EMPLOYMENT AGREEMENT
Exhibit 10.1
EXECUTION COPY
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of the
1st day of August, 2008 (the “Effective Date”) by and between Caribou Coffee
Company, Inc., (the “Company”) and Xxxxxxx Xxxxxxxxxxxx (“Employee”).
R E C I T A L S
WHEREAS, The Company desires to employ Employee and to have the benefit of his skills
and services, and Employee desires to accept employment with the Company, on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, terms, covenants, and conditions set
forth herein, and the performance of each, the parties hereto, intending to be legally bound,
agree as follows:
AGREEMENTS
§1. Term. The term of this Agreement shall begin on the Effective Date and shall end
on the fourth anniversary of the Effective Date (the “Initial Term”), unless extended or
earlier terminated in accordance with the terms of this Agreement (the Initial Term and any
extension or earlier termination thereof is referred to as the “Term”). If not earlier
terminated, the Term of this Agreement shall be automatically extended for an additional one (1)
year on the fourth anniversary of the Effective Date and on each anniversary of such date unless,
at least sixty (60) days before the fourth anniversary of the Effective Date or on any subsequent
anniversary thereof, one party has given the other party written notice of its or his intention
not to extend the Term, in which case the Term and Employee’s employment shall automatically
terminate at the end of the Initial Term or applicable anniversary thereof.
§2. Position and Duties. The Company hereby employs Employee as the President and
Chief Executive Officer of the Company. Employee shall have such responsibilities, duties, and
authorities as are typically commensurate with those positions and as are assigned to him by
Company’s Board of Directors (the “Board”). Employee shall fulfill his duties and
responsibilities in a reasonable and appropriate manner and in compliance with the Company’s
policies and practices and the laws and regulations that apply to the Company’s operation and
administration. During the Term, Employee shall devote his full business time and attention to the
business and affairs of the Company and shall not be engaged in, or employed by or provide services
to, any other business enterprise without the written approval of the Board. Employee warrants and
represents that he is under no fiduciary or contractual obligation to another business or employer
that would prevent Employee from being employed by the Company as set forth herein; provided,
however, that nothing herein shall be construed as precluding Employee from devoting a
reasonable amount of time to current board of director commitments (Xxxxx Xxxxx Pizza and Cycle
Gear), civic or charitable, or similar activities, so long as such activities do not materially
interfere with the performance of Employee’s duties hereunder. So long as Employee is President and
Chief Executive Officer, the Company shall use its best efforts to have Employee nominated and
elected to the Board; provided, however, that Employee shall not be
entitled to vote on any matters brought before the Board which relate directly to his
compensation or employment.
§3. Compensation. For all services rendered by Employee, the Company shall
(subject to applicable tax withholding requirements) compensate Employee as follows:
(a) Base Salary. As of the Effective Date, the gross annual salary payable to
Employee shall be at least Four Hundred Twenty-Five Thousand Dollars ($425,000.00) per year
payable on a regular basis in accordance with the Company’s standard payroll policies and
procedures (the “Base Salary”). The Base Salary shall be subject to adjustment by the
Board (or a properly formulated committee of the Board to which such responsibility is delegated) from
time-to-time in its discretion.
(b) Perquisites, Benefits, and Other Compensation. Employee shall be
eligible for the same perquisites and benefits as are made available to other senior executive
employees of the Company, as well as such other perquisites or benefits as may be specified
from time to time by the Company. The Company reserves the right at any time and from time
to time to change, amend, or terminate any such perquisites and benefits as the Company in its
discretion deems appropriate or necessary under the circumstances.
(c) Annual Bonus. Employee shall be eligible for an annual bonus each fiscal
year (“Annual Bonus”) of up to one-hundred percent (100%) of Employee’s then-existing
Base
Salary paid for such year, as determined by the Board based upon the Company’s achievement of
financial and other goals approved by the Board, provided Employee remains employed by the
Company through the end of such fiscal year. Employee’s Annual Bonus for each fiscal year
shall be paid in accordance with the Company’s customary practices for payment of annual
bonuses, but shall be paid in any event no later than March 15 immediately following the end
of
such fiscal year. For the 2008 fiscal year, the target Annual Bonus will be a pro-rata
percentage
of Base Salary equal to 100% times the number of days remaining in the calendar year as of the
Effective Date divided by 365. Employee shall propose to the Board in good faith any
adjustments to the Company’s existing bonus plan and targets for 2008.
