VANS, INC. EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement" herein) is entered into
as of September 18, 2003, by and between VANS, INC., a Delaware corporation (the
"Company"), and XXXXX X. XXXXXXXX ("Employee").
1. Employment and Duties. The Company hereby employs Employee
as Senior Vice President and General Counsel of the Company on the terms and
subject to the conditions contained in this Agreement. Employee shall be the
principal attorney for the Company and shall be responsible for managing the
Company's legal department, outside legal counsel, human resources department,
and benefits and risk management department. Employee shall also be the
Company's Chief Compliance Officer and principal legal advisor to the Board of
Directors and its Committees. Employee hereby accepts such employment and agrees
to perform in good faith and to the best of Employee's ability all services
which may be required of Employee hereunder, to do what is asked of him, and to
be available to render services at all times and places in accordance with such
directions, requests, rules and regulations made by the Company in connection
with Employee's employment. Employee hereby acknowledges and understands the
duties and services that are expected of him hereunder, and he hereby represents
that he has the experience and knowledge to perform such duties and services.
Employee shall, during the term hereof, devote Employee's full time and energy
to performing his duties. Employee shall report to the President and Chief
Executive Officer of the Company, or such other executive officer as may be
designated by the Company. Employee shall be based at the Company's corporate
offices. Employee understands, however, that Employee may be required to travel
within and out of the State of California to discharge his duties hereunder.
2. Term of Employment. The term of this Agreement shall
commence as of the date hereof and shall terminate on September 17, 2006, unless
sooner terminated as provided herein. This Agreement does not give Employee any
enforceable right to employment beyond this term, and Employee agrees that he
shall have no rights hereunder thereafter. AS PROVIDED FURTHER IN PARAGRAPH 11.1
BELOW, THIS AGREEMENT CONSTITUTES AN EMPLOYMENT AT-WILL THAT MAY BE TERMINATED
AT ANY TIME BY COMPANY OR EMPLOYEE, WITH OR WITHOUT CAUSE, NOTWITHSTANDING THE
THREE - YEAR TERM OF THIS AGREEMENT. IF EMPLOYEE IS TERMINATED WITHOUT CAUSE
DURING THE TERM HEREOF, OR AFTER A "CHANGE IN MANAGEMENT OR CONTROL," AS DEFINED
IN PARAGRAPH 11.5 BELOW, OR TERMINATES THIS AGREEMENT FOR "GOOD REASON," AS
DEFINED IN PARAGRAPH 11.3 BELOW, EMPLOYEE'S SOLE REMEDY SHALL BE THE
COMPENSATION SET FORTH IN PARAGRAPH 11.4 BELOW.
Initial GS Initial CEG
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Representative Employee
of the Company
3. Salary Compensation. As salary compensation for Employee's
services hereunder and all the rights granted hereunder by Employee to the
Company, the Company shall pay Employee a gross salary of not less than $257,500
during the term of this Agreement. Employee's salary shall be payable in
bi-weekly increments in accordance with the Company's payroll practices for
salaried employees, upon the condition that Employee fully and faithfully
performs Employee's services hereunder in accordance with the terms and
conditions of this Agreement. The Company shall deduct and withhold from the
compensation payable to Employee hereunder any and all amounts required to be
deducted or withheld by the Company under the provisions of any statute,
regulation, ordinance, or order and any and all amendments hereinafter enacted
requiring the withholding or deducting from compensation payable to employees.
4. Expense Reimbursement. Employee shall be reimbursed by the
Company for all traveling, hotel, entertainment and other expenses that are
properly and necessarily incurred by Employee, pursuant to the Company's
policies on the same.
5. Death or Disability of Employee.
5.1 General. In the event of Employee's death or
"disability" (as such term is defined in Paragraph 5.2 hereof) while in the
employ of the Company, this Agreement, and the compensation due to Employee
pursuant to Paragraph 3 hereof, shall terminate upon the date of death or
disability and the Company shall thereafter be required to make payments only to
Employee, as provided in Paragraph 11.2 hereof. If Employee shall recover from
such disability prior to the expiration date of the Agreement, this Agreement
and Employee's employment hereunder shall be reinstated for the balance of the
term of this Agreement.
5.2 Definition of Disability. Employee shall be
deemed disabled if, in the sole opinion of the Company, Employee is unable to
substantially perform the services required of Employee hereunder for a period
in excess of 60 consecutive work days or 60 work days during any 90 work day
period. In such event, Employee shall be deemed disabled as of such 60th
workday.
