1. | Cash Consideration. As valuable and sufficient consideration for each and all of the Employees obligations and promises set forth below, the Company will provide the following: |
1.1 | The Company shall pay Employee $297,700.00 on July 1, 2008 and $49,616.67 (salary/car allowance) per month (on the regular Company payroll dates) for the period beginning July 1, 2008 and running through the Final Payment Date (hereinafter defined), subject to applicable federal, state and local taxes. In the event of the death of Employee before the Final Payment Date, the balance of such payments shall be paid to Employees estate. Except as otherwise provided in Section 3.1 of this Agreement, if Employee remains in compliance with his obligations pursuant to this Agreement, payments made pursuant to this section will not be rescinded, regardless of future earnings. Final Payment Date means the last Company payroll |
1.2 | Employee shall be eligible to receive a 2007 bonus under the Companys Executive Incentive Compensation Plan at the time 2007 bonuses are awarded to other executives of the Company in 2008. Employee will not be eligible to receive a 2008 bonus. Employee will not receive any equity awards in 2008 or thereafter. |
1.3 | In accordance with and subject to the terms of the 2004 Mid-Term Plan established under the Companys 1996 Stock Compensation Plan, Employee is eligible to receive payout with respect to the 2005-2007 cycle under the Mid-Term Plan at the time the payout is made to other eligible executives. | ||
1.4 | In accordance with and subject to the terms of the 2004 Mid-Term Plan established under the Companys 1996 Stock Compensation Plan, Employee is eligible to receive a pro rata payout for the 2006-2008 cycle and a pro rata payout for the 2007-2009 cycle, payable at the time the payout is delivered to other eligible executives. Such pro rata payout shall be determined from the beginning of the cycle to the earlier of the end of the cycle or the Final Payment Date. |
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1.5 | The Parties agree that the Company has no prior legal obligation to make the payments or provide the benefits agreed to in Section 1.1 through 1.4. |
2. | Other Employee Benefits. As valuable and sufficient consideration for each and all of the Employees obligations and promises set forth below, the Company will also provide the following: |
2.1 | Employee shall be eligible for Company sponsored financial counseling through the Final Payment Date. | ||
2.2 | Employee will not be eligible to make contributions to the VF Executive Deferred Savings Plan II after December 31, 2007. | ||
2.3 | The Parties agree that the Company has no prior legal obligation to make the payments or provide the benefits agreed to in Section 2.1. |
3. | Employees Representations. Employee hereby represents and warrants to and agrees with the Company as follows, with full knowledge that the Company intends to rely thereon: |
3.1 | Covenant not to Compete. |
a) | From the date of this Agreement through December 31, 2008, Employee agrees not to serve as an employee, director, consultant or advisor to any of the following companies or their subsidiaries or affiliates: Hanesbrands Inc., Levi Strauss & Co., NIKE Inc, Columbia Sportswear Company, Aramark, Cintas, G III, G & K, Unifirst, |
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b) | Employee agrees to advise the Chief Executive Officer of the Company in writing if he seeks to be hired prior to December 31, 2008 as an employee, director, consultant or advisor of any company significantly engaged in the apparel business not listed in Section 3.1(a). In the event of such hire without the prior written consent of the Company, the Final Payment Date shall be the date of such hiring. |
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3.2 | Confidential Information. Employee acknowledges that as an employee of the Company he has had access to and may be in possession of non-public information about the Company and its business plans and strategies. Therefore, Employee and each other person controlling, controlled by or under common control with Employee, shall not disclose directly or indirectly to any person or entity outside the employ of the Company, without the express written authorization of the Company, unless required by subpoena of a court of law, any business plans, customer list, pricing strategies, customer files and records, any proprietary data or trade secrets, or any other confidential information of the Company, or any financial information about the Company or its business not in the public domain. For purposes of this Section, the term Company shall include the Company and its subsidiaries, related corporations and affiliates. | ||
3.3 | Non-disparagement. Employee agrees never to disparage or make false statements about the Company, its predecessors, successors, or affiliates, or any employees or agents of the Company. | ||
