UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 27, 2014
DECKERS OUTDOOR CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
| 000-22446 | 95-3015862 |
| (Commission File Number) | (IRS Employer Identification No.) |
| 250 Coromar Drive, Goleta, California | 93117 |
| (Address of principal executive offices) | (Zip code) |
Registrant’s telephone number, including area code (805) 967-7611
495A South Fairview Avenue, Goleta, California 93117
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
| Item 2.02. | Results of Operations and Financial Condition. |
On February 27, 2014, Deckers Outdoor Corporation (the “Company”) issued a press release announcing its financial results for the three and twelve months ended December 31, 2013 and held a conference call regarding these financial results. A copy of the press release is furnished hereto as Exhibit 99.1 to this Current Report on Form 8-K.
The information contained in Item 2.02 of this Current Report on Form 8-K, including the press release attached hereto as Exhibit 99.1, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On February 27, 2014, the Company announced that Stephen M. Murray, President of the Company’s EMEA region, will be stepping down from his position effective December 31, 2014. He will remain employed with the Company through the end of 2014 to assist in the Company’s transition process.
As part of the transition, Mr. Murray and Deckers Europe Limited entered into a settlement agreement on February 26, 2014 (the “Agreement”). The Agreement provides that Mr. Murray will continue in his employment with the Company through December 31, 2014 under the terms of his existing employment agreement. Subject to Mr. Murray’s continued employment through December 31, 2014, he will receive (i) 12 months’ pay in lieu of notice in the amount of £412,000 in accordance with the terms of his employment agreement, and (ii) the continuation of certain pension and health benefits through December 31, 2015. The continuation of these benefits would cease at such time as Mr. Murray obtains employment with (or is engaged in a similar capacity by) another third party. The Agreement includes a release of claims by Mr. Murray in favor of Deckers Europe Limited and its subsidiaries and affiliates.
The description of the Agreement is qualified in its entirety by reference to the complete text of the Agreement, a copy of which is attached as Exhibit 10.1 to this Current Report on Form 8-K.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On February 26, 2014, the Board of Directors of the Company approved a change in the Company’s fiscal year end from December 31 to March 31. As a result of this change, the Company will file a transition report on Form 10-Q for the three-month period ended March 31, 2014, which the Company expects to file on or about May 10, 2014.
A copy of the press release announcing the change in fiscal year end is attached as Exhibit 99.1 to this Current Report on Form 8-K. The press release shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.
| Item 9.01 | Exhibits. |
(d) Exhibits. The following exhibit is attached to this Current Report on Form 8-K:
|
Exhibit No.
|
Description
| |
| 10.1 | Settlement Agreement between Deckers Europe Limited and Stephen M. Murray, dated February 27, 2014 | |
| 99.1 | Press Release, dated February 27, 2014. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: February 27, 2014 | Deckers Outdoor Corporation | |
| /s/ Thomas A. George | ||
| Thomas A. George, Chief Financial Officer | ||
EXHIBIT INDEX
|
Exhibit No.
|
Description
| |
| 10.1 | Settlement Agreement between Deckers Europe Limited and Stephen M. Murray, dated February 27, 2014 | |
| 99.1 | Press Release, dated February 27, 2014. |
WITHOUT PREJUDICE
AND
SUBJECT TO CONTRACT
Settlement Agreement
(1) Steve Murray
(2) Deckers Europe Limited
Dated 2014
Contents
| 1. | Definitions and interpretation | 1 |
| 2. | Termination Date | 2 |
| 3. | Settlement of claims | 2 |
| 4. | Secretary/Director | 4 |
| 5. | Arrangements prior to the Termination Date | 5 |
| 6. | Expenses | 6 |
| 7. | Payment in lieu of Notice. | 6 |
| 8. | Benefits | 6 |
| 9. | Tax | 6 |
| 10. | Legal Costs | 7 |
| 11. | Confidentiality and Announcement | 7 |
| 12. | Confidential Information | 8 |
| 13. | Company property | 8 |
| 14. | Restrictions | 8 |
| 15. | Reference | 8 |
| 16. | Legal advice | 9 |
| 17. | Employee's warranties | 9 |
| 18. | Third parties and variation | 10 |
| 19. | Counterparts | 10 |
| 20. | Entire agreement and conflicts | 10 |
| 21. | Severability | 10 |
| 22. | Jurisdiction | 11 |
| 23. | Effective date | 11 |
| Schedule 1 | 12 | |
| (Letter of resignation as Director) | 12 | |
| Schedule 2 | 13 | |
| (Reference) | 13 | |
| Schedule 3 | 14 | |
| To be typed on the headed paper of the Employee's solicitors | 14 | |
| [Schedule 4 | 15 | |
| [Schedule 5 | 16 | |
| This Agreement is made on | 2014 |
Between:
| (1) | Steve Murray of XXXXXX (the "Employee"); and |
| (2) | Deckers Europe Limited (Company number: 5663055) whose registered office is at 83-84 George Street, Richmond, Surrey TW9 1HE (the "Company"). |
Background:
| (A) | The Employee is President of EMEA of the Company. |
| (B) | The Employee and the Company desire to provide for the transition and separation from the Employee's position with the Company. |
| (C) | The Employee asserts various claims against the Company arising out of the forthcoming termination of his employment and arising out of his removal from the office of director. |
| (D) | The parties have agreed terms of settlement of such claims as set out in this Agreement. |
| (E) | The Company is entering into this Agreement for itself and as agent for all Group Companies and is duly authorised in that behalf. |
It is agreed as follows:
| 1. | Definitions and interpretation |
| 1.1 | In this Agreement, unless the context otherwise requires, the following definitions shall apply: |
"Agreement" means this agreement (including any schedule or annexure to it and any document in agreed form).
"Adviser" means the legal adviser referred to in clause 16.1
"Benefits" means the benefits referred to in clause 8.
