PHILLIPS-VAN HEUSEN CORPORATION
SUPPLEMENTAL SAVINGS PLAN
(Effective as of January 1, 1991)
(As Amended and Restated Effective as of July 1, 1995)
WHEREAS,
1. Phillips-Van Heusen Corporation (the "Company") has
heretofore adopted a non-qualified plan of deferred compensation
in order to restore to the participants therein benefits which
have been lost under the Associates Investment Plan as a result
of the application of the provisions of sections 401(a)(17),
401(k), 401(m) and 415 of the Code and to provide deferred
compensation to those management or highly compensated employees
of the Company and its various Subsidiaries who were eligible to
participate.
2. The Company believes that the Supplemental Savings Plan
(the "Plan") (which was originally adopted as the "Supplemental
Defined Contribution Plan") will promote continuity of management
and increased incentive and personal interest in the welfare of
the Company by those who are or may become primarily responsible
for shaping and carrying out the long range plans of the Company
and securing its continued growth and financial success.
3. The Company has amended the Associates Investment Plan
effective as of July 1, 1995 to provide additional benefits to
the participants thereunder.
4. In conjunction with the amendment of the Associates
Investment Plan referred to in Recital 3, the Company desires to
amend and restate the Plan effective as of July 1, 1995.
5. Certain of the terms used herein which are defined (and
set forth in alphabetical order) in Article IX hereof shall have
the respective meanings ascribed thereto by the provisions of
said Article IX.
NOW, THEREFORE, the Company hereby amends and restates the
Plan effective as of July 1, 1995 so that it shall read follows:
ARTICLE I
Participation
1.01 Each person who (a) is a management or highly
compensated employee of the Company and/or one or more of its
Subsidiaries within the meaning of sections 201(2), 301(a)(3) and
401(a)(1) of ERISA, (b) shall have satisfied the eligibility
requirements for the Associates Investment Plan and (c) whose
annual rate of Compensation shall exceed (i) prior to January 1,
1996, $100,000 and (ii) after December 31, 1995, the $150,000
figure set forth in section 401(a)(17) of the Code as adjusted as
provided therein, shall be eligible to become a Participant in
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the Plan; provided, however, that any person who shall have been
a Participant in the Plan on December 31, 1995 shall remain
eligible to participate in the Plan on January 1, 1996.
1.02 Subject to the provisions of Section 1.01, the
Committee shall, at any time and from time to time, select the
employees of the Company and its Subsidiaries who are to become
Participants and, as promptly as shall be practicable thereafter,
the Committee shall communicate such determination in writing to
each such Participant.
ARTICLE II
Contributions
2.01 Subject to such conditions as the Committee may at
anytime and from time to time determine, each Participant who
shall desire to make contributions to the Plan with respect to
any calendar year shall file with the Company his or her election
to contribute to the Plan with respect to such calendar year.
2.02 Each Contribution Election with respect to a calendar
year shall be irrevocable, shall not be subject to amendment and
shall be filed with the Company on or prior to the last day of
the preceding calendar year; provided, however, that (a) a
Contribution Election with respect to the period commencing on
the Amendment Date and ending on December 31, 1995 may be filed
with the Company on or prior to June 20, 1995, and (b) if a
person shall first become eligible to participate in the Plan
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during a calendar year as a result of satisfying the eligibility
requirements for the Associates Investment Plan, such person may
file a Contribution Election with respect to the portion of such
calendar year commencing on the date on which he or she shall
have become eligible to participate in the Plan within thirty
(30) days of such date.
2.03 Each Contribution Election with respect to a calendar
year shall specify the amount which the Participant filing the
same desires to contribute to the Plan with respect to such
calendar year or the method of calculating such amount; provided,
however, that, except as otherwise provided in Section 2.04, no
Participant may contribute to the Plan with respect to any
calendar year an amount which shall exceed the excess of fifteen
percent (15%) of his or her Compensation with respect to such
calendar year over the maximum amount which he or she is entitled
to contribute to the Associates Investment Plan with respect to
the plan year thereof ending contemporaneously with such calendar
year. The Company shall (either directly or through a
Subsidiary) withhold from the Compensation otherwise payable to
such Participant during such calendar year the amounts specified
in, or calculated in accordance with, the Contribution Election
of such Participant as in effect with respect to such calendar
year.
