|
Exhibit 10.1 SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (this "
Agreement "), effective as of August 29, 2008, is made
by and between Caribou Coffee Company, Inc., (the " Company
") and Rosalyn Mallet (" Employee "). RECITALS
WHEREAS, Employee was formerly the
Company’s President, and Chief Operations Officer; and
Interim Chief Executive Officer and
WHEREAS, the Company has appointed a
new President and Chief Executive Officer, and as a result Employee
is no longer serving as President and Interim Chief Executive
Officer, but Employee is continuing to serve as Chief Operations
Officer; WHEREAS, the Company and
Employee are party to an Employment Letter, dated March 5,
2007 (the " Employment Letter "); and
WHEREAS, pursuant to the terms of the
Employment Letter, Employee is entitled to twelve (12) months of
base salary as a severance if her employment is terminated by the
Company without Cause; and WHEREAS,
the Company has informed Employee that her employment with the
Company will terminate, without Cause, but desires to enter into
this Agreement to provide Employee additional compensation to which
she would not otherwise be entitled, in return for Employee’s
covenants and promises as contained in this Agreement; and
WHEREAS, Employee has agreed to
remain employed with the Company in the role of Chief Operations
Officer as an employee for a transitional period not to exceed
90 days from August 1, 2008 (the " Transition
Period "); NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties
hereby agree as follows: 1.
Transition Period . Employee agrees to perform executive and
consulting services as an employee for the Company during the
Transition Period, and shall continue to be paid Employee’s
regular base salary ($360,000 per annum — " Base
Salary ") during the Transition Period. Employee’s
employment remains "at will" during the Transition Period and shall
terminate on the last day of the Transition Period. The Transition
Period shall last for no more than ninety (90) days, but may be
shortened by the Company in its sole discretion; provided, however,
if the Company shortens the Transition Period at its sole
discretion, it shall continue to pay the Base Salary to Employee
through and including Friday, October 31, 2008 even though
Employee’s employment terminates on the last day of the
Transition Period. 2.
Consideration . In consideration for Employee entering into
this Agreement, and provided that Employee complies with the terms
and conditions hereof (including, without limitation, the
obligation under Section 1 to perform services throughout the
Transition Period
and the Employee Disclosure, Non-Compete, and Non-Solicitation
Agreement referenced below) the Company agrees to pay Employee the
following amounts:
A. A
lump sum of $100,000, less applicable withholdings (the "
Lump-Sum Payment "), 5 business days after the Effective
Date (as defined below); provided, however, in no event shall such
payment be made later than March 15, 2009.
B.
Provided that Employee executes a second release in the form
attached hereto as Exhibit A (the " Second Release
"), the Company shall make severance payments as follows:
1. Three
(3) months Base Salary (less applicable withholdings), shall
be paid to Employee in a lump sum on the Company’s next
regular pay date following the later of (i) the termination or
expiration of the Transition Period; (ii) Employee’s
signing the Second Release, and (iii) the expiration of any
revocation periods contained in the Second Release: provided,
however, in no event shall such payment be made later than
March 15, 2009; and
2. Twelve
(12) months Base Salary (less applicable withholdings) shall
be paid to Employee in a lump sum on the Company’s next
regular pay date following the later of (i) the termination or
expiration of the Transition Period; (ii) Employee’s
signing the Second Release, (iii) the expiration of any
revocation periods contained in the Second Release and
(iv) Employee’s "separation from service" (within the
meaning of Section 409A of the Code); provided ,
however , to the extent necessary to comply with the
restriction in Section 409A of the Code concerning payments to
specified employees, the payment to Employee pursuant to
Paragraph 2.B.2 shall be made at least six months and one day
after Employee’s "separation from service" (within the
meaning of section 409A of the Code).
C. The
Company and Employee intend that the payments made pursuant to
Paragraph 2.A and 2.B.1 comply with the short term deferral
exception to Section 409A of the Code and that the payments
made pursuant to Paragraph 2.B.2 comply with the requirements
of Section 409A of the Code and this Agreement shall be
construed to effect such intent.