"Confidential Information" means any information of a confidential nature obtained by the Employee during the course of or as a result of his employment by the Company which belongs to and is of value to the Company and/or any Group Company and/or in respect of which the Company and/or any Group Company owes a duty of confidentiality to a third party. Such information includes (without limitation):
| (a) | lists and particulars of the clients and potential clients of the Company and/or any Group Company; |
| (b) | any financial information relating to the Company and/or any Group Company; or |
| (c) | business plans of the Company and/or any Group Company. |
"Confidential Information" does not include any information in respect of which a protected disclosure is made by the Employee within the meaning of the Public Interest Disclosure Act 1998.
"Contract of Employment" means the contract of employment between the Employee and the Company dated 28 February 2011.
"ERA" means the Employment Rights Act 1996 (as amended).
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"Group Company" means the Company and any holding company or any parent company or any subsidiary or subsidiary undertaking of the Company or such companies, as such terms are defined in s 1159, s 1162 (together with Schedule 7 and the definition of "parent company" in s 1173), s 1161 and Schedule 6 of the Companies Act 2006, and "Group Company" means any of them.
"Proceedings" means any action, claim or proceedings in the Employment Tribunal or any other court against the Company, any Group Company or any of its or their officers, employees or agents in respect of any of the matters which are the subject of the Employee's warranty under clause 3.4, or are settled under the terms of this Agreement.
"Termination Date" means 31 December 2014.
"Termination Payment" means the payment referred to in clause 7.
| 1.2 | In this Agreement, unless the context otherwise requires: |
| (a) | a reference to a statute or statutory provision includes: |
| (i) | any subordinate legislation (as defined in Section 21(1) Interpretation Act 1978) made under it; |
| (ii) | any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it; |
| (b) | a reference to: |
| (i) | a "person" includes any individual, firm, body corporate, association or partnership, government or state (whether or not having a separate legal personality); |
| (ii) | "clauses" and "schedules" is to clauses of and schedules to this Agreement; |
| (iii) | "indemnify" and "indemnifying" any person against any circumstance include indemnifying and keeping him harmless from all actions, claims and proceedings from time to time made against him and all loss or damage and all payments (including fines, penalties and interest, costs or expenses) made or incurred by that person as a consequence of or which would not have arisen but for that circumstance; |
| (c) | headings are for convenience only and shall not affect the interpretation of this Agreement. |
| 2. | Termination Date |
| 2.1 | This Agreement represents formal notice that the Employee's employment with the Company will terminate on 31 December 2014. |
| 2.2 | The Employee acknowledges and agrees that his employment with the Company and/or any Group Company will terminate on 31 December 2014. |
| 3. | Settlement of claims |
| 3.1 | The terms of this Agreement have been agreed between the parties without any admission of liability in full and final settlement of the Employee's complaints of unfair dismissal and entitlement to a redundancy payment pursuant to the ERA and breach of contract against the Company, any Group Company and/or any of its or their officers and/or employees arising from his employment and from his holding any office or from the termination thereof. |
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| 3.2 | It is the further intention of the parties that this Agreement shall, without any admission of liability, be in full and final settlement of any other claims the Employee has or may in future have at common law, under domestic or European legislation, or otherwise against the Company, any Group Company or any of its or their officers, employees, workers or agents arising directly or indirectly from the Employee's employment by the Company, the Employee's holding of any office and/or the termination of such employment or office holding including without limitation any claim: |
| (a) | pursuant to the ERA in respect of unlawful deduction from wages or unlawful receipt of payments from the Employee, guarantee payments, protected disclosures, unlawful detriment, breach of the right to time off work, remuneration or alternative work on suspension, maternity, paternity, adoption, parental rights and flexible working and any other rights under the ERA; |
| (b) | to have suffered unlawful detriment, or any other claim, under: |
| (i) | regulation 7(2) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000; |
| (ii) | regulations 27, 31 and 32 of the Transnational Information and Consultation of Employees Regulations 1999; |
| (iii) | section 23 of the National Minimum Wage Act 1998; |
| (iv) | arising under regulations 3, 6(2) or 9 of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002; |
| (v) | regulation 30 of the Working Time Regulations 1998; |
| (vi) | regulation 27, 28 and 32 of the Information and Consultation of Employees Regulations 2004; |
| (vii) | paragraphs 4 and 8 of the Schedule to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006; |
| (viii) | sections 55 and 56 of the Pensions Act 2008; |
| (c) | of unlawful discrimination, harassment, victimisation, detriment (including personal injury resulting from any such discrimination, harassment, victimisation) on the grounds of, because of, arising from and/or related to: |
| (i) | sex, marital or civil partnership status, gender reassignment, pregnancy or maternity under section 120 of the Equality Act 2010 and/or section 63 of the Sex Discrimination Act 1975; |
| (ii) | race, colour, nationality or ethnic or national origin under section 120 of the Equality Act and/or section 54 of the Race Relations Act 1976; |
| (iii) | disability under section 120 of the Equality Act and/or section 17A of the Disability Discrimination Act 1995; |
| (iv) | religion or belief under section 120 of the Equality Act 2010 and/or regulation 28 of the Employment Equality (Religion or Belief) Regulations 2003; |
| (v) | sexual orientation under section 120 of the Equality Act 2010 and/or regulation 28 of the Employment Equality (Sexual Orientation) Regulations 2003; and/or |
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| (vi) | age under section 120 of the Equality Act 2010 and/or regulation 36 of the Employment Equality (Age) Regulations 2006, |
| (d) | for equality of terms under sections 120 and 127 of the Equality Act 2010 and section 2(1) of the Equal Pay Act 1970; |
| (e) | under the National Minimum Wage Act 1998 or any breach of contract claim arising from a failure to pay additional remuneration under sections 17 or 18 of that Act; |
| (f) | in respect of the infringement of the statutory employment rights set out in the Trade Union and Labour Relations (Consolidation) Act 1992; |
| (g) | under any directly effective provision of the Treaty of Amsterdam or the legislation of the European Union; |
| (h) | under the Human Rights Act 1998; |
| (i) | in respect of harassment under section 3 of the Protection from Harassment Act 1997; |
but shall exclude any claim in respect of the Employee's accrued rights arising out of the Employee's membership of the Company Pension Scheme or any latent personal injury claim.