2.04 In the event that, as a result of the application of
the provisions of the Associates Investment Plan designed to
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comply with the provisions of sections 401(k)(8)(A) and/or
401(m)(6)(A) of the Code, any amounts are paid to a Participant
from the Associates Investment Plan during a calendar year in
which he or she shall have a Contribution Election in effect,
then, the Company shall (either directly or through a Subsidiary)
withhold from the Compensation otherwise payable to such
Participant an amount equal to the amount so paid to him or her.
2.05 Notwithstanding the provisions of Sections 2.03 and
2.04, if any Participant shall have effected a withdrawal from
the Associates Investment Plan on account of a "hardship
withdrawal" within the contemplation of Reg. Sec. 1.401(k)-
1(d)(2)(i) promulgated under the provisions of section 401(k) of
the Code, then, during the period of one year commencing on the
date of such withdrawal, neither the Company nor any of its
Subsidiaries shall withhold any amounts from the Compensation
otherwise payable to such Participant for the purposes of the
Plan.
ARTICLE III
Accounts
3.01 The Company shall establish and maintain on its books
a separate Phantom Stock Elective Contribution Account with
respect to each Participant who shall have become such prior to
the Amendment Date. The credit balance therein at the opening of
business on the Amendment Date shall be equal to the number of
Phantom Shares credited to his or her Elective Contribution
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Account under the Plan as in effect immediately prior to the
Amendment Date.
3.02 The Company shall establish and maintain on its books
a separate Cash Elective Contribution Account with respect to
each Participant and, as of the Valuation Date occurring in each
calendar month, shall credit to such Account an amount equal to
the sum of (a) the aggregate Regular Contributions of such
Participant with respect to such calendar month and (b) the
Replacement Contributions of such Participant with respect to
such calendar month.
3.03 The Company shall establish and maintain on its books
a separate Phantom Stock Matching Contribution Account with
respect to each Participant and, as of the Valuation Date
occurring in each calendar month, shall credit to such Account
the number of Phantom Shares derived by dividing (a) the sum of
(i) fifty percent (50%) of the aggregate Basic Regular
Contributions of such Participant with respect to such calendar
month and (ii) the Forfeited Matching Contributions of such
Participant with respect to such calendar month by (b) the Fair
Market Value of a share of the Common Stock on such Valuation
Date; provided, however, that, if such Participant shall have
theretofore attained his or her 55th birthday and shall have
filed an election hereunder to have the Company's Matching
Contributions credited to his or her Cash Matching Contribution
Account instead of to his or her Phantom Stock Matching
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Contribution Account, no such credit to such Participant's
Phantom Stock Matching Contribution Account shall be made.
3.04 The Company shall establish and maintain on its books
a separate Cash Matching Contribution Account with respect to
each Participant who shall have attained his or her 55th birthday
and shall have filed an election hereunder to have the Company's
Matching Contributions credited to his or her Cash Matching
Contribution Account instead of to his or her Phantom Stock
Matching Contribution Account and, as of the Valuation Date
occurring in each calendar month, shall credit to such Account an
amount equal to the sum of (a) fifty percent (50%) of the
aggregate Basic Regular Contribution of such Participant with
respect to such calendar month and (b) the Forfeited Matching
Contributions of such Participant with respect to such calendar
month; provided, however, that, unless the Committee shall
otherwise determine, no Participant who is subject to the
provisions of Section 16 of the Securities Exchange Act of 1934,
as amended, may file an election under the provisions of this
Section other than during a period beginning on the third (3rd)
business day following the date of the release by the Company for
publication of its quarterly or annual summary statements of
sales and earnings and ending on the twelfth (12th) business day
following such date.
3.05 If any Participant who shall have a Phantom Stock
Elective Contribution Account shall so elect prior to any
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Valuation Date, the Company shall, as of such Valuation Date,
charge to such Phantom Stock Elective Contribution Account the
number of Phantom Shares specified in, or calculated in
accordance with, the provisions of such election and credit to
such Participant's Cash Elective Contribution Account an amount
equal to the product of (a) such number of Phantom Shares and (b)
the Fair Market Value of a share of the Common Stock on such
Valuation Date; provided, however, that, unless the Committee
shall otherwise determine, no Participant who is subject to the
provisions of Section 16 of the Securities Exchange Act of 1934,
as amended, may file an election under the provisions of this
Section other than during a period beginning on the third (3rd)
business day following the date of the release by the Company for
publication of its quarterly or annual summary statements of
sales and earnings and ending on the twelfth (12th) business day
following such date.
