AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"),
effective this 12th day of May, 1998, is entered into by and between R. Link
Xxxxxxx ("Employee") and Oakley, Inc., a Washington corporation ("Company").
WHEREAS, Employee and the Company have previously entered into that
certain employment agreement dated January 31, 1997 (the "Effective Date"), as
amended effective February 1, 1997, and as further amended effective April 13,
1998 (the "Old Employment Agreement"); and
WHEREAS, Employee and the Company desire to amend and restate in its
entirety the Old Employment Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, Employee and the Company have agreed and do hereby agree as follows:
1. EMPLOYMENT. The Company does hereby employ, engage and hire
Employee as Chief Executive Officer of the Company, and Employee does hereby
accept and agree to such hiring, engagement and employment. In such capacity,
Employee shall have such executive and managerial powers and duties with respect
to the Company as may be from time to time reasonably assigned to him by the
Board of Directors. Except for sick leave, reasonable vacations and excused
leaves of absence, Employee shall, throughout his period of employment, devote
substantially all his working time, attention, knowledge and skills, diligently
and to the best of his ability, to the performance of such duties in furtherance
of the business of the Company.
2. TERM OF AGREEMENT. The term ("Term") of this Agreement shall
commence on the Effective Date and shall continue for a period of three (3)
years; PROVIDED, HOWEVER, that on each anniversary of the Effective Date at
which time the remaining term of the Agreement is one year, the Term of the
Agreement shall automatically be extended for one additional year unless, not
later than three months prior to any such anniversary, either party shall have
given written notice to the other that it does not wish to extend the Term of
the Agreement.
3. COMPENSATION.
(a) BASE SALARY. The Company shall pay Employee an annual base
salary no less than at the rate of $350,000 per year, payable in equal biweekly
installments or at such other times as Employee and the Company shall agree.
Employee's base salary may be increased as determined by the Board of Directors
of the Company (or the Compensation Committee thereof) in its sole discretion.
(b) BONUS. Employee shall be eligible to participate in the
Company's Performance Bonus Plan. Employee's annual target bonus under the
Performance Bonus Plan shall not be less than $200,000.
(c) FRINGE BENEFITS. Employee shall be entitled to participate
in any fringe and other benefit programs adopted from time to time by the
Company for the benefit of its senior executives.
4. TERMINATION OF EMPLOYMENT.
(a) DEATH. If Employee dies while employed by the Company, his
employment shall immediately terminate and the Company's obligation to pay
Employee's base salary and bonus shall cease as of the date of death.
Employee's beneficiaries or his estate shall receive benefits in accordance with
any Company plans then in effect.
(b) DISABILITY. If as a result of Employee's incapacity due to
physical or mental illness ("Disability"), Employee shall have been absent from
the full-time performance of his duties with the Company for six consecutive
months, the Company may, upon 30 days' notice to Employee, terminate Employee's
employment. Within ten days following such termination for Disability, the
Company shall pay Employee an amount equal to one year's base salary. Such
payment shall not affect Employee's rights under any Company disability plan in
which Employee may then be a participant.
(c) TERMINATION FOR CAUSE. The Company shall have the right to
terminate Employee's employment for Cause by giving Employee written notice of
the effective date of such termination. For purposes of this Agreement, "Cause"
shall mean fraud, misappropriation, embezzlement or other act of material
misconduct against the Company, or substantial or willful failure to perform
specific and lawful directives of the Company's Board of Directors consistent
with Employee's employment. If the Company terminates Employee's employment for
Cause, the Company shall have no further obligation under this Agreement from
and after the date of termination.
(d) VOLUNTARY TERMINATION BY EMPLOYEE. In the event that
Employee's employment with the Company is voluntarily terminated by Employee
other than for Good Reason, the Company shall have no further obligation under
this Agreement from and after the date of termination. For purposes of this
Agreement, "Good Reason" shall mean any material reduction or diminution in the
duties and responsibilities of Employee's position in the Company or a material
breach by the Company of any provision of this Agreement.
