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Exhibit 10.3
VANS, INC.
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (the "Agreement") is made and entered into
as of September 5, 1996 by and between Xxxx X. Gold ("Employee") and Vans,
Inc., a Delaware corporation (the "Company"), with reference to the following
facts:
1. Employee was employed as the Company's Vice President -
Sales, Eastern Division; and
2. Employee has left the Company effective as of August 13, 1996
(the "Separation Date").
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties hereto as
follows:
1. Accrued Salary and Vacation. As of the Separation Date, the
Company has paid Employee the following amounts, subject to standard
withholdings for tax and social security purposes: (i) all accrued salary
through the Separation Date; and (ii) all unused and accrued vacation pay
Employee earned prior to the Separation Date. Employee acknowledges and agrees
that such amounts are all that he is entitled to receive as salary and vacation
pay.
2. Separation Compensation. The Company shall pay Employee the
amount of $150,000, subject to standard withholdings for tax and social
security purposes, in a lump sum within seven days of the full execution of
this Agreement. The Company shall pay Employee's COBRA payments until such
time as Employee obtains other employment in a position where health insurance
is provided, but in no event will those payments be made for a period of more
than 18 months from the Separation Date. Employee shall be permitted to
utilize his New Jersey office until October 13, 1996.
3. Options. The Compensation Committee of the Board of Directors
has, effective as of the Separation Date: (i) extended the vesting period of
Employee's April 18, 1995 Incentive Stock Option to September 30, 1996; and
(ii) agreed to vest 5,556 shares of the Company's Common Stock which are
subject to Employee's December 19, 1995 Incentive Stock Option (the "December
19 Option") on September 5, 1997 (the "Vesting Date"). Additionally, the
Committee has extended (i) the exercise date of the December 19 Option until
March 5, 1998, and (ii) the exercise date of Employee's July 12, 1993 and April
18, 1995 Incentive Stock Options until March 5, 1997. The Company hereby
represents that all of the shares underlying the July 12, 1993 and April 18,
1995 Incentive Stock Options have been registered on Form S-8, registration No.
33-99922. Employee understands and acknowledges that, until September 19,
1996, he is subject to the terms of a lock-up agreement with Xxxxxxxxx Lufkin &
Xxxxxxxx Securities Corporation , as representatives of the underwriters for
the Company's recently completed public offering, which restricts the sale of
any shares of Common Stock subject to such options. The
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Company agrees to register the shares underlying the December 19 Option under
the Securities Act of 1933, as amended, in the next Form S-8 registration
statement filed by the Company. The Company shall use its best efforts to
effect such registration within six months of the date of this Agreement.
4. Non-solicitation of Employees. Employee shall not, for a
period of one (1) year from the Separation Date, 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.
5. Non-disparagement. Employee agrees that he shall not,
directly or indirectly, by any manner or means, in public or in private,
disparage, demean, insult, or defame the Company, or any of its officers,
employees, agents or any other person associated with the Company at any time.
6. Company Property; Reimbursement for Business Expenses.
Employee will, by October 13, 1996, return to the Company all Company property
which he has had in his possession at any time, including, but not limited to:
computer recorded information, tangible property, credit cards, entry cards,
identification badges and keys. Additionally, Employee has, as of the
Separation Date, submitted all vouchers for reasonable business expenses
incurred by Employee in the course of his employment. Such expenses shall be
reimbursed in accordance with the Company's policies therefor. Subsequent to
the Separation Date, Employee shall no longer be authorized to incur any
expenses on behalf of the Company.
7. Trade Secrets and Related Matters
7.1 Definitions. For purposes of this Section
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(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.
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(b) "Trade Secrets" means confidential
business or technical information or trade secrets of the Company which
Employee acquired 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
(iv) Any information which the
Company acquired from another party and has treated 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 acquired 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 employment by
the Company;
7.2 Acknowledgments. Employee acknowledges that:
(a) Employee's relationship with the
Company was a confidential relationship in which Employee had access to and may
have created 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.