3.06 If any Participant who shall have a Phantom Stock
Matching Contribution Account and who shall have attained his or
her 55th birthday shall so elect prior to any Valuation Date, the
Company shall, as of such Valuation Date, charge to such Phantom
Stock Matching Contribution Account the number of Phantom Shares
specified in, or calculated in accordance with, the provisions of
such election and credit to such Participant's Cash Matching
Contribution Account an amount equal to the product of (a) such
number of Phantom Shares and (b) the Fair Market Value of a share
of the Common Stock on such Valuation Date; provided, however,
8
that, unless the Committee shall otherwise determine, no
Participant who is subject to the provisions of Section 16 of the
Securities Exchange Act of 1934, as amended, may file an election
under the provisions of this Section other than during a period
beginning on the third (3rd) business day following the date of
the release by the Company for publication of its quarterly or
annual summary statements of sales and earnings and ending on the
twelfth (12th) business day following such date.
3.07 The Company shall, as of each Valuation Date, credit
to each Cash Elective Contribution Account and to each Cash
Matching Contribution Account an amount equal to interest on the
balance therein as of the preceding Valuation Date at a rate per
annum equal to the Plan Interest Rate in effect with respect to
the calendar year in which such first mentioned Valuation Date
shall occur.
ARTICLE IV
Dividends
4.01 In the event that a dividend shall be declared upon
the Common Stock payable in shares of the Common Stock, or in the
event that the Common Stock shall be changed into a different
number of shares of stock of the Company through reorganization
or stock split-up, the Company shall, on the date fixed for
determining the stockholders of the Company entitled to receive
such stock dividend or to participate in such stock split-up,
9
credit to each Stock Account the number of Phantom Shares which
the Participant for whom such Stock Account was created would
have received as a result of such stock dividend or stock split-
up if such Participant were a stockholder of record on such
record date with respect to a number of shares of the Common
Stock equal to the number of Phantom Shares theretofore credited
to such Stock Account and if such stock dividend or stock split-
up were payable with respect to whole and fractional shares of
the Common Stock.
4.02 In the event that a dividend shall be declared upon
the Common Stock payable other than in shares of the Common
Stock, the Company shall, on the last Valuation Date occurring in
each calendar year, credit to each Stock Account the number of
Phantom Shares derived by dividing (a) the product of (i) the
average number of Phantom Shares constituting the credit balance
in such Stock Account during such calendar year (calculated
without giving effect to the application of the provisions of
Section 4.01, if such provisions shall have become applicable
during such calendar year) and (ii) the aggregate dividends paid
with respect to a share of the Common Stock during such calendar
year (determined, if any event referred to in Section 4.01 shall
have occurred during such calendar year, as if such event had not
occurred) by (b) the Fair Market Value of a share of the Common
Stock on such last Valuation Date; provided, however, that, if
any Participant shall have made the election referred to in
Section 3.05 and/or Section 3.06 as of a Valuation Date occurring
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in such calendar year prior to the last such Valuation Date, and
if such election shall have referred to all of the Phantom Shares
held in such Account, then, as of such last Valuation Date, the
credit hereinbefore in this Section 4.02 referred to shall not be
made and, instead, the Company shall as of such last Valuation
Date, credit to such Participant's Cash Elective Contribution
Account and/or Cash Matching Contribution Account, as the case
may be, an amount equal to the product of (i) the average number
of Phantom Shares constituting the credit balance in such Stock
Account during such calendar year (calculated without giving
effect to the application of the provisions of Section 4.01, if
such provisions shall have become applicable during such calendar
year) and (ii) the aggregate dividends paid with respect to a
share of the Common Stock during such calendar year (determined,
if any event referred to in Section 4.01 shall have occurred
during such calendar year, as if such event had not occurred).
ARTICLE V
Termination of Participation; Benefits
5.01 Nothing contained herein shall require the Company or
any of its Subsidiaries to continue any Participant in its em-
ploy, or require any Participant to continue in the employ of the
Company or of any Subsidiary or require the Company or any Sub-
sidiary to rehire any Participant.
5.02 If the employment of any Participant by the Company
and all of its Subsidiaries shall terminate for any reason what
11
ever, his or her participation under the Plan shall terminate on
the Valuation Date occurring in the calendar month in which the
date of such termination shall occur. (For the purposes hereof,
if the Subsidiary by which a Participant is employed shall cease
to be a Subsidiary, and if such Participant shall not thereupon
become an employee of the Company or another Subsidiary, his or
her employment by the Company and its Subsidiaries shall be
deemed to have terminated.)
