EXHIBIT 10.33
SENIOR EXECUTIVE
EMPLOYMENT AGREEMENT
THIS SENIOR EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is to be
effective as of January 1, 2004 by and between DECKERS OUTDOOR CORPORATION, a
Delaware corporation (the "Company"), and BOB ORLANDO (the "Executive").
ARTICLE I
DUTIES AND TERM
1.1 EMPLOYMENT. In consideration of their mutual covenants,
Executive's continued employment with the Company and other good and valuable
consideration, the receipt, adequacy, and sufficiency of which is hereby
acknowledged, the Company agrees to enter into this Agreement with the
Executive, who is currently an employee of the Company on an "at will" basis,
and the Executive agrees to enter into this Agreement and remain in the employ
of the Company upon the terms and conditions herein provided and in accordance
with all applicable employment rules of the Company. This Agreement was prepared
after consultation with the Company's compensation consultant, Frederick W. Cook
& Company, Inc.
1.2 POSITION AND RESPONSIBILITIES. The Executive will continue to
serve in the Executive's current position as PRESIDENT, TEVA, and continue to
report to the Executive's current supervisor.
1.3 TERM. The term of the Executive's employment under this
Agreement will commence on the effective date of this Agreement as first written
above and will continue, unless sooner terminated, until December 31, 2005.
Employment of the Executive is at will and will continue until such time as
written notice of termination is given by the Company or written notice is given
by the Executive.
1.4 AT-WILL EMPLOYMENT. Executive will continue to be employed as an
at-will employee of the Company. Subject to the provisions of Articles III and
IV, as an at-will employee, Executive is free to terminate his/her employment
with the Company at any time, for any reason, and the Company has the similar
right to terminate Executive's employment at any time, for any reason. Although
the Company may choose to terminate Executive's employment for cause,
Executive's employment is at-will and cause is not required.
1.5 REVIEW OF AGREEMENT. It is the parties intention that the terms
of this Agreement will be reviewed prior to December 31, 2005 to determine
whether any modifications are appropriate. This review of the Agreement terms
may occur at an earlier or later date, is not mandatory and does not impose any
binding obligations on either party.
ARTICLE II
COMPENSATION
For all services rendered by the Executive in any capacity during the
Executive's employment under this Agreement, the Company will compensate the
Executive as follows:
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2.1 BASE SALARY. Effective as of January 1, 2004, and for a period
of two (2) years thereafter, the Company will pay to the Executive an annual
base salary of ONE HUNDRED SIXTY EIGHT THOUSAND ($168,000) to be paid in equal
installments in accordance with the Company's general payment policies in effect
during the term hereof (the "Base Salary"). Executive's annual base salary may
be reviewed prior to December 31, 2005 and appropriate adjustments to salary
implemented. If Executive's annual base salary is not revised effective January
1, 2006, his/her existing salary will continue on a monthly basis until changed.
This provision does not alter the at-will nature of Executive's employment or
the provisions of ARTICLES III and IV below.
2.2 INCENTIVE BONUS. The Executive shall be eligible to receive a
targeted annual bonus based on performance criteria established annually by the
Compensation Committee (the "Incentive Bonus"). The Incentive Bonus criteria for
the year ending December 31, 2004 is set forth on Exhibit A hereto.
2.3 STOCK OPTIONS. Executive may be granted options to purchase
shares of Company Common Stock pursuant to the Company's Stock Option Plan. Any
stock option must be approved by the Compensation Committee.
2.4 ADDITIONAL BENEFITS. The Executive will be entitled to
participate in all benefit and welfare programs, plans, and arrangements that
are from time to time made available to the Company's like-level executive
employees.
ARTICLE III
TERMINATION OF EMPLOYMENT
3.1 GENERAL. While Executive is an at-will employee as provided at
Section 1.3 above, the follow conditions for termination of employment are set
forth in order to determine the nature of Executive compensation entitlement
upon termination of employment as discussed in Article IV below. Neither the
provisions of Article III or Article IV of this Agreement shall alter the
at-will nature of Executive's employment with the Company.
3.2 DEATH OR RETIREMENT OF EXECUTIVE. The Executive's employment
under this Agreement will automatically terminate upon the death or Retirement
(as defined in Section 6.1) of the Executive.
3.3 BY EXECUTIVE. The Executive may terminate the Executive's
employment under this Agreement by giving Notice of Termination (as defined in
Section 6.1 hereof) to the Company:
(a) for Good Reason (as defined in Section 6.1 hereof); and
(b) at any time without Good Reason.