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(c) The protection of the Trade Secrets
against unauthorized disclosure or use is of critical importance in maintaining
the competitive position of the Company.
7.3 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 and shall not use any Trade Secret in any way.
7.4 Records.
(a) Ownership. All Records are and
shall remain the exclusive property of the Company.
(b) Return of Records. Employee will
return to the Company by October 13, 1996, all Records in Employee's possession
or over which Employee has control.
7.5 Prohibited Use of Trade Secrets. For 12
months following the Separation Date, 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.
8. 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 Company prepared compilation of 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.
9. Release of Claims by Employee. Employee, for himself, his
successors-in-interest, heirs, executors, agents, trustees, affiliates,
servants, representatives, transferees, successors and assigns, hereby releases
and forever discharges the Company, its predecessors, successors, agents,
officers, directors, employees, former and present subsidiaries, attorneys and
representatives, from and against any and all claims, demands, obligations,
liabilities, costs, expenses, fees (including without limitation attorneys'
fees), actions, causes of actions, rights, promises, judgments, losses, liens
and damages of every kind, combination or description, in law or at equity,
whether known or unknown, anticipated or unanticipated, liquidated or
unliquidated, fixed, conditional or contingent, existing on or prior to the
date hereof, including but not limited to any claims relating to wrongful
discharge; race discrimination; religious discrimination; physical handicap
discrimination; sexual preference discrimination; sexual harassment; sex
discrimination; intentional infliction of emotional distress; loss of
consortium; breach of any implied covenant of good faith and fair dealing;
injury to personal reputation; damages to personal and family rights; negligent
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infliction of emotional distress; interference with prospective economic
advantage; employment discrimination and/or terms of employment arising under
the common law; the Civil Rights Act of 1964, as amended; the Worker Adjustment
and Retraining Notification Act; the Americans with Disabilities Act of 1990;
42 U.S.C., Sections 1981-88; California Government Code, Section 12940, et.
seq; California Labor Code, Section 132a; or any other federal, state or
municipal statute, regulation or order relating to wrongful discharge,
employment discrimination, and/or terms of employment. Employee represents and
warrants that (i) he has not assigned any such claims or authorized any other
person or entity to assert such claims on his behalf, and (ii) that he, or any
other person or entity, has not asserted, and does not intend to assert, with
any federal, state or local judicial or administrative agency or body any
claim, charge, complaint or petition of any kind or character based on or
arising out of or alleged to be suffered in, or as a consequence of, Employee's
employment with, or termination by, the Company. In the event any such claim
is asserted in the future by Employee, or any other person or entity authorized
by Employee to do so, Employee agrees that this Agreement, and the releases
contained herein, shall act as a total and complete bar to his recovery of any
sum or amount whatsoever from the Company, or to his re-employment by the
Company. Further, Employee agrees that under this Agreement he waives any and
all claims for damages incurred at any time after the date of this Agreement
because of any alleged continuing effect of any alleged acts or omissions
involving Employee which occurred on or before the date of this Agreement and
any right to xxx for injunctive relief against the alleged continuing effects
of wrongful discharge or discrimination based on alleged acts or omissions
occurring prior to the date of this Agreement. Employee does not waive any
rights or claims which arise after the date of this Agreement unless otherwise
specified herein.
10. Section 1542 Waiver. Employee acknowledges that he has read
and understands Section 1542 of the Civil Code of the State of California
("Section 1542") which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
Employee hereby expressly waives and relinquishes all rights and
benefits under Section 1542 and any law or legal principle of similar effect in
any jurisdiction with respect to the release granted in this Agreement,
including, but not limited to, any jurisdiction in the United States. The
parties acknowledge that they have separately bargained for the waiver of
Section 1542.
