EX-10.8 10 dex108.htm EMPLOYMENT AGREEMENT - DONALD D. BREEN EMPLOYMENT AGREEMENT
Exhibit 10.8
This EMPLOYMENT AGREEMENT (“Agreement”) is entered into as of May 10, 2006, by and between Services Acquisition Corp. International (the “Company”) (to be renamed Jamba, Inc. upon consummation of the merger between JJC Acquisition Company and Jamba Juice Company, pursuant to that certain Agreement and Plan of Merger, dated as of March 10, 2006, by and among the Company, JJC Acquisition Company and Jamba Juice Company (the “Merger Agreement”)), and Xxxxxx Xxxxx, an individual resident of the State of California (the “Employee”). Capitalized terms used herein but not otherwise defined herein shall have their respective meanings as set forth in the Merger Agreement.
In consideration of the mutual representations, warranties, covenants and agreements contained in this Agreement, the parties hereto agree as follows:
1) | Employment; Term; Compensation. |
(i) | an annual base salary of $300,000 (the “Salary”), payable in accordance with the Company’s customary payroll practices, which Salary will be reviewed annually by the Compensation Committee of the Board; |
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(ii) | a target bonus of up to 50% of Employee’s Salary for the 2007 fiscal year of Jamba Juice Company, based on targets reasonably established by the Board (or the appropriate committee thereof) and communicated to Employee within 90 days following the Effective Date. Thereafter any annual bonus shall be as determined in good faith by the Compensation Committee of the Board. The payment of any such bonuses will be made within 90 days after the close of the Jamba Juice Company fiscal year, but in no event prior to receipt by the Company of its annual audited financial statements; |
(iii) | (A) an initial option grant of 275,000 shares, made at the Effective Date, with a strike price equal to the fair market value of the Company’s common stock at the date of grant as defined in the Company’s 2006 Employee, Director and Consultant Stock Plan (the “Plan”) (the “Initial Option Grant”). Following the Initial Option Grant, any other grants of options or restricted stock to the Employee, and the terms and conditions thereof, will be determined by the Board (or appropriate committee thereof), and (B) an initial restricted stock grant of 40,000 shares with equal annual vesting over a four year period (the “Initial Restricted Stock Grant”). Following the Initial Option Grant and Initial Restricted Stock Grant, any other grants of options or restricted stock to the Employee, and the terms and conditions thereof, will be determined by the Board (or appropriate committee thereof); and |
(iv) | all options and restricted stock granted pursuant to Id) (iii) above shall be 100% vested upon termination without cause pursuant to Section 2)b or a Change of Control that occurs prior to the first anniversary of the Effective Date. For purposes of this Agreement Change of Control is defined as (a) a sale of substantially all of the assets of the Company, (b) a merger of or consolidation with an unaffiliated third party in which the Company is not the surviving corporation (c) a reverse merger with an unaffiliated third party in which the Company is the surviving corporation but the shares of common stock of the Company outstanding immediately preceding the merger are converted by virtue of the merger into other property, or (d) an acquisition by any person, entity or group within the meaning of Section 13 (d) or 14(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”) or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the company) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rule) of securities of the Company representing at least fifty percent (50%) of the combined voting power entitled to vote in the election of directors of the Board. All options and restricted stock granted pursuant to Id) (iii) above shall also be governed by the terms of the Plan. |
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2) | Termination. |
b) |
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continue to pay Employee, as severance, Salary for a period of twelve (12) months following the date of termination (“Severance Period”). In addition, if at any time during the Severance Period the Employee was entitled to receive a bonus as set forth in this Agreement, the Company shall also pay to Employee the bonus to which Employee would have been entitled had Employee remained employed with the Company. All benefits shall, unless otherwise provided by Company policy applicable to its employees generally or otherwise required by law, terminate on the date of termination. |
