EXHIBIT 10.1


 


FIRST
AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT


 


FIRST AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(this “Amendment”), dated July 1, 2008, between PHILLIPS-VAN HEUSEN
CORPORATION, a Delaware corporation (“PVH” and, together with its affiliates
and subsidiaries, the “Company”), and ALLEN SIRKIN (the “Executive”).


 


W  I  T  N  E  S
S  E  T  H:


 


WHEREAS, the Company has previously entered into that
certain Amended and Restated Employment Agreement with the Executive, dated as
of June 1, 2007 (the “Employment Agreement”); and


 


WHEREAS, the parties desire
to amend the Employment Agreement to provide for the extension of the term
thereof and establish certain elements of compensation during the extension.


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
hereby 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.             Consideration.  As
consideration for the Executive’s agreement to extend the Employment Period on
and subject to the terms and conditions of this Amendment, it is hereby agreed
that the Executive shall be entitled to receive grants of restricted stock
units under the Company’s 2006 Stock Incentive Plan (as the same may hereafter
be amended or under any successor plan), each with a fair market value on the
date of grant (as determined in accordance with such plan) of $500,000, as follows:


 


(a)   upon the execution of this Amendment by
both parties;


 


(b)   on the date of the annual meeting of stockholders
of the Company to be held in calendar year 2009; and


 


(c)   on the date of the annual meeting of stockholders
of the Company to be held in calendar year 2010.


 


Such awards (x) shall
be made on substantially the same terms and conditions as the awards of
restricted stock units made to the Executive during the Initial Period, subject
to changes adopted by the Company in connection with any change in applicable
law, rule or regulation, including, without limitation, changes in tax or
accounting treatment, regardless of whether such change is statutory in nature
or effected through other means; provided, however, that
(i) the grant made upon the execution of this Amendment shall vest 50% on
the third anniversary of the date of grant and 50% on the fourth anniversary of
the date of grant; (ii) the grants shall not be subject to 


 

















 


accelerated vesting upon
retirement, unless the Executive shall retire on or after the date of the
annual meeting of stockholders of the Company to be held in calendar year 2011;
and (y) are in addition to the annual grants of restricted stock units to
be granted to the Executive pursuant to Section 6 of this Amendment.  Notwithstanding the foregoing, such grants
shall not be made if the Executive is not employed by the Company in his
current position on the date of grant.


 


3.             Extension of Employment Period.  It
is hereby agreed that the Employment Period shall end on the date of the annual
meeting of stockholders of the Company to be held in calendar year 2011,
subject to earlier termination in accordance with the terms of the Employment
Agreement.  In order to effect the
foregoing, Section 1(b) of the Employment Agreement is hereby deleted
in its entirety and the following substituted in lieu thereof:


 


(b)           Employment Period.  The Company
agrees to continue to employ the Executive, and the Executive agrees to
continue to be employed by the Company, in accordance with the terms and
conditions hereof, for an initial period commencing on the Effective Date and
ending on the date of the Company’s Annual Meeting of Stockholders of the
Company to be held in calendar year 2009 (the “Initial Period”) and an
extension period commencing on the day immediately following the end of the Initial
Period and ending on the date of the Company’s Annual Meeting of Stockholders
of the Company to be held in calendar year 2011 (the “Renewal Period”), and
subject to earlier termination in accordance with the provision of Section 4
hereof.  The period of time commencing on
the Effective Date and ending on the Executive’s last day of employment,
regardless of the reason for the termination of his employment, is referred to
herein as the “Employment Period.”  Each
of the parties acknowledges and agrees that either party may terminate the
Executive’s employment at any time, for any reason, with or without Cause (as
defined in Section 3(a)).


 


4.             Transition Duties.  It is hereby
agreed that from and after the execution and delivery of this Amendment by the
parties, the Executive’s duties shall specifically include active participation
in the development of a succession plan relating to the Executive’s position
and duties and in the training of, and transition of duties to, the person or
persons who will succeed to such duties. 
In order to effect the foregoing, Section 1(c)(i) of the
Employment Agreement is hereby deleted in its entirety and the following
substituted in lieu thereof:


 


(c)           Position and Duties.   (i) 
During the Employment Period, (A) the Executive shall serve as the
President and Chief Operating Officer of the Company, with such duties and
responsibilities as shall from time to time be assigned to him and as are
consistent and commensurate with his title and position, and (B) the
Executive’s services shall be performed at the Company’s headquarters in New
York, New York as of the Effective Date or such other location as may be
mutually agreed between the Company and the Executive, except for travel, and
visits to Company offices and facilities worldwide, reasonably required to
attend to the Company’s business. 
Without limiting the generality of the foregoing, the Executive shall
actively participate in the development of a succession plan relating to the
Executive’s position and duties and in the training of, and transition of
duties to, the person or persons who will succeed to such duties.