5.03 The Company shall, as of and on or as promptly as
shall be practicable after a Former Participant's Payment Date,
pay to such Former Participant (or, in the event of his or her
death, to the executors or administrators of his or her estate)
an amount, without any interest or earnings thereon from and
after his or her Payment Date, equal to the sum of
(a) an amount equal to the sum of (i) the product of
(A) the number of Phantom Shares constituting the credit
balance in his or her Phantom Stock Elective Contribution
Account as of his or her Payment Date and (B) the Fair
Market Value of a share of the Common Stock on his or her
Payment Date and (ii) if his or her Payment Date shall not
be the last business day of a calendar year, the aggregate
amount of the cash dividends he or she would have received
during the calendar year in which his or her Payment Date
shall occur if, on each day in such calendar year through
and including such Payment Date he or she were the record
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owner of a number of shares of the Common Stock equal to the
average number of Phantom Shares constituting the credit
balance in such Account during the portion of such calendar
year ending on his or her Payment Date (calculated without
giving effect to the provisions of Section 4.01, if such
provisions shall have become applicable during such calendar
year),
and
(b) an amount equal to the credit balance in his or
her Cash Elective Contribution Account as of his or her
Payment Date,
and
(c) an amount equal to his or her Vested Percentage of
the sum of (i) the product of (A) the number of Phantom
Shares constituting the credit balance in his or her Phantom
Stock Matching Contribution Account as of his or her Payment
Date and (B) the Fair Market Value of a share of the Common
Stock on his or her Payment Date and (ii) if his or her
Payment Date shall not be the last business day of a
calendar year, the aggregate amount of the cash dividends he
or she would have received during the calendar year in which
his or her Payment Date shall occur if, on each day in such
calendar year through and including such Payment Date he or
she were the record owner of a number of shares of the
Common Stock equal to the average number of Phantom Shares
credited to such Account during the portion of such calendar
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year ending on his or her Payment Date (calculated without
giving effect to the provisions of Section 4.01, if such
provisions shall have become applicable during such calendar
year), and
(d) an amount equal to his or her Vested Percentage of
the credit balance in his or her Cash Matching Contribution
Account as of his or her Payment Date.
ARTICLE VI
General
6.01 The sole interest of each Participant and Former
Participant under the Plan shall be to receive the benefits
provided herein as and when the same shall become due and payable
in accordance with the terms hereof and neither any Participant
nor any Former Participant nor any person claiming under or
through him or her shall have any right, title or interest in or
to any of the assets of the Company. All benefits hereunder
shall be paid solely from the general assets of the Company, the
Company shall not maintain any separate fund to provide any
benefits hereunder and each Participant and Former Participant
(or the executors or administrators of his or her estate) shall
be solely an unsecured creditor of the Company with respect
thereto.
6.02 Notwithstanding any provisions of the Plan to the
contrary, the Company may, if the Committee in its sole and
absolute discretion shall determine, offset any amounts to be
14
paid to a Former Participant (or, in the event of his or her
death, to the executors or administrators of his or her estate)
under the Plan against any amounts which such Former Participant
may owe to the Company and/or any one of more of its
Subsidiaries.
6.03 Except as required by applicable law, no benefit under
the Plan shall be subject in any manner to alienation, sale,
transfer, assignment, pledge or encumbrance, and any attempt to
do so shall be void; nor, except as otherwise provided in Section
6.02, shall any such benefit be in any manner liable for or sub-
ject to the debts, contracts, liabilities, engagements or torts
of any Participant or Former Participant.
6.04 All payments made by the Company under the Plan to any
Former Participant (or, in the event of his or her death, to the
executors or administrators of his or her estate) shall be
subject to withholding and to such other deductions as shall at
the time of such payment be required under any income tax or
other law, whether of the United States or any other
jurisdiction, and, in the case of payments to the executors or
administrators of the estate of a deceased Former Participant,
the delivery to the Company of such tax waivers, letters
testamentary and other documents as the Committee may reasonably
request.
15
ARTICLE VII
Administration
7.01 No Committee member at any time acting hereunder who
is a Participant shall, acting in his or her capacity as such,
have any voice in any decision of the Committee made uniquely
with respect to such Committee member or his or her benefits
hereunder.
7.02 In the event of any disagreement among the Committee
members at any time acting hereunder and authorized to act with
respect to any matter, the decision of a majority of said
Committee members authorized to act upon such matter shall be
controlling and shall be binding and conclusive upon all persons,
including, without in any manner limiting the generality of the
foregoing, the other Committee member or Committee members, the
Company and its Subsidiaries, all persons at any time in the
employ of the Company or any of its Subsidiaries and the
Participants and Former Participants and upon the respective
successors, assigns, executors, administrators, heirs, next-of-
kin and distributees of all of the foregoing.