| 3.3 | The settlement set out in clause 3.2 shall include, without limitation, any future claims the Employee may have, whether or not the matters which give rise to such future claims are currently known to either the Employee or the Company and/or any Group Company and whether or not any legal remedy available for such claims in the future would be available for an action taken at the date of this Agreement. |
| 3.4 | The Employee, having taken independent legal advice, warrants that, except for any claim expressly set out or referred to in clause 3.1 and without prejudice to clause 3.2 he has no claims whatsoever against the Company, any Group Company or any of its or their officers, employees, workers or agents arising directly or indirectly from his employment by the Company, the holding of any office and/or the termination of such employment or office holding. The Employee further warrants that he will not bring any claim under, in relation to, arising from and/or in connection with the Equality Act 2010. |
| 3.5 | If the Employee is awarded any compensation or damages by a court or tribunal pursuant to Proceedings, he will repay to the Company immediately upon demand the lesser of the Termination Payment or such amount of the Termination Payment as shall be equivalent to the total amount of the compensation or damages (including interest) awarded, together with the full amount of any legal fees incurred by the Company in defending Proceedings. Any part of the Termination Payment which remains outstanding shall cease to be payable under this Agreement with effect from the date of commencement of Proceedings. |
| 3.6 | The Employee agrees that the payment of the Termination Payment referred to at clause 7 below, and provision of the Benefits referred to at clause 8 below, are conditional on the Employee signing and returning on or after the Termination Date (and in any event by the payment date referred to in clause 7) a letter in the form set out at Schedule 4 to this Agreement warranting that he has no further claims arising from his employment and/or its termination as at the Termination Date that are not claims falling within the settlement detailed at clauses 3.1 and 3.2 above. |
| 4. | Secretary/Director |
| 4.1 | The Employee will resign as a Director of the Company on or before the Termination Date at the request of the Company by signing and delivering to the Company a letter of resignation in the agreed form set out in Schedule 1. For the avoidance of doubt, the Company acknowledges that the Employee will resign from those offices at the Company’s request and accordingly that the said resignation does not constitute gross misconduct within the meaning of clause 19.3 of the contract of employment. |
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| 4.2 | The Employee waives any claim for compensation for loss of office which he might otherwise have been entitled to as a consequence of such resignation. |
| 5. | Arrangements prior to the Termination Date |
| 5.1 | The Company will continue to pay to the Employee up to the Termination Date salary in accordance with the terms of the Contract of Employment, subject to the deduction of such income tax and National Insurance contributions as the Company is required by law to deduct. |
| 5.2 | The Company will continue to provide to the Employee up to the Termination Date all benefits to which the Employee is entitled under the Contract of Employment. |
| 5.3 | The Employee agrees that he will use up all accrued entitlement to holiday prior to the Termination Date. |
| 5.4 | The Company agrees that notwithstanding the termination of the Employee’s employment, the Employee will be eligible to receive payment of the incentive bonus for the year ending 31 December 2013. Payment of the bonus is subject only to the Compensation Committee certifying that the Company has achieved its performance objectives for the year ending 31 December 2013. Payment of the 2013 bonus will be made on the same date that bonuses are paid to other senior executives of the Company in respect of the year ending 31 December 2013. The bonus will be paid subject to deduction of such income tax and National Insurance contributions as the Company is required by law to deduct. |
| 5.5 | The Company agrees that the Employee shall be eligible to receive a bonus for the year ending 31 December 2014 in accordance with the terms of the Company’s bonus scheme and the Contract of Employment subject to satisfactory completion of the objectives to be determined and approved by the Compensation Committee of the Board of Directors of the Company for all executives and subject to the deduction of such income tax and National Insurance contributions as the Company is required by law to deduct. For the avoidance of doubt, if the Company places the Employee on garden leave prior to the Termination Date in accordance with clause 5.6 below, the Company recognises that the Employee will or may not have the opportunity to complete all of the objectives by their due date. Accordingly, in those circumstances, the Company acknowledges and affirms that the Employee will be deemed to have satisfactorily and fully completed each and every personal objective for which the target date for completion of that objective was either unspecified or arose after the date of commencement of the garden leave. |
| 5.6 | The Company may at any time prior to the Termination Date require the Employee not to perform any services for the Company or to perform only such services as it may allocate to the Employee ("Garden Leave"). For the avoidance of doubt, from the date of this Agreement up to the Termination Date the Employee agrees that he will not report directly to the Chief Executive Officer of the Company. |
| 5.7 | During the period of Garden Leave the Company shall be under no obligation to provide any work to or vest any powers in the Employee, who shall have no right to perform any services for the Company and/or any Group Company. |
| 5.8 | During the period of Garden Leave the Employee shall: |
(a) continue to receive his salary and all contractual benefits in the usual way (subject to the rules of the relevant benefit scheme in force from time to time). The Company will declare these benefits to HMRC at the appropriate time and the Employee will be liable for any further tax or national insurance contributions due in relation to them;
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(b) remain an Employee of the Company and be bound by the terms of his Contract of Employment with the Company;
(c) not, without the prior written consent of the Company, attend his place of work or any other premises of the Company or any Group Company;
(d) not, without the prior written consent of the Company, contact or deal with (or attempt to contact or deal with) any officer, employee, consultant, client, customer, supplier, agent, distributor, shareholder, adviser or other business contact of the Company or any Group Company. For the avoidance of doubt, nothing in this clause is intended to prevent the Employee from socialising in a purely personal and non-business-related capacity with any individual or individuals falling into the above categories who was a personal friend of the Employee and with whom the Employee socialised prior to the date of commencement of the garden leave;
(e) provide such services and assistance to the Company or any Group Company as the Company or any Group Company may reasonably request;
| (f) | (except during any periods taken as holiday in accordance with the Company's usual procedures) ensure that the Company knows where and how he can be contacted during each working day and shall comply with any written request to contact the Company. |
| 6. | Expenses |
The Employee will, within 7 days of the Termination Date notify the Company of the amount of any expenses incurred by him in the performance of his duties prior to the Termination Date and will supply the Company with receipts or other documentary evidence of such expenditure. The Company will, within 28 days of receipt of such notification and evidence, reimburse to the Employee the amount of all such expenses properly and necessarily incurred by him in the course of his duties.
