EXHIBIT 10.10
BONUS COMPENSATION AGREEMENT
THIS BONUS COMPENSATION AGREEMENT (this "Agreement") is made and entered
into as of June 29, 2005, between Caribou Coffee Company, Inc., a Minnesota
corporation (the "Company"), and Xxxxxxx X. Xxxxx, an individual resident of the
State of Georgia ("Employee").
RECITALS :
WHEREAS, the Company and Employee are parties to that certain Employment
Agreement dated as of May 30, 2003 (the "Existing Employment Agreement");
WHEREAS, the Company and Employee desire to amend and restate the Existing
Employment Agreement in the form of a new employment agreement, dated the date
hereof (the "Restated Employment Agreement"), which agreement shall provide the
terms and conditions upon which Employee shall serve as an employee of the
Company on or after the effective date of the Restated and Employment Agreement;
and
WHEREAS, in consideration for the Employee entering into the Restated
Employment Agreement, the Company desires to issue to the Employee the Bonus (as
defined in Section 1 hereof);
AGREEMENT
NOW THEREFORE, in consideration of the promises and mutual agreements set
forth in this Agreement, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. BONUS COMPENSATION AWARD. The Company and Employee hereby agree
that, upon Executive's execution and delivery of each of the Restated Employment
Agreement, this Agreement and the Instrument of Adherence (as set forth in
Section 3 hereof), the Company shall (a) deliver to Employee's account pursuant
to the wire transfer instructions attached hereto as Exhibit A a lump sum cash
payment of $750,000 in immediately available funds (subject to any withholding
obligations as set forth in Section 4 of this Agreement) (the "Cash Award") and
(b) issue to Employee 75,000 shares of the Company's common stock, par value
$0.01 per share (the "Bonus Shares;" together with the Cash Award, the "Bonus").
SECTION 2. STOCK CERTIFICATE. The Company shall issue a stock certificate
in the name of Employee dated the date hereof representing the Bonus Shares.
Employee acknowledges and understands that the certificate representing the
Bonus Shares will bear a legend to the following effect unless the Company
determines otherwise in compliance with applicable law:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER ANY STATE SECURITIES LAWS OR UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), IN
RELIANCE UPON VARIOUS EXEMPTIONS THEREFROM. THESE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT FOR THE REGISTERED OWNER'S OWN ACCOUNT AND NOT
WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE, TRANSFER OR OTHER
DISTRIBUTION THEREOF. NO SUCH SALE, TRANSFER OR OTHER DISPOSITION MAY BE
EFFECTED, NOR WILL ANY ASSIGNEE OR TRANSFEREE THEREOF BE RECOGNIZED BY THE
CORPORATION, WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO
OR A NOTICE FROM THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT, OR ANY APPLICABLE STATE OR OTHER SECURITIES LAWS
OR OTHER APPLICABLE U.S. OR NON-U.S. LAWS OF SIMILAR IMPORT.
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO CERTAIN RIGHTS,
RESTRICTIONS AND OBLIGATIONS CONTAINED IN A SHAREHOLDERS' AGREEMENT DATED
THE 27TH DAY OF DECEMBER 2000, COPIES OF WHICH ARE ON FILE AT THE
PRINCIPAL OFFICE OF THE CORPORATION."
SECTION 3. INSTRUMENT OF ADHERENCE. In connection with the issuance of the
Bonus Shares and pursuant to the terms of that certain Shareholders' Agreement
(the "Shareholders' Agreement") by and among the Company, Employee and the other
parties listed on the signature pages attached thereto, dated December 27, 2000,
Employee shall deliver to the Company a duly executed Instrument of Adherence
(as defined in the Shareholders' Agreement) dated the date hereof.
SECTION 4. MISCELLANEOUS.
(a) WITHHOLDING. Employee's signing of this Agreement shall constitute
Employee's consent and agreement for any tax withholding required as
a result of the Company's delivery of the Bonus, to be withheld from
Employee's regular cash compensation or pursuant to such other means
as the Company deems reasonable and appropriate under the
circumstances.
(b) COMPLETE AGREEMENT; WAIVER; AMENDMENT. Employee has no oral
representations, understandings, or agreements with the Company or
any of its officers, directors, or representatives covering the same
subject matter as this Agreement. This Agreement and the Restated
Employment Agreement are the final, complete, and exclusive
statements of expression of the agreement between the Company and
Employee with respect to the subject matter hereof, and cannot be
varied, contradicted, or supplemented by evidence of any prior or
contemporaneous oral or written agreements. This written Agreement
may not be later modified except by a further writing signed by a
duly authorized officer of the Company and Employee, and no term of
this agreement may be waived except by a writing signed by the party
waiving the benefit of such term.
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(c) NOTICE. Whenever any notice is required hereunder, it shall be given
in writing addressed as follows:
To the Company: Caribou Coffee Company, Inc.
Attn: Chief Financial Officer
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to: Arcapita Inc.
Attn.: Xx. Xxxxxxx X. Xxxxxx
00 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
To Employee: Xx. Xxxxxxx X. Xxxxx
Caribou Coffee Company, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to: Xx. Xxxxxxx X. Xxxxx
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
(d) SEVERABILITY; HEADINGS. If any provision of the Agreement is
rendered or declared illegal or unenforceable by reason of any
existing or subsequently enacted legislation or by the decision of
any arbitrator or by decree of a court of last resort, the parties
shall promptly meet and negotiate substitute provisions for those
rendered or declared illegal or unenforceable to preserve the
original intent of this Agreement to the extent legally possible,
but all other provisions of this Agreement shall remain in full
force and effect.
(e) JOINTLY DRAFTED. The parties and their respective counsel have
participated jointly in the negotiation and drafting of this
Agreement. In the event that an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
(f) GOVERNING LAW. This Agreement shall in all respects be governed by
and construed in accordance with the laws of the State of Minnesota,
not including the choice-of-law rules thereof. All disputes arising
from or relating to this
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Agreement shall be subject to the exclusive jurisdiction of and be
litigated in the state or federal courts located in the State of
Minnesota. All parties hereby consent to the exclusive jurisdiction
and venue of such courts for the litigation of all disputes and
waive any claims of improper venue, lack of personal jurisdiction,
or lack of subject matter jurisdiction as to any such disputes.
(g) ATTORNEY'S FEES. The losing party shall be liable to the prevailing
party for its reasonable costs and attorney's fees incurred in any
action to enforce this Agreement.
[Signatures commence on next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
CARIBOU COFFEE COMPANY, INC.
/s/ Xxxxxx Xxxxxxxxx
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By: Xxxxxx Xxxxxxxxx
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Title: Chief Financial Officer
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EMPLOYEE:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
