EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 5th day of December, 1997, between COLUMBIA
SPORTSWEAR COMPANY, an Oregon corporation, with its principal office located at
0000 X. Xxxxxxxxx, Xxxxxxxx, Xxxxxx 00000, hereinafter called "Company," and
XXXX X. XXXXX, residing at 00000 X.X. Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxx 00000,
hereinafter called "Employee."
W I T N E S S E T H:
WHEREAS, the Company is engaged in the business of designing, manufacturing
and the international distribution of various items of clothing and apparel, and
desires to employ Employee under the terms of this Agreement; and
WHEREAS, Employee is licensed to practice law in the State of Oregon and
the District of Columbia, and desires to work as an employee of the Company; and
WHEREAS, the parties desire to terminate and cancel all present agreements
and understandings between them, and in lieu thereof, to enter into this
Agreement; and
WHEREAS, Employee is willing to enter into this Agreement with respect to
his employment and the services to be provided hereunder upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, the parties mutually agree as follows:
1. MUTUAL RELEASES
Any and all agreements heretofore entered into between Company and Employee
are hereby terminated, and each of the parties hereby releases and discharges
the other from any and all obligations and liabilities heretofore or now
existing under or by reason of any such
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agreements, it being the intention of Company and Employee that this Agreement,
effective October 27, 1997, shall superseded and be in lieu of any and all prior
agreements or understandings between them.
2. EMPLOYMENT
a) The Company hereby employs Employee, and Employee accepts such
employment as Vice President/General Counsel of Company, and to render
professional and other related services on behalf of the Company, subject to the
supervision and direction of the Company's officers and the Board of Directors,
and subject to the laws of the Company as given in the Articles of Incorporation
and the Bylaws, the rules of the Oregon State Bar and the district of Columbia
Bar, and the appropriate canons of professional ethics. In addition to the
above, it is the contemplation of the parties that Employee shall, during the
term of this Agreement, serve as a member of Company's Executive Committee, as
determined by its Board of Directors.
b) This Agreement, and Employee's employment by Company, shall continue in
full force and effect until the termination thereof as provided for in paragraph
6 below.
3. DUTIES
a) Employee agrees to devote all of Employee's time, attention and skill to
the performance of Employee's duties as the employee of the Company unless
otherwise authorized by the Board of Directors. Employee shall perform the
normal and customary functions of the Vice President/General Counsel. Employee
shall promote, to the extent permitted by law and professional ethics, the
business and interests of the Company by establishing maintaining and improving
rapport with other employees, representatives and customers of Company, as well
as outside counsel and government officials. To a reasonable extent, Employee
shall attend professional and other business conventions, seminars, and
professional meetings, and shall do
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all things reasonably necessary and desirable to maintain and improve Employee's
professional skills. During the term of this Agreement, Employee shall not
render professional services on Employee's own behalf of any party other than
the Company unless authorized by the Board of Directors. Nothing contained
herein shall be construed to forbid Employee the right to those activities
listed in paragraph b) below.
b) All income accruing to Employee for professional services and activities
related thereto, such as lecturing, writing treatises or articles, or working as
a consultant for any government or other agency, shall, unless otherwise agreed
by the parties, belong to the Company, whether paid directly to the Company or
to Employee. Employee agrees that a true accounting to the Company may be
required of transactions relating to such services or activities during the term
of employment hereunder.
4. RELATIONSHIP BETWEEN THE PARTIES
a) The parties acknowledge that the Board of Directors of the Company, in
accordance with Oregon law regulating the organization and practice of
corporations, shall manage the business affairs of the Company.
b) The relationship between the Company and Employee is that of an employer
and employee. This Agreement confers no authority to the Employee, in Employee's
capacity as an employee, to enter into any contracts binding upon the Company or
to create any obligations on behalf of the Company except as authorized by the
Company.
c) The Employee is employed to actively carry out the business of the
Company. The Company shall have the exclusive power to determine not only what
specific duties shall be performed by the Employee, but also the power to
determine the means and manner by which those duties shall be performed. All
work performed by the Employee shall be subject to review
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by the Company. The power to direct, control, and supervise in detail the
duties to be performed, the manner of performing such duties, and the time of
performing such duties shall be exercised by the Board of Directors of the
Company.
d) The Employee shall devote full time and best efforts to the performance
of employment under this Agreement. During the term of this Agreement the
Employee shall not at any time or place, either directly or indirectly, engage
in the practice of law to any extent whatsoever, except under and pursuant to
this Agreement.
e) Notwithstanding paragraph 4d), reasonable amounts of volunteer nonpaid
work may be done by the Employee in Employee's discretion, as long as such
commitments do not materially interfere with Employee's obligations hereunder.
