Exhibit 10.1
SENIOR EXECUTIVE
EMPLOYMENT AGREEMENT
THIS
SENIOR EXECUTIVE EMPLOYMENT AGREEMENT (the “ Agreement
”) is made as of September 11, 2009, by and between
DECKERS OUTDOOR CORPORATION , a Delaware corporation (the
“ Company ”), and Thomas A. George (the “
Executive ”) and is effective as of September 11, 2009
(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 Chief Financial Officer and shall report to the
Company’s President and Chief Executive Officer.
1.3
TERM . The term of the Executive’s
employment under this Agreement will commence on the Effective Date
of this Agreement and will continue, unless sooner terminated,
until December 31, 2009. 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 September 11, 2009,
the Company will pay to the Executive an annual base salary of
Three Hundred Fifty Thousand Dollars ($350,000) to be paid in equal
installments in accordance with the Company’s general payment
policies in effect during the term hereof (the “ Base
Salary ”).
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.
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.
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
(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;
(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;
(f) pay
the Executive severance, commencing within sixty (60) days
following the termination date, of twelve (12) monthly payments
equal to one-twelfth (1/12 th ) 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;
(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;
(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, 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) 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
(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
terminati