(e) OTHER TERMINATION. If Employee's employment is terminated
(i) by the Company for any reason other than Employee's death or disability or
for Cause or (ii) by Employee for Good Reason, the Company shall pay Employee
the balance due under the Term of this Agreement as if Employee had remained in
the Company's employ at an annual rate of compensation equal to his then base
salary and, at the end of each remaining fiscal year ending during the Term of
this Agreement, a bonus equal to the amount of Employee's annual target bonus
under the Performance Bonus Plan as in effect at the time of such termination.
In addition, the Company shall pay Employee his base salary accrued through the
date of termination and, with respect to any fiscal year ended prior to the date
of termination as to which no annual bonus under the Performance Bonus Plan had
yet been paid, an annual bonus determined on the basis of the performance goals
and objectives applicable to Employee for such year.
5. ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS.
(a) DEFINITION OF "INVENTIONS". As used herein, the term
"Inventions" shall mean all inventions, discoveries, improvements, trade
secrets, formulas, techniques, data, programs, systems, specifications,
documentation, algorithms, flow charts, logic diagrams, source codes, processes,
and other information, including works-in-progress, whether or not subject to
patent, trademark, copyright, trade secret, or mask work protection, and whether
or not reduced to practice, which are made, created, authored, conceived, or
reduced to practice by Employee, either alone or jointly with others, during the
period of employment with the Company (including, without limitation, all
periods of employment with
the Company prior to the Effective Date) which (A) relate to the actual or
anticipated business, activities, research, or investigations of the Company or
(B) result from or is suggested by work performed by Employee for the Company
(whether or not made or conceived during normal working hours or on the premises
of the Company), or (C) which result, to any extent, from use of the Company's
premises or property, unless, in the case of clause (C) only, (i) Employee has
reimbursed the Company in an amount equal to the value of the use of such
premises or property (as determined by the Company based upon the Company's
all-in cost, which shall include without limitation compensation and overhead
expense) and (ii) the Company approved the use of its premises or property prior
to the use thereof by Employee.
(b) WORK FOR HIRE. Employee expressly acknowledges that all
copyrightable aspects of the Inventions are to be considered "works made for
hire" within the meaning of the Copyright Act of 1976, as amended (the "Act"),
and that the Company is to be the "author" within the meaning of such Act for
all purposes. All such copyrightable works, as well as all copies of such works
in whatever medium fixed or embodied, shall be owned exclusively by the Company
as of its creation, and Employee hereby expressly disclaims any and all interest
in any of such copyrightable works and waives any right of DROIT MORALE or
similar rights.
(c) ASSIGNMENT. Employee acknowledges and agrees that all
Inventions constitute trade secrets of the Company and shall be the sole
property of the Company or any other entity designated by the Company. In the
event that title to any or all of the Inventions, or any part or element
thereof, may not, by operation of law, vest in the Company, or such Inventions
may be found as a matter of law not to be "works made for hire" within the
meaning of the Act, Employee hereby conveys and irrevocably assigns to the
Company, without further consideration, all his right, title and interest,
throughout the universe and in perpetuity, in all Inventions and all copies of
them, in whatever medium fixed or embodied, and in all written records,
graphics, diagrams, notes, or reports relating thereto in Employee's possession
or under his control, including, with respect to any of the foregoing, all
rights of copyright, patent, trademark, trade secret, mask work, and any and all
other proprietary rights therein, the right to modify and create derivative
works, the right to invoke the benefit of any priority under any international
convention, and all rights to register and renew same. Employee understands
that Inventions do not include, and the obligations set forth above in this
Section 5(c) do
not apply to, subject matter that qualifies fully under the provisions of
Section 2870 of the California Labor Code.
(d) PROPRIETARY NOTICES; NO FILINGS; WAIVER OF MORAL RIGHTS.
Employee acknowledges that all Inventions shall, at the sole option of the
Company, bear the Company's patent, copyright, trademark, trade secret, and mask
work notices.
Employee agrees not to file any patent, copyright, or trademark
applications relating to any Invention, except with prior written consent of an
authorized representative of the Company (other than Employee).