| 7. | Payment in lieu of Notice. |
Subject to the provisions of this Agreement, and the Contract of Employment, the Company shall pay to the Employee £412,000 as payment in lieu of notice under Section 20.1 of the Contract of Employment in consideration of, in consequence of or otherwise in connection with the termination of the Employee’s employment, such payment to be made within 28 days of the Termination Date.
| 8. | Benefits |
The Company shall, in addition to the Termination Payment, provide the Employee with the following Benefits as further compensation for loss of employment.
| 8.1 | The Company shall continue to make contributions at the rate of £2,404.33 per month into the the Company’s pension scheme (the "Scheme") for the Employee's benefit at the end of each calendar month during the period from the Termination Date until 31 December 2015, subject always to the rules of the Scheme and any HMRC limits from time to time in force, and provided that such payments shall cease at such time as the Employee obtains employment with (or is engaged in a similar capacity by) another third party. |
| 8.2 | Subject always to the rules of the relevant scheme, the Company shall maintain insurance cover for the Employee during the period from the Termination Date to 31 December 2015 inclusive under the terms of the Company's private medical insurance scheme or such other equivalent scheme as the Company may from time to time adopt, provided that such cover shall cease at such time as the Employee obtains employment with (or is engaged in a similar capacity by) another third party. |
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| 9. | Tax |
| 9.1 | The Termination Payment will be paid subject to the deduction of: |
| (a) | income tax in accordance with the Employee's PAYE tax coding; and |
| (b) | to the extent applicable, primary class I National Insurance contributions. |
The Employee will declare and account to Her Majesty's Revenue and Customs for any income tax due in respect of the Benefits.
| 9.2 | The Company makes no warranty as to the taxable status of the Termination Payment and Benefits and accordingly, the Employee hereby indemnifies and agrees to keep the Company and all Group Companies indemnified against any income tax and Employee National Insurance contributions liability (together with all interest, penalties and costs reasonably incurred) which the Company and/or any Group Company is or may be liable to pay or account for under the PAYE system in respect of the Termination Payment and the provision of the Benefits in excess of any deduction made by the Company at source in respect of such liability. |
| 10. | Legal Costs |
The Company will pay the Employee's reasonable legal costs up to a maximum of £1,000 (plus VAT) incurred in respect of advice received by the Employee exclusively in connection with the termination of the Employee’s employment (including advice as to the terms and effect of this Agreement). Payment of these costs will be made direct to the Adviser subject to the Company's receipt of an invoice addressed to the Employee but marked payable by the Company. Payment of the Employee’s legal costs will be made within 28 days of (a) receipt of the invoice for those costs and (b) receipt of the Legal Adviser’s certificate in accordance with clause 16.3 (whichever is the later).
| 11. | Confidentiality and Announcement |
| 11.1 | The Company will make an announcement on the date of this Agreement in the form set out in Schedule 5 and neither party will make any statement to third parties (save as specified in clause 15) which is inconsistent with that announcement. |
| 11.2 | It is a condition of this Agreement that its terms shall remain confidential to the parties and their legal and professional advisers (and, in the case of the Employee, his immediate family). Except as agreed in this Agreement or otherwise required by law, no statement or comment shall be made by the parties to any third party in relation to the terms or existence of this Agreement, the claims of the Employee settled by its terms and/or the circumstances of the termination of the Employee's employment and occupation as an officer of the Company and/or any Group Company. For the avoidance of doubt, nothing in this clause shall prevent the Employee from informing a prospective employer about the reasons for him leaving the Company provided that the information given by the Employee to that prospective employer is consistent with the terms of the announcement in clause 11.1. |
| 11.3 | The parties will take all reasonable steps to ensure that no person under their influence or control, whether acting on their behalf or otherwise shall make any statement in relation to the matters referred to in clause 11.2. The Employee agrees to use his best endeavours to procure that the members of his immediate family keep the fact and contents of this Agreement strictly confidential. For the avoidance of doubt, if the Employee has contact or dealings with an employment agency, headhunter or recruitment consultant (the Agent) in order to attempt to secure alternative employment or work, nothing in this clause shall prevent the Employee from informing the Agent about the reasons for him leaving the Company provided that the information given to the Agent by the Employee is consistent with the terms of the announcement in clause 11.1. |
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| 11.4 | The Company will not make, publish or cause to be published any disparaging remarks or derogatory statement concerning the Employee and the Employee will not make, publish or cause to be published any such remarks concerning the Company, any Group Company, its or their directors, officers, shareholders or employees, any product or service being sold, developed or provided by the Company and/or any Group Company and the Employee confirms that he has not already done so. |
| 12. | Confidential Information |
| 12.1 | The Employee shall not at any time disclose to any person or use for the Employee's own purposes or through lack of diligence cause the unauthorised disclosure of any Confidential Information except as authorised or required by law, although this restriction shall not apply to any Confidential Information coming into the public domain other than as a result of any breach by the Employee of this obligation. |
| 12.2 | The Employee warrants that all Confidential Information that the Employee had in his possession, custody or under his control by whom and in whatever format recorded (whether electronically, on paper, on audio or audio visual tape or otherwise and including all copies) will be returned to the Company by the Termination Date and that neither the Employee nor any other unauthorised person will retain the ability to access such information. |
| 13. | Company property |
| 13.1 | The Employee warrants that, all property belonging to the Company or any Group Company which is in his possession or under his control will be returned to the Company in good working order by the Termination Date. |
| 13.2 | The Employee confirms that he will by the Termination Date irretrievably delete any information relating to the business of the Company and/or any Group Company (and all matter derived from such information) that is stored on any computer or storage media or otherwise in any electronic form outside of the premises of the Company and which is in the Employee's possession, custody or control and shall produce such evidence of having done so as the Company may request and/or allow the Company to inspect any such computer or other device. |
| 14. | Restrictions |