3.4 BY COMPANY. The Company may terminate the Executive's employment
under this Agreement by giving Notice of Termination to the Executive:
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(a) in the event of Executive's Total Disability (as defined
in Section 6.1 hereof);
(b) for Cause (as defined in Section 6.1 hereof); and
(c) at any time without Cause.
ARTICLE IV
COMPENSATION UPON TERMINATION OF EMPLOYMENT
If the Executive's employment hereunder is terminated, in accordance with
the provisions of Article III hereof, and except for any other rights or
benefits specifically provided for herein to be effective following the
Executive's period of employment, the Company will provide compensation and
benefits to the Executive only as follows:
4.1 UPON TERMINATION FOR DEATH OR DISABILITY. If the Executive's
employment hereunder is terminated by reason of the Executive's death or Total
Disability, the Company will:
(a) pay the Executive (or the Executive's estate) or
beneficiaries any Base Salary that has accrued but was not paid as of the
termination date (the "Accrued Base Salary");
(b) pay the Executive (or the Executive's estate) or
beneficiaries for unused vacation days accrued as of the termination date
in an amount equal to the Executive's Base Salary multiplied by a fraction
the numerator of which is the number of accrued unused vacation days and
the denominator of which is 260 (the "Accrued Vacation Payment");
(c) reimburse the Executive (or the Executive's estate) or
beneficiaries for expenses incurred by him prior to the date of
termination that are subject to reimbursement pursuant to this Agreement
(the "Accrued Reimbursable Expenses");
(d) provide to the Executive (or the Executive's estate) or
beneficiaries any accrued and vested benefits required to be provided by
the terms of any Company-sponsored benefit plans or programs (the "Accrued
Benefits"), together with any benefits required to be paid or provided in
the event of the Executive's death or Total Disability under applicable
law;
(e) pay the Executive (or the Executive's estate) or
beneficiaries any Incentive Bonus with respect to a prior fiscal year that
has accrued but has not been paid (the "Accrued Incentive Bonus"); and
(f) the Executive (or the Executive's estate) or beneficiaries
shall have the right to exercise all vested unexercised stock options and
warrants outstanding at the termination date in accordance with terms of
the plans and agreements pursuant to which such options or warrants were
issued.
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4.2 UPON TERMINATION BY COMPANY FOR CAUSE OR BY EXECUTIVE WITHOUT
GOOD REASON. If the Executive's employment is terminated by the Company for
Cause, or if the Executive terminates the Executive's employment with the
Company other than (x) upon the Executive's death or Total Disability or (y) for
Good Reason, the Company will:
(a) pay the Executive the Accrued Base Salary;
(b) pay the Executive the Accrued Vacation Payment;
(c) pay the Executive the Accrued Reimbursable Expenses;
(d) pay the Executive the Accrued Benefits, together with any
benefits required to be paid or provided under applicable law;
(e) pay the Executive any Accrued Incentive Bonus; and
(f) the Executive will have the right to exercise vested
options and warrants in accordance with Section 4.1(f) hereof.
4.3 UPON TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY EXECUTIVE
FOR GOOD REASON. If the Executive's employment is terminated by the Company
without Cause or by the Executive for Good Reason, the Company will:
(a) pay the Executive the Accrued Base Salary;
(b) pay the Executive the Accrued Vacation Payment;
(c) pay the Executive the Accrued Reimbursable Expenses;
(d) pay the Executive the Accrued Benefits, together with any
benefits required to be paid or provided under applicable law;
(e) pay the Executive any Accrued Incentive Bonus;
(f) pay the Executive severance, commencing on the thirtieth
(30th) day following the termination date, of six (6) monthly payments
equal to one-twelfth (1/12th) of the Executive's Annual Base Salary in
effect immediately prior to the time such termination occurs. Severance
will be mitigated on a dollar for dollar basis for any income received by
Executive for duties performed for Company or any third party during the
six (6) months following termination. The severance payment required under
this subsection shall be conditioned upon the Executive confirming the
release in Section 5.2 hereof; and
(g) maintain in full force and effect, for the Executive's and
the Executive's eligible beneficiaries, until the first to occur of (x)
the Executive's attainment of alternative employment if such employment
includes health insurance benefits or (y) the three (3) month anniversary
of termination of the employment, the benefits provided
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pursuant to Company-sponsored benefit plans, programs, or other
arrangements in which the Executive was entitled to participate as a
full-time employee immediately prior to such termination in accordance
with Section 2.4 hereof, subject to the terms and conditions of
participation as provided under the general terms and provisions of such
plans, programs, and arrangements, or in the alternate, the Company will
arrange to provide the Executive with continued benefits substantially
similar to those which the Executive would have been entitled to receive
under such plans, programs, and arrangements;
(h) the Executive shall have the right to exercise vested
options and warrants in accordance with Section 4.1(f).
