Exhibit 10.2
AMENDMENT TO
SENIOR EXECUTIVE EMPLOYMENT
AGREEMENT
THIS AMENDMENT TO SENIOR EXECUTIVE
EMPLOYMENT AGREEMENT (this “ Amendment ”) is
made as of August 6, 2008, by and between Deckers Outdoor
Corporation, a Delaware corporation (the “ Company
”), and Angel Martinez (the “ Executive ”)
and is effective as of January 1, 2008.
RECITALS
WHEREAS, the Company and Executive
are parties to that certain Senior Executive Employment Agreement
dated as of April 11, 2005, as amended (the “
Agreement ”); and
WHEREAS, the Company and Executive
have agreed to enter into this Amendment to amend the Agreement on
the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of
the mutual promises and covenants set forth herein, the parties
hereto agree that the Agreement shall be amended as
follows:
1.
Section 4.1
.
Subsection (e) of Section 4.1 shall be amended and
restated to read, in its entirety, as follows:
“(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; and”
2.
Section 4.2
.
Subsection (e) of Section 4.2 shall be amended and
restated to read, in its entirety, as follows:
“(e)
pay the Executive any Accrued
Incentive Bonus, and excluding any Incentive Bonus for the year of
termination; and”
3.
Section 4.3
.
Subsection (e) of Section 4.3 shall be amended and
restated to read, in its entirety, as follows:
“(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;”
4.
Section 4.3
.
Subsection (f) of Section 4.3 shall be amended and
restated to read, in its entirety, as follows:
“(f)
pay the Executive severance,
commencing on the thirtieth (30th) day 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.
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; however, notwithstanding the foregoing, in the event
Company’s securities are publicly traded on the date of
Executive’s termination of employment, any portion of the
aggregate severance payments described in this Section 4.3(f),
which, if paid, would exceed the Section 409A Safe Harbor
Limit shall be paid to Executive in a lump sum on the first day of
the seventh (7th) calendar month immediately following the date of
Executive’s termination;”
5.
Section 4.4
.
Subsection (e) of Section 4.4 shall be amended and
restated to read, in its entirety, as follows:
“(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;”
6.
Section 4.4
.
Subsection (f) of Section 4.4 shall be amended and
restated to read, in its entirety, as follows:
“(f)
pay the Executive severance of two
(2) times Executive’s Annual Base Salary in effect
immediately prior to the time such termination occurs plus the
greater of (x) two (2) times the targeted Incentive Bonus
immediately prior to the time such termination occurs or
(y) two (2) times the average actual Incentive Bonus for
the previous three (3) years, whichever is greater; however,
notwithstanding the foregoing, in the event Company’s
securities are publicly traded on the date of Executive’s
termination of employment, any portion of the aggregate severance
payments described in this Section 4.4(f), which, if paid,
would exceed the Section 409A Safe Harbor Limit shall be paid
to Executive in a lump sum on the first day of the seventh (7th)
calendar month immediately following the date of Executive’s
termination. In the event that the Company shall default in
any payments of the severance, and such default shall not be cured
within five (5) days’ written notice of said default by
the Executive, then all unpaid severance will be immediately due
and payable.”
7.
Section 4.5
.
Section 4.5 shall be added to read, in its entirety, as
follows:
“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 B, 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 ten (10) 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. Notwithstanding anything
contained in this Agreement to the contrary in any case
2
where the date of termination and
the Release Expiration Date fall in two separate taxable years, any
payments required to be made to Executive that are treated as
deferred compensation for purposes of Section 409A of the Code
shall be made in the later taxable year.”
8.
Section 5.2
.
Section 5.2 shall be amended and restated to read, in its
entirety, as follows:
“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