Employee hereby expressly disclaims any and all interest in any
Inventions and waives any right of DROIT MORALE or similar rights, such as
rights of integrity or the right to be attributed as the creator of the
Invention.
(e) FURTHER ASSURANCES. Employee agrees to assist the Company,
or any party designated by the Company, promptly on the Company's request,
whether before or after the termination of employment, however such termination
may occur, in perfecting, registering, maintaining, and enforcing, in any
jurisdiction, the Company's rights in the Inventions by performing all acts and
executing all documents and instruments deemed necessary or convenient by the
Company, including, by way of illustration and not limitation:
i) Executing assignments, applications, and other
documents and instruments in connection with (A) obtaining patents,
copyrights, trademarks, mask works, or other proprietary protections for
the Inventions and (B) confirming the assignment to the Company of all
right, title, and interest in the Inventions or otherwise establishing the
Company's exclusive ownership rights therein.
ii) Cooperating in the prosecution of patent, copyright,
trademark and mask work applications, as well as in the enforcement of the
Company's rights in the Inventions, including, but not limited to,
testifying in court or before any patent, copyright, trademark or mask work
registry office or any other administrative body.
Employee shall be reimbursed for all out-of-pocket costs incurred
in connection with the foregoing, if such assistance is requested by the
Company after the termination of Employee's employment. In addition, to the
extent that, after the termination of employment for whatever reason, Employee's
technical expertise shall be required in connection with the fulfillment of the
aforementioned obligations, the Company shall compensate Employee at a
reasonable rate for the time actually spent by Employee at the Company's request
rendering such assistance.
(f) POWER OF ATTORNEY. Employee hereby irrevocably appoints the
Company to be his Attorney-In-Fact to execute any document and to take any
action in his name and on his behalf and to generally use his name for the
purpose of giving to the Company the full benefit of the assignment provisions
set forth above.
(g) DISCLOSURE OF INVENTIONS. Employee shall make full and
prompt disclosure to the Company of all Inventions subject to assignment to the
Company, and all information relating thereto in Employee's possession or under
his control as to possible applications and use thereof.
6. NO VIOLATION OF THIRD-PARTY RIGHTS. Employee represents,
warrants, and covenants that he:
(a) will not, in the course of employment, infringe upon or
violate any proprietary rights of any third party (including, without
limitation, any third party confidential relationships, patents, copyrights,
mask works, trade secrets, or other proprietary rights);
(b) is not a party to any conflicting agreements with third
parties which will prevent him from fulfilling the terms of employment and the
obligations of this Agreement;
(c) does not have in his possession any confidential or
proprietary information or documents belonging to others and will not disclose
to the Company, use, or induce the Company to use, any confidential or
proprietary information or documents of others; and
(d) agrees to respect any and all valid obligations which he may
now have to prior employers or to others relating to confidential information,
inventions, or discoveries which are the property of those prior employers or
others, as the case may be.
Employee has supplied or shall promptly supply to the Company a
copy of each written agreement to which Employee is subject (other than any
agreement to which the Company is a party) which includes any obligation of
confidentiality, assignment of Inventions, or non-competition.
Employee agrees to indemnify and save harmless the Company from
any loss, claim, damage, cost or expense of any kind (including without
limitation, reasonable attorney fees) to which the Company may be subjected by
virtue of a breach by Employee of the foregoing representations, warranties, and
covenants.
7. CONFIDENTIAL INFORMATION AND NON-COMPETITION.
(a) CONFIDENTIALITY. Employee acknowledges that in his
employment hereunder he will occupy a position of trust and confidence.