7.03 Subject to the provisions of Section 7.01, each
additional and each successor Committee member at any time acting
hereunder shall have all of the rights and powers (including dis-
cretionary rights and powers) and all of the privileges and im-
munities hereby conferred upon the initial Committee members
16
hereunder and all of the duties and obligations so imposed upon
the initial Committee members hereunder.
7.04 No Committee member at any time acting hereunder shall
be required to give any bond or other security for the faithful
performance of his or her duties as such Committee member.
7.05 The Committee may retain legal counsel and actuarial
counsel selected by it. Any Committee member may himself or
herself act in any such capacity, and any such legal counsel and
actuarial counsel may be persons acting in a similar capacity for
the Company and/or one or more of its Subsidiaries and may be
employees of the Company and/or one or more of its Subsidiaries.
The opinion of any such legal counsel or actuarial counsel shall
be full and complete authority and protection in respect of any
action taken, suffered or omitted by the Committee in good faith
and in accordance with such opinion.
7.06 In addition to all rights to allocate and delegate
responsibilities, obligations or duties specifically granted to
the Committee by the provisions hereof, it is specifically
understood that the Committee is hereby granted, and shall always
have, to the fullest extent allowed by law, by a written
instrument executed by all of the members of the Committee and
revocable by any one or more of them, the power to allocate any
and all specific responsibilities, obligations or duties among
themselves and to delegate to any other person, firm or
corporation the responsibility to carry out any of their
responsibilities
17
hereunder and, to the extent of any such allocation or
delegation, the person or persons effecting such allocation or
delegation shall have no responsibility for any acts or omissions
of the other person, firm or corporation to whom such
responsibilities, obligations or duties have been allocated or
delegated.
7.07 The Company and the Committee shall each keep such
records, and shall each seasonably give notice to the other of
such information, as shall be proper, necessary or desirable in
order to effectuate the purposes of the Plan, including, without
in any manner limiting the generality of the foregoing, records
and information with respect to the benefits granted to Partici-
pants, dates of employment and determinations made hereunder.
Neither the Company nor the Committee shall be required to
duplicate any records kept by the other. To the extent that the
Company and/or the Committee shall prescribe forms for use by the
Participants and Former Participants in communicating with the
Company or the Committee, as the case may be, and/or shall estab-
lish periods during which communications may be received or elec-
tions made, the Company and the Committee shall respectively be
protected in disregarding any notice or communication for which
a form shall have been so proscribed and which shall not be
received on such form and/or any notice, communication or
election for the receipt of which a period shall so have been
established and which shall not be received during such period,
and the Company and the Committee shall also respectively be
protected in accepting any notice or communication which shall
18
not be made on the proper form and/or in accepting any notice,
communication or election which shall not be received during the
proper period, and their doing so shall not be deemed to create
any precedent with respect thereto. The Company and the
Committee shall respectively also be protected in acting upon any
notice or other communication purporting to be signed by any
person and reasonably believed to be genuine and accurate.
7.08 All determinations hereunder made by the Company or
the Committee shall be made in the sole and absolute discretion
of the Company or of the Committee, as the case may be.
7.09 In the event that any disputed matter shall arise
hereunder, including, without in any manner limiting the general-
ity of the foregoing, any matter relating to the eligibility of
any person to participate under the Plan, the participation of
any person under the Plan, the amounts payable to any person
under the Plan and the applicability and interpretation of the
provisions of the Plan, the decision of the Committee upon such
matter shall be binding and conclusive upon all persons, includ-
ing, without in any manner limiting the generality of the fore-
going, the Company, all of its Subsidiaries, all persons at any
time in the employ of the Company and/or one or more of its Sub-
sidiaries, and upon the respective successors, assigns, execu-
tors, administrators, heirs, next-of-kin and distributees of the
foregoing.
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7.10 The Company shall not have any responsibility or
liability whatever hereunder except to make any payment required
under the provisions hereof, and no director or officer of the
Company who is not a Committee member shall have any
responsibility or liability whatever hereunder and no director or
officer of the Company who is a Committee member shall have any
responsibility or liability hereunder other than by reason of
being a Committee member.
ARTICLE VIII
Claims Procedure
8.01 If a Participant or Former Participant (or, in the
event of his or her death, the executors or administrators of his
or her estate) (the "Claimant") believes that he or she has not
received all the benefits to which he or she is entitled under
the Plan or has otherwise been damaged by any action or decision
regarding his or her participation in the Plan or the benefits
payable to him or her under the Plan, he or she may file a claim
notice with the Claims Officer. The claim notice must be
typewritten and signed and shall specify in reasonable detail his
or her objections and the reasons therefor.