Major departures from the foregoing standard must be approved by the Board of
Directors.
f) The Company shall provide and maintain such facilities, equipment,
supplies, and staff as is necessary for the Employee's performance of his duties
under this Agreement. In addition, Company shall assume and satisfy the cost of
all professional dues, licenses, fees, and the reasonable cost of membership in
any professional affiliations, groups and societies to which Employee belongs.
Employee shall further be furnished, at Company's expense, a cell phone and home
computer with internet access to be used by Employee in connection with his
duties. Should employee be required to travel by air in fulfilling his duties on
Company's behalf, all such flights shall be booked as business class and
Employee shall be provided with a membership, at Company's expense, in the Crown
Room or other comparable membership in an airline executive lounge.
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5. COMPENSATION
a) Compensation shall be paid to Employee for all services rendered under
this Agreement. It is intended that the total of Employee's compensation,
including annual salary, bonuses, which may be paid at such times and in such
amounts as the Board of Directors of the Company may determine in its sole
discretion, and any available benefits or deferred income shall reflect
reasonable compensation to Employee for services rendered to the Company.
b) Employee shall be paid a base annual salary of $200,000, payable in
installments in accordance with the Company's regular payroll procedures
applicable to all management employees, which base salary shall be reviewed
annually, at which time appropriate increases, based upon Employee's
performance, shall be considered. All direct compensation shall be subject to
the customary withholding of federal and Oregon income tax and other employment
taxes as required with respect to compensation paid by a corporation to an
employee.
c) In addition to his base salary, Employee shall also be entitled to
participate in any discretionary bonus plan that the Company makes available to
all or any part of its employees. Such bonus shall be at the same rate as other
executive employees of the Company.
d) In addition to salary and discretionary bonuses, Employee shall have the
option to purchase all or any part of 46,268 shares of the Company's Nonvoting
Common Stock at a purchase price of $8.97 per share pursuant to the terms and
provisions of that certain Incentive Stock Option executed by the parties on
December 1, 1997, a copy of which is attached hereto as Exhibit 1, and by this
reference incorporated herein. Employee shall also be eligible to participate in
any other stock options offered at any time by the Company to other members of
its management.
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e) Employee shall have the right to receive or participate in any
additional fringe benefits, both taxable and tax qualified, including but not
limited to insurance programs (disability, life, medical, dental and vision) and
pension or profit sharing plans or both, which are now and during the term of
this Agreement may become available to management employees of the Company and
under the terms of which Employee is eligible.
f) Unless Company furnishes an automobile for the use of Employee, Company
shall reimburse Employee at the rate set by the Board of Directors for the use
of personally-owned automobiles in the furtherance of Company's business and
practice, and Company shall also reimburse Employee for all other expenses
Employee incurs in the furtherance of Company's business.
6. TERMINATION OF AGREEMENT
This Agreement and the Employee's employment hereunder shall commence with
the date of this Agreement and may only be terminated upon the occurrence of any
one of the following events:
a) The death of Employee;
b) Mutual agreement of termination in writing between the Company and
Employee;
c) Sixty (60) days' written notice of termination given by Employee to the
Company:
d) Sixty (60) days' written notice given by Company to Employee if such
termination is without cause;
e) The suspension, revocation, or nonrenewal of Employee's license to
practice law;
f) This Agreement may be immediately terminated in the sole discretion of
the Board of Directos of Company upon the occurrence of any one of the
following events:
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i) Employee willfully and continuously fails or refuses to comply with
the policies, standards and regulations of Company from time to time
established;
ii) Employee shall be guilty of fraud, dishonesty or other acts of
gross misconduct in the rendering of services on behalf of Company;
iii) Employee becomes permanently disabled and such disability
continues for more than six months. "Permanent disability" shall be defined as
Employee's inability, through physical or mental illness or other cause, to
perform the majority of his duties for the Company, unless such disability
occurred in the course of Employee's performance of his duties hereunder.
g) Employee shall have the discretion, at any time after he reaches the age
of fifty-five (55) years, to retire from full-time active service to the
Company, upon sixty (60) days' written notice to the Company. In that event,
Employee shall serve as "of counsel" to the Company and the Company shall keep
Employee on such medical, dental and vision insurance plans as are then made
available to the Company's management employees.
h) In the event of the termination of Employee's employment by the Company
without cause as provided for in sub-paragraph d) above, Company agrees to pay
Employee, in addition to any amount otherwise then due, the equivalent of one
year of Employee's base compensation as provided in paragraph 5 above, or as
hereafter amended, together with any bonus to which Employee would have
otherwise been entitled during the one-year period following said termination.