 


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5.             Base Salary Increases.  It is hereby
agreed that the Executive’s Base Salary shall be increased to an annual rate of
$950,000 effective June 1, 2009 and to an annual rate of $1,000,000
effective June 1, 2010.  In order to
effect the foregoing, Section 2(a) of the Employment Agreement is hereby
deleted in its entirety and the following substituted in lieu thereof:


 


(a)           Base Salary.  During the
Employment Period, the Company shall pay the Executive a salary at the annual
rate of $900,000, increasing to $910,000 effective June 1, 2007, to
$950,000 effective June 1, 2009 and to $1,000,000 effective June 1,
2010 (“Base Salary”), payable in accordance with the normal payroll procedures
of the Company in effect from time to time. 
The term Base Salary as utilized in this Agreement shall refer to the
Executive’s annual base salary as then in effect.


 


6.             Equity Awards.  It is hereby
agreed that the Executive shall be entitled to receive awards of restricted
stock units under the Company’s 2006 Stock Incentive Plan, each with a fair
market value of $1,250,000, at the same time that annual grants are made to the
other executive officers of the Company in calendar years 2009 and 2010, provided that the Executive is employed in his current position
on each such date.  In order to effect
the foregoing, a new Section 2(e) is hereby added to the Employment
Agreement, reading as follows:


 


(e)           Equity Awards.  Notwithstanding
anything in this Agreement to the contrary, during the Renewal Period the
Executive shall receive awards under the Company’s 2006 Stock Incentive Plan
(as the same may hereafter be amended or under any successor plan), as follows:


 


(i) on
the date in calendar year 2009 that annual grants of equity awards are made to
the other executive officers of the Company, restricted stock units having a
fair market value on the date of grant (as determined in accordance with such
plan) of no less than $1,250,000; and


 


(ii) on
the date in calendar year 2010 that annual grants of equity awards are made to
the other executive officers of the Company, restricted stock units having a
fair market value on the date of grant (as determined in accordance with such
plan) of no less than $1,250,000.


 


For the avoidance of
doubt, such awards (x) shall be made on substantially the same terms and
conditions as the awards of restricted stock units made to the Executive during
the Initial Period, subject to changes adopted by the Company in connection
with any change in applicable law, rule or regulation, including, without
limitation, changes in tax or accounting treatment, regardless of whether such
change is statutory in nature or effected through other means; (y) are in
lieu of, and not in addition to, the annual grants of stock options and
restricted stock units that the Executive might otherwise have been granted
consistent with past practice; provided, however,
that nothing herein shall prohibit the Board from making additional or larger
awards to the Executive under the 2006 Stock Incentive Plan (or successor
plan); and (z) shall not affect any performance-based long term incentive
award that the Board, in its sole discretion, may grant to the Executive in the
form of performance shares under the 2006 Stock Incentive Plan 


 


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(or successor plan) or a
cash award under the Company’s 2005 Long-Term Incentive Plan.


 


7.             Voluntary Retirement.  Section 3(c) is
hereby deleted in its entirety and the following substituted in lieu thereof to
make clear the treatment of equity awards made during the Initial Period as
compared to those made during the Renewal Period in the event of a voluntary
termination, to delete references to the renewal of the Employment Agreement,
to conform the language to defined terms added by this Amendment and to make
certain other ministerial changes:


 


(c)           Termination by Voluntary Resignation (without Good
Reason) by the Executive; Non-Renewal; Retirement. 
The voluntary resignation of employment by the Executive (other than for
Good Reason and which shall not include a resignation in connection with a
termination by the Company for Cause) or the expiration of this Agreement on
the last day of the Renewal Period (if the Executive remains employed through
the end of such period) shall be deemed to be a retirement and shall be treated
as a retirement for purposes of (x) any plan, policy, program or
arrangement of the Company as to which the Executive holds rights as of such
resignation or expiration date, whether as a participant, beneficiary or
otherwise, or (y) any agreement between the Company and the Executive,
except as may otherwise be expressly agreed upon by the Executive.  In addition, the Executive shall be entitled
to (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), and (iii) the payment or
provision of any Other Benefits.  Notwithstanding
the foregoing, with respect to any award granted after the Effective Date and
prior to July 1, 2008 under the Company’s 2006 Stock Incentive Plan,
Performance Incentive Bonus Plan or Long-Term Incentive Plan, the termination
of the Executive’s employment by voluntary resignation (other than for Good
Reason and which shall not include a resignation in connection with a
termination by the Company for Cause) shall not be treated as a retirement
under the applicable plan unless such retirement occurs after the last day of
the Initial Period.