(d) Stock Options and Restricted Stock. Employee shall be eligible for grants
of equity-based compensation under the Caribou Coffee Company, Inc. 2005 Equity Incentive
Plan and any successor plan thereto (the “Plan”), as such grants are determined by the
committee
administering the Plan in its sole discretion.
§4. Expense Reimbursement. The Company shall reimburse Employee for (or, at the
Company’s option, pay) all reasonable and proper business travel and other out-of-pocket expenses
incurred by Employee in the performance of his duties and responsibilities to the Company under § 2
during the Term. All reimbursable expenses shall be appropriately documented in reasonable detail
by Employee upon submission of any request for reimbursement, and in a format and manner consistent
with the Company’s expense reporting and reimbursement policies and applicable federal and state
tax recordkeeping requirements. All approved expenses shall be paid within a reasonable time (not
later than March 15 of Employee’s taxable year following the taxable year in which an expense was
incurred following the presentation of appropriate invoices to the Company). Any expenses paid
during any taxable
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year of Employee will not affect the expenses paid by the Company in another taxable year.
Employee’s right to reimbursement of expenses is not subject to liquidation or exchange for
another benefit.
§5. Place of Performance.
(a) Employee shall carry out his duties and responsibilities under § 2
principally in and from the Company’s headquarters, which currently is in Minneapolis,
Minnesota. Employee acknowledges and agrees his position may involve substantial business
travel.
(b) In connection with Employee’s relocation to the Company’s headquarters,
the Company shall pay to Employee $100,000 (less applicable withholdings) within ten (10)
business days after the Effective Date; provided, however, that such amount shall be
repaid by
Employee to the Company within ten (10) business days of Employee’s termination of
employment should Employee terminate his employment with the Company without Good
Reason (as defined below) on or before September 10, 2009. Further, the Company shall
reimburse Employee for his actual, direct moving expenses incurred in connection with
Employee’s relocation to the Company’s headquarters in accordance with the Company’s
relocation policy provided Employee timely submits the necessary documentation to substantiate
such expenses. In addition If Employee has relocated his primary residence to the Minneapolis,
Minnesota metropolitan area and Employee elects to sell his primary residence in Ohio, then
the
Company shall pay to Employee an amount equal to six percent (6%) of the contract price of
such primary residence (subject to applicable tax withholdings) promptly after Employee
provides appropriate documentation of such proceeds to the Company within six weeks of such
sale. Employee’s right to these payments is not subject to liquidation or exchange for any
other benefit.
§6. Termination; Rights on Termination. Employee’s employment and the Term may
be terminated in any one of the following ways:
(a) Termination by the Company for Good Cause. The Company may terminate the Term and
Employee’s employment for Good Cause. For purposes of this Agreement, “Good Cause” shall be
determined by the Board acting in good faith and shall mean: (i) Employee’s breach of any material
provision of this Agreement, or Employee’s negligence in the performance or nonperformance of any
of Employee’s material duties or responsibilities after (x) the Board has in good faith issued
Employee a written statement identifying the breach or negligence; (y) the Board has provided the
Employee 10 business days in which to cure the breach or negligence; and (z) Employee fails to cure
the breach or negligence; (ii) Employee’s dishonesty, fraud, or detrimental misconduct with respect
to the business or affairs of the Company; (iii) Employee’s conviction of a felony or conviction of
a misdemeanor involving theft, fraud, dishonesty or act of moral turpitude, or a plea of “guilty,”
“no contest,” or “nolo contendre” to the same; or (iv) Employee’s failure to implement and monitor
compliance with policies reasonably designed to comply with the requirements of the Xxxxxxxx-Xxxxx
Act of 2002 to the extent such law is applicable to the Company. In the event of termination of
Employee’s employment for Good Cause, no compensation or benefits shall be payable to Employee
after the date of termination, except as provided for in § 6(f).
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(b) Termination for Employee’s Death or Disability. In the event that
Employee dies or becomes Disabled, no compensation or benefits shall be payable to Employee
or his estate after the date of termination, except as provided for in § 6(f).
“Disabled” shall mean that the Employee has a physical or mental disability that the Board reasonably determines is
preventing Employee, even after reasonable accommodation, from performing the essential
functions of his position.
