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AMENDED AND RESTATED SEVERANCE AGREEMENT
THIS AMENDED AND RESTATED SEVERANCE AGREEMENT (this "AGREEMENT") is
made and entered into as of October 27, 1997 by and between Pacific Sunwear of
California, Inc., a California corporation (the "COMPANY"), and Xxxxxxx X.
Xxxxxx ("EXECUTIVE").
WITNESSETH:
WHEREAS, the Executive has been employed by the Company in the
capacity of President, Chief Merchandising Officer, and as such the Board of
Directors of the Company (the "BOARD") deems it in the best interest of the
Company to offer this Agreement to the Executive; and
WHEREAS, the Company and the Executive wish to provide for the
continuation of certain payments and benefits to Executive upon the termination
of Executive's employment under specified circumstances, and would like to set
forth the terms relating to a release by Executive of any claims Executive may
have against the Company;
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained, and good and valuable other consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. POST-TERMINATION BENEFITS.
a. Salary; Bonus. If the employment of Executive by the Company is
terminated without Cause (as defined below), Executive shall continue to receive
from the Company payment of Executive's base salary for a period of nine months
following the date of termination of Executive's employment (the "TERMINATION
DATE"). Such payments of base salary shall be payable to Executive semi-monthly
in arrears. For purposes of this Agreement, "Cause" shall mean only that (i)
Executive has refused to perform or discharge his material obligations or duties
hereunder for 30 days after notice from the Board of such refusal, or (ii)
Executive has engaged in illegal or other wrongful conduct substantially
detrimental to the business or reputation of the Company. In addition to the
foregoing, if the employment of Executive is terminated by the Company without
Cause at any time during a fourth fiscal quarter of the Company, the Company
shall also pay to Executive in a single payment within 60 days of the end of the
Company's fiscal year a "Pro Rata Portion of the Bonus." "Pro Rata Portion of
the Bonus" means an amount equal to any bonus to which Executive would have been
entitled had Executive remained an employee for the balance of the fiscal year
in which his employment terminated multiplied by a fraction, the numerator of
which is the number of days from February 1 to the date of Executive's
termination, and the
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denominator of which is 365.
It shall be a condition to the obligations of the Company to
make the payments and provide the other benefits required hereunder, that
Executive execute and deliver to the Company an Unconditional Release Agreement
with the Company in substantially the form attached as Exhibit A (the "RELEASE
AGREEMENT") and that, thereafter, no revocation of the release of age
discrimination claims be made by Executive.
b. Medical Benefits. If the employment of Executive by the Company
is terminated without Cause, the Company shall make available to Executive such
medical insurance coverage as may be provided to Executive by the Company
immediately prior to the termination of Executive's employment with the Company
(or such Company insurance coverage which is consistent with the coverage in
place from time to time for comparable executives of the Company). The Company
shall provide the medical insurance coverage to Executive for a period of nine
(9) months following the Termination Date. Upon Executive's attainment of new
employment (in any capacity) and qualification for medical insurance coverage
pursuant to such new employment, the Company shall no longer be obligated to
provide medical insurance coverage of any type or nature whether or not a period
of nine months has lapsed since Executive's termination. Executive agrees to
immediately notify the Company concerning his attainment of new employment and
medical insurance coverage.
c. Payment for Medical Benefits. The Company shall pay all costs and
expenses associated with providing the medical insurance; provided, however,
that Executive shall be obligated to pay to the Company monthly an amount equal
to the aggregate amount of all co-payments and/or fees relating to insurance
coverage which Executive was responsible for prior to the termination of his
employment, whether such co-payments and fees were paid to the Company or
directly to an insurance provider.
2. AT-WILL. It is expressly understood and acknowledged by Executive
that Executive's employment by the Company is "at-will" and nothing in this
Agreement alters the "at-will" nature of Executive's employment. Executive
acknowledges that the Company may terminate his employment at any time with or
without Cause; provided, however that if the termination is without Cause,
Executive will be entitled to the benefits described herein.
3. COUNTERPARTS. This Agreement may be executed in one or more
counterparts. All of such counterparts shall constitute one and the same
agreement and shall become effective when a copy signed by each party has been
delivered to the other party.
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4. MISCELLANEOUS. This Agreement constitutes the entire agreement of
the parties hereto relating to the subject matter hereof, and there are no
written or oral terms or representations made by either party other than those
contained herein. This Agreement supersedes all prior agreements between the
parties concerning the subject matter hereof, including that certain Severance
Agreement dated February 6, 1996, between the Company and Executive which is
hereby deemed terminated as of the date of this Agreement. This Agreement may
only be amended in writing signed by both parties. No waiver by any party of any
breach of this Agreement shall be deemed to be a waiver by any party of any
preceding or succeeding breach. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of
California without regard to conflicts of law principles. The headings contained
herein are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date first above written.