| 14.1 | The Employee agrees that he remains bound by and will comply with the provisions of Clause 28 of the Contract of Employment save that the Company agrees that it will not seek to enforce the restrictions contained at clause 28.3.1 of the Contract of Employment. |
| 14.2 | The Employee undertakes that he will not, following the Termination Date, hold himself out or permit himself to be held out as being employed by the Company and/or any Group Company. |
| 15. | Reference |
| 15.1 | Subject to the provisions of this clause 15 the Company will provide directly to any prospective employer, upon receipt of a written request to do so, sent to the Chief Human Resources Officer at the address of the Company as set out above (or to such other person as the Company may nominate from time to time), a written reference in the agreed form at Schedule 2. |
| 15.2 | Subject to clauses 15.3 and 15.4 below, the Company shall use its reasonable endeavours in any communications of any kind with any prospective employers of the Employee, not to deviate from the terms and spirit of the written reference. |
| 15.3 | The Company reserves the right to make disclosures concerning the Employee's conduct which come to light after the date of this Agreement in order to comply with the Company's duty of care to the party requesting a reference. If the Company obtains information after the date of this Agreement which would have affected its decision to provide a reference in the form agreed it shall inform the Employee and may decline to give a reference. |
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| 15.4 | The Company reserves the right to make such disclosures concerning the Employee as required by law or to comply with any regulatory requirements. |
| 16. | Legal advice |
| 16.1 | The Employee confirms that: |
| (a) | he has received independent legal advice from XXXXXXXX as to the terms and effect of this Agreement including in particular, its effect on his ability to pursue any claim before an Employment Tribunal and as to the practical steps available to the Employee as an alternative to entering into this Agreement; |
| (b) | the Adviser has advised him that there was in force, when the Adviser gave the advice referred to in paragraph (a), a policy of insurance covering the risk of a claim by the Employee in respect of loss arising in consequence of the advice. |
| 16.2 | It is agreed that the conditions regulating settlement agreements and compromise agreements, as appropriate, under section 147 of the Equality Act 2010, section 77(4A) of the Sex Discrimination Act 1975 (in relation to claims under that Act and the Equal Pay Act 1970), section 72(4A) of the Race Relations Act 1976, paragraph 2 of Schedule 3A to the Disability Discrimination Act 1995, paragraph 2(2) of Schedule 4 to the Employment Equality (Sexual Orientation) Regulations 2003, paragraph 2(2) of Schedule 4 to the Employment Equality (Religion or Belief) Regulations 2003, paragraph 2(2) of Schedule 5 to the Employment Equality (Age) Regulations 2006, section 288(2B) of the Trade Union and Labour Relations (Consolidation) Act 1992, section 203(3) of the Employment Rights Act 1996, regulation 35(3) of the Working Time Regulations 1998, section 49(4) of the National Minimum Wage Act 1998, regulation 41(4) of the Transnational Information and Consultation etc. Regulations 1999, regulation 9 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, regulation 10 of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, regulation 40(4) of the Information and Consultation of Employees Regulations 2004, paragraph 12 of the Schedule to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 and section 58 of the Pensions Act 2008 have been satisfied. |
| 16.3 | By signing and delivering to the Company on the date of this Agreement a letter on the notepaper of the Adviser's firm, in the form at Schedule 3 to this Agreement, the Adviser confirms that he/she has given to the Employee the advice referred to in clause 16.1 and that the conditions regulating settlement agreements and compromise agreements, as appropriate, which are referred to in clause 16.2 have been satisfied. The Adviser further confirms that he/she is a qualified solicitor holding a current practising certificate and is independent of the Company and/or any Group Company for whom he/she has not acted and has no current expectation of activity. At the time that the Adviser gave the advice referred to in clause 16.1, there was in force a contract of insurance covering the risk of a claim by the Employee in respect of any loss arising in consequence of that advice. |
| 17. | Employee's warranties |
| 17.1 | The Employee warrants that at the date of this Agreement he is not aware of any facts, matters or circumstances that could give rise to: |
| (a) | any claim for personal injury by him against the Company or any Group Company and that there are no such claims pending at the date of this Agreement; and |
| (b) | a dispute between him and the Company or any Group Company and/or the pension trustees in respect of his pension rights or a complaint to the Pensions Regulator. |
| 9 |
| 17.2 | The Employee warrants that (as at the date of this Agreement) he has not agreed to take up any employment, consultancy, office or partnership with any person or is in negotiations or has received any offer to do so to take effect after the Termination Date or has or is otherwise preparing to take up any other opportunity which will provide him with a form of income. |
| 17.3 | The Employee warrants, as a strict condition of this Agreement, that (as at the date of this Agreement) there are no facts or circumstances of which the Employee is aware or of which the Employee ought reasonably to be aware which would amount to a repudiatory breach by the Employee of any express or implied term of the Employee's Contract of Employment which would or would have entitled the Company to terminate the Employee's employment without notice or pay in lieu of notice and any payments or benefits pursuant to this Agreement are subject to and conditional upon this being so. |
| 17.4 | The Employee warrants that he will not submit any grievances to the Company and/or any Group Company in relation to any fact or matter of which he is aware at the date of this Agreement relating to his employment and/or office and/or the termination of his employment and/or office and that he will not make a subject access request to the Company and/or any Group Company. The Employee further relinquishes and agrees not to pursue either any grievance which may have been raised by him and/or any subject access request outstanding as at the date of this Agreement and that all such grievances and/or requests shall be deemed to have been withdrawn by the Employee as at the date of this Agreement. |
| 18. | Third parties and variation |
| 18.1 | Save by any Group Company or any officer, employee or agent of any Group Company no term of this Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it. |
| 18.2 | No purported variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the parties. |
| 18.3 | Pursuant to Section 2(3)(a) Contracts (Rights of Third Parties) Act 1999, the parties, in accordance with clause 18.1, may without limit or restriction and without the consent of any third party: |
| (a) | vary this Agreement or any provision of it which may be enforced by any third party or otherwise amend this Agreement in such a way as to extinguish or alter any third party's entitlement under any such provisions; and/or |
| (b) | rescind this Agreement. |
| 19. | Counterparts |
This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument.