3.4 | No Contact. From January 1, 2008 through December 31, 2008, the Employee agrees not to initiate or maintain contact with any officer, director, or employee of the Company or its affiliates regarding the Companys or any affiliates business, prospects, operations, or finances, except with the express written permission of the Company, other than as initiated by the Company. | ||
3.5 | No Solicitation. From January 1, 2008 through December 31, 2008, Employee will not, directly or indirectly, for himself or on behalf of any third party solicit for employment or otherwise cause any employee or officer of the Company or any of its subsidiaries to |
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3.6 | Return of Company Property. Employee shall promptly return any and all items in his possession which are owned by or otherwise the property of the Company or its affiliates, including the Company credit card, cell phone, laptop computer, and Blackberry. | ||
3.7 | Board Resignation. Employee hereby resigns, effective January 1, 2008, from all positions as an officer or director of the Company, its subsidiaries and affiliates, to which he has been elected or appointed. | ||
3.8 | Remedies for Breach by Employee. Employee understands and agrees that the Companys obligation to perform under this Agreement is conditioned upon Employees covenants and promises to the Company as set forth herein. In the event Employee breaches any such covenants and promises, or causes any such covenants or promises to be breached, Employee acknowledges and agrees that the Companys obligations to perform under this Agreement shall automatically terminate and the Company shall have no further liability or obligation to Employee, or alternatively, that the Company may seek injunctive relief to enforce the provisions of this Agreement. Employee acknowledges and agrees that in the event that he materially breaches any provision of this Agreement, the damage to the Company would be irreparable and that money damages will not adequately compensate the Company for its injuries. | ||
Accordingly, Employee agrees that in the event of a material breach, the Company will be entitled to an immediate order from a court of competent jurisdiction commanding Employee to cease his violation |
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4. | Release. |
4.1 | In partial consideration of the performance by the Company of its obligations under this Agreement and other good and valuable consideration, Employee does hereby for himself, his heirs, executors, administrators and assigns, forever release, remise and discharge the Company, its officers, directors, parents, subsidiaries, affiliates and their officers and directors and their successors and assigns, from and against any claims and causes of action which he has, had or may have ever had, including, but not limited to, any claims which Employee has, had, or may have had arising out of his employment with the Company or otherwise relating to or arising out of any relationship or status he may have had in the past with the Company, or any of its affiliates or subsidiaries. The parties specifically contemplate that this release covers any potential claim by Employee of age discrimination or employment discrimination against the Company under the Age Discrimination in Employment Act, the Civil Rights Act of 1964, and any other federal, state or local laws or ordinances, and any |
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4.2 | Employee agrees that no other person (including but not limited to attorneys, heirs, executors, administrators, successors, and assigns) may assert any claim that he has or might have against the Company and further agrees that he will fully cooperate with the Company in seeking dismissal of any such claim that might be raised on his behalf. | ||
4.3 | The Parties agree that this Agreement may be treated as a complete defense to any legal, equitable, or administrative action that may be brought, instituted, or taken by Employee, or on his behalf, against the Company and shall forever be a complete bar to the commencement or prosecution of any claim, demand, lawsuit, charge, or other legal proceeding of any kind against the Company, any related companies and subsidiaries, and the directors, officers, employees, and agents of them, including any successors and assigns, relating to employment with the Company and/or the termination of employment with the Company. | ||
4.4 | The release contained in Section 4.1 hereof is not intended to relieve the Company of its obligations under this Agreement to make the payments and provide the benefits under Sections 1 and 2 hereof, but is otherwise fully effective in accordance with its terms as to all other rights, claims or causes of action which Employee has, had or may have had as set forth in Section 4.1 hereof. | ||
4.5 | Employee received this Agreement on January 5, 2008 and had at least forty-five (45) days to consider its terms and conditions, including without limitation, the release provisions of Section 4.1. By receipt of this proposed Agreement and Release, Employee was advised by the |