8.02 If the Claims Officer shall deny a claim in whole or
in part, the Claimant shall be given written notice of this
decision within ninety (90) days after the claim is filed. In
the event that special circumstances require more time, this
20
ninety (90) day period may be extended by up to an additional
ninety (90) days. In such a case, the special circumstances
shall be explained to the Claimant and the Claims Officer shall
indicate the date by which he or she expects to render a final
decision. The notice that the claim has been denied in whole or
in part will inform the Claimant of the specific reason or
reasons for the denial, will contain specific references to the
pertinent Plan provisions on which the denial is based, will
describe any additional material or information necessary for the
Claimant to perfect the claim and will inform the Claimant of the
steps he or she must take if he or she wishes to submit the claim
for review.
8.03 If a claim is denied and the Claimant disagrees with
the decision of the Claims Officer, the Claimant may appeal that
decision to the Committee by filing with the Committee a written
request for review. Such request must be filed with the
Committee within sixty (60) days after receipt by the Claimant of
written notification of the denial of his or her claim by the
Claims Officer, must be typewritten and signed and must state the
reasons underlying the appeal. Upon appeal the Claimant may
review pertinent documents, may submit issues and comments in
writing, may request a hearing before the Committee and may be
represented, if he or she wishes, at his or her own expense, by
legal counsel or other authorized representative. The Committee
will ordinarily render a written decision within sixty (60) days
after receipt of a request for review. If special circumstances
21
require more time (for example, if a hearing is requested), this
sixty (60) day period may be extended by up to an additional
sixty (60) days, in which case the Claimant will be so notified
before the expiration of the original sixty (60) day period. The
Committee's decision on review will include specific reasons for
their decision as well as specific references to the pertinent
Plan provisions on which the decision is based.
ARTICLE IX
Definitions
9.01 The term "Account", as used with respect to a
Participant or Former Participant, shall mean each of his or her
Cash Elective Contribution Account, his or her Phantom Stock
Elective Contribution Account, his or her Cash Matching
Contribution Account and his or her Phantom Stock Matching
Contribution Account.
9.02 The term "Amendment Date" shall mean July 1, 1995.
9.03 The term "Affiliate" shall mean any Person that
directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with,
any other Person.
9.04 The term "Associates Investment Plan" shall mean the
Phillips-Van Heusen Corporation Associates Investment Plan as in
effect at the time with respect to which such term is used.
22
9.05 The term "Basic Regular Contribution", as used with
respect to a Participant and with respect to a calendar year,
shall mean the portion of the Regular Contribution of such
Participant with respect to such calendar year which does not
exceed the excess of six percent (6%) of his or her Compensation
with respect to such calendar year over the maximum amount which
he or she is entitled to contribute to the Associates Investment
Plan with respect to the Plan Year thereof ending
contemporaneously with such calendar year.
9.06 The term "Board" shall mean the board of directors of
the Company or any committee designated by said board of
directors to have its authority with respect to the Plan.
9.07 The term "business day" shall mean a day which is not
a Saturday, Sunday or legal holiday in the State of New York.
9.08 The term "Cash Elective Contribution Account", as used
with respect to a Participant or Former Participant, shall mean
the separate account which the Company is required to establish
and maintain with respect to such Participant or Former
Participant in accordance with the provisions of Section 3.02.
9.09 The term "Cash Matching Contribution Account", as used
with respect to a Participant or Former Participant, shall mean
the separate account which the Company is required to establish
and maintain with respect to such Participant in accordance with
the provisions of Section 3.04 and/or 3.06.
23
9.10 A "Change in Control" shall be deemed to occur upon
(a) the election of one or more individuals to the Board which
election results in one-third of the directors of the Company
consisting of individuals who have not been directors of the
Company for at least two years, unless such individuals have been
elected as directors by three-fourths of the directors of the
Company who have been directors of the Company for at least two
years, (b) the sale by the Company of all or substantially all of
its assets to any Person, the consolidation of the Company with
any Person, the merger of the Company with any Person as a result
of which merger the Company is not the surviving entity as a
publicly held corporation, (c) the sale or transfer of shares of
the Company by the Company and/or any one or more of its
stockholders, in one or more transactions, related or unrelated,
to one or more Persons under circumstances whereby any Person and
its Affiliates shall own, after such sales and transfers, at
least one-fourth, but less than one-half, of the shares of the
Company having voting power for the election of directors, unless
such sale or transfer has been approved in advance by three-
fourths of the directors of the Company who have been directors
of the Company for at least two years, or (d) the sale or
transfer of shares of the Company by the Company and/or any one
or more of its stockholders, in one or more transactions, related
or unrelated, to one or more Persons under circumstances whereby
any Person and its Affiliates shall own, after such sales and
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transfers, at least one-half of the shares of the Company having
voting power for the election of directors.