(c) Termination by the Company Without Good Cause. At any time during
the Term, the Company may, without Good Cause and for any reason whatsoever, terminate the
Term and Employee’s employment. Termination by the Company without good cause shall
include the Company deciding not to extend this Agreement under §1. In the event Employee’s
employment is terminated during the Term without Good Cause, and provided that Employee
fully complies with his obligations under §7 through §10 of this Agreement, then Employee
shall
be entitled to compensation pursuant to § 6(g).
(d) Termination by Employee For Good Reason. Employee may terminate
the Term and resign for Good Reason. “Good Reason” shall mean: (i) a reduction in or
material
delay in payment of Base Salary to which Employee has not consented; or (ii) Employee ceases
to hold position and title of Chief Executive Officer as contemplated by § 2, or a position
and
title of a more senior position which Employee accepts; (iii) failure of Employee to be
nominated
and elected to the Board as contemplated by § 2; (iv) Employee is assigned, without Employee’s
consent, authority or responsibility materially inconsistent with authority and responsibility
as
contemplated by § 2, including without limitation any material diminution of Employee’s
responsibility for supervision of Company personnel; provided, however, that the
Board’s
appointment of a non-executive Chairman or other Board member to assist or advise Employee
with respect to his duties as CEO shall not constitute Good Reason; (v) any requirement is
imposed by the Company or under direction of the Board or any person controlling the Company
for Employee to reside outside of the Minneapolis, Minnesota metropolitan area; (vi) a
determination by Employee acting in good faith that there has been a breach by the Company of
a material provision of this Agreement; or (vii) any resignation by Employee within one year
from the occurrence of a “Change in Control” as defined in the Plan; provided,
however, Good
Reason shall not exist unless (x) Employee, before his resignation, gives the Board a written
statement of the basis for Employee’s determination that Good Reason exists, (y) Employee
gives the Board at least ten (10) business days after receipt of such statement to cure the
basis for
such determination and (z) the Board fails cure the basis for such determination. In the event
Employee resigns for Good Reason, and provided that Employee fully complies with his
obligations under §7 through §10 of this Agreement, then Employee shall be entitled to
compensation pursuant to § 6(g).
(e) Termination by Employee Without Good Reason. Employee may resign
for any reason or no reason, effective thirty (30) days after he provides written notice of
his
intent to resign to the Company. In such event, no compensation or benefits shall be payable
to
Employee after the date of termination, except as provided for in § 6(f).
(f) Payment Through Termination. Upon termination of Employee’s
employment for any reason except a termination by the Company without Good Cause or a
resignation by Employee for Good Reason, Employee shall be entitled to receive all
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compensation earned and all benefits and reimbursements due under this Agreement through the
effective date of his termination of employment. No other compensation or benefits will be due or
payable to Employee pursuant to this Agreement subsequent to such termination except as expressly
provided by this § 6 or as otherwise required by law or agreements with the Company which are
independent of this Agreement.
(g) Payment for Termination Without Good Cause or For Good Reason. In the event Employee’s
employment is terminated by the Company without Good Cause or Employee resigns for Good Reason, and
provided that Employee fully complies with his obligations under §7 through §10 of this Agreement,
then Employee shall be entitled to: (i) all compensation earned and all benefits and reimbursements
due under this Agreement through the effective date of his termination; (ii) the payment of
Employee’s then current monthly Base Salary on the Company’s regularly scheduled monthly pay dates
for a period of eighteen (18) months from the date Employee incurs a “separation from service”
(within the meaning of Internal Revenue Code (“Code”) Section 409A (“Separation from Service”),
pursuant to the Company’s standard payroll policies and procedures; provided, however, that
if Employee fails to relocate his principal residence to the Minneapolis, Minnesota metropolitan
area prior to September 30, 2009, the Company’s obligation to continue Employee’s Base Salary shall
be reduced to twelve (12) months; (iii) an amount equal to the average of the Annual Bonuses
(including no Annual Bonus, if applicable) paid to Employee for the two full fiscal years most
recently concluded prior to the Separation from Service, payable in a lump sum within thirty (30)
days from such Separation from Service; provided further, however, to the extent Employee
is a “specified employee” (within the meaning of Code Section 409A) no such payments of Base Salary
or Annual Bonus as provided herein shall be made until the first regularly scheduled pay date that