| 20. | Entire agreement and conflicts |
| 20.1 | This Agreement sets out the entire agreement and understanding between the parties and supersedes all prior agreements, understanding or arrangements (whether oral or written) in respect of the subject matter of this Agreement. |
| 20.2 | The Employee acknowledges that he has entered into this Agreement in reliance only on the representations, warranties and promises specifically contained or incorporated in this Agreement and, save as expressly set out in this Agreement, neither the Company, nor any Group Company nor any of its or their employees, officers or agents shall have any liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently. |
| 10 |
| 21. | Severability |
The unenforceability of any provision of this Agreement shall not affect the enforceability of all remaining provisions. It is agreed that each obligation under this Agreement is separate and severable and any such unenforceable provision shall not be deemed to be part of this Agreement.
| 22. | Jurisdiction |
This Agreement shall be governed by and construed in all respects in accordance with the laws of England and Wales and each of the parties irrevocably submits to the exclusive jurisdiction of the courts of England and Wales.
| 23. | Effective date |
This Agreement will come into effect on the date of the last party's signature on which date the "without prejudice and subject to contract" nature of this Agreement will cease to apply.
This Agreement has been signed by the parties on the date appearing at the head of page 1 to signify their agreement to its terms.
| 11 |
| Signed by Steve Murray | ||
| on | ||
| Signed by | ||
|
for and on behalf of |
||
| Deckers Europe Limited | ||
| on | ||
| 12 |
Deckers Outdoor Corporation Reports Fourth Quarter And Fiscal 2013 Financial Results
GOLETA, Calif., Feb. 27, 2014 /PRNewswire/ -- Deckers Outdoor Corporation (NASDAQ: DECK), a global leader in designing, marketing, and distributing innovative footwear, apparel and accessories, today announced financial results for the fourth quarter and fiscal year ended December 31, 2013.
Fourth Quarter Review
Fiscal 2013 Review
"Our strong fourth quarter performance capped off a year of solid strategic progress," commented Angel Martinez, President, Chief Executive Officer and Chair of the Board of Directors. "We believe that the concerted investments we are making in our brands, distribution platforms and infrastructure are leading to improved financial and operating results as we expand our direct-to-consumer footprint and elevate our Omni-Channel resources. Our sales and earnings growth were driven by strong full price selling throughout each of our distribution channels and geographic regions. The power of the UGG brand was on full display during the recent holiday season as consumers responded very positively to our most complete product line ever. Looking ahead, we expect to be well positioned to execute our consumer centric growth strategy with compelling new product introductions, engaging store experiences and a dynamic online offering. We are excited about the direction the Company is headed and we are committed to capitalizing on the many expansion opportunities that we believe are in front of us."
Division Summary
UGG Brand
UGG brand net sales for the fourth quarter increased 18.1% to $690.9 million compared to $584.8 million for the same period last year. The increase in sales was driven by sales gains across all primary channels, including the sales contribution from new retail store openings and an increase in same store sales, an increase in global E-Commerce sales, and higher domestic and international wholesale sales. For the full year, UGG brand net sales increased 9.7% to $1.299 billion compared to $1.184 billion last year.
Sanuk Brand
Sanuk brand net sales for the fourth quarter increased 45.2% to $22.2 million compared to $15.3 million for the same period last year. The increase in sales was primarily attributable to an increase in international distributor sales as well as higher domestic wholesale sales. For the full year, Sanuk brand net sales increased 8.2% to $101.7 million compared to $94.0 million last year.
Teva Brand
Teva brand net sales for the fourth quarter increased 13.6% to $15.5 million compared to $13.7 million for the same period last year. The increase in sales was driven primarily by higher domestic and international wholesale sales and higher international distributor sales. For the full year, Teva brand net sales increased 0.8% to $116.4 million compared to $115.5 million last year.
Other Brands
Combined net sales of the Company's other brands increased 110.1% to $7.4 million for the fourth quarter compared to $3.5 million for the same period last year. The increase was attributable to the addition of the HOKA ONE ONE® brand and to a 100.0% increase in sales for the Ahnu® brand compared to the same period last year. For the full year, combined net sales of the Company's other brands increased 85.8% to $39.7 million compared to $21.3 million last year.
Retail Stores
Sales for the global retail store business, which are included in the brand sales numbers above, increased 31.4% to $178.0 million for the fourth quarter compared to $135.5 million for the same period last year. This increase was driven by 40 new stores opened after the fourth quarter of 2012 and by a same store sales increase of 6.1% for the thirteen weeks ending December 29, 2013 compared to the thirteen weeks ending December 30, 2012. For the full year, sales for the retail store business increased 32.8% to $326.7 million compared to $246.0 million last year.
E-Commerce
Sales for the global E-Commerce business, which are included in the brand sales numbers above, increased 33.9% to $117.3 million for the fourth quarter compared to $87.6 million for the same period last year. The sales increase was driven primarily by strong domestic and international sales for the UGG brand, increased domestic sales of the Sanuk brand, plus the addition of new international E-Commerce websites. For the full year, sales for the E-Commerce business increased 29.8% to $169.5 million compared to $130.6 million last year.