4.4 UPON CHANGE OF CONTROL AND TERMINATION BY THE COMPANY WITHOUT
CAUSE OR BY EXECUTIVE FOR GOOD REASON. If the Executive's employment is
terminated within two (2) years of a Change of Control by the Company without
Cause or by the Executive for Good Reason, the Company will:
(a) pay the Executive the Accrued Base Salary;
(b) pay the Executive the Accrued Vacation Payment;
(c) pay the Executive the Accrued Reimbursable Expenses;
(d) pay the Executive the Accrued Benefits, together with any
benefits required to be paid or provided under applicable law;
(e) pay the Executive any Accrued Incentive Bonus; plus the
pro-rata Incentive Bonus based on actual performance for the year of
termination.
(f) pay the Executive severance of one and one-half (1.5)
times Executive's Annual Base Salary in effect immediately prior to the
time such termination occurs plus the greater of (x) one and one-half
(1.5) times the targeted Incentive Bonus immediately prior to the time
such termination occurs or (y) one and one-half (1.5) times the average
actual Incentive Bonus for the previous three (3) years, whichever is
greater. The severance payment required under this subsection shall be
conditioned upon the Executive confirming the release in Section 5.2
hereof;
(g) maintain in full force and effect, for the Executive's and
the Executive's eligible beneficiaries, until the first to occur of (x)
the Executive's attainment of alternative employment if such employment
includes health insurance benefits or (y) the eighteen (18) month
anniversary of termination, the benefits provided pursuant to
Company-sponsored benefit plans, programs, or other arrangements in which
the Executive was entitled to participate as a full-time employee
immediately prior to such termination in accordance with Section 2.4
hereof, subject to the terms and conditions of participation as provided
under the general terms and provisions of such plans, programs, and
arrangements, or in the alternate, the Company will arrange to provide the
Executive with continued benefits substantially similar to those which the
Executive would have been entitled to receive under such plans, programs,
and arrangements;
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(h) any payments will be grossed up for Internal Revenue Code
Section 280G excise tax penalty on "excess parachute payments;" and
(i) the Executive shall have the right to exercise vested
options and warrants in accordance with Section 4.1(f).
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 OTHER AGREEMENTS. As further material consideration for the
Company entering into this Agreement, the Executive will also execute the
Company's standard employee confidentially agreement, inventions assignment
agreement, and any other agreements required to be executed by all like level
executives of the Company.
5.2 EMPLOYEE'S RESTRICTIVE COVENANTS UPON TERMINATION. If the
Executive's employment is terminated for any reason, Executive agrees:
(a) To keep all of the Company's Confidential Information
confidential in perpetuity in accordance with the Company's policy;
(b) To not hire or solicit for hire or consultation employees
of the Company for a period of one and one-half (1 1/2) years after
termination of employment; and
(c) To release the Company from any and all claims, whether
known or unknown, except for those based upon this Agreement. Such release
shall include the rights of Section 1542 of the California Civil Code,
which provides:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in the Executive's favor at the time of executing
the release, which if known by him must have materially affected the
Executive's settlement with the debtor."
ARTICLE VI
MISCELLANEOUS
6.1 DEFINITIONS. For purposes of this Agreement, the following terms
will have the following meanings:
(a) "Accrued Base Salary" - as defined in Section 4.1(a)
hereof.
(b) "Accrued Benefits" - as defined in Section 4.1(d) hereof.
(c) "Accrued Incentive Bonus" - as defined in Section 4.1(e)
hereof.
(d) "Accrued Reimbursable Expenses" - as defined in Section
4.1(c) hereof.
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(e) "Accrued Vacation Payment" - as defined in Section 4.1(b)
hereof.
(f) "Affiliate" of a Person means a Person that directly or
indirectly through one or more intermediaries, controls, is controlled by,
or is under common control with, the first Person. "Control" (including
the terms "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or credit arrangement, as
trustee or executor, or otherwise.
