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SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (this "AGREEMENT") is made and entered into as
of June 21, 1999 by and between Pacific Sunwear of California, Inc., a
California corporation (the "COMPANY"), and Xxxx X. Xxxxxxx ("EXECUTIVE").
WITNESSETH:
WHEREAS, the Executive is employed by the Company in the capacity of
Chief Operating 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 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.
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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.
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.
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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. Xxxxxxx
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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 Xxxx X.
Xxxxxxx ("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 _____________, 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, 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.
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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 August 2, 1999 by and between Pacific Sunwear of California,
Inc., a California corporation (the "COMPANY"), and Xxxxxxx X. Xxxxxxxxxx
("EXECUTIVE").
WITNESSETH:
WHEREAS, the Executive is employed by the Company in the
capacity of Executive Vice President of Merchandising, 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 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.
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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.
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.
2
9
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. Xxxxxxxxxx
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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 Xxxxxxx X.
Xxxxxxxxxx ("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 _____________, 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, 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.
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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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