Amendment”), dated
as of January 28, 2011, between PHILLIPS-VAN HEUSEN CORPORATION, a
Delaware corporation (“PVH” and, together with its
affiliates and subsidiaries, the “Company”), and
EMANUEL CHIRICO (the “Executive”).
W I T N E S S E T H
WHEREAS, the Company has previously
entered into that Second Amended and Restated Employment Agreement
with the Executive, dated as of December 23, 2008, and amended as
of January 29, 2010 and May 27, 2010 (the “Employment
Agreement”); and
WHEREAS, the Company and the Executive
have agreed to simplify the formula used to determine payouts under
Sections 3(b) and 3(f) of the Employment Agreement.
NOW, THEREFORE, for good and valuable
consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1.
Definitions . Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed thereto
in the Employment Agreement.
2.
Amendment of Sections 3(b) and
3(f)(ii) . In order to
clarify the amounts payable under Sections 3(b) and 3(f) of the
Employment Agreement, Sections 3(b) and 3(f)(ii) of the Employment
Agreement are hereby deleted in their entirety and the following is
substituted in lieu thereof.
(a)
Substitution for Section
3(b) .
(b)
Termination without Cause by the
Company or for Good Reason by the Executive Prior to a Change in
Control . The Company
may also terminate the Executive’s employment with the
Company at any time without Cause, and the Executive may terminate
his employment with the Company at any time for Good Reason (as
defined below in Section 3(f)(i)(B)). If the Company
terminates the Executive’s services without Cause or the
Executive terminates his employment with the Company for Good
Reason, other than during the two-year period following a Change in
Control (as defined below in Section 3(f)(i)(A)), the Executive
shall be entitled to receive from the Company (i) the portion of
the Base Salary for periods prior to the effective date of
termination accrued but unpaid (if any); (ii) all unreimbursed
expenses (if any), subject to Section 2(d); (iii) an aggregate
amount (the “Severance Amount”) equal to two times the
sum of (A) the Base Salary plus (B) an amount equal to the bonus
that would be payable if “target” level performance
were achieved under the Company’s annual bonus plan (if any)
in respect of the fiscal year during which the termination occurs
(or the prior fiscal year if bonus levels have not yet been
established for the year of termination); and (iv) the payment or
provision of any Other Benefits. The Severance Amount shall
be paid in 48 substantially equal payments (each such installment
shall be treated as a separate payment as defined under Treasury
Regulation § 1.409A-2(b)(2)) on the same schedule that Base
Salary was paid immediately prior to the Executive’s date of
termination, commencing on the first such scheduled payroll date
that occurs on or following the date that is 30 days after the
Executive’s termination of employment, subject to the
Executive’s compliance with the requirement to deliver the
release contemplated pursuant to Section 4(a). In addition,
if the Company terminates the Executive’s employment with the
Company without Cause or the Executive terminates his employment
with the Company for Good Reason, then the Company shall also
provide to the Executive, during the two-year period following the
Executive’s date of termination, medical, dental, life and
disability insurance coverage for the Executive and the members of
his family which is not less favorable to the Executive than the
group medical, dental, life and disability insurance coverage
carried by the Company for the Executive and the members of his
family immediately prior to such termination of employment;
provided, however , that the obligations set forth in this
sentence shall terminate to the extent the Executive obtains
comparable medical, dental, life or disability insurance coverage
from any other employer during such period, but the Executive shall
not have any obligation to seek or accept employment during such
period, whether or not any such employment would provide comparable
medical and dental insurance coverage; and provided further,
however , that the Executive shall be obligated to pay an
amount equal to the active employee contribution, if any, for each
such coverage. For the avoidance of doubt, the payment of the
Severance Amount shall be in lieu of any amounts payable under the
Company’s severance policy (as then in effect) and the
Executive hereby waives any and all rights thereunder. If the
Executive is a “specified employee” (as determined
under the Company’s policy for identifying specified
employees) on the date of his “separation from service”
(within the meaning of Section 409A) and if any portion of the
Severance Amount would be considered “deferred
compensation” under Section 409A, all payments of the
Severance Amount (other than payments that satisfy the short-term
deferral rule, as defined in Treasury Regulation
§1.409A-1(b)(4), or that are treated as separation pay under
Treasury Regulation §1.409A-1(b)(9)(iii) or
§1.409A-1(b)(9)(v)) shall not be paid or commence to be paid
on any date prior to the first business day after the date that is
six mo