(g) "Incentive Bonus" as defined in Section 2.2 hereof.
(h) "Base Salary" as defined in Section 2.1 hereof.
(i) "Cause" will mean any willful breach of duty by the
Executive in the course of the Executive's employment, continued violation
of written Company employment policies after written notice of such
violation, violation of the Company's Insider Trading Policies, conviction
of a felony or any crime involving fraud, theft, embezzlement, dishonesty
or moral turpitude, engaging in activities which materially defame the
Company, engaging in conduct which is material injurious to the Company or
its Affiliates, or any of their respective customer or supplier
relationships, financially or otherwise, or the Executive's gross
negligence or continued failure to perform Executive's duties or his/her
continued incapacity to perform such duties.
(j) "Change of Control" will mean if there is a merger,
consolidation, sale of all or a major portion of the assets of the Company
(or a successor organization) or similar transaction or circumstance where
any person or group (other than Douglas B. Otto) acquires or obtains the
right to acquire, in one or more transactions, beneficial ownership of
more than Fifty Percent (50%) of the outstanding shares of any class of
voting stock of the Company (or a successor organization) at any date
subsequent to September 30, 2003..
(k) "Compensation Committee" means the Compensation Committee
of the Company's Board of Directors.
(l) "Continued Benefits" as defined in Section 4.3(g) hereof.
(m) "Good Reason" will mean the occurrence of material breach
of this Agreement by the Company, which breach is not cured within fifteen
(15) calendar days after written notice thereof is received by the
Company, or in the event of a Change of Control, a reduction of total
compensation, benefits, and perquisites, relocation greater than 50 miles,
or material change in position or duties.
(n) "Notice of Termination" will mean a notice which shall
indicate the specific termination provision of this Agreement relied upon
and shall generally set forth the basis for termination of the Executive's
employment under the provision so indicated.
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(o) "Person" means any natural person, firm, partnership,
association, corporation, company, limited liability company, limited
partnership, trust, business trust, governmental authority, or other
entity.
(p) "Retirement" will mean normal retirement at age 65.
(q) "Severance" will mean payments after termination of
Executive's employment.
(r) "Total Disability" will mean the Executive's failure
substantially to perform the Executive's duties hereunder on a full-time
basis for a period exceeding one hundred eighty (180) consecutive days or
for periods aggregating more than one hundred eighty (180) days during any
twelve (12) month period as a result of incapacity due to physical or
mental illness. If there is a dispute as to whether the Executive is or
was physically or mentally unable to perform the Executive's duties under
this Agreement, such dispute will be submitted for resolution to a
licensed physician agreed upon by the Company and the Executive, or if an
agreement cannot be promptly reached, the Company and the Executive will
promptly each select a physician, and if these physicians cannot agree,
the physicians will promptly select a third physician whose decision will
be binding on all parties. If such a dispute arises, the Executive will
submit to such examinations and will provide such information as such
physician(s) may request, and the determination of the physician(s) as to
the Executive's physical or mental condition will be binding and
conclusive. Notwithstanding the foregoing, if the Executive participates
in any group disability plan provided by the Company, which offers
long-term disability benefits, "Total Disability" will mean total
disability as defined therein.
6.2 KEY MAN INSURANCE. The Company will have the right, in its sole
discretion, to purchase "key man" insurance on the life of the Executive. The
Company shall be the owner and beneficiary of any such policy. If the Company
elects to purchase such a policy, the Executive will take such physical
examinations and supply such information as may be reasonably requested by the
insurer.
6.3 SUCCESSORS; BINDING AGREEMENT. This Agreement will be binding
upon any successor to the Company and will inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, beneficiaries,
designees, executors, administrators, heirs, distributees, devisees and
legatees.
6.4 MODIFICATION; NO WAIVER. This Agreement may not be modified or
amended except by an instrument in writing signed by the parties hereto. No term
or condition of this Agreement will be deemed to have been waived, nor will
there be any estoppel against the enforcement of any provision of this
Agreement, except by written instrument by the party charged with such waiver or
estoppel. No such written waiver will be deemed a continuing waiver unless
specifically stated therein, and each such waiver will operate only as to the
specific term or condition waived and will not constitute a waiver of such term
or condition for the future or as to any other term or condition.
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6.5 SEVERABILITY. The covenants and agreements contained herein are
separate and severable and the invalidity or unenforceability of any one or more
of such covenants or agreements, if not material to the employment arrangement
that is the basis for this Agreement, will not affect the validity or
enforceability of any other covenant or agreement contained herein.
