Exhibit 10.1
CHANGE OF CONTROL AND SEVERANCE AGREEMENT
-----------------------------------------
THIS CHANGE OF CONTROL AND SEVERANCE AGREEMENT (the "Agreement") is made as
of __________, by and between DECKERS OUTDOOR CORPORATION, a Delaware
corporation (the "Company"), and __________________________ (the "Executive")
and is effective as of January 1, 2010 (the "Effective Date").
ARTICLE I
DUTIES AND TERM
1.1 EMPLOYMENT. In consideration of their mutual covenants 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, on an "at will" basis, and the Executive agrees to enter into this
Agreement upon the terms and conditions herein provided and in accordance with
all applicable employment rules of the Company.
1.2 POSITION AND RESPONSIBILITIES. The Executive will serve as
_____________________ and shall report to the Company's [President and Chief
Executive Officer][Board of Directors].
1.3 TERM. The term of this Agreement will commence on the Effective
Date of this Agreement and will continue, unless sooner terminated. 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.
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:
2.1 BASE SALARY. Effective as of January 1, 2010, the Company will
pay to the Executive an annual base salary of ______________________________
Dollars ($___________) 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,
2010 and appropriate increases to salary implemented. If Executive's annual base
salary is not revised effective December 31, 2010, then Executive's then
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.
1
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").
2.3 STOCK COMPENSATION. The Executive may be granted options to
purchase shares of Company Common Stock or Restricted Stock Units to purchase
shares of Company Common Stock in accordance with the Company's Stock Option
Plan. Any grants 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.
2.5 [DIRECTORS AND OFFICERS INSURANCE; INDEMNIFICATION AGREEMENT. The
Executive will be insured under the Company's Directors and Officers insurance
and will be provided the Company's standard indemnification agreement.]
ARTICLE III
TERMINATION OF EMPLOYMENT
3.1 GENERAL. While Executive is an at-will employee as provided at
Section 1.4 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. Upon termination of
Executive's employment, Executive shall be deemed to have automatically resigned
as a director or officer of any of the Company's affiliates or subsidiaries in
which Executive serves in any such capacity and during and after Executive's
employment, Executive will assist Company in every proper way to evidence such
resignation.
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:
(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
2
(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) subject to Section 4.6 hereof, 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 fiscal year prior to the
year of termination that has been earned and accrued but has not been paid (the
"Accrued Incentive Bonus"); plus a pro-rated portion of the Incentive Bonus
based on the actual length of service during the year of termination paid within
sixty (60) days after the Executive's date of termination; 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.
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;
3
(b) pay the Executive the Accrued Vacation Payment;
(c) subject to Section 4.6 hereof, 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
excluding any Incentive Bonus for the year of termination; 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. In the event the Executive has incurred a Separation from Service
(within the meaning of Section 409A(a)(2)(A)(i) of the Internal Revenue Code of
1986, as amended (the "Code"), and Treasury Regulation Section 1.409A-1(h))
("Separation from Service") by reason of a termination of the Executive's
employment 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) subject to Section 4.6 hereof, 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 a
pro-rated portion of the Incentive Bonus based on the actual length of service
during the year of termination, payable in lump sum within sixty (60) days after
Executive's date of termination;
(f) pay the Executive severance, commencing within sixty (60)
days following the termination date, of twelve (12) 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 and paid on the regular monthly
payroll dates of the Company in accordance with the Company's payroll practices
as in effect on such termination date. Each installment payment made pursuant to
this Section 4.3(f) shall be considered a separate payment for purposes of
Section 409A of the Code (including, without limitation, for purposes of
Treasury Regulation Section 1.409A-2(b)(2)(iii)). 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 twelve (12) months following
termination;
4
(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 twelve (12) month anniversary of
termination of employment, 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 (the "Continued Benefits"); and
(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. In the event the Executive has incurred a
Separation from Service by reason of a termination of the Executive's
employment, 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) subject to 4.6 hereof, 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 a
pro-rated portion of the Incentive Bonus based on the actual length of service
during the year of termination, payable in lump sum within sixty (60) days after
Executive's date of termination;
(f) pay the Executive severance of [two (2)]/[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) [two (2)]/[one and one-half
(1.5)] times the targeted Incentive Bonus immediately prior to the time such
termination occurs or (y) [two (2)]/[one and one-half (1.5)] times the average
actual Incentive Bonus for the previous three (3) years, whichever is greater,
in lump sum within sixty (60) days after Executive's date of termination;
(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)]/[twelve (12)]/[twenty-four
(24)] 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; and
5
(h) the Executive shall have the right to exercise vested
options and warrants in accordance with Section 4.1(f).