Employee shall not, except as may be required in the normal course of business
to perform his duties hereunder or as required by applicable law, without
limitation in time or until such information shall have become public other than
by Employee's unauthorized disclosure, disclose to others or use, whether
directly or indirectly, any Confidential Information regarding the Company, its
subsidiaries and affiliates. "Confidential Information" shall mean information
about the Company, its subsidiaries and affiliates, and their respective clients
and customers that is not disclosed by the Company for financial reporting
purposes and that was learned by Employee in the course of his employment by the
Company, its subsidiaries and affiliates, including (without limitation) any
proprietary knowledge, trade secrets, data, formulae, information and client and
customer lists and all papers, resumes, and records (including computer records)
of the documents containing such Confidential Information. Employee
acknowledges that such Confidential Information is specialized, unique in nature
and of great value to the Company, its subsidiaries and affiliates, and that
such information gives the Company a competitive advantage. The Employee agrees
to (i) deliver or return to the Company, at the Company's request at any time or
upon termination or expiration of his employment or as soon thereafter as
possible, (A) all documents, computer tapes and disks, records, lists, data,
drawings, prints, notes and written information (and all copies thereof)
furnished by the Company, its subsidiaries and affiliates, or prepared by the
Employee during the term of his employment by the Company, its subsidiaries and
affiliates, and (B) all notebooks and other data relating to research or
experiments or other work conducted by Employee in the scope of employment or
any Inventions made, created, authored, conceived, or reduced to practice by
Employee, either alone or jointly with others, and (ii) make full disclosure
relating to any Inventions.
If Employee would like to keep certain property, such as material
relating to professional societies or other non-confidential material, upon
the termination of employment with the Company, he agrees to discuss such issues
with the Company. Where such a request does not put Confidential Information of
the Company at risk, the Company will customarily grant the request.
(b) NON-COMPETITION. During the Term of this Agreement and for
a period of two (2) years thereafter, Employee shall not, directly or
indirectly, without the prior written consent of the Company, provide
consultative services or otherwise provide services to (whether as an employee
or a consultant, with or without pay), own, manage, operate, join, control,
participate in, or be connected with (as a stockholder, partner, or otherwise),
any business, individual, partner, firm, corporation, or other entity that is
then a competitor of the Company, its subsidiaries and affiliates, including
without limitation any entity engaged in the design, manufacture and/or
distribution of eyewear (each such competitor a "Competitor of the Company");
provided, however, that the "beneficial ownership" by Employee, either
individually or as a member of a "group," as such terms are used in Rule 13d of
the General Rules and Regulations under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), of not more than five percent (5%) of the voting
stock of any publicly held corporation shall not alone constitute a violation of
this Agreement; PROVIDED, HOWEVER, that if Employee's employment is terminated
(i) by the Company without Cause, (ii) by Employee for Good Reason or (iii) by
reason of the expiration of the Term of this Agreement, the non-competition
agreement provided for in this subparagraph (b) shall terminate as of the date
of such termination of employment. Employee and the Company acknowledge and
agree that the business of the Company is global in nature, and that the terms
of the non-competition agreement set forth herein shall apply on a worldwide
basis.
(c) NON-SOLICITATION OF CUSTOMERS AND SUPPLIERS. During the
Term of this Agreement and for a period of two (2) years thereafter, Employee
shall not, directly or indirectly, influence or attempt to influence customers
or suppliers of the Company or any of its subsidiaries or affiliates, to divert
their business to any Competitor of the Company; PROVIDED, HOWEVER, that if
Employee's employment is terminated (i) by the Company without Cause, (ii) by
Employee for Good Reason or (iii) by reason of the expiration of the Term of
this Agreement, the non-solicitation agreement provided for in this subparagraph
(c) shall terminate as of the date of such termination of employment.
(d) NON-SOLICITATION OF EMPLOYEES. Employee recognizes that he
possesses and will possess confidential information about other employees
of the Company, its subsidiaries and affiliates, relating to their education,
experience, skills, abilities, compensation and benefits, and inter-personal
relationships with customers of the Company, its subsidiaries and affiliates.
Employee recognizes that the information he possesses and will possess about
these other employees is not generally known, is of substantial value to the
Company, its subsidiaries and affiliates in developing their business and in
securing and retaining customers, and has been and will be acquired by him
because of his business position with the Company, its subsidiaries and
affiliates. Employee agrees that, during the Term of this Agreement and for a
period of two (2) years thereafter, he will not, directly or indirectly, solicit
or recruit any employee of the Company, its subsidiaries and affiliates for the
purpose of being employed by him or by any Competitor of the Company on whose
behalf he is acting as an agent, representative or employee and that he will not
convey any such confidential information or trade secrets about other employees
of the Company, its subsidiaries and affiliates to any other person.
