EXHIBIT 10.34
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
WHEREAS, Xxx Xxxxxxx ("Executive") and Oakley, Inc., a Washington
corporation (the "Company"), have previously entered into that certain
employment agreement dated August 1, 1995 (the "Employment Agreement");
WHEREAS, the Employment Agreement provides for the payment to
Executive of a base salary and certain other benefits; and
WHEREAS, as of the date hereof Executive has agreed to waive the
payment of his base salary for the balance of the term of the Employment
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, Executive and the Company have agreed and do hereby
agree to amend the Employment Agreement as follows, effective as of the 22nd
day of July, 1996:
1. BASE SALARY. Section 3(a) of the Employment Agreement is
hereby amended to reduce Executive's annual base salary to zero.
2. BENEFITS UPON TERMINATION OF EMPLOYMENT. Section 4 of the
Employment Agreement is hereby amended in its entirety to read as follows:
"4. TERMINATION OF EXECUTIVE'S EMPLOYMENT.
(a) DEATH. In the event Executive's employment
hereunder is terminated by reason of Executive's death, the Company shall pay
to Executive's estate, within ten (10) days thereof, a lump sum equal to
(i) twelve (12) times Executive's highest monthly Base Salary paid during the
Term of the Agreement plus (ii) the amount of Executive's target bonus under
the Performance Bonus Plan for the fiscal year in which such death occurs,
prorated through the date of death.
(b) DISABILITY. If, as a result of Executive's
incapacity due to physical or mental illness ("Disability"), Executive shall
have been absent from the full-time performance of his duties with the
Company for a period of six (6) consecutive months and, within thirty (30)
days after written notice is provided to him by the Company, he shall not
have returned to the full-time performance of his duties, Executive's
employment under this Agreement may be terminated by the Company for
Disability. During any period prior to such termination during which
Executive is absent from the full-time performance of his duties with the
Company due to Disability, the Company shall continue to pay Executive his
Base Salary, if any, at the rate in effect at the commencement of such period
of Disability. Within ten (10) days following termination for Disability,
the Company shall pay Executive a lump sum in an amount equal to twelve (12)
times Executive's highest monthly Base Salary paid during the Term of the
Agreement.
(c) TERMINATION FOR CAUSE. The Company may terminate
Executive's employment under this Agreement for "Cause," at any time prior to
expiration of the Term of this Agreement, but only in the event of
Executive's conviction for fraud, misappropriation or embezzlement. In the
event of termination for Cause, Executive's employment may be terminated
immediately without advance written notice, whereupon this Agreement shall
terminate without further obligation by the Company, except for payment of
amounts of Base Salary, if any, accrued through the date of termination.
(d) TERMINATION BY THE COMPANY OTHER THAN FOR DEATH,
DISABILITY OR CAUSE. If Executive's employment is terminated by the Company
for any reason other than Executive's death or Disability or for Cause, the
Company shall pay Executive (i) a monthly severance payment for each month
remaining in the Term of the Agreement at a rate equal to his highest monthly
Base Salary paid during the Term of this Agreement and (ii) at the end of
each remaining fiscal year of the Company ending during the Term of this
Agreement, a bonus equal to the amount of Executive's target bonus under the
Performance Bonus Plan for the fiscal year in which such termination occurs.
(e) NO MITIGATION REQUIRED. Executive shall not
be required in any way to mitigate the amount of any payment or benefit
provided for under Section 3(c) or in this Section 4, including, but not
limited to, by seeking other employment, nor shall the amount of any payment
or benefit provided for under Section 3(c) or in this Section 4 be reduced by
any compensation earned by Executive as the result of employment with or
services provided to another employer after the date of Executive's
termination, or otherwise; provided, however, that in the event Executive
shall breach the provisions of Section 7 hereof or any other confidentiality
agreement between the Company and Executive, the Company shall have the
right, in addition to any other remedies it may have with respect to such
breach, to offset any amounts payable hereunder or otherwise owing to
Executive by the amount of any compensation earned by Executive as the result
of employment with or other services provided to another employer after the
date of Executive's termination, or otherwise."
3. Except as otherwise provided herein, the remaining terms of the
Employment Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and the Executive has hereunto
signed this Agreement, as of the date first above written.
OAKLEY, INC.
By:___________________________
Its:__________________________
/s/ Xxx Xxxxxxx
______________________________
XXX XXXXXXX
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SPOUSAL CONSENT
The undersigned, XXXXXXX XXXXXXX, represents that she has reviewed
the attached "Amendment No. 1 to Employment Agreement" of her husband,
XXX XXXXXXX, and hereby acknowledges the effect of and voluntarily consents
to such waiver as of the 22nd day of July, 1996.
/s/ Xxxxxxx Xxxxxxx
_______________________
XXXXXXX XXXXXXX
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