4.5 RELEASE. Notwithstanding any provision herein to the contrary,
the Company may require that, prior to payment of any amount or provision of any
benefit pursuant to subsection (f) or (g) of Sections 4.3 and 4.4, Executive
shall have executed, on or prior to the Release Expiration Date, a customary
general release in favor of the Company in the form attached hereto as Exhibit
A, and any waiting periods contained in such release shall have expired. To the
extent that the Company requires execution of such release, the Company shall
deliver such release to Executive within five (5) business days following the
termination of Executive's employment hereunder. In the event that Executive
fails to execute such release on or prior to the Release Expiration Date,
Executive shall not be entitled to any payments or benefits pursuant to
subsections (f) or (g) of Sections 4.3 and 4.4.
4.6 Accrued Reimbursable Expenses. Without limiting the Company's
obligation under Sections 4.1(c), 4.2(c), 4.3(c) and 4.4(c) hereof, the
reimbursement of any Accrued Reimbursable Expenses shall be made no later than
December 31 of the year following the year in which the expense was incurred.
4.7 Section 409A.
(a) Notwithstanding anything herein to the contrary, to the
extent (i) any amount or benefit payable to the Executive pursuant to Sections
4.1, 4.2, 4.3 or 4.4 is treated as non-qualified deferred compensation subject
to Section 409A of the Code, (ii) the Company's securities are publicly traded
on the date of the Executive's termination of employment, (iii) the Executive is
determined by the Company to be a "specified employee" for purposes of Section
409A(a)(2)(B)(i) of the Code, and (iv) the Company determines that delayed
commencement of any portion of the amounts payable to Executive pursuant to
Sections 4.1, 4.2, 4.3 or 4.4 is required in order to avoid a prohibited
distribution under Section 409A(a)(2)(B)(i) of the Code (any such delayed
commencement, a "Payment Delay"), then such portion of the Executive's payments
and/or benefits described in Sections 4.2, 4.3 or 4.4, as the case may be, shall
not be provided to Executive prior to the earlier of (A) the expiration of the
six-month period measured from the date of the Executive's date of termination,
(B) the date of the Executive's death or (C) such earlier date as is permitted
under Section 409A. Upon the expiration of the applicable Code Section
409A(a)(2)(B)(i) deferral period, all payments deferred pursuant to a Payment
Delay shall be paid in a lump sum to Executive on the first day following such
expiration, and any remaining payments due under Sections 4.1, 4.2, 4.3 or 4.4
shall be paid as otherwise provided herein.
(b) Notwithstanding anything in this Section 4.7 to the
contrary, to the maximum extent permitted by applicable law, amounts payable to
Executive pursuant to Sections 4.2, 4.3 or 4.4, as the case may be, shall be
made in reliance upon the Section 409A Safe Harbor Limit (as defined in Article
VI) and/or the exception for short-term deferrals (as set forth in Treasury
Regulation Section 1.409A-1(b)(4)).
6
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; and
(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.
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.
(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.
7
(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 acquires, 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).
(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, without the consent of the
Executive (1) the occurrence of material breach of this Agreement by the
Company, or (2) if within two (2) years of a Change of Control, there is a
material reduction of the Executive's total compensation, benefits, and
perquisites, the Company's relocation is greater than fifty (50) miles from the
location where the Executive performs services, or a material change in the
Executive's position or duties; provided, however, no such event shall
constitute "Good Reason" hereunder unless the Executive shall have given written
notice to the Company of Executive's intent to resign for "Good Reason" within
thirty (30) days after the Executive first becomes aware of the occurrence of
any such event (specifying the nature and scope of the event) and such event or
occurrence shall not have been cured within thirty (30) days of the Company's
receipt of such notice.
(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.
(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) "Release Expiration Date" shall mean the date which is
twenty-one (21) days following the date upon which the Company delivers
Executive the release contemplated in Section 4.5 above, or, in the event that
such termination of employment is "in connection with an exit incentive or other
employment termination program" (as such phrase is defined in the Age
Discrimination in Employment Act of 1967), the date which is forty-five (45)
days following such delivery date.
(q) "Retirement" will mean normal retirement at age 65.
(r) "Section 409A Safe Harbor Limit" will mean, as determined
in accordance with Treasury Regulation ss.1.409A-1(b)(9)(iii), an amount equal
to two (2) times the lesser of (i) Executive's annual rate of compensation for
the taxable year immediately preceding the taxable year in which Executive's
employment is terminated by the Company or (ii) the dollar amount in effect
under Section 401(a)(17) of the Code for the taxable year in which Executive's
employment is terminated.
8
(s) "Severance" will mean payments after termination of
Executive's employment.
(t) "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.
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.
