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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 Russell Testa (the "
Employee "). Capitalized terms used in this Agreement
shall have the meanings set forth in Section 3 below.
1. Purpose . The purpose of this Agreement is to
encourage Employee to remain in the employ of the Company and to
continue to devote Employee’s full attention to the success
of the Company in the event of a Change of Control or
otherwise.
2. Termination Upon Change of Control or Without Cause .
In the event of (i) Employee’s Termination Without
Cause, or (ii) Employee’s Termination Upon Change of
Control, Employee shall receive the following payments and
benefits:
2.1 Accrued Salary and Vacation, and Benefits . Employee
shall receive all salary and accrued vacation (less applicable
withholding) earned through Employee’s termination date, and
the benefits, if any, under Company benefit plans to which Employee
may be entitled pursuant to the terms of such plans.
2.2 Cash Severance Payment . Provided that Employee
complies with Section 4 below, Company shall pay Employee
severance in the form of continuation of Employee’s base
salary in effect on Employee’s termination date for fifty-two
(52) weeks following such termination date. These payments
will be made on the Company’s ordinary payroll dates starting
with the first pay date after the termination date, and will be
subject to standard payroll deductions and withholdings.
3. Definitions . Capitalized terms used in this Agreement
shall have the meanings set forth in this Section 3.
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.
4. Release of Claims . The Company may condition the
payments and benefits set forth in Section 2.2 of this
Agreement upon the delivery by Employee of a signed release of
claims in a form satisfactory to the Company which will including,
without limitation, an undertaking that until the date that is one
(1) year from the date of termination of Employee’s
employment with the Company, Employee shall not employ or seek to
employ, or otherwise directly or indirectly induce to leave his or
her employment, any person who is employed by the Company.
5. Arbitration . Any claim, dispute or controversy
arising out of this Agreement, the interpretation, validity or
enforceab
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