6. Restrictive Covenant. During the term of this Agreement,
Employee shall (i) devote his full time and energy solely and exclusively to the
performance of his duties described herein; (ii) not directly or indirectly
provide services to or through any company or firm except the Company unless
otherwise instructed by the Company; (iii) not directly or indirectly own,
manage, operate, join, control, contribute to, or participate in the ownership,
management, operation or control of or be employed by or connected in any manner
with any enterprise which is engaged in any business competitive with or similar
to that of the Company; and (iv) not render any services of any kind or
character for Employee's own account of for any other person, firm or
corporation without first obtaining the Company's consent in writing; provided,
however, Employee shall have the right to perform such incidental services as
are necessary in connection with Employee's (a) private passive investments
where he is not obligated or required
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to, and shall not in fact, devote any managerial efforts, as long as such
investments are not in companies which are in competition in any way with the
Company; or (b) charitable or community activities, or in trade or professional
organizations, provided that such incidental services do not interfere with the
performance of Employee's services hereunder.
7. Non-Solicitation. Employee shall not, during the full term
of this Agreement and for a period of one (1) year thereafter, for himself or on
behalf of any other person, partnership, corporation or entity, directly or
indirectly, or by action in concert with others, solicit, induce, suggest or
encourage any person known to him to be an employee of the Company or any
affiliate of the Company to terminate his or her employment or other contractual
relationship with the Company or any of its affiliates.
8. Trade Secrets and Related Matters
8.1 Definitions. For purpose of this Section 8:
(a) "Records" means files, accounts,
records, log books, documents, drawings, sketches, designs, diagrams, models,
plans, blueprints, specifications, manuals, books, forms, notes, reports,
memoranda, studies, surveys, software, flow charts, data, computer programs,
listing of source code, calculations, recordings, catalogues, compilations of
information, correspondence, confidential data of customers and all copies,
abstracts or summaries of the foregoing in any storage medium, as well as
instruments, tools, storage devices, disks, equipment and all other physical
items related to the business of the Company (other than merely personal items
of a general professional nature), whether of a public nature or not, and
whether prepared by Employee or not.
(b) "Trade Secrets" means confidential
business or technical information or trade secrets of the Company which Employee
acquires while employed by the Company, whether or not conceived of, developed
or prepared by Employee or at his direction and includes:
(i) Any information or compilation
of information concerning the Company's financial position, financing,
purchasing, accounting, marketing, merchandising, sales, salaries, pricing,
investments, costs, profits, plans for future development, employees,
prospective employees, research, development, formulae, patterns, inventions,
plans, specifications, devices, products, procedures, processes, operations,
techniques, software, computer programs or data;
(ii) Any information or compilation
of information concerning the identity, plans, requirements, preferences,
practices and methods of doing business on specific customers, suppliers,
prospective customers and prospective suppliers of the Company;
(iii) Any other information or
"know how" which is related to any product, process, service, business or
research of the Company; and
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(iv) Any information which the
Company acquires from another party and treats as its proprietary information or
designates as "Confidential," whether or not owned or developed by the Company.
Notwithstanding the foregoing, "Trade Secrets" do not include any of
the following:
(i) Information which is publicly
known or which is generally employed by the trade, whether on or after the date
that Employee first acquires the information;
(ii) General information or
knowledge which Employee would have learned in the course of similar work
elsewhere in the trade; or
(iii) Information which Employee
can prove was known by Employee before the commencement of Employee's engagement
by the Company;
8.2 Acknowledgments. Employee acknowledges that:
(a) Employee's relationship with the Company
will be a confidential relationship in which Employee will have access to and
may create Trade Secrets.
(b) The Company uses the Trade Secrets in
its business to obtain a competitive advantage over its competitors who do not
know or use that information.
(c) The protection of the Trade Secrets
against unauthorized disclosure or use is of critical importance in maintaining
the competitive position of the Company.
8.3 Protection of Trade Secrets. Employee shall not
at any time, without the prior written consent of the Company, which may be
withheld by it in its sole and absolute discretion, disclose any Trade Secret in
any way except to employees of the Company, and shall not use any Trade Secret
in any way except in connection with his or her duties to the Company.
8.4 Records.
(a) Ownership. All Records are and shall
remain the exclusive property of the Company.
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(b) Return of Records. At the termination of
this Agreement, Employee shall promptly return to the Company all records in
Employee's possession or over which Employee has control.
8.5 Prohibited Use of Trade Secrets. During the term
of this Agreement and for 12 months following termination of this Agreement,
Employee shall not undertake any employment or consulting relationship (the "New
Activity") if the loyal and complete fulfillment of his duties in the New
Activity would inherently call upon Employee to reveal any Trade Secret.
