Exhibit
10.1
EXECUTIVE EMPLOYMENT
AGREEMENT
This Executive Employment Agreement
(“Agreement”) is made and entered into as of
November 17, 2008 by and between Jamba Juice Company
(“Company”) and James White
(“Executive”).
The parties agree as
follows:
1. Employment . Company
hereby agrees to employ Executive and Executive hereby accepts such
employment, upon the terms and conditions set forth
herein.
2. Duties .
2.1 Position . Executive is
employed as Chief Executive Officer and President and shall have
the duties and responsibilities assigned by the Company’s
Board of Directors (“Board”) both upon initial hire and
as may be reasonably assigned from time to time. Executive shall
perform faithfully and diligently all duties assigned to Executive.
Company reserves the right to modify Executive’s duties at
any time in its sole and absolute discretion, provided that the
duties assigned are consistent with the position of
Executive’s duties, responsibilities and status with Company
in his position as the Chief Executive Officer and President and
that Executive continues to report directly to the Board of
Directors of Company. It is the intention of Company that the Board
of Directors Jamba, Inc., the Company’s parent company
(“Parent”)), will vote to elect Executive to the Board
of Directors of Parent.
2.2 Best Efforts/Full-time .
Executive will expend Executive’s best efforts on behalf of
Company, and will abide by all policies and decisions made by
Company, as well as all applicable federal, state and local laws,
regulations or ordinances. Executive will act in the best interest
of Company at all times. Executive shall devote Executive’s
full business time and efforts to the performance of
Executive’s assigned duties for Company, provided that
Executive may continue to serve on the boards of directors of other
companies so long as such service is in accordance with
Company’s policies governing such activities.
2.3 Work Location .
Executive’s principal place of work shall be located in
Emeryville, California, or such other location as the parties may
agree upon from time to time.
2.4 Start Date .
Executive’s employment with the Company shall commence on
December 1, 2008, or such other date as may mutually agreed
between the parties (the “Effective Date”).
3. Term .
3.1 Initial Term . The
employment relationship pursuant to this Agreement shall be for an
initial term commencing on the Effective Date and continuing for a
period of three (3) years following such date (“Initial
Term”), unless sooner terminated in accordance with
section 7 below.
3.2 Renewal . On completion
of the Initial Term specified in subsection 3.1 above, this
Agreement will automatically renew for subsequent two-year terms
unless either party provides at least ninety (90) days’
advance written notice to the other that Company/Executive does not
wish to renew the Agreement for a subsequent two-year term. In the
event either party gives notice of nonrenewal pursuant to this
subsection 3.2, this Agreement will expire at the end of the
current term.
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4. Compensation .
4.1 Base Salary . As
compensation for Executive’s performance of Executive’s
duties hereunder, Company shall pay to Executive an initial Base
Salary of $550,000 per year, payable in accordance with the normal
payroll practices of Company, less required deductions for state
and federal withholding tax, social security and all other
employment taxes and payroll deductions.
4.2 Signing Bonus . Company
will provide Executive with a one-time signing bonus
(“Signing Bonus”), in the amount of One Hundred
Thousand Dollars ($100,000), less applicable withholding. The
Signing Bonus will be paid in a single lump sum payment on the
Company’s first regular payroll date immediately following
Executive’s first day of employment.
4.3 Additional Compensation .
In addition to the Base Salary, Executive will be eligible to
receive compensation of:
(a) up to 100% of the Base Salary
then in effect, based on targets established by the Board (or
appropriate committee thereof) and as determined by Company in its
sole and absolute discretion. The target bonus (“Target
Bonus”) award will be established on an annual basis for
Executive as part of an annual bonus plan which is reviewed and
approved by the Board. The first annual period for which the Target
Bonus will be determined is the Company’s fiscal year ending
December 29, 2009.
(b) an option grant to purchase
1,500,000 shares of Parent’s common stock, as an inducement
grant to join Company, made at the Effective Date, with a strike
price equal to the fair market value of Parent’s common stock
at the date of grant, such options to be issued outside
Parent’s 2006 Employee, Director and Consultant Stock Plan,
not intending to qualify as an “incentive stock option”
under the Internal Revenue Code of 1986, as amended (the
“Code”), and to vest over four (4) years so long
as Executive remains an employee of Company, with twenty-five
percent (25%) of the total number of shares subject to this
option vesting on each anniversary of the Effective
Date.
Following the grant of the option
above, any other grants of options or other equity awards to
Executive, and the terms and conditions thereof, will be determined
by the Board of Directors of Parent (or appropriate committee
thereof).
(c) a retention bonus equal to the
lesser of (i) $500,000, less applicable withholding or
(ii) such amount as would result in a net of tax amount
retained by Executive equal to $300,000 and to be paid in a lump
sum payment as of the Company’s first regular payroll date
immediately following the Executive’s first day of employment
(such total amount paid by the Company, inclusive of the applicable
withholding taxes, the “Retention Bonus”). The
Retention Bonus shall vest over a three (3) year period with
one-third vesting on each consecutive anniversary of the Effective
Date beginning with the first anniversary thereof. In the event the
Executive terminates his employment on a voluntary basis and not
for Good Reason (as defined in subsection 7.4(b) below) prior to or
on the first anniversary of the Effective Date, Executive will be
required to repay to the Company the full amount of the Retention
Bonus. In the event Executive terminates his employment on a
voluntary basis and not for Good Reason after the first anniversary
of the Effective Date but prior to or on the second anniversary of
the Effective Date, Executive will be required to repay to the
Company two thirds of the full amount of the Retention Bonus. In
the event Executive terminates his employment on a voluntary basis
and not for Good Reason after the second anniversary of the
Effective Date but prior to or on the third anniversary of the
Effective Date, Executive will be required to repay to the Company
one third of the full amount of the Retention Bonus. All applicable
Retention Bonus repayments by Executive shall be made in full
within sixty (60) days after the termination of
Executive’s employment.