occurs after the date which is six (6) months and one day after Employee incurs a Separation from
Service and on such pay date, the Company shall pay Employee all payments that otherwise would have
been paid during such six-month period but for the fact that the Employee is a “specified
employee”; and (iv) if Employee exercises his right under applicable law to elect continued
coverage under the Company’s health insurance plan (“COBRA Coverage”), the Company shall
reimburse Employee each month for his cost to purchase such COBRA Coverage until the earlier of
eighteen (18) months from the date of a Separation from Service, such time as Employee becomes
eligible for coverage under a subsequent employer’s group health plan, or if Employee fails to
relocate his principal residence to the Minneapolis, Minnesota area prior to September 30, 2009,
twelve (12) months from the date of a Separation from Service. However, if Employee breaches any of
his obligations under §7 through §10 of this Agreement, Employee, in addition to being subject to
any remedies and sanctions available under §16, shall (x) forfeit his right to his salary
continuation under clause (ii) of this §6(g) and his right to reimbursement for his cost to
purchase COBRA Coverage under clause (iii) of this § 6(g), and (y) shall have an obligation to
immediately repay the Company for all such salary continuation payments and COBRA Coverage
reimbursements previously made by the Company and, (z) shall immediately forfeit Employee’s right
to exercise any and all unexercised stock options granted to Employee under the Plan, whether then
vested or unvested. Notwithstanding any other provision in this Agreement, as a condition to the
Company’s payment of any post-employment amounts to Employee pursuant to this § 6(g), Employee
shall execute a full and complete release, in the form attached hereto as Exhibit A, on
behalf of himself and his heirs, executors, administrators, trustees and assigns, releasing all
claims, actions and causes
of action against the Company and each subsidiary and affiliate of the
Company, and their respective
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predecessors, successors, current and former directors, officers, administrators,
trustees, employees, agents and other representatives.
(h) Provisions that Survive Termination or Expiration of Agreement. All rights and
obligations of the Company and Employee under this Agreement shall cease as of the effective date
of the termination of Employee’s employment or the expiration of this Agreement, except that (i)
the Company’s payment obligations under § 6 shall survive such termination or expiration in
accordance with their terms, and (ii) Employee’s obligations under §7 through §10 and the
Company’s rights under § 16 shall survive such termination or expiration in accordance with their
terms.
(i) Right to Offset. In the event of any termination of Employee’s employment under this
Agreement for any reason, the Company’s obligation to make any payments under this Agreement shall
be subject to offset for, among other items, any loans or other obligations that Employee has with
the Company. All payments and benefits payable under this Agreement are gross payments subject to
applicable withholdings.
(j) Compliance with Code Section 409A. The parties intend for all payments and benefits
described in this Agreement to be either exempt from, or fully compliant with, Code Section 409A.
§7. Employee Covenants.
(a) During Employee’s employment with the Company and for a period of eighteen (18) months
thereafter, Employee shall not, either directly or indirectly, for himself or on behalf of or in
conjunction with any other person, company, partnership, corporation, business, group, or other
entity (each, a “Person”):
(i) engage, within the Territory, as an officer, director, a five percent or greater
shareholder or equity owner, partner, member, joint venturer, or in a managerial capacity (whether
as an employee, independent contractor, or consultant), in any business engaged in the Business
(as defined below) of the Company;
(ii) solicit or attempt to solicit, recruit or attempt to recruit to leave the Company’s
employ any employee, agent, or contract worker of the Company or the Associated Companies (as
defined below) with whom Employee had contact during the course of his employment with the
Company;
(iii) solicit or attempt to solicit any business related to the Business of the Company from
any Person who, as of the date of the solicitation or attempted solicitation or within twelve (12)
months prior to that date, is or was a commercial customer of the Company or an actively sought
prospective commercial customer with whom Employee had contact (through sales calls, presentations,
or other business dealings) during the course of his employment with the Company; or
(iv) solicit or attempt to solicit, recruit or attempt to recruit any employee, agent, or
contract worker of a material supplier of the Company who, as of or within the prior twelve (12)
months is or was a material supplier of the Company with whom Employee
had contact through business dealings during the course of his employment with the Company.