9. Ownership of Material and Ideas. Employee agrees that all
material, ideas, and inventions pertaining to the business of the Company or of
any client of the Company, including but not limited to, all patents and
copyrights thereon and renewals and extensions thereof, trademarks and trade
names, and the names, addresses and telephone numbers of customers, distributors
and sales representatives of the Company, belong solely to the Company. Employee
hereby assigns any rights he may have to any such property to the Company, and
agrees to execute and deliver any documents which evidence such assignment.
10. Employee Plans, etc. Employee shall be entitled to
participate, to the same extent as most other officers of the Company, in any
bonus compensation plan, stock purchase or stock option plan, group life
insurance plan, group medical insurance plan and other compensation or employee
benefit plans (collectively, "Plans") which are generally available to a
majority of the other officers of the Company during the term hereof and for
which Employee shall qualify. Employee further understands, however, that the
Board of Directors, or such committee or person or persons designated by the
Board of Directors, shall determine in its sole discretion (i) whether any Plans
are made available to a majority of the officers of the Company; (ii) whether
one or more Plans are adopted solely for the Chief Executive Officer and/or one
or more (but not a majority) of the officers of the Company; (iii) whether one
or more Plans are made available to a majority of the officers; and (iv) the
amounts payable or the benefits provided thereunder to each participant in whole
or in part. Employee agrees and acknowledges that he has no vested interest in
the continuance of any Plan, and that no Plan in existence on the date of the
Agreement has acted as a material inducement to Employee in entering into this
Agreement.
11. Termination.
11.1 "At Will" Employment. This Agreement, and
Employee's employment, is at will, and the Company may, with or without notice,
terminate this Agreement and all of the Company's obligations hereunder with or
without "Cause." Employee may also terminate this Agreement at any time, for any
reason, upon the giving of thirty (30) days' written notice to the Company;
provided, however, the Company may waive all or any portion of such notice
period in its sole and absolute discretion. Termination by the Company for
"Cause" means termination due to (i)
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Employee's conviction of a felony ( which, through the lapse of time or
otherwise is not subject to appeal); (ii) Employee's material refusal, failure
or neglect without proper cause to perform adequately his obligations under this
Agreement or follow the instructions of his supervisor(s); (iii) any negligence
or willful misconduct by Employee; (iv) Employee's material breach of any of his
fiduciary obligations as an executive officer of the Company; (v) Employee's
material failure to adhere to the code of conduct and rules set forth in the
Company's Employee Handbook, as amended or in existence from time to time; (vi)
the death or disability of Employee; or (vii) the voluntary termination by
Employee of his employment, except for "Good Reason" (as defined in Paragraph
11.3 hereof).
11.2 Termination for Cause. Upon termination for
Cause, the Company shall only be required to pay Employee (i) accrued salary
compensation due to Employee as compensation for services rendered hereunder and
not previously paid; (ii) accrued vacation pay; and (iii) any appropriate
business expenses incurred by Employee in connection with his duties hereunder
and approved pursuant to Section 4 hereof, all through the date of termination.
Employee shall not be entitled to any severance compensation; bonus
compensation, whether "vested" or unvested; or any other compensation, benefits
or reimbursement of any kind.
11.3 Termination for "Good Reason." Employee may
terminate this Agreement for "Good Reason" (as hereinafter defined) upon thirty
(30) days written notice to the Company. The term "Good Reason" means (i)
Employee is not appointed or is removed from the position of Senior Vice
President and General Counsel without Cause during the term of this Agreement;
or (ii) without Employee's consent, a majority of the duties defined in Section
1 hereof are removed from Employee's responsibilities. The term Good Reason does
not include a situation where certain of the duties defined in Section 1 hereof
are removed from Employee's responsibilities and are replaced with duties which
have greater responsibility and/or authority than the duties which are removed.
Unless Employee terminates this Agreement within thirty (30) days of learning
from any source that the Company has acted so as to provide Good Reason for
Employee to terminate this Agreement, and gives thirty (30) days' written notice
of such termination, Employee's right to receive severance compensation pursuant
to Paragraph 11.4 for such event shall be forever lost.