9.11 The term "Claims Officer" shall mean the Vice
President-Human Resources of the Company or, if the Claimant
shall be the Vice President-Human Resources of the Company, the
Chief Financial Officer of the Company.
9.12 The term "Code" shall mean the Internal Revenue Code
of 1986 as in effect at the time with respect to which such term
is used.
9.13 The term "Committee" shall mean the Compensation
Committee of the Board which is charged with the administration
of the Plan.
9.14 The term "Common Stock", as used with respect to any
date, shall mean the shares of the common stock, $1.00 par value,
of the Company authorized on the Amendment Date and any shares of
stock which may, at any time prior to the date on which such term
is used, be issued in exchange for and/or upon a change of such
shares of Common Stock or any other shares, whether in sub-
division or combination thereof, or otherwise, but not any shares
of stock which may be issued as a dividend or stock-split on or
with respect to said shares of Common Stock or any other such
shares.
9.15 The term "Compensation", as used with respect to a
Participant and with respect to a calendar year, shall mean the
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regular cash compensation paid by the Company and its Subsid-
iaries to such Participant during such calendar year, including
commissions, overtime compensation, bonus payments, vacation pay,
holiday pay and other paid leave but exclusive of moving
expenses, deferred compensation, benefit plan pay, imputed
compensation, workers' compensation and severance pay and
determined without giving effect to any contributions made to the
Associates Investment Plan by or on behalf of such Participant
during such calendar year or to a plan within the meaning of
section 125 of the Code.
9.16 The term "Contribution Election", as used with respect
to a Participant and with respect to any time, shall mean such
Participant's authorization referred to in Section 2.01 as in
effect at the time with respect to which such term is used.
9.17 The term "ERISA" shall mean the Employee Retirement
Income Security Act of 1974 as in effect at the time with respect
to which such term is used.
9.18 The term "Fair Market Value", as used with respect to
a share of the Common Stock and with respect to any date, shall
mean the closing sale price of a share of the Common Stock as
published by the national securities exchange on which the shares
of the Common Stock are traded on such date or, if there is no
sale of the Common Stock on such date, the average of the bid and
asked prices on such exchange at the close of trading on such
date or, if the shares of the Common Stock are not listed on a
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national securities exchange on such date, the average of the bid
and asked prices in the over-the-counter market on such date or,
if the Common Stock is not traded on a national securities ex-
change or in the over-the-counter market, the fair market value
of a share of the Common Stock on such date as shall be
determined in good faith by the Committee.
9.19 The term "Forfeited Matching Contribution", as used
with respect to a Participant and with respect to a calendar
month, shall mean any amounts which are forfeited by such
Participant during such calendar month under the Associates
Investment Plan other than any such amounts which are forfeited
as an incident to the termination of his participation
thereunder.
9.20 The term "Former Participant" shall mean a person
whose participation under the Plan shall have terminated in
accordance with the provisions of Section 5.02.
9.21 The term "Participant" shall mean a person who shall
have become a Participant under the Plan in accordance with the
provisions of Section 1.02 and whose participation shall not have
terminated in accordance with the provisions of Section 5.02.
9.22 The term "Payment Date", as used with respect to a
Former Participant, shall mean his or her Termination Date;
provided, however, that, if such Former Participant shall be a
"covered employee" of the Company within the meaning of section
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162(m)(3) of the Code with respect to the taxable year of the
Company in which his or her Termination Date shall occur, then,
such Former Participant's Payment Date shall be the first
Valuation Date occurring in the succeeding taxable year of the
Company.
9.23 The term "Permanent Disability", as used with respect
to a Participant or Former Participant, shall mean a state of
physical or mental incapacity of such Participant or Former Par-
ticipant such that, in the opinion of the Committee, based upon a
medical certificate from a physician or physicians satisfactory
to the Committee, such Participant or Former Participant, by
reason of injury, illness or disease, is unable to fulfill the
requirements of his or her position with the Company and its
Subsidiaries and such disability will be permanent and continuous
during the remainder of his or her life.