c) | Notwithstanding any other provision with respect to the timing of payments under this Section 2, if, at the time of the Employee’s termination, the Employee is deemed to be a “specified employee” (within the meaning of Section 409A of the Code, and any successor statute, regulation and guidance thereto) of the Company, then only to the extent necessary to comply with the requirements of Section 409A of the Code, any payments to which the Employee may become entitled under this Section 2 which are subject to Section 409A of the Code (and not otherwise exempt from its application) will be withheld until the first business day of the seventh month following the termination of the Employee’s employment, at which time the Employee shall be paid an aggregate amount equal to six months of payments otherwise due to the Employee under the terms of this Section 2, as applicable. After the first business day of the seventh month following the termination of the Employee’s employment and continuing each month thereafter, the Employee shall be paid the regular payments otherwise due to the Employee in accordance with the terms of this Section 2, as applicable. |
3) | Non-Solicitation. |
a) | In consideration of the foregoing, the Employee agrees that during the Term and for a period of one (1) year following termination of the Term for any or no reason, the Employee shall not directly or indirectly: |
i) | induce any customer, franchisee or licensee of any of the Employer Companies (as herein defined) to patronize any business that is directly or indirectly in competition with the Protected Business (as herein defined) conducted by any of the Employer Companies; (B) canvass or solicit from any person or entity which is a franchisee or licensee of the Protected Business conducted by any of the Employer Companies, any such competitive business; or (C) request or advise any customer, supplier, franchisee or licensee of the Protected Business conducted by any of the Employer Companies to withdraw, curtail or cancel any such customer’s, franchisee’s or licensee’s business with any of the Employer Companies; and/or |
ii) | employ or engage any person who serves in a managerial capacity who is then employed or engaged by any of the Employer Companies or who was within the six-month period prior thereto employed or engaged by any of the Employer Companies, or in any manner seek to induce any employee or independent contractor of any of the Employer Companies to leave its, his or her employment or engagement. |
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b) | “Protected Business” Defined. As used in this Agreement, the term “Protected Business” means the business of owning, operating, franchising or licensing any business that provides any or all of the following: |
i) | the retailing of fruit smoothies, juices, blended beverages and healthy snacks; |
or
ii) | the wholesale sale or distribution of fruit smoothies, juices, blended beverages and healthy snacks. |
c) | “Employer Companies” Defined. As used in this Agreement, the term “Employer Companies” means the Company or any of its subsidiaries or affiliates or any entity in which any of the foregoing owns, directly or indirectly, any securities or other interests or which any of the foregoing controls, or any of their respective franchisees or licensees, or any successors or assigns of any of the foregoing. |
4) | Confidentiality. |
The Employee agrees that at all times during and after the Term, the Employee shall (i) hold in confidence and refrain from disclosing to any other party all information, whether written or oral, tangible or intangible, of a private, secret, proprietary or confidential nature, of or concerning any of the Employer Companies and their respective businesses and operations, and all files, letters, memoranda, reports, records, computer disks or other computer storage medium, data, models or any photographic or other tangible materials containing such information (collectively hereinafter referred to as “Confidential Information”), including without limitation, any sales, promotional or marketing plans, programs, techniques, practices or strategies, pricing information, any expansion plans (including existing and entry into new geographic and/or product markets), and any customer lists, supplier lists or lists of prospective franchisees or licensees, (ii) use the Confidential Information solely in connection with the Employee’s employment with the Employer Companies and for no other purpose, (iii) take all reasonable precautions necessary to ensure that the Confidential Information shall not be, or be permitted to be, shown, copied or disclosed to any third parties, without the prior written consent of the Company, and (iv) observe all security policies implemented by the Company from time to time with respect to the Confidential Information. In the event that the Employee is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or otherwise, the Employee shall provide the Company with prompt notice of such request or order so that the Company may seek to prevent disclosure. In the case of any disclosure, the Employee shall disclose only that portion of the Confidential Information that the Employee is ordered to disclose.