11.4 Severance Compensation. In the event (i)
Employee terminates this Agreement for Good Reason in accordance with Paragraph
11.3 hereof; or (ii) Employee is terminated without Cause, the Company shall be
obligated to pay severance compensation to Employee in an amount equal to his
salary compensation (at the rate payable at the time of such termination) for a
period of one year. In the event Employee is terminated without Cause, or
terminates this Agreement for Good Reason, within three (3) years of a "Change
in Management or Control" (as such term is defined in Paragraph 11.5 hereof),
the Company shall be obligated to pay severance compensation to Employee in an
amount equal to 2.99 times the sum of (a) Employee's then current salary
compensation, plus (b) the highest amount of bonus earned by Employee in any
fiscal year during the three fiscal years prior to the Change in Management or
Control, or in any fiscal year in the three-year period immediately prior
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to the date of this Agreement, and such severance compensation shall be "grossed
up" for all federal and state taxes payable thereon. Employee shall have the
option, in his sole discretion, to receive such severance compensation in one
lump sum. In addition to the foregoing severance compensation, the Company shall
also pay Employee (i) all compensation for services rendered hereunder and not
previously paid; (ii) accrued vacation pay; and (iii) any appropriate business
expenses incurred by Employee in connection with his duties hereunder and
approved pursuant to Section 4 hereof, all through the date of termination.
11.5 Definition of "Change in Management or Control."
The term `Change in Management or Control' means the occurrence, in a single
transaction or in a series of related transactions, of (i) a merger,
consolidation or similar transaction involving (directly or indirectly) the
Company and, immediately after the consummation of such merger, consolidation or
similar transaction, the stockholders of the Company immediately prior thereto
do not own, directly or indirectly, outstanding voting securities representing
more than fifty percent (50%) of the combined outstanding voting power of the
surviving entity in such merger, consolidation or similar transaction or more
than fifty percent (50%) of the combined outstanding voting power of the parent
of the surviving entity in such merger, consolidation or similar transaction;
(ii) a sale, lease, license or other disposition of all or substantially all of
the consolidated assets of the Company and its subsidiaries, other than a sale,
lease, license or other disposition of all or substantially all of the
consolidated assets of the Company and its subsidiaries to an entity, of more
than fifty percent (50%) of the combined voting power of the voting securities
of which are owned by stockholders of the Company in substantially the same
proportions as their ownership of the Company immediately prior to such sale,
lease, license or other disposition; or (iii) the acquisition by any Person
(other than any employee benefit plan, or related trust, sponsored or maintained
by the Company) as Beneficial Owner (as `Person' and `Beneficial Owner' are
defined in the Securities Exchange Act of 1934, as amended, or the rules and
regulations thereunder), directly or indirectly, of securities of the Company
representing 20 percent (20%) or more of the total voting power represented by
the Company's then outstanding voting securities.
11.6 Exclusive Remedy. The payments referred to in
this Section 11 shall be exclusive and shall be the only remedy available to
Employee for termination of his employment with the Company, regardless of the
circumstances, reasons or motivation for any such termination. If Employee gives
notice of termination of this Agreement, or if it becomes known that this
Agreement will otherwise terminate in accordance with its provisions, the
Company may, in its sole discretion, relieve Employee of his duties under this
Agreement or assign Employee other duties and responsibilities to be performed
until the termination becomes effective.
12. Services Unique. It is agreed that the services to be
rendered by Employee hereunder are of a special, unique, unusual, extraordinary
and intellectual character which gives them a peculiar value, the loss of which
cannot be reasonably or adequately compensated in damages in an action at law
and that a breach by Employee of any of the provisions contained herein will
cause the Company irreparable injury and damage. Employee expressly agrees that
the Company shall be entitled to
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injunctive or other equitable relief to prevent a breach hereof. Resort to any
such equitable relief shall not be construed as a waiver of any of the rights or
remedies which the Company may have against Employee for damages or otherwise.
13. Key Man Life Insurance. During the term of this Agreement,
the Company may at any time effect insurance on Employee's life and/or health in
such amounts and in such form as the Company may in its sole discretion decide.
Employee shall not have any interest in such insurance, but shall, if the
Company requests, submit to such medical examinations, supply such information
and execute such documents as may be required in connection with, or so as to
enable the Company to effect, such insurance.
14. Vacation. Employee shall have the right during each one
year period of the term of this Agreement to take an aggregate of three weeks of
vacation, with pay, at such times as are mutually convenient to Employee and to
the Company.
15. Car Allowance. The Company shall pay Employee a monthly
car allowance of $1,000.00.
16. Notices. Any and all notices, demands or other
communications required or desired to be given hereunder by any party shall be
in writing and shall be validly given or made to another party if given by
personal delivery, telex, facsimile, telegram or if deposited in the United
States mail, certified or registered, postage prepaid, return receipt requested.
If such notice, demand or other communication is given by personal delivery,
telex, facsimile or telegram, service shall be conclusively deemed made at the
time of such personal service. If such notice, demand or other communication is
given by mail, such notice shall be conclusively deemed given forty-eight (48)
hours after the deposit thereof in the United States mail addressed to the party
to whom such notice, demand or other communication is to be given as hereinafter
set forth:
To the Company: VANS, INC.