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(b) For purposes of §7 through § 10:
(i) References to the “Territory” shall mean the states or provinces in which the
Company does business as of the date Employee’s employment with the Company terminates. Employee
acknowledges and agrees that Employee’s duties and responsibilities for the Company as President
and Chief Executive Officer include the management of the entire business and therefore encompass
and include the entire geographic area in which the Company does business. The covenants contained
in this subsection shall be construed as a series of separate covenants, one for each state,
province, and/or county of any geographic area in the Territory. Except for geographic coverage,
each such separate covenant shall be deemed identical. If, in any judicial proceeding, a court
refuses to enforce any of such separate covenants (or any part thereof), then such unenforceable
covenant (or such part) shall be eliminated from this Agreement to the extent necessary to permit
the remaining separate covenants (or portions thereof) to be enforced.
(ii) References to the “Associated Companies” shall mean the Company’s direct and
indirect subsidiaries, and any company in which the Company has a twenty percent (20%) or greater
ownership interest.
(iii) References to the “Business of the Company” shall mean the operation of retail
coffee shops, the retail sale of coffee products in stores or online, commercial office coffee
service and the wholesale distribution of coffee products for retail, institutional and commercial
markets. Employee acknowledges that the Business of the Company may expand or change as the
Company grows or makes acquisitions in the future and agrees that he will not unreasonably
withhold consent to the modification of this definition resulting from such growth or
acquisitions.
(c) The covenants in this § 7 are severable and separate, and the
unenforceability of any specific covenant shall not affect the provisions of any other
covenant. If
any provision of this § 7 relating to the time period, scope, or geographic areas of the
restrictive
covenants shall be declared by a court of competent jurisdiction to exceed the maximum time
period, scope, or geographic area, as applicable, that such court deems reasonable and
enforceable, then this Agreement shall automatically be considered to have been amended and
revised to reflect such determination.
(d) All of the covenants in this § 7 shall be construed as an agreement
independent of any other provisions in this Agreement, and the existence of any claim or cause
of action Employee may have against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of such covenants.
(e) Employee has carefully read and considered the provisions of this § 7 and,
having done so, agrees that the restrictive covenants in this § 7 impose a fair and reasonable
restraint on Employee and are reasonably required to protect the interests of the Company and
its
officers, directors, employees, and stockholders.
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§8. Trade Secrets and Confidential Information.
(a) For purposes of this § 8, “Confidential Information” means any data or
information (other than Trade Secrets) that is valuable to the Company (or, if owned by
someone
else, is valuable to that third party) and not generally known to the public or to competitors
in the
industry, including, but not limited to, any non-public information (regardless of whether in
writing or retained as personal knowledge) pertaining to research and development; product
costs
and processes; stockholder information; pricing, cost, or profit factors; quality programs;
annual
budget and long-range business plans; marketing plans and methods; contracts and bids; and
personnel. “Trade Secret” means any item or information that is protectable or defined
as a trade
secret under applicable law. In the absence of such a definition, Trade Secret means
information
including, but not limited to, any technical or nontechnical data, formula, pattern,
compilation,
program, device, method, technique, drawing, process, financial data, financial plan, product
plan, list of actual or potential customers or suppliers or other information similar to any
of the
foregoing, which (i) derives economic value, actual or potential, from not being generally
known
to, and not being readily ascertainable by proper means by, other persons who can derive
economic value from its disclosure or use and (ii) is the subject of efforts that are
reasonable
under the circumstances to maintain its secrecy.
(b) Employee acknowledges that in the course of his employment with the
Company, he has received or will receive and has had or will have access to Confidential
Information and Trade Secrets of the Company and the Associated Companies. Accordingly, he
is willing to enter into the covenants contained in § 7, § 8 and § 9 of this Agreement in
order to
provide the Company with what he considers to be reasonable protection for its interests.
(c) Employee hereby agrees that, during his employment and for a period of
three (3) years thereafter, he will hold in confidence all Confidential Information of the
Company and the Associated Companies that came into his knowledge during his employment
by the Company and will not disclose, publish or make use of such Confidential Information
without the prior written consent of the Company.
(d) Employee hereby agrees to hold in confidence all Trade Secrets of the
Company and the Associated Companies that came into his knowledge during his employment
by the Company and shall not disclose, publish, or make use of at any time after the date
hereof
such Trade Secrets without the prior written consent of the Company for as long as the
information remains a Trade Secret.