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4.6 | Employees execution of this Agreement is knowing and voluntary, without duress and after an opportunity to consult with his attorney. |
5. | Waiver, Discharge, etc. This Agreement may not be released, discharged, abandoned, changed or modified in any manner, except by an instrument in writing signed on behalf of each of the parties hereto. The failure of any party hereto to enforce at any time any of the provisions of this Agreement shall in no way be construed as a waiver of any such provision, nor in any way to affect the validity of this Agreement or any part thereof or the right of any party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to be a waiver of any other or subsequent breach. | ||
6. | Rights of Persons Not Parties. Nothing contained in this Agreement shall be deemed to create rights in persons not parties hereto, other than the personal representatives or successors of the parties hereto. | ||
7. | Entire Agreement. This Agreement constitutes the entire understanding between the parties, and no other statements, representations or understandings form a basis for the mutual promises contained herein, and this Agreement supersedes any other agreements between the parties with respect to the subject matter hereof. | ||
8. | Governing Law. This Agreement shall be governed by and construed in accordance with the laws of North Carolina without regard to its conflict of laws principles. | ||
9. | Venue. The Company and Employee agree that any dispute arising out of this Agreement shall be subject to the exclusive jurisdiction of both the state and federal courts in North Carolina. For that purpose, Employee irrevocably submits to the jurisdiction of the state and federal courts of Guilford County, North Carolina. |
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10. | Successors, Assigns, and Representatives. This Agreement shall inure to and be binding upon the parties hereto, their respective heirs, legal representatives, successors, and assigns. | ||
11. | Partial Invalidity. The Parties agree that the provisions of this Agreement shall be deemed severable and that the invalidity or unenforceability of any portion or any provision shall not affect the validity or enforceability of the other portions or provisions. Such provisions shall be appropriately limited and given effect to the extent that they may be enforceable. The Parties further agree that in the event any provision of this Agreement shall be declared invalid and unenforceable by a court of competent jurisdiction that the entire Agreement may be declared voided, ab initio, at the election of the Company. | ||
12. | Revocation. Employee understands that this Agreement may be revoked by Employee within seven (7) days after the signing of the Agreement. To revoke the Agreement, Employee understands that he must notify in writing that he no longer wishes to be bound by this Agreement and desires to revoke the Agreement immediately. Any revocation should be sent in writing to Susan L. Williams, Vice President, Human Resources, VF Corporation, 105 Corporate Center Blvd., Greensboro, NC 27408. This Agreement shall not become effective and enforceable until seven (7) days after it has been signed by Employee. | ||
13. | Employees Acknowledgements. |
13.1 | Employee affirms that he has carefully read this entire Agreement. He attests that he possesses sufficient education and/or experience to fully understand the extent and impact of its provisions. | ||
13.2 | Employee attests that he has been afforded the opportunity to consider this Agreement for a period of forty-five (45) days. |
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13.3 | Employee affirms that he is fully competent to execute this Agreement and that he does so voluntarily and without any coercion, undue influence, threat, or intimidation of any kind or type. |
14. | Compliance with Section 409A of the Internal Revenue Code. The Parties agree that any payments to be made to Employee hereunder or to be made pursuant to any other plans maintained by the Company in which Employee is a participant, such as the VF Supplemental Executive Retirement Plan, and the VF Executive Deferred Savings Plans that are subject to the requirements of Section 409A of the Internal Revenue Code, will be made in a manner intended to comply with the provisions of Section 409A to avoid, to the extent possible, the imposition of any excise or other penalty tax on the Employee or the Company and that the provisions of this Agreement and such plans will be interpreted accordingly. |
VF Corporation | EMPLOYEE: | |||||||||
By: | /s/ Susan L. Williams | /s/ George N. Derhofer | ||||||||
Susan L. Williams | George N. Derhofer | |||||||||
Vice President Human Resources | ||||||||||
Date: |
January 4, 2008 | Date: | January 14, 2008 |
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