3. Release . Employee,
on her behalf and on behalf of her heirs, executors,
administrators, trustees and assigns hereby fully, knowingly and
voluntarily, releases and forever discharges the Company and the
Company’s past and present agents, representatives,
employees, officers, directors, affiliates, controlling persons,
stockholders, subsidiaries, successors and assigns (collectively,
the " Releasees "), collectively, separately, and severally,
from or for any and all state, local or federal claims, causes of
action, liabilities, and judgments of every type and description
whatsoever, known and unknown (including, but not limited to,
claims arising under Title VII of the Civil Rights Act of 1964, as
amended; the Rehabilitation Act of 1973, as amended; the Employee
Retirement Income Security Act of 1974, as amended; the Fair Labor
Standards Act of 1938, as amended; the Americans with Disabilities
Act; the Minnesota Human Rights Act; Minn. Stat. § 181.81; the
Minneapolis Code of Ordinances; wrongful discharge; violation of
Minn. Stat. § 176.82; breach of contract; tortious
interference with contractual relations; promissory estoppel;
breach of the implied covenant of good faith and fair dealing;
breach of express or implied promise; breach of manuals or other
policies; assault; battery; fraud; false imprisonment; invasion of
privacy; intentional or negligent misrepresentation;
defamation,
2
including libel, slander, discharge defamation and
self-publication defamation; discharge in violation of public
policy; whistleblower claims; intentional or negligent infliction
of emotional distress; or any other theory, whether legal or
equitable) which she, her heirs, administrators, executors,
personal representatives, beneficiaries, and assigns may have or
claim to have against Releasees related to Employee’s
employment or the termination thereof. Employee warrants that
Employee has been provided all leave under the Family and Medical
Leave Act to which she is or may have been entitled, and that the
Company has not interfered with her rights thereunder. Employee
specifically waives the benefit of any statute or rule of law
which, if applied to this Agreement, would otherwise exclude from
its binding effect any claims not now known by her to exist.
Notwithstanding this release provision, or any other provision or
section of this Agreement, Employee does not waive or release any
claims to enforce this Agreement.
4. Subject to the terms set
forth in Employee’s Stock Option Agreements, Employee shall
have ninety (90) days from the last day of her employment to
exercise all options vested on the last day of her employment. All
options not vested on the last day of Employee’s employment
shall immediately and automatically be forfeited on such date.
Employee’s outstanding options as of the date this Agreement
is executed are set forth on Exhibit B .
5. Employee also hereby
knowingly and voluntarily releases and discharges Releasees,
collectively, separately and severally, from or for any and all
liability, claims, allegations, and causes of action arising under
the Age Discrimination in Employment Act of 1967, as amended ("
ADEA "), which Employee, Employee’s heirs,
administrators, executors, personal representatives, beneficiaries,
and assigns may have or claim to have against Releasees.
Notwithstanding any other provision or section of this Agreement,
Employee does not hereby waive any rights or claims under the ADEA
that may arise after the date on which the Agreement is signed by
her. 6. Employee further
understands that she is releasing, and does hereby release, any
claims for damages, by charge or otherwise, whether brought by her
or on her behalf by any other party, governmental or otherwise, and
agrees not to institute any claims for damages via administrative
or legal proceedings against any of the Releasees. Employee also
waives and releases any and all right to money damages or other
legal relief awarded by any governmental agency related to any
charge or other claim against any of the Releasees.
7. This Agreement does not apply
to any post-termination claim that Employee may have for benefits
under the provisions of any employee benefit plan maintained by the
Company. Employee’s release of claims shall not apply to any
claims Employee might have to indemnification under Minnesota
Statute § 302A.521, any other applicable statute or
regulation, or the Company’s by-laws.
8. Employee hereby acknowledges
and represents that (a) she has been given a period of at
least twenty-one (21) days to consider the terms of this
Agreement, (b) the Company has advised or hereby advises her
in writing to consult with an attorney prior to executing this
Agreement, and (c) she has received valuable and good
consideration to which she is otherwise not entitled in exchange
for her execution of this Agreement.
3
9. Employee and the Company
hereby acknowledge this Agreement shall not become effective or
enforceable until the fifteenth (15th) day after it is executed by
Employee (" Effective Date ") and that Employee may revoke
this Agreement at any time before the Effective Date. Employee has
been informed and understands that any such revocation must be in
writing and delivered to the Company by hand, or sent by mail
within the 15-day period. If delivered by mail, the revocation must
be: (1) postmarked within the 15-day period, (2)
|