9.24 The term "Person" shall mean any individual,
partnership, firm, trust, corporation or other similar entity,
and when two or more Persons act as a partnership, limited
partnership, syndicate or other group for the purpose of
acquiring, holding or disposing of securities of the Company,
such partnership, limited partnership, syndicate or group shall
be deemed a "Person".
9.25 The term "Phantom Share" shall mean a credit to a
Stock Account of a Participant or Former Participant which is
equal in value to one share of the Common Stock.
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9.26 The term "Phantom Stock Elective Contribution
Account", as used with respect to a Participant or Former
Participant, shall mean the separate account which the Company is
required to establish and maintain with respect to such
Participant or Former Participant in accordance with the
provisions of Section 3.01.
9.27 The term "Phantom Stock Matching Contribution
Account", as used with respect to a Participant or Former
Participant, shall mean the separate account which the Company is
required to establish and maintain with respect to such
Participant or Former Participant in accordance with the
provisions of Section 3.03.
9.28 The term "Plan Interest Rate", as used with respect to
a calendar year, shall mean a rate per annum equal to the yield
to maturity on a 10 Year Treasury Note on the first business day
of such calendar year; provided, however, that for the period
beginning on July 1, 1995 and ending on December 31, 1995, the
term "Plan Interest Rate" shall mean a rate per annum equal to
the yield to maturity on a 10 Year Treasury Note on the first
business day of July, 1995.
9.29 The term "Regular Contribution", as used with respect
to a Participant and with respect to a calendar month, shall mean
an amount withheld from the Compensation of such Participant with
respect to such calendar month for the purposes of the Plan in
accordance with the provisions of Section 2.03.
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9.30 The term "Replacement Contribution", as used with
respect to a Participant and with respect to a calendar month,
shall mean an amount withheld from the Compensation of such
Participant with respect to such calendar month for the purposes
of the Plan in accordance with the provisions of Section 2.04.
9.31 The term "Stock Account" shall mean each of a Phantom
Stock Elective Contribution Account and a Phantom Stock Matching
Contribution Account.
9.32 The term "Subsidiary" shall mean a corporation
included in an unbroken chain of corporations beginning with the
Company if, at the time with respect to which such term is used,
each of the corporations in such unbroken chain owns stock
possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other
corporations in such unbroken chain.
9.33 The term "Termination Date", as used with respect to a
Former Participant, shall mean the date on which his or her
participation under the Plan shall terminate in accordance with
the provisions of Section 5.02.
9.34 The term "Valuation Date" shall mean each of (a) the
Amendment Date and (b) the last business day of each calendar
month thereafter.
9.35 The term "Vested Percentage", as used with respect to
a Former Participant and with respect to any date, (a) shall mean
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one hundred percent (100%) if he or she shall have attained his
or her sixty-fifth (65th) birthday on or prior to such date while
in the employ of the Company and/or any of its Subsidiaries or if
his or her employment by the Company and all of its Subsidiaries
shall have terminated on or prior to such date by reason of his
or her death or Permanent Disability or after he or she shall
have a Vested Percentage of one hundred percent (100%) under the
Associates Investment Plan and (b) shall mean zero percent (0%)
if his or her employment by the Company and its Subsidiaries
shall have terminated on or prior to such date under any other
circumstances, provided, however, that, from and after the
occurrence of a Change in Control, each Participant's Vested
Percentage shall be one hundred percent (100%).
ARTICLE X
Amendment; Termination
10.01 The Company may, at any time and from time to time,
pursuant to a resolution of the Board, amend the terms and pro-
visions of the Plan and may, at any time, similarly terminate the
Plan; provided, however, that no such amendment or termination
shall adversely affect the credit balance in any Account on the
date of such amendment or reduce the Vested Percentage of any
Participant or impair the Company's obligation to make payment or
distribution of amounts theretofore earned under the Plan.
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ARTICLE XI
Construction
11.01 The Plan shall be construed and regulated in
accordance with the laws of the State of New York.
11.02 To the extent that the context shall permit, any
masculine pronoun used herein shall be construed to include also
the similar feminine pronoun, any feminine pronoun used herein
shall be construed to include also the similar masculine pronoun,
any singular word so used shall be construed to include also the
similar plural word and any plural word so used shall be con-
strued to include also the similar singular word.
11.03 Any reference herein to any date or day shall, except
as otherwise specifically provided herein, be deemed to be a
reference to the close of business on such date or day.
PHILLIPS-VAN HEUSEN CORPORATION
By
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