EX-10.15 15 dex1015.htm CHANGE OF CONTROL RETENTION AND SEVERANCE AGMT. - RUSSELL K. TESTA CHANGE OF CONTROL RETENTION AND SEVERANCE AGREEMENT
Exhibit 10.15
CHANGE OF CONTROL RETENTION AND SEVERANCE AGREEMENT
This Change of Control Retention and Severance Agreement (the “Agreement”) is made and entered into as of November 1, 2005 (the “Effective Date”), by and between Jamba Juice Company, a California corporation (the “Company”), and Xxxxxxx Xxxxx (the “Employee”). Capitalized terms used in this Agreement shall have the meanings set forth in Section 3 below.
3.1 “Cause” means Employee’s (a) conviction or plea of guilty or nolo contendere to any felony or crime involving moral turpitude or dishonesty; (b) participation in a fraud or embezzlement against the Company; (c) failure to substantially perform the material duties and obligations of employment, which failure continues uncured after written notice thereof by the Company and a reasonable opportunity to cure; or (d) material violation of a statutory duty Employee owes to the Company, which violation continues uncured after written notice thereof by the Company and a reasonable opportunity to cure.
3.2 “Change of Control” means (a) a sale of substantially all of the assets of the Company, (b) a merger or consolidation in which the Company is not the surviving corporation, (c) a reverse merger in which the Company is the surviving corporation but the shares of Common Stock outstanding immediately preceding the merger are converted by virtue of the merger into other
property, whether in the form of securities, cash or otherwise, (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.
3.3 “Company” means Jamba Juice Company, a California corporation, and any successor or assign to substantially all the business and/or assets of Jamba Juice Company, a California corporation.
3.4 “Constructive Termination” means the occurrence of any of the following conditions, without Employee’s consent: (a) a significant diminution in the nature or scope of Employee’s authority, title, function or duties from Employee’s authority, title, function or duties in effect immediately preceding any Change of Control; (b) a fifteen percent (15%) or more reduction in Employee’s base salary in effect immediately preceding any Change of Control; or (c) the Company’s requiring Employee to be based at any office or location that makes Employee’s commute 50 miles longer than Employee’s commute immediately preceding the Change of Control or if Employee is required to relocate.
3.5 “Termination Upon Change of Control” means:
(a) any involuntary termination of the employment of Employee by the Company without Cause within twelve (12) months following a Change of Control; or
(b) any resignation by Employee based on a Constructive Termination where (i) such Constructive Termination occurs within twelve (12) months following the Change of Control, and (ii) such resignation occurs within ninety (90) days following such Constructive Termination.
3.6 “Termination Without Cause” means any involuntary termination of the employment of Employee by the Company without Cause.
5. Arbitration. Any claim, dispute or controversy arising out of this Agreement, the interpretation, validity or enforceability of this Agreement or the alleged breach thereof shall be submitted by the parties to binding arbitration (without the necessity for any earlier mediation or other ADR) under the Arbitration Rules set forth in California Code of Civil Procedure Sections 1280 through 1294.2, including Section 1283.05 (the “Rules”) and pursuant to California law. The arbitration shall be administered by JAMS and the site of the arbitration proceeding shall be in San Francisco County, California, or another location mutually agreed to by the parties.
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7.5 Governing Law. This Agreement shall be interpreted in accordance with and governed by the laws of the State of California
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“Company”
JAMBA JUICE COMPANY | ||
By: | /s/ Xxxx Xxxxxxx | |
Its: | President and CEO |
“Employee” | ||
/s/ Xxxxxxx Xxxxx | ||
Xxxxxxx Xxxxx |
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AMENDMENT TO THE
CHANGE OF CONTROL RETENTION AND SEVERANCE AGREEMENT
(“AMENDMENT”)
(Effective as of January 1, 2005)
WHEREAS, a Change of Control Retention and Severance Agreement was entered into as of November 1, 2005 (the “Agreement”) between Jamba Juice Company, a California corporation (the “Company”) and Xxxxxxx Xxxxx (the “Employee”); and
NOW, THEREFORE, effective as of January 1, 2005:
1. | Section 2.2 of the Agreement is hereby amended to read as follows: |
Notwithstanding anything to the contrary in this agreement, to the extent required to comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), if Employee is deemed to be a “specified employee” for purposes of Section 409A(a)(2)(B) of the Code, Employee shall agree that the payments and benefits due to Employee under this Agreement in connection with a termination of employment that would otherwise have been payable at any time during the six-month period immediately following such termination of employment shall not be paid prior to, and shall instead be payable in a lump sum as soon as practicable following, the expiration of such six-month period. In light of the uncertainty surrounding the application of Section 409A of the Code, the Company cannot make any guarantee as to the treatment under Section 409A of the Code of any payments made or benefits provided under this agreement.
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2. | Section 3.2 of the Agreement is hereby amended to read as follows: |
3.2 | Change of Control means: |
(a) a sale of substantially all of the assets of the Company to one (1) or more persons that are not related to the Company immediately prior to the sale or transfer. For purposes of this provision, persons are “related” if one of them owns, directly or indirectly, at least fifty percent (50%) of the voting capital stock of the other or a third person owns, directly or indirectly, at least fifty percent (50%) of the voting capital stock of each of them;
(b) a merger or consolidation in which securities possessing more than fifty percent (50%) of the total combined voting power of the Corporation’s outstanding securities are transferred to a person or persons not related (as such term is defined in subsection (a) above) to the persons holding those securities immediately prior to such transaction, and in which the Company is not the surviving corporation;
(c) a reverse merger in which the securities possessing more than fifty percent (50%) of the total combined voting power of the Corporation’s outstanding securities are transferred to a person or persons not related (as such term is defined in subsection (a) above) to the persons holding those securities immediately prior to such transaction, the Company is the surviving corporation, and the shares of Common Stock outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise; 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, other than a group of two (2) or more persons not acting in concert for the purpose of acquiring, holding or disposing of such stock. The acquisition of additional stock by any person who immediately prior to such acquisition already is the beneficial owner of more than fifty percent (50%) of the capital stock of the Company entitled to vote in the election of directors is not a Change of Control.
[Signatures on next page.]
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“Company”
JAMBA JUICE COMPANY | ||
By: | /s/ Xxxxxxx Xxx | |
Its: | Chief Employee Officer | |
“Employee” | ||
/s/ Xxxxxxx Xxxxx | ||
Xxxxxxx Xxxxx |
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