6.6 FORM OF NOTICE TO PARTIES. All notices, requests, demands,
waivers and other communications required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been duly given if (a)
delivered personally, (b) mailed by first-class, registered or certified mail,
return receipt requested, postage prepaid, or (c) sent by next-day or overnight
mail or delivery or (d) sent by telecopy or telegram, to the following address:
If to Executive: ______________________
______________________
______________________
If to Company: Deckers Outdoor Corporation
495-A South Fairview Avenue
Goleta, CA 93117
Attn: Douglas B. Otto
Facsimile #805-967-7862
or, in each case, at such other address as may be specified in writing to the
other parties hereto.
All such notices, requests, demands, waivers and other communications
shall be deemed to have been received (w) if by personal delivery on the day
after such delivery, (x) if by certified or registered mail, on the seventh
business day after the mailing thereof, (y) if by next-day or overnight mail or
delivery, on the day delivered, (z) if by telecopy or telegram, on the next day
following the day on which such telecopy or telegram was sent, provided that a
copy is also sent by certified or registered mail.
6.7 ASSIGNMENT. This Agreement and any rights hereunder will not be
assignable by either party without the prior written consent of the other party
except as otherwise specifically provided for herein.
6.8 ENTIRE UNDERSTANDING. This Agreement constitutes the entire
understanding between the parties hereto and no agreement, representation,
warranty or covenant has been made by either party except as expressly set forth
herein.
6.9 EXECUTIVE'S REPRESENTATIONS. The Executive represents and
warrants that neither the execution and delivery of this Agreement nor the
performance of the Executive's duties hereunder violates the provisions of any
other agreement to which he is a party or by which he is bound.
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6.10 GOVERNING LAW. This Agreement will be construed in accordance
with the laws of the State of California, without regard to the conflict of laws
provisions thereof, with venue proper only in the County of Santa Barbara,
California.
6.11 ARBITRATION.
(a) Except as provided in Section 6.11(c) below, the parties hereto
agree that any dispute or controversy arising out of, relating to, or in
connection with this Agreement, or the interpretation, validity, construction,
performance, breach, or termination thereof, shall be finally settled by binding
arbitration, unless otherwise required by law, to be held in Santa Barbara,
California under the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association as then in effect (the "Rules"). The
arbitrator(s) may grant injunctions or other relief in such dispute or
controversy. The decision of the arbitrator(s) shall be final, conclusive and
binding on the parties to the arbitration, and judgment may be entered on the
decision of the arbitrator(s) in any court having jurisdiction.
(b) The arbitrator(s) shall apply California law to the merits of
any dispute or claim, without reference to rules of conflicts of law.
(c) The parties may apply to any court of competent jurisdiction for
a temporary restraining order, preliminary injunction, or other interim or
conservatory relief, as necessary, without breach of this arbitration agreement
and without abridgement of the powers of the arbitrator.
(d) EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES
ARBITRATION. EMPLOYEE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EMPLOYEE
AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH
THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE,
BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION, UNLESS OTHERWISE REQUIRED
BY LAW, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EMPLOYEE'S
RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO
EMPLOYEE'S RELATIONSHIP WITH THE COMPANY, INCLUDING BUT NOT LIMITED TO, CLAIMS
OF HARASSMENT, DISCRIMINATION, WRONGFUL TERMINATION AND ANY STATUTORY CLAIMS.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
COMPANY:
DECKERS OUTDOOR CORPORATION
By: /s/ Douglas B. Otto
-------------------------
Name: Douglas B. Otto Date
Title: Chief Executive Officer
EXECUTIVE:
/s/ Bob Orlando
---------------------------------
Bob Orlando, President, TEVA Date
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EXHIBIT A
SENIOR EXECUTIVE EMPLOYMENT AGREEMENT
2004 INCENTIVE BONUS CRITERIA
EXECUTIVE: BOB ORLANDO
TARGET BONUS: $59,000 @ 100% LEVEL
Good Very Good Excellent
75% BASED ON TOPLINE PERFORMANCE
Sales + Backlog Percentage Increase 10% 15% 20%
25% BASED ON EARNINGS PERFORMANCE
Brand Contribution as Calculated to Above Sales
Increases * * *
--- --- ---
BONUS LEVEL 100% 200% 400%
* To be inserted when 2003 sales are confirmed.
Bonus to be paid in accordance to method used in 2003.
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