This NonSolicitation Agreement involves
Title: NONCOMPETITION AND NON-SOLICITATION AGREEMENT
Industry: Apparel/Accessories Sector: Consumer Cyclical
NONCOMPETITION AND NON-SOLICITATION AGREEMENT
NONCOMPETITION AND NON-SOLICITATION AGREEMENT (the “ Agreement ”) dated 10 th March, 2010 by and between Phillips-Van Heusen Corporation (the “ Company ”), Tommy Hilfiger Europe B.V. (the “ Employer ”) and Daniel Grieder (“ Executive ”).
WHEREAS, in connection with the Company’s purchase of the Tommy Hilfiger business (the “ Transaction ”), Executive is expected to receive significant consideration pursuant to the terms of the Transaction and the Management Term Sheet that Executive has entered into, or Fred Gehring has entered into on Executive’s behalf as attorney-in-fact (the “ Management Term Sheet ”); and
WHEREAS, pursuant and subject to the Management Term Sheet, the Company has agreed to continue the terms and conditions of Executive’s employment and Executive’s current employment agreement (if any) following consummation of the Transaction;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Restricted Period .
a. The “ Restricted Period ” for purposes of this Agreement shall mean the period commencing on the closing of the Transaction (the “ Closing ”) and ending on the later of (x) the second anniversary of the Closing and (y) the first anniversary of Executive’s termination of employment with the Company and its subsidiaries, including, after the Closing, the Employer (collectively, the “ Company Group ”); provided , however , that if Executive’s employment with the Company Group is terminated by the Company Group without Cause or Executive resigns with Good Reason, the Restricted Period shall end on the date Executive ceases to be an employee of any member of the Company Group.
2. Non-Competition .
a. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company Group, and, accordingly, agrees as follows:
(1) During the Restricted Period, Executive will not, without the prior written consent of the Company, directly or indirectly, on Executive’s behalf or on behalf of any other person, firm, corporation, association or other entity (each, a “ Person ”), as an employee, director, advisor, partner, consultant or otherwise, engage in any business of, provide services to, enter the employ of, or have any interest in any Competitive Business Entity. “ Competitive Business Entity ” shall mean any of the companies listed on Exhibit A and any of their respective controlled affiliates.
(2) Nothing herein shall restrict Executive from owning, for personal investment purposes only, less than 2% of the voting stock or other securities of any publicly held Person or 5% of the ownership interest in any non-publicly held Person, if Executive has no other connection or relationship with the issuer of such securities.
(3) Executive agrees that during the term of Executive’s employment with the Company Group and for a period ending on the later of (x) the second anniversary of the
Closing and (y) 18 months following the termination of Executive’s employment with the Company Group for any reason, Executive will not (i) hire or solicit to hire, whether on Executive’s own behalf of on behalf of any other Person (other than the Company Group), any employee of the Company Group or any individual who had left the employ of the Company Group within 12 months of the termination of Executive’s employment with the Company, or (ii) directly or indirectly, encourage or induce any employee of the Company Group to leave the Company Group’s employ, except in the ordinary course of the Company Group’s business.
b. It is expressly understood and agreed that although Executive and the Company consider the restrictions to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
c. This Agreement shall supersede the noncompetition and/or non-solicitation covenants currently in effect with respect to Executive under any applicable employment agreement or otherwise.
3. Definitions . As used herein, the terms listed below shall have the following definitions:
“ Cause ” shall mean (1) gross negligence or willful misconduct, as the case may be, in the performance of the material responsibilities of Executive's office or position, which results in material economic harm to the Company or its affiliates or in material reputational harm causing demonstrable injury to the Company or its affiliates; (2) the willful and continued failure of Executive to perform substantially Executive's duties for the Company or any affiliate (other than any such failure resulting from incapacity due to physical or mental illness), after a written demand for substantial performance is delivered to Executive by the Board of Directors of the Company (the “ Board ”) or the Company that specifically identifies the manner in which the Board or the Company believes that Executive has not substantially performed Executive's duties, and Executive has not cured such failure to the reasonable satisfaction of the Board or the Company within 20 days following Executive's receipt of such written demand; (3) Executive is convicted of, or pleads guilty or nolo contendere to, a felony within the meaning of U.S. Federal, state or local law (other than a traffic violation); (4) Executive having willfully divulged, furnishe