11. Certain Remedies on Revocation or Breach. In the event that
Employee breaches this Agreement, or subsequently takes the position that this
Agreement is invalid or unenforceable, or revokes this Agreement for any
reason, then the amounts received by Employee pursuant to this Agreement shall
be returned to the Company, the December 19 Option shall not vest and shall
terminate. Nothing herein shall limit the rights or remedies otherwise
available to the Company upon a breach hereof by Employee and nothing herein is
intended to limit Employee from instituting legal action for the sole purpose
of enforcing the terms of this Agreement.
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12. Dispute Resolution. Disputes arising from the interpretation,
breach, or enforcement of this Agreement, which cannot first be resolved by
negotiations between the parties, shall be settled exclusively by final and
binding arbitration in accordance with the applicable rules and procedures of
the Judicial Arbitration and Mediation Service ("JAMS")/Endispute then in
effect. The arbitration shall be conducted before a single arbitrator at a
location determined by the arbitrator in Los Angeles, California, and the
parties hereby consent to the jurisdiction of the arbitrator and to the
acceptance of service of process. Both parties acknowledge that there may not
be an adequate remedy at law if one party breaches this Agreement. Therefore,
the arbitrator shall be empowered to award any appropriate equitable relief;
and, if necessary to avoid irreparable harm pending arbitration, such equitable
relief may be sought in a court of law. The arbitrator shall be authorized but
not required to award reasonable attorneys fees, costs and necessary
disbursements in addition to any relief which the arbitrator deems appropriate.
13. Costs and Fees. Other than as set forth specifically herein,
the parties will bear their own costs, expenses, and attorneys' fees, whether
taxable or otherwise, incurred in or arising out of or in any way related to
the matters released herein.
14. Entire Agreement. This Agreement contains the entire
agreement between the parties and constitutes the complete, final, and
exclusive embodiment of their agreement with respect to the subject matter
hereof. This Agreement is executed without reliance upon any promise, warranty
or representation, written or oral, by any party or any representative of any
party other than those expressly contained herein, and it supersedes any other
such promises, warranties or representations. Each party has had sufficient
time to read, and has carefully read this Agreement, has been advised in
writing to consult with an attorney regarding its meaning and consequences,
consents to all of its terms voluntarily after taking sufficient time to think
about the advantages and disadvantages of signing this Agreement, and signed
the same of his or its own free will. This Agreement may not be amended or
modified except in a writing signed by both Employee and the President of the
Company.
15. Applicable Law. This Agreement shall be deemed to have been
entered into and shall be construed and enforced in accordance with the laws of
the State of California.
16. Successors and Assigns. This Agreement shall bind the heirs,
personal representatives, successors, assigns, executors, and administrators of
each party, and inure to the benefit of each party, and his or its heirs,
successors and assigns.
17. No Admission. It is understood and agreed by the parties that
this Agreement represents a compromise settlement of various matters, and shall
not be construed to be an admission of any liability or obligation by either
party to the other party or to any other person.
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18. Section Headings. The section and paragraph headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
19. Severability. If any provision of this Agreement is
determined to be invalid or unenforceable, in whole or in part, this
determination will not affect any other provision of this Agreement.
20. Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
21. Notices. All notices, requests, consents and other
communications required or permitted hereunder shall be in writing and shall be
hand delivered or mailed by registered or certified mail, return receipt
requested, addressed to the Company at 0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx
00000, attention: General Counsel, and to Employee at the address set forth
below his signature.
22. Re-Employment. Employee hereby agrees that he will not seek
re-employment by the Company.
23. Breach by the Company. Employee agrees that in the event the
Company breaches any of the provisions of this Agreement, Employee's sole
remedy for such breach shall be enforcement of the terms of this Agreement.
IN WITNESS WHEREOF, the parties have duly authorized and caused this
Agreement to be executed as follows:
EMPLOYEE: THE COMPANY:
VANS, INC.
By: [SIG]
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XXXX X. GOLD Vice President & General Counsel
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Xxxx X. Gold (Title)
00 XXXXXXXX XX.
XXXXXXXXX XX, XX 00000
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Address
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