00000 Xxxxxxxxx Xxxxxx
Xxxxx Xx Xxxxxxx, Xxxxxxxxxx 00000
Attn: President and Chief Executive Officer
562/565-8402 - facsimile
To Employee: Xxxxx X. Xxxxxxxx
(at the address set forth below his signature)
Any party hereto may change his or its address for the purpose of receiving
notices, demands and other communications as herein provided by a written notice
given in the manner aforesaid to the other party or parties hereto.
17. Applicable Law and Severability. This Agreement shall, in
all respects, be governed by the laws of the State of California applicable to
agreements executed and to be wholly performed within the State of California.
Nothing contained
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herein shall be construed so as to require the commission of any act contrary to
law, and wherever there is any conflict between any provision contained herein
and any present or future statute, law, ordinance or regulation contrary to
which the parties have no legal right to contract, the latter shall prevail but
the provision of this Agreement which is affected shall be curtailed and limited
only to the extent necessary to bring it within the requirements of the law.
18. Attorneys' Fees. In the event any action is instituted by
a party to enforce any of the terms and provisions contained herein, the
prevailing party in such action shall be entitled to such reasonable attorneys'
fees, costs and expenses as may be fixed by the Court.
19. Modifications or Amendments. No amendment, change or
modification of this Agreement shall be valid unless in writing and signed by
all of the parties hereto. Further, any amendment, change or modification of
this Agreement (including but not limited to the at-will nature of this
Agreement as set forth in Section 2 and Paragraph 11.1 hereof) must be approved
in advance by the Board of Directors of Company and reflected in the minutes of
such Board's meetings or in an action by unanimous written consent.
20. Successors and Assigns. All of the terms and provisions
contained herein shall inure to the benefit of and shall be binding upon the
parties hereto and their respective heirs, personal representatives, successors
and assigns.
21. Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties with respect to the subject matter of
this Agreement, and any and all prior agreements, understandings or
representations are hereby terminated and canceled in their entirety and are of
no further force or effect.
22. Counterparts. This Agreement may be executed in
counterparts.
23. Arbitration of Employment Disputes. All disputes or
controversies arising out of the employment relationship between Employee and
the Company, including claims by the Company against Employee, and claims by
Employee against the Company, including but not limited to claims for wrongful
termination; violations of Title VII of the Civil Rights Act of 1964, as
amended; violations of the Americans with Disabilities Act of 1990; or claims
for violations of any State law, rule or regulation regarding discrimination,
harassment or other wrongful conduct, shall be decided by an arbitrator in a
final and binding arbitration administered by the American Arbitration
Association ("AAA") to be conducted in Los Angeles, California, in accordance
with its rules, guidelines and standards for employment arbitration.
Notwithstanding anything in the rules of the body administering the arbitration,
or applicable law to the contrary, each party to the arbitration shall be
entitled to conduct sufficient discovery to adequately prepare its claims or
defenses for arbitration, including access to essential documents and witnesses,
to be determined by the arbitrator, subject to judicial review as allowed by
law. The arbitrator shall have jurisdiction to decide any questions as to the
arbitrability of such claims, whether an agreement to arbitrate exists, or
whether an
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agreement to arbitrate covers the claims in question. The arbitrator shall have
the authority to grant any and all rights, remedies and relief that would
otherwise be available to the parties if the claims were brought in a court of
law, including punitive damages, and shall have the authority to award the
prevailing party reasonable attorneys' fees. The arbitrator shall issue a
written award and arbitration decision that sets forth the arbitrator's findings
of fact and conclusions of law upon which the award is based. Judgment upon the
award rendered by the arbitrator may be entered in any court of competent
jurisdiction. The cost of arbitration (other than Employee's attorneys' fees and
costs) shall be borne by the Company. Each of us shall have the right, within 20
days after the issuance of an award by the arbitrator, to seek a review thereof
by a second arbitrator who shall be appointed in accordance with the rules of
the AAA, and such arbitrator shall have the authority to affirm or reverse and
remand the award in accordance with the law and procedures applicable to
appellate review by the California Court of Appeal of a civil judgment following
a trial.
24. Survival of Certain Provisions. Sections 7,8,9, and 23 of
this Agreement shall survive the termination hereof.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
EMPLOYEE: THE COMPANY:
VANS, INC.,
a Delaware corporation
/s/ Xxxxx Xxxxxxxx By: /s/ Xxxx Xxxxxxxxxx
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Xxxxx X. Xxxxxxxx
President and CEO
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Address Title
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