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4.4 Performance and Salary
Review . Company will periodically review Executive’s
performance on no less than an annual basis. Adjustments to salary
or other compensation, if any, will be made by Company in its sole
and absolute discretion; provided, however, that the foregoing
shall not limit in any way Executive’s ability to resign for
Good Reason as provided in Sections 7.3(b) and 7.4 below in
connection with a material reduction of Executive’s base
compensation and Executive’s right to severance payment in
connection therewith.
5. Customary Fringe Benefits
. Executive will be eligible for all customary and usual fringe
benefits generally available to executives of Company subject to
the terms and conditions of Company’s benefit plan documents.
Company reserves the right to change or eliminate the fringe
benefits on a prospective basis, at any time, effective upon notice
to Executive.
6. Business Expenses .
Executive will be reimbursed for all reasonable, out-of-pocket
business expenses incurred in the performance of Executive’s
duties on behalf of Company. To obtain reimbursement, expenses must
be submitted promptly with appropriate supporting documentation and
will be reimbursed in accordance with Company’s policies. Any
reimbursement Executive is entitled to receive shall (a) be
paid no later than the last day of Executive’s tax year
following the tax year in which the expense was incurred,
(b) not be affected by any other expenses that are eligible
for reimbursement in any tax year, and (c) not be subject to
liquidation or exchange for another benefit.
7. Termination of
Executive’s Employment .
7.1 Termination for Cause by
Company . Although Company anticipates a mutually rewarding
employment relationship with Executive, Company may terminate
Executive’s employment immediately at any time for Cause. For
purposes of this Agreement, “ Cause ” is
defined as: (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 Executive owes to the Company, which violation
continues uncured after written notice thereof by the Company and a
reasonable opportunity to cure. In the event Executive’s
employment is terminated in accordance with this subsection 7.1,
Executive shall be entitled to receive only the Base Salary then in
effect, prorated to the date of termination. All other Company
obligations to Executive pursuant to this Agreement will become
automatically terminated and completely extinguished. Executive
will not be entitled to receive the Severance Packages described in
subsections 7.2(a) and 7.4(a) below.
7.2 Termination Without Cause by
Company/Severance . Company may terminate Executive’s
employment under this Agreement without Cause at any time on thirty
(30) days’ advance written notice to Executive. In the
event of such termination, Executive will receive the Base Salary
prorated to the date of termination and the Severance Package
described in subsection 7.2(a) below, provided Executive complies
with all of the conditions described in subsection 7.2(b)
below.
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(a) Severance Package . The
Severance Package shall consist of the following:
(i) a severance payment equal to:
(A) one year of Executive’s Base Salary then in effect
on the date of termination; plus (B) the average cash bonus
(excluding the Signing Bonus and the Retention Bonus) paid to
Executive for the most recent three (3) years of employment,
with the payments contemplated in (A) and (B) payable
equally over a fifty-two (52) week period (the
“Severance Period”). These payments will be made on the
Company’s ordinary payroll dates beginning with the
Company’s first regularly scheduled payday occurring 60 days
following the Executive’s employment termination date and
will be subject to standard payroll deductions and
withholdings;
(ii) one (1) year of
accelerated vesting in unvested stock options previously granted to
Executive (which options shall have a post termination exercise
period of twelve (12) months (but in any event, not beyond the
option’s original term)); and
(iii) if Executive was covered under
the Company’s group health plan as of the date of
Executive’s Termination Without Cause, Company agrees to pay
the premiums required to continue Executive’s group health
care coverage for the twelve (12) month period immediately
following Executive’s termination of employment, under the
applicable provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“COBRA”), provided that
Executive timely elects to continue and remains eligible for these
group health benefits under COBRA and the terms of the
Company’s group health plan, and does not obtain health
coverage through another employer during this period. Thereafter,
Executive will be solely responsible for payment of his COBRA
premiums.
Notwithstanding the above, during
the Severance Period, Executive shall use Executive’s best
efforts to obtain other employment and to pursue other business
opportunities and activities, at a comparable level, and any
amounts otherwise payable pursuant to this Section 7.2 shall
be reduced by all cash amounts (whether direct or indirect salary,
compensation or otherwise) earned by Executive from other
employment or business activities prior to the end of the Severance
Period.
(b) Conditions To Receive
Severance Package . Executive will receive the Severance
Package described in subsection 7.2(a) above, provided that
Executive: (i) complies with all surviving provisions of this
Agreement as specified in subsection 13.8 below;
(ii) executes a full general release in favor of the Company
and in a form acceptable to Company, releasing all claims, known or
unknown, that Executive may have against Company and Parent arising
out of or any way related to Executive’s employment or
termination of employment with Company, and such release has become
effective in accordance with its terms prior to the 60th day
following the termination date; (iii) complies with the
provisions of Sections 9 and 10 as well as other continuing
obligations described in this Agreement; and (iv) agrees not
make any voluntary statements, written or oral, or cause or
encourage others to make any such statements that defame, disparage
or in any way criticize the personal and/or business reputations,
practices or conduct of Company. All other Company obligations to
Executive will be automatically terminated and completely
extinguished.
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7.3 Voluntary Resignation by
Executive . Executive may voluntarily resign Executive’s
position with Company at any time, on thirty (30) days’
advance written notice. In the event of such
resignation,
(a) if the resignation is not for
Good Reason (as defined in subsection 7.4(b)), Executive will be
entitled to receive only the Base Salary for the thirty-day notice
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