Balance Sheet
At December 31, 2013, cash and cash equivalents were $237.1 million compared to $110.2 million at December 31, 2012. The Company had $9.7 million in outstanding borrowings under its credit facility at December 31, 2013 compared to $33.0 million at December 31, 2012. The increase in cash and cash equivalents and the decrease in outstanding borrowings are primarily attributable to improved inventories and cash provided by operations, partially offset by $79.8 million of cash payments for capital assets primarily related to retail expansion and the Company's new headquarters facility.
Inventories at December 31, 2013 decreased 13.1% to $260.8 million from $300.2 million at December 31, 2012. By brand, UGG inventory decreased $43.6 million to $204.7 million at December 31, 2013, Teva inventory increased $0.4 million to $28.3 million at December 31, 2013, Sanuk inventory decreased $1.1 million to $13.4 million at December 31, 2013, and the other brands' inventory increased $4.9 million to $14.4 million at December 31, 2013.
Fiscal Year Change
The Company's Board of Directors has authorized a change in its fiscal year end to March 31 from December 31. This change will be effective March 31, 2014. Based on the seasonality of the business and the timing of the fall pre-book process, the change in fiscal year gives the company greater visibility into projecting revenue growth, planning expenses, and incorporating the results from the holiday season into product, merchandising and marketing initiatives for the upcoming year. The Company will report results for the three-month transition period of January 1, 2014 through March 31, 2014. The first 12-month fiscal year will run from April 1, 2014 through March 31, 2015.
Full Calendar Year Outlook For the 12-Month Period Ending December 31, 2014
First Quarter Outlook
Conference Call Information
The Company's conference call to review fourth quarter 2013 results will be broadcast live over the internet today, Thursday, February 27, 2014 at 4:30 pm Eastern Time. The broadcast will be hosted at www.deckers.com. You can access the broadcast by clicking on the "Investors" tab and then clicking on the microphone icon on the right side of the screen.
About the Company
Deckers Outdoor Corporation is a global leader in designing, marketing and distributing innovative footwear, apparel and accessories developed for both everyday casual lifestyle use and high performance activities. The Company's portfolio of brands includes UGG® Australia, Teva®, Sanuk®, TSUBO®, Ahnu®, MOZO®, and HOKA ONE ONE®. Deckers Outdoor products are sold in more than 50 countries and territories through select department and specialty stores, 117 Company-owned and operated retail stores, and select online stores, including Company-owned websites. Deckers Outdoor has a 40-year history of building niche footwear brands into lifestyle market leaders attracting millions of loyal consumers globally. For more information, please visit www.deckers.com.
Forward Looking Statements
This press release contains "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, that concern matters that involve risks and uncertainties that could cause actual results to differ materially from those anticipated or projected in the forward-looking statements. These forward-looking statements are intended to qualify for the safe harbor from liability established by the Private Securities Litigation Reform Act of 1995. All statements other than statements of historical fact contained in this press release, including statements regarding our future financial performance and business strategies, are forward-looking statements. We have attempted to identify forward-looking statements by using words such as "anticipate," "believe,"
"estimate," "expect," "intend," "may," "project," "plan", "predict", "should," "will," and similar expressions, or the negative of these expressions, as they relate to us, our management and our industry, to identify forward-looking statements. We have based our forward-looking statements on our current expectations and projections about trends affecting our business and industry and other future events. Although we do not make forward-looking statements unless we believe we have a reasonable basis for doing so, we cannot guarantee their accuracy. As a result, actual results may differ materially from the results stated in or implied by our forward-looking statements. Some of the risks, uncertainties and assumptions that may cause actual results to differ from these forward-looking statements include, but are not
limited to: changes in economic or market conditions; the financial success of our customers and the risk of losing one or more of our key customers; our ability to adequately protect our intellectual property rights and deter counterfeiting; the sensitivity of our sales to seasonality and the effect of weather conditions; the quality and price of raw materials, most notably sheepskin; our ability to realize returns on our new and existing retail stores; our ability to accurately forecast consumer demand; our ability to anticipate fashion trends; our ability to successfully implement our growth strategies, including enhancing the position of our brands and expanding our distribution channels; the impairment of our goodwill and other intangible assets; our dependence on independent manufacturers located outside of the U.S., and the challenge of maintaining a continuous supply of quality
finished goods; risks of conducting business outside the U.S., including foreign currency and global liquidity risks; our ability to protect sensitive customer and company information and prevent the failure or interruption of key business processes; our ability to attract and retain key personnel; the loss of our warehouses; the international markets in which we sell our products are subject to a variety of laws and political and economic risks; risks related to international trade, import regulations and security procedures, liquidity and market risks for our cash and cash equivalents; risks associated with our revolving credit facility, including negative covenants that may restrict our ability to take certain actions; tax laws applicable to our business are very complicated and we could be subject to additional income tax liabilities; our ability to compete effectively with our
competition; the effect of existing and future litigation on our business; and the volatility of the price of our common stock. Certain of these risks and uncertainties are more fully described in the section entitled "Risk Factors" in our Annual Report on Form 10-K for the fiscal year ended December 31, 2012, which we filed with the Securities and Exchange Commission, or the SEC, on March 1, 2013, as well as in our other filings with the SEC. In addition, actual results may differ as a result of additional risks and uncertainties of which we are currently unaware or which we do not currently view as material to our business.
You are cautioned not to place undue reliance on forward-looking statements contained in this press release, which speak only as of the date of this press release. You should read this press release with the understanding that our future results may be materially different from what we currently expect. We qualify all of our forward-looking statements by these cautionary statements and we expressly disclaim any intent or obligation to update any forward-looking statements after the date hereof to conform such statements to actual results or to changes in our opinions or expectations, except as required by applicable law or the rules of the NASDAQ Stock Market.