"COMPANY"
PACIFIC SUNWEAR OF CALIFORNIA,
INC., a California corporation
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
"EXECUTIVE"
--------------------------------------------
Xxxxxxx X. Xxxxxx
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EXHIBIT A
UNCONDITIONAL RELEASE AGREEMENT
THIS UNCONDITIONAL RELEASE AGREEMENT (the "RELEASE") is made and entered
into as of this _____ day of ______________, 19__, by
____________________________ ("EXECUTIVE") in favor of PACIFIC SUNWEAR OF
CALIFORNIA, INC., a California corporation (the "COMPANY").
W I T N E S S E T H:
WHEREAS , the Company has, prior to the date hereof, employed Executive as
a full time employee of the Company, but as of this date Executive's status as
an employee has terminated; and
WHEREAS, as a condition precedent to granting Executive certain severance
benefits pursuant to that Severance Agreement (the "SEVERANCE AGREEMENT")
between Executive and the Company dated as of October 27, 1997, the Company has
required that Executive execute and deliver this Release in favor of the
Company;
NOW, THEREFORE, for and in consideration of the foregoing and for other
good and valuable consideration, the receipt, adequacy and sufficiency of which
are hereby acknowledged, Executive hereby agrees as follows:
1. RELEASE. Except with respect to the Company's obligations pursuant to
the Severance Agreement, any existing director or officer indemnification
agreement, and any retirement or similar benefits, if any, applicable or payable
to Executive, Executive hereby unconditionally remises, releases and forever
discharges to the fullest extent permitted by law, the Company, its employees,
officers, directors, agents, affiliates, subsidiaries and each of them from all
manner of actions, proceedings, causes of actions, claims, counterclaims, suits,
debts, sums, monies, accounts, covenants, agreements, promises, damages, losses
or demands of whatever kind or nature from the beginning of time to the present,
whether known or unknown, in law or in equity, which in the past, now or in the
future arise, may arise or allegedly arise or are in any way resulting from or
in any manner connected with Executive's employment by the Company and the
termination of such employment by the Company. Executive waives all claims and
causes of action against the Company and all damages, if any, that may be
recoverable. This release and waiver of all claims and damages includes, but is
not limited to, any tort or claim of contractual restriction relating to
Executive's employment or termination thereof, any claim of wrongful discharge,
and all rights under federal, state or local law prohibiting race, sex, age,
religion, national origin,
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handicap, disability or other forms of discrimination, including but not limited
to, Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, the Americans with Disabilities Act, the Family and Medical
Leave Act, the California Fair Employment and Housing Act, the California Family
Rights Act, or any other federal, state or local law, regulation or ordinance.
This Release is intended to be effective as a bar to every claim,
demand and cause of action stated above. Accordingly, Executive hereby expressly
waives any rights and benefits conferred by Section 1542 of the California Civil
Code, which provides that, "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."
2. MISCELLANEOUS. This Release embodies the entire agreement of the
parties and supersedes all prior agreements between the parties hereto relating
to the subject matter hereof. The unenforceability or invalidity of any of the
terms or provisions of this agreement shall not affect the validity or
enforceability of the remaining terms or provisions which shall be interpreted
and construed in such a manner as to carry out fully the intention of the
parties hereto. This Release shall be construed and enforced in accordance with
the laws of the State of California.
Executive understands that by executing this release Executive is giving
up possible rights that he may have, and that Executive does not have to sign
this release. This Release has been voluntarily and knowingly executed by
Executive with the express intention of effecting the extinguishment of any and
all obligations and damages that the Company may owe to Executive as provided
herein.
EXECUTIVE UNDERSTANDS THAT EXECUTIVE HAS 21 DAYS TO CONSIDER WHETHER OR
NOT TO EXECUTE THIS RELEASE. EXECUTIVE UNDERSTANDS THAT A PORTION OF THIS
RELEASE, SOLELY RELATING TO EXECUTIVE'S RIGHTS UNDER THE FEDERAL AGE
DISCRIMINATION IN EMPLOYMENT ACT, AS AMENDED, MAY BE REVOKED BY NOTIFYING THE
COMPANY IN WRITING OF SUCH REVOCATION WITHIN 7 DAYS OF EXECUTION OF THIS
RELEASE. THE PORTION OF THIS RELEASE RELATING SOLELY TO EXECUTIVE'S RIGHTS UNDER
THE FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT, AS AMENDED, IS NOT EFFECTIVE
UNTIL THE EXPIRATION OF SUCH 7 DAY PERIOD. ALL PARTS OF THIS RELEASE NOT
RELATING TO CLAIMS OF AGE DISCRIMINATION AND ALLEGED DAMAGES UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT, AS AMENDED, ARE EFFECTIVE IMMEDIATELY UPON
EXECUTION OF THIS RELEASE. EXECUTIVE UNDERSTANDS THAT UPON THE EXPIRATION OF
SUCH 7 DAY PERIOD THIS RELEASE WILL BECOME BINDING IN ITS ENTIRETY UPON THE
EXECUTIVE AND ALL PORTIONS THEREOF WILL BE IRREVOCABLE.