Should the Company wish to terminate Employee's employment without cause and
without the notice required by subparagraph d) above, Company shall have that
right if, in addition to the payment otherwise provided in this subparagraph,
Company makes a payment to Employee of an amount equal to two months of
Employee's then annual base compensation.
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i) Notwithstanding the termination of this Agreement, the parties shall be
required to carry out any provisions hereof which contemplate performance by
them subsequent to such termination; and such termination shall not affect any
liability or other obligation which shall have accrued prior to such
termination, including, but not limited to, any liability for loss or damage on
account of default.
7. DEATH OF EMPLOYEE
In the event of Employee's death during the term of this Agreement, it
shall terminate immediately, and Employee's legal representatives shall be
entitled to receive the compensation due through the last day worked prior to
Employee's death.
8. LEAVES OF ABSENCE
Leaves of absence of not more than 80 hours each fiscal year with full
payment of salary shall be granted to Employee for attendance at professional
conventions, continuing legal education seminars and other professional or
business activities approved by the Company. All approved expenses incurred by
Employee in connection with his attendance at such conventions, seminars and
activities shall be paid by the Company.
9. PAID TIME OFF
Employee shall be entitled to 240 hours per year of paid time off ("PTO"),
during which time Employee's salary shall be paid in full, to be used by
Employee for illness, vacation or personal reasons, such as doctor's
appointments. PTO shall accumulate on a pro rata basis through the term of this
Agreement. Employee shall take PTO for vacation at such time or times as shall
be approved by the Company. Where the Company's business will not be seriously
inconvenienced, the Board of Directors shall endeavor to honor reasonable
requests for scheduling. Any days taken by Employee for attendance of those
activities permitted by
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paragraph 8 above shall not be considered for the purposes of calculating
Employee's entitlement to PTO. PTO may be accumulated from year to year, not to
exceed 500 hours. Employee's annual entitlement to PTO shall also be reviewed
annually, at which time appropriate increases, based upon Employee's
performance, shall be considered.
10. SUCCESSION
This Agreement is personal to the parties hereto and neither party may
assign or delegate any of the rights or obligations hereunder without first
obtaining the written consent of the other party.
11. NOTICES
Any notice required or permitted to be given under this Agreement shall be
sufficient if in writing and mailed by either registered or certified mail,
return receipt requested, postage prepaid, to the Company at its principal place
of business and to the Employee at Employee's last known residence address.
12. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties hereto
with respect to the employment of Employee by Company and no change in the terms
hereof shall be binding unless in writing and duly executed by the parties
hereto. Should any part of this Agreement be judicially determined to be void,
the remainder thereof shall remain valid and enforceable.
13. DISPUTE RESOLUTION
No civil action concerning any dispute arising under this Agreement shall
be instituted before any court and all such disputes shall be submitted to final
and binding arbitration under the auspices of the Arbitration Service of
Portland, Inc., or such other similar independent arbitration service which is
designed to provide a fair and impartial arbitration process as the
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parties may agree to. Such arbitration shall be conducted in accordance with the
rules of such association before a single arbitrator. In addition to a decree of
specific performance, the arbitrator may, in his or her discretion, make an
award of money damages. All costs and expenses of any such action or arbitration
commenced in accordance herewith, including actual attorneys' fees incurred,
shall be allocated among the parties according to the arbitrator's discretion.
The arbitrator's award resulting from such arbitration may be confirmed and
entered as a final judgment in any court of competent jurisdiction and enforced
accordingly.
b) The waiver by either Company or Employee of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach by either Company or Employee.
14. VALIDITY
This Agreement, having been executed and delivered in the State of Oregon,
its validity, interpretation, performance and enforcement will be governed by
the laws of that state.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its officers thereunto duly authorized; and Employee has signed this Agreement,
as of the day and year first above written.
"COMPANY" "EMPLOYEE"
COLUMBIA SPORTSWEAR COMPANY
By:XXXXXXX X. XXXXX XXXX X. XXXXX
-------------------------------- ---------------------------------------
Xxxx X. Xxxxx
Its:President
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