(e) INJUNCTIVE RELIEF. It is expressly agreed that the Company
will or would suffer irreparable injury if Employee were to compete with the
Company or any subsidiary or affiliate of the Company in violation of any of the
provisions of this Section 7 and that the Company would by reason of such
competition be entitled to injunctive relief in a court of appropriate
jurisdiction, and Employee further consents and stipulates to the entry of such
injunctive relief in such a court prohibiting Employee from so competing with
the Company or any subsidiary or affiliate of the Company in violation of this
Agreement.
(f) SURVIVAL OF PROVISIONS. The obligations contained in this
Section 7 shall survive the termination or expiration of Employee's employment
with the Company and shall be fully enforceable thereafter. If it is determined
by a court of competent jurisdiction in any state that any restriction in this
Section 7 is excessive in duration or scope or is unreasonable or unenforceable
under the laws of that state, it is the intention of the parties that such
restriction may be modified or amended by the court to render it enforceable to
the maximum extent permitted by the law of that state.
8. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be given by fax or first class mail,
certified or registered with return receipt requested, and shall be deemed to
have been duly given three (3) days after mailing or twenty-four (24) hours
after transmission of a fax to the respective persons named below:
If to Company: Oakley, Inc.
One Icon
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
If to Employee: R. Link Xxxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Either party may change such party's address for notices by notice duly given
pursuant hereto.
9. INDEMNIFICATION. The Company shall indemnify and hold Employee
harmless to the maximum extent permitted under applicable law.
10. NO MITIGATION; NO OFFSET. Employee shall not be required in any
way to mitigate the amount of any payment provided for in this Agreement, and
such payments shall not be subject to offset against compensation earned as the
result of employment with another employer.
11. ATTORNEYS' FEES. In the event judicial determination is
necessary of any dispute arising as to the parties' rights and obligations
hereunder, each party shall have the right, in addition to any other available
relief, to attorneys' fees based on a determination by the court of the extent
to which each party has prevailed as to the material issues raised in
determination of the dispute.
12. ASSIGNMENT; SUCCESSORS. This Agreement is personal in nature and
neither of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder; PROVIDED, that
in the event of the merger, consolidation, transfer or sale of all or
substantially all of the assets of the Company with or to any other individual
or entity, this Agreement shall be binding upon and inure to the benefit of such
successor, and such successor shall discharge and perform all the promises,
covenants, duties and obligations of the Company hereunder.
13. GOVERNING LAW. This Agreement and the legal relations thus
created between the parties hereto shall be governed by and construed under and
in accordance with the laws of the State of California.
14. WAIVER; MODIFICATION. Failure to insist upon strict compliance
with any of the terms, covenants, or conditions hereof shall not be deemed a
waiver of such term, covenant, or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with, any right
or power hereunder at any one or more times be deemed a waiver or relinquishment
of such right or power at any other time or times. This Agreement shall not be
modified in any respect except by a writing executed by each party hereto.
15. SEVERABILITY. In the event that a court of competent
jurisdiction determines that any portion of this Agreement is in violation of
any statute or public policy, only the portions of this Agreement that violate
such statute or public policy shall be stricken. All portions of this Agreement
that do not violate any statute or public policy shall continue in full force
and effect. Further, any court order striking any portion of this Agreement
shall modify the stricken terms as narrowly as possible to give as much effect
as possible to the intentions of the parties under this Agreement.
16. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. OLD EMPLOYMENT AGREEMENT SUPERSEDED. The Old Employment
Agreement is hereby amended, restated and superseded in its entirety as of the
date hereof.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and Employee has hereunto signed this
Agreement, as of the date referred to above.
OAKLEY, INC.
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By:
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Its:
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R. LINK XXXXXXX