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IN WITNESS WHEREOF, Executive has duly executed this Release in favor of
the Company as of the day and year first above written.
"EXECUTIVE"
----------------------------------------
Print Name
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SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (this "AGREEMENT") is made and entered into
as of February 6, 1996 by and between Pacific Sunwear of California, Inc., a
California corporation (the "COMPANY"), and Xxxx X. Xxxxxx ("EXECUTIVE").
WITNESSETH:
WHEREAS, the Executive has been employed by the Company in the
capacity of Senior Vice President, Chief Financial Officer and Secretary, and as
such the Board of Directors of the Company (the "BOARD") deems it in the best
interest of the Company to offer this Agreement to the Executive; and
WHEREAS, the Company and the Executive wish to provide for the
continuation of certain payments and benefits to Executive upon the termination
of Executive's employment under specified circumstances, and would like to set
forth the terms relating to a release by Executive of any claims Executive may
have against the Company;
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained, and good and valuable other consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. POST-TERMINATION BENEFITS.
a. Salary; Bonus. If the employment of Executive by the Company is
terminated without Cause (as defined below), Executive shall continue to receive
from the Company payment of Executive's base salary for a period of six months
following the date of termination of Executive's employment (the "TERMINATION
DATE"). Such payments of base salary shall be payable to Executive semi-monthly
in arrears. For purposes of this Agreement, "Cause" shall mean only that (i)
Executive has refused to perform or discharge his material obligations or duties
hereunder for 30 days after notice from the Board of such refusal, or (ii)
Executive has engaged in illegal or other wrongful conduct substantially
detrimental to the business or reputation of the Company. In addition to the
foregoing, if the employment of Executive is terminated by the Company without
Cause at any time during a fourth fiscal quarter of the Company, the Company
shall also pay to Executive in a single payment within 60 days of the end of the
Company's fiscal year a "Pro Rata Portion of the Bonus." "Pro Rata Portion of
the Bonus" means an amount equal to any bonus to which Executive would have been
entitled had Executive remained an employee for the balance of the fiscal year
in which his employment terminated multiplied
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by a fraction, the numerator of which is the number of days from February 1 to
the date of Executive's termination, and the denominator of which is 365.
It shall be a condition to the obligations of the Company to
make the payments and provide the other benefits required hereunder, that
Executive execute and deliver to the Company an Unconditional Release Agreement
with the Company in substantially the form attached as Exhibit A (the "RELEASE
AGREEMENT") and that, thereafter, no revocation of the release of age
discrimination claims be made by Executive.
b. Medical Benefits. If the employment of Executive by the Company
is terminated without Cause, the Company shall make available to Executive such
medical insurance coverage as may be provided to Executive by the Company
immediately prior to the termination of Executive's employment with the Company
(or such Company insurance coverage which is consistent with the coverage in
place from time to time for comparable executives of the Company). The Company
shall provide the medical insurance coverage to Executive for a period of six
(6) months following the Termination Date. Upon Executive's attainment of new
employment (in any capacity) and qualification for medical insurance coverage
pursuant to such new employment, the Company shall no longer be obligated to
provide medical insurance coverage of any type or nature whether or not a period
of six months has lapsed since Executive's termination. Executive agrees to
immediately notify the Company concerning his attainment of new employment and
medical insurance coverage.
c. Payment for Medical Benefits. The Company shall pay all costs and
expenses associated with providing the medical insurance; provided, however,
that Executive shall be obligated to pay to the Company monthly an amount equal
to the aggregate amount of all co-payments and/or fees relating to insurance
coverage which Executive was responsible for prior to the termination of his
employment, whether such co-payments and fees were paid to the Company or
directly to an insurance provider.
2. AT-WILL. It is expressly understood and acknowledged by Executive
that Executive's employment by the Company is "at-will" and nothing in this
Agreement alters the "at-will" nature of Executive's employment. Executive
acknowledges that the Company may terminate his employment at any time with or
without Cause; provided, however that if the termination is without Cause,
Executive will be entitled to the benefits described herein.
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3. COUNTERPARTS. This Agreement may be executed in one or more
counterparts. All of such counterparts shall constitute one and the same
agreement and shall become effective when a copy signed by each party has been
delivered to the other party.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date first above written.
"COMPANY"
PACIFIC SUNWEAR OF CALIFORNIA,
INC., a California corporation
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
"EXECUTIVE"
--------------------------------------------
Xxxx X. Xxxxxx
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