(Tables to follow)
DECKERS OUTDOOR CORPORATION | ||||||||
AND SUBSIDIARIES | ||||||||
Consolidated Balance Sheets | ||||||||
(Unaudited) | ||||||||
(Amounts in thousands) | ||||||||
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| December 31, |
| December 31, |
|
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|
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| Assets |
| 2013 |
| 2012 |
|
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|
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|
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|
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Current assets: |
|
|
|
| ||||
|
|
| Cash and cash equivalents | $ | 237,125 |
| 110,247 | ||
|
|
| Trade accounts receivable, net |
| 184,013 |
| 190,756 | ||
|
|
| Inventories |
| 260,791 |
| 300,173 | ||
|
|
| Prepaid expenses |
| 14,980 |
| 14,092 | ||
|
|
| Other current assets |
| 112,514 |
| 59,028 | ||
|
|
| Deferred tax assets |
| 19,881 |
| 17,290 | ||
|
|
|
| Total current assets |
| 829,304 |
| 691,586 | |
|
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|
|
|
|
|
|
|
|
Property and equipment, net |
| 174,066 |
| 125,370 | ||||
Goodwill |
| 128,725 |
| 128,725 | ||||
Other intangible assets, net |
| 93,278 |
| 95,965 | ||||
Deferred tax assets |
| 15,751 |
| 13,372 | ||||
Other assets |
| 18,605 |
| 13,046 | ||||
|
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|
|
|
|
|
|
|
|
|
| Total assets | $ | 1,259,729 |
| 1,068,064 | |
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| Liabilities and Stockholders' Equity |
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Current liabilities: |
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| Short-term borrowings | $ | 9,728 |
| 33,000 | ||
|
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| Trade accounts payable |
| 151,037 |
| 133,457 | ||
|
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| Accrued payroll |
| 35,725 |
| 15,896 | ||
|
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| Other accrued expenses |
| 74,575 |
| 59,597 | ||
|
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| Income taxes payable |
| 49,453 |
| 25,067 | ||
|
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| Total current liabilities |
| 320,518 |
| 267,017 | |
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Long-term liabilities |
| 51,092 |
| 62,246 | ||||
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Stockholders' equity: |
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| Deckers Outdoor Corporation stockholders' equity: |
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| |||
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| Common stock |
| 346 |
| 344 | ||
|
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| Additional paid-in capital |
| 143,916 |
| 139,046 | ||
|
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| Retained earnings |
| 746,500 |
| 600,811 | ||
|
|
| Accumulated other comprehensive loss |
| (2,643) |
| (1,400) | ||
|
|
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| Total stockholders' equity |
| 888,119 |
| 738,801 | |
|
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| Total liabilities and equity | $ | 1,259,729 |
| 1,068,064 | |
DECKERS OUTDOOR CORPORATION | |||||||||||
AND SUBSIDIARIES | |||||||||||
Consolidated Statements of Comprehensive Income | |||||||||||
(Unaudited) | |||||||||||
(Amounts in thousands, except for per share data) | |||||||||||
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| Three-month period ended |
| Twelve-month period ended | |||||||
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| December 31, |
| December 31, | |||||||
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| 2013 |
| 2012 |
| 2013 |
| 2012 | |||
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Net sales | $ | 736,048 |
| 617,264 | $ | 1,556,618 |
| 1,414,398 | |||
Cost of sales |
| 359,848 |
| 331,270 |
| 820,135 |
| 782,244 | |||
|
| Gross profit |
| 376,200 |
| 285,994 |
| 736,483 |
| 632,154 | ||
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| ||
Selling, general and administrative expenses |
| 174,701 |
| 141,880 |
| 528,586 |
| 445,206 | |||
|
| Income from operations |
| 201,499 |
| 144,114 |
| 207,897 |
| 186,948 | ||
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Other expense, net |
| 1,102 |
| 2,803 |
| 2,340 |
| 2,830 | |||
|
| Income before income taxes |
| 200,397 |
| 141,311 |
| 205,557 |
| 184,118 | ||
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Income tax expense |
| 59,500 |
| 43,254 |
| 59,868 |
| 55,104 | |||
|
| Net income |
| 140,897 |
| 98,057 |
| 145,689 |
| 129,014 | ||
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Other comprehensive (loss) income, net of tax |
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| |||
|
| Unrealized (loss) gain on foreign currency hedging |
| (34) |
| 313 |
| (486) |
| (633) | ||
|
| Foreign currency translation adjustment |
| (1,892) |
| (1,410) |
| (757) |
| 963 | ||
|
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| Total other comprehensive (loss) income |
| (1,926) |
| (1,097) |
| (1,243) |
| 330 | |
|
| Comprehensive income | $ | 138,971 |
| 96,960 | $ | 144,446 |
| 129,344 | ||
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Net income attributable to: |
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| |||
|
| Deckers Outdoor Corporation |
| 140,897 |
| 98,057 |
| 145,689 |
| 128,866 | ||
|
| Noncontrolling interest |
| - |
| - |
| - |
| 148 | ||
|
|
| $ | 140,897 |
| 98,057 | $ | 145,689 |
| 129,014 | ||
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Comprehensive income attributable to: |
|
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|
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|
| |||
|
| Deckers Outdoor Corporation |
| 138,971 |
| 96,960 |
| 144,446 |
| 129,196 | ||
|
| Noncontrolling interest |
| - |
| - |
| - |
| 148 | ||
|
|
| $ | 138,971 |
| 96,960 | $ | 144,446 |
| 129,344 | ||
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Net income per share attributable to Deckers |
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Outdoor Corporation common stockholders: |
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| |||
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| Basic | $ | 4.08 |
| 2.81 | $ | 4.23 |
| 3.49 | ||
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| Diluted | $ | 4.04 |
| 2.77 | $ | 4.18 |
| 3.45 | ||
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Weighted-average common shares outstanding: |
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| Basic |
| 34,541 |
| 34,930 |
| 34,473 |
| 36,879 | ||
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| Diluted |
| 34,893 |
| 35,373 |
| 34,829 |
| 37,334 | ||
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CONTACT: Linda Pazin, VP, Investor Relations & Communications, (805) 967-7611 or Investor Relations, Brendon Frey, ICR, (203) 682-8200