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5) | Employee Creations. |
7) |
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breach of any agreement with a former employer, client or any other person or entity. Further, the Employee agrees to indemnify the Company for all losses, liabilities, claims, costs or damages incurred by the Company, including, but not limited to, reasonable attorney’s fees, costs and expenses of investigation, arising or resulting from any reasonable claim by any third party based upon or arising out of any non-competition agreement, invention or secrecy agreement between the Employee and such third party that was in existence as of the Effective Date. |
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14) | Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an original but all of which together shall constitute one and the same instrument. |
15) | Governing Law. This Agreement shall be construed in accordance with and governed for all purposes by the laws of the State of California applicable to contracts executed and to be wholly performed within such State, except that no doctrine of choice of law shall be used to apply any law other than that of the State of California. |
16) |
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warranties (whether in writing or otherwise) that the other is entitled to rely upon, and each hereby disclaims any other statements, representations or warranties (whether in writing or otherwise) made by each party or, as applicable, any of the officers, directors, members, managers, employees, agents, financial and legal advisors or other representatives of such party with respect to the preparation, execution and delivery of this Agreement and any exhibit, schedule or document attached hereto, or the transactions contemplated hereby, notwithstanding the delivery or disclosure to the other or the other’s representatives of any documentation or other information (whether oral or written) with respect to any one or more of the foregoing. |
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
SERVICES ACQUISITION CORP. INTERNATIONAL | ||||
By: | /s/ Xxxxxx Xxxxx | |||
Name: Xxxxxx Xxxxx | ||||
Title: Director | ||||
EMPLOYEE: | ||||
/s/ Xxxxxx Xxxxx | ||||
Address for Notices: | ||||
Telecopy: |
EXHIBIT A
ASSIGNMENT OF CREATIONS
For good and valuable consideration which has been received, the undersigned sells, assigns, transfers to Jamba, Inc. (the “Company”), and the Company’s successors and assigns, and Company accepts such sale, assignment and transfer of all rights, title and interest of Employee, vested and contingent, in and to Creations (as defined by that certain Employment Agreement between the undersigned and the Company), and all associated intellectual property rights (including without limitation, patent, copyright, moral right, mask-work, and trade secret rights), that were conceived, reduced to practice, created, derived, developed or made during the term that the Employee performs work on behalf of the Company.
Executed this 10th day of May, 2006 | ||||||||
Employee | Company | |||||||
By: | /s/ Xxxxxx Xxxxx | By: | /s/ Xxxxxx Xxxxx | |||||
Name: | Xxxxxx Xxxxx | Name: | Xxxxxx Xxxxx | |||||
Title: | CFO | Title: | Director | |||||
Date: | 5/10/06 | Date: | 5/12/06 |
EXHIBIT B
California Labor Code § 2870 provides as follows:
(a) | Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either: |
(1) | Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or |
(2) | Result from any work performed by the employee for the employer. |
(b) | To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable. |
(Amended by Stats. 1991, c. 647 (S.B.879), § 5)
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment (“Amendment”) is entered into as of November 29, 2006, by and among Jamba, Inc., a Delaware corporation formerly named Services Acquisition Corp. International (the “Company”), Jamba Juice Company, a California corporation and wholly-owned subsidiary of the Company (“Jamba Juice”), and the undersigned individual (the “Employee”).
WHEREAS, an Employment Agreement was entered into as of May 10, 2006 (the “Agreement”) between the Company and Employee, which Agreement shall be effective upon the closing of the transactions contemplated by that certain Agreement and Plan of Merger, dated as of March 10, 2006, by and among the Company, JJC Acquisition Company and Jamba Juice (the “Closing”);
NOW, THEREFORE, effective as of the Closing, it is hereby agreed as follows:
1. Assignment. Company hereby assigns to Jamba Juice, and Jamba Juice hereby assumes, each of the rights, duties and obligations of the Company identified in Sections 1, 2, 5, 6 and 8 of the Agreement such that Jamba Juice shall be the employer of Employee; provided, however, the Company shall continue to be the issuer of the options and restricted stock reference in Section 1.d.(iii).
2. Amendment. Jamba Juice shall be joined as a party to the Agreement, and any reference to “Company” in the sections set forth above in paragraph 1 herein shall be deemed to refer to Jamba Juice except for paragraphs 1.d.(iii) and 1.d.(iv) which shall continue to refer to the Company. Furthermore any references to the Company’s Board of Directors (the “Board”) or the Compensation Committee of the Board in the above- referenced sections shall be deemed to be a reference to Jamba Juice’s Board of Directors acting in a manner consistent with the Company’s Board and the Company’s Compensation Committee. Paragraphs 3 through 9 shall be deemed to inure to the benefit of both the Company and Jamba Juice.
3. Confirmation. All other terms, conditions and contained in the Agreement shall continue in full force and effect.
4. Counterparts. This Amendment may be signed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one instrument.
/s/ Xxxxxx Xxxxx | ||
Xxxxxx Xxxxx | ||
Jamba, Inc. | ||
By: | /s/ Xxxx Xxxxxxx | |
Name: Xxxx Xxxxxxx | ||
Title: President and CEO | ||
Jamba Juice Company | ||
By: | /s/ Xxxx Xxxxxxx | |
Name: Xxxx Xxxxxxx | ||
Title: President and CEO |