9
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 the Executive: __________________
--------------------
__________________
__________________
If to the Company: Deckers Outdoor Corporation
------------------ 495-A South Fairview Avenue
Goleta, CA 93117
Attn: Angel Martinez
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.
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.
10
(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.
[Signature Page Follows]
11
IN WITNESS WHEREOF, the parties hereto have duly executed this Change of
Control and Severance Agreement as of the day and year first above written.
COMPANY:
DECKERS OUTDOOR CORPORATION
By: ____________________________________
Angel Martinez
Chief Executive Officer
EXECUTIVE:
_________________________________________
Signature
_________________________________________
Name Typed or Printed
12
EXHIBIT A
GENERAL RELEASE
1. Employee's employment with Deckers Outdoor Corporation, a Delaware
corporation (the "Company") ceased effective _______________.
2. Employee represents and agrees that Employee has received all
compensation owed to Employee by the Company through Employee's termination
date, including all wages, bonuses, commissions, earned but unused vacation,
reimbursable business expenses, and any other payments, benefits, or other
compensation of any kind to which Employee was entitled from the Company.
3. Employee represents to the Company that Employee is signing this
General Release (this "Agreement") voluntarily and with a full understanding of
and agreement with its terms for the purpose of receiving additional pay from
the Company as described in the Change of Control and Severance Agreement dated
____________ (the "Agreement").
4. In reliance on the Employee's promises, representations, and releases
in this Agreement, upon the Company's receipt of this executed General Release,
the Company will provide Employee with the payments described in the Agreement,
less legally required withholding and payroll deductions.
5. In exchange for the consideration provided to Employee as set forth
above, Employee agrees to waive and release all claims, known and unknown, which
Employee has or might otherwise have had against the Company, including all of
its former or current officers, directors, agents, employees and related
entities (hereinafter collectively referred to as the "Released Parties"),
arising prior to the date Employee executes this Agreement, regarding any aspect
of Employee's employment, compensation, the cessation of Employee's employment
with the Company, the Age Discrimination in Employment Act of 1967, the
Americans with Disabilities Act of 1990, Title VII of the Civil Rights Act of
1964, 42 U.S.C. section 1981, the Fair Labor Standards Acts, the California Fair
Employment and Housing Act, California Government Code section 12900, et seq.,
the Unruh Civil Rights Act, California Civil Code section 51, all provisions of
the California Labor Code; the Employee Retirement Income Security Act, 29
U.S.C. section 1001, et seq., all as amended, any other federal, state or local
law, regulation or ordinance or public policy, contract, tort or property law
theory, or any other cause of action whatsoever that arose on or before the date
Employee executes this Agreement.
6. It is further understood and agreed that as a condition of this
Agreement, all rights under Section 1542 of the Civil Code of the State of
California are expressly waived by Employee. Such Section reads as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her favor
at the time of executing the release, which if known by him or
her must have materially affected his or her settlement with
the debtor."
1
Notwithstanding Section 1542, and for the purpose of implementing a full and
complete release and discharge of the Released Parties, Employee expressly
acknowledges that this Agreement is intended to include and does include in its
effect, without limitation, all claims which Employee does not know or suspect
to exist in Employee's favor against the Released Parties at the time of
execution hereof, and that this Agreement expressly contemplates the
extinguishment of all such claims.
7. The release in this Agreement includes, but is not limited to, claims
arising under federal, state or local law for age, race, sex or other forms of
employment discrimination and retaliation. In accordance with the Older Workers
Benefit Protection Act, Employee hereby knowingly and voluntarily waives and
releases all rights and claims, known or unknown, arising under the Age
Discrimination in Employment Act of 1967, as amended, which he might otherwise
have had against the Released Parties. Employee is hereby advised that he should
consult with an attorney before signing this Agreement and that he has 21 days
in which to consider and accept this Agreement by signing and returning this
Agreement to the Company's President. In addition, Employee has a period of
seven days following his execution of this Agreement in which he may revoke the
Agreement. If Employee does not advise the Company by a writing received by
David Bock within such seven day period of the Employee's intent to revoke the
Agreement, the Agreement will become effective and enforceable upon the
expiration of the seven days.
8. This Separation Agreement and General Release shall not be construed
as an admission by the Company of any improper, wrongful, or unlawful actions,
or any other wrongdoing against Employee, and the Company specifically disclaims
any liability to or wrongful acts against Employee on the part of itself, its
employees and its agent.
9. This Agreement may be modified only by written agreement signed by
both parties.
Dated: ______________________ EMPLOYEE:
_________________________________________
COMPANY:
Dated: ______________________ DECKERS OUTDOOR CORPORATION
By: _____________________________________
Name: ___________________________________
Its: ____________________________________
2