(e) Notwithstanding the foregoing, the provisions of this § 8 will not apply to
(i) information required to be disclosed by Employee in the ordinary course of his duties to
the
Company, or (ii) Confidential Information or Trade Secrets that otherwise lawfully becomes
generally known in the industry or to the public through no act of Employee or any person or
entity acting by or on Employee’s behalf.
(f) The parties agree that the restrictions stated in this § 8 are in addition to
and not in lieu of protections afforded to trade secrets and confidential information under
applicable state law. Nothing in this Agreement is intended to or shall be interpreted as
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diminishing or otherwise limiting the Company’s rights under applicable state law to protect
its trade secrets and confidential information.
§9. Return of Company Property. All records, designs, patents, business plans,
financial statements, manuals, memoranda, customer lists, computer data, customer information, and
other property or information delivered to or compiled by Employee by or on behalf of the Company
(including the respective subsidiaries thereof) or its representatives, vendors or customers shall
be and remain the property of the Company, and be subject at all times to its discretion and
control. Upon the request of the Company and, in any event, upon the termination of Employee’s
employment with the Company, Employee shall deliver all such materials to the Company.
§10. Work Product and Inventions.
(a) Works. Employee acknowledges that Employee’s work on and
contributions to documents, programs, methodologies, protocols, and other expressions in any
tangible medium which have been or will be prepared by Employee, or to which Employee has
contributed or will contribute, in connection with Employee’s services to the Company
(collectively, “Works”), are and will be within the scope of Employee’s employment and
part of
Employee’s duties and responsibilities. Employee’s work on and contributions to the Works will
be rendered and made by Employee for, at the instigation of, and under the overall direction
of,
the Company, and are and at all times shall be regarded, together with the Works, as “work
made
for hire” as that term is used in the United States Copyright Laws. However, to the extent
that
any court or agency should conclude that the Works (or any of them) do not constitute or
qualify
as a “work made for hire”, Employee hereby assigns, grants, and delivers exclusively and
throughout the world to the Company all rights, titles, and interests in and to any such
Works,
and all copies and versions, including all copyrights and renewals. Employee agrees to
cooperate with the Company and to execute and deliver to the Company, its successors and
assigns, any assignments and documents the Company requests for the purpose of establishing,
evidencing, and enforcing or defending its complete, exclusive, perpetual, and worldwide
ownership of all rights, titles, and interests of every kind and nature, including all
copyrights, in
and to the Works, and Employee constitutes and appoints the Company as its agent to execute
and deliver any assignments or documents Employee fails or refuses to execute and deliver,
this
power and agency being coupled with an interest and being irrevocable. Without limiting the
preceding provisions of this § 10(a), Employee agrees that the Company may edit and otherwise
modify, and use, publish and otherwise exploit, the Works in all media and in such manner as
the
Company, in its sole discretion, may determine.
(b) Inventions and Ideas. Employee shall disclose promptly to the Company
(which shall receive it in confidence), and only to the Company, any invention or idea of
Employee in any way connected with Employee’s services or related to the Business of the
Company, the Company’s research or development, or demonstrably anticipated research or
development (developed alone or with others), conceived or made during the Term or within
three (3) months thereafter and hereby assigns to the Company any such invention or idea.
Employee agrees to cooperate with the Company and sign all papers deemed necessary by the
Company to enable it to obtain, maintain, protect and defend patents covering such inventions
and ideas and to confirm the Company’s exclusive ownership of all rights in such inventions,
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ideas and patents, and irrevocably appoints the Company as its agent to execute and deliver
any assignments or documents Employee fails or refuses to execute and deliver promptly, this power
and agency being coupled with an interest and being irrevocable. This constitutes the Company’s
written notification that this assignment does not apply to an invention for which no equipment,
supplies, facility or trade secret information of the Company was used and which was developed
entirely on Employee’s own time, unless (i) the invention relates (A) directly to the Business of
the Company, or (B) to the Company’s actual or demonstrably anticipated research or development,
or (ii) the invention results from any work performed by Employee for the Company.
§11. No Prior Agreements. Employee hereby represents and warrants to the Company that
the execution of this Agreement by Employee and his employment by the Company and the performance
of his duties under this Agreement will not violate or be a breach of any agreement with a former
employer, client, or any other person or entity.
§12. Assignment; Binding Effect. Employee understands that he has been selected for
employment by the Company on the basis of his personal qualifications, experience, and skills.