 


8.             Restrictive Covenant.  The Executive
acknowledges and agrees that he plans to retire upon the end of the Renewal
Period and, therefore, agrees that the restrictive covenants should apply as of
the end of the Renewal Period.  In order
to give effect to the foregoing, Sections 5(b) and 5(c) of the
employment Agreement are hereby deleted in their entirety and the following
substituted therefore:


 


(b)           Non-Interference.  The Executive
acknowledges that information regarding the Company’s business and financial
relations with its vendors and customers is Confidential Information and
proprietary to the Company and that any interference with such relations based
directly or indirectly on the use of such information would cause irreparable
damage to the Company.  The Executive
acknowledges that by virtue of his employment with the Company, he has gained
or may gain knowledge of such information concerning the Company’s vendors and
customers (respectively “Vendor Information” or “Customer Information”), and
that he would inevitably have to draw on this Vendor Information and Customer
Information and on other Confidential 


 


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Information if he were to solicit or service the
Company’s vendors or customers on behalf of a competing business enterprise. Accordingly,
and subject to the immediately following sentence, the Executive agrees that
during the Employment Period and for a period of 18 months following the
termination thereof, other than by reason of (i) a termination by the
Company without Cause, or (ii) a termination by the Executive for Good
Reason, the Executive shall not, on behalf of himself or any other person,
other than the Company, directly or indirectly do business with, solicit the
business of, or perform any services for any actual vendor or customer of the
Company, any person that has been a vendor or customer of the Company within
the 12-month period preceding such termination or any actively solicited
prospective vendor or customer as to whom or which the Executive provided any
services or as to whom or which the Executive has knowledge of Vendor
Information, Customer Information or Confidential Information. The foregoing
restrictive covenant shall only apply to business activities engaged in by the
Executive on behalf of himself or any other person that are directly
competitive with those of the operating divisions of the Company in which the
Executive has worked or over which he has or has had supervisory
responsibility, in terms of channels of distribution, types of products, gender
for which the products have been designed and similarity of price range.  In addition, the Executive agrees that,
during the Employment Period and such 18-month period thereafter, he will not,
directly or indirectly, seek to encourage or induce any such vendor or customer
to cease doing business with, or lessen its business with, the Company, or
otherwise interfere with or damage (or attempt to interfere with or damage) any
of the Company’s relationships with its vendors and customers, except in the
ordinary course of the Company’s business.


 


(c)           Non-Competition.  The Executive
agrees that, during the Employment Period and for a period of 12 months
following his termination of employment, other than by reason of (i) a
termination by the Company without Cause, or (ii) a termination by the
Executive for Good Reason, the Executive shall not, without the prior written
consent of the Company, directly or indirectly, on the Executive’s behalf or on
behalf of any other person, firm, corporation, association or other entity, 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 other person, firm, corporation or other entity that is engaged in a
business that is in competition with the primary businesses or products of the
Company as of the Executive’s date of termination (following a Change in
Control, such businesses or products shall be limited to those in which the
Executive has worked or over which he has or has had supervisory
responsibility, in terms of channels of distribution, types of products, gender
for which the products have been designed and similarity of price range, as of
his date of termination).  Nothing herein
shall restrict the Executive from owning, for personal investment purposes
only, less than 5% of the voting stock of any publicly held corporation or 2%
of the ownership interest in any non-publicly held company, if the Executive
has no other connection or relationship with the issuer of such securities.


 


9.             Continued Effectiveness of the Employment Agreement. 
The Employment Agreement is, and shall continue to be, in full force and
effect, except as otherwise provided in 


 


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this Amendment and except
that all references to the Employment Agreement set forth in the Employment Agreement
and any other agreements to which the parties hereto are parties which have
been executed prior to the date hereof and referring to the Employment
Agreement shall mean the Employment Agreement, as amended by this Amendment.


 


10.           Miscellaneous.


 


(a)           This Amendment shall be effective as of the date first
set forth above.


 


(b)           This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same amendment.


 


(c)           This Amendment shall be construed without regard to
any presumption or other rule requiring construction against the drafting
party.


 


IN WITNESS WHEREOF, the parties have executed this
Amendment on the date first set forth above.


 


 


	
   

  	
  PHILLIPS-VAN HEUSEN CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Mark D. Fischer

  
	
   

  	
  Name:

  	
   

  	
  Mark D. Fischer

  
	
   

  	
  Title:

  	
   

  	
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
  /s/ Allen Sirkin

  
	
   

  	
  Allen Sirkin

  



 


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