Employee agrees, therefore, that he cannot assign all or any portion of his performance under this
Agreement. The Company may assign this Agreement to the purchaser of substantially all of the
assets of the Company, or to any subsidiary or parent company of the Company. Subject to the
preceding two sentences, this Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the parties and their respective heirs, legal representatives, successors, and
assigns.
§13.
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 is the final,
complete, and exclusive statement 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 or
member of the Board 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.
§14. 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 |
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| Facsimile No.: (000) 000-0000 |
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| 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 |
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| To Employee: | Xx. Xxxxxxx Xxxxxxxxxxxx Caribou Coffee Company, Inc. 0000 Xxxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx 00000 Telephone No.: (000) 000-0000 Facsimile No.: (000) 000-0000 |
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| With a copy to: | Xxxxx X. Xxxxxx Xxxxxxx & Xxxxxx LLP 000 Xxxxx Xxxxx Xxxxxx Xxxxxxxx, Xxxx 00000 Telephone No.: (000)000-0000 Facsimile No.: (000) 000-0000 |
§15. Severability; Headings. If any portion of this Agreement is held invalid or
inoperative, the other portions of this Agreement shall be deemed valid and operative and, so far
as is reasonable and possible, effect shall be given to the intent manifested by the portion held
invalid or inoperative. This severability provision shall be in addition to, and not in place of,
the provisions of § 7(b)(i) and/or 7(c) above. The section headings are for reference purposes
only and are not intended in any way to describe, interpret, define or limit the extent of the
Agreement or of any part hereof.
§16. Equitable Remedy. Because of the difficulty of measuring economic losses to the
Company as a result of a breach of the covenants set forth in §7 through §10, and because of the
immediate and irreparable damage that would be caused to the Company for which monetary damages
would not be a sufficient remedy, it is hereby agreed that in addition to all other remedies that
may be available to the Company, at law or in equity, the Company shall be entitled to specific
performance and any injunctive or other equitable relief as a remedy for any breach or threatened
breach by Employee of any provision of §7 through §10. The Company may seek temporary and/or
permanent injunctive relief for an alleged violation of §7 through §10 without the necessity of
posting a bond.
§17. Governing Law. This Agreement, and all other disputes or issues arising from
or relating in any way to the Company’s relationship with Employee, shall be governed by the
internal laws of the State of Minnesota, irrespective of the choice of law rules of any
jurisdiction. All disputes arising from or relating to this 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.
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§18. Construction. Headings in this Agreement are for convenience only and
shall not control the meaning of this Agreement. Whenever applicable, masculine and
neutral pronouns shall equally apply to the feminine genders; the singular shall include
the plural and the plural shall include the singular. The parties have reviewed and
understand this Agreement, and each has had a full opportunity to negotiate the
Agreement’s terms and to consult with counsel of their own choosing. Therefore, the
parties expressly waive all applicable common law and statutory rules of construction that
any provision of this Agreement should be construed against the agreement’s drafter, and
agree that this Agreement and all amendments thereto shall be construed as a whole,
according to the fair meaning of the language used.
§19. Director and Officer Liability Insurance; Indemnification. The Company
shall provide the Employee (including his heirs, executors, and administrators) with
coverage under a standard directors’ and officers’ liability insurance policy, at the
Company’s expense, in amounts consistent with amounts provided by peer corporations to
their directors and officers, and shall indemnify him as an officer and, when and if
applicable, a director (and his heirs, executors, and administrators) to the fullest extent
permitted under Minnesota law against all expenses and liabilities reasonably incurred by
his in connection with or arising out of any action, suit, or proceeding in which he may be
involved by reason of his having been an officer of the Company or Associated Companies
(whether or not he continues to be such an officer at the time of incurring such expenses
or liabilities). Such expenses and liabilities shall include, but not be limited to,
judgments, court costs, and attorneys’ fees, and the costs of reasonable settlements.
§20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which when executed and delivered shall be an original, and all of
which when executed shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and Employee have caused this Employment Agreement to
be duly executed as of the Effective Date.
| COMPANY: CARIBOU COFFEE COMPANY, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| EMPLOYEE |
||||
| /s/ Xxxxxxx Xxxxxxxxxxxx | ||||
| Xxxxxxx Xxxxxxxxxxxx | ||||
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