Key Employee Agreement - Peet's Coffee & Tea Inc. and Patrick J. O'Dea
PEET'S COFFEE & TEA, INC.
KEY EMPLOYEE AGREEMENT
This Key Employee Agreement ("Agreement") is entered into as of the 6th day
of May, 2002 by and between Patrick J. O'Dea ("Executive") and PEET'S COFFEE &
TEA, INC. (the "Company"), a Washington corporation.
WHEREAS, the Company desires to employ Executive to provide personal
services to the Company, and wishes to provide Executive with certain
compensation and benefits in return for his services;
WHEREAS, the Company has adopted the Peet's Coffee & Tea Key Employee
Severance Benefit Plan (the "Key Employee Plan") and the Peet's Companies, Inc.
Change of Control Option Acceleration Plan (the "Option Acceleration Plan"); and
WHEREAS, Executive wishes to be employed by the Company and provide
personal services to the Company in return for certain compensation and
benefits, including the benefits provided under the Key Employee Plan and the
Option Acceleration Plan, as modified herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties hereto as
follows:
1. EMPLOYMENT BY THE COMPANY.
1.1 TITLES AND RESPONSIBILITIES. Subject to terms set forth herein, the
Company agrees to employ Executive in the positions of President and Chief
Executive Officer and Executive hereby accepts employment effective as of the
date set forth above (the "Effective Date"). Executive shall work at the
Company's Emeryville, California offices. During his employment with the
Company, Executive will devote his best efforts and substantially all of his
business time and attention (except for vacation periods as set forth herein and
reasonable periods of illness or other incapacity permitted by the Company's
general employment policies) to the business of the Company.
1.2 EXECUTIVE POSITIONS. Executive will serve in an executive capacity and
shall perform such duties as are customarily associated with his positions,
consistent with the Bylaws of the Company as now constituted and as reasonably
required by the Company's Board of Directors (the "Board").
1.3 COMPANY EMPLOYMENT POLICIES. The employment relationship between the
parties shall also be governed by the general employment policies and practices
of the Company, including those relating to protection of confidential
information and assignment of inventions, except that when the terms of this
Agreement differ from or are in conflict with the Company's general employment
policies or practices, this Agreement shall control.
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2. COMPENSATION.
2.1 SALARY. For services to be rendered hereunder, Executive shall receive
a monthly base salary of $35,000 ($420,000 annualized), less payroll
withholdings and required deductions, payable on a biweekly basis. Executive
will be considered for annual increases in base salary, as determined in the
sole discretion of the Board or the Compensation Committee of the Board (the
"Compensation Committee").
2.2 EQUITY COMPENSATION.
(A) STOCK OPTION GRANT. Subject to the approval of the Board, the
Company shall grant a stock option to Executive to purchase 300,000 shares
of the common stock of the Company, subject to the terms and conditions of
the Company's 2000 Equity Incentive Plan and the corresponding Stock Option
Agreement issued to Executive (the "Option"). The Option shall vest over
four (4) years with twenty-five percent (25%) of the shares subject to the
Option vesting on the first anniversary of the Effective Date and the
remaining seventy-five percent (75%) of the shares vesting in equal monthly
amounts thereafter. The exercise price of the Option shall be equal to the
market closing price of the underlying common stock on the trading day
before the date of grant. It is intended that the Option will qualify as an
"incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (an "ISO") to the maximum extent
permissible.
(B) PERFORMANCE - BASED STOCK OPTION GRANT. Subject to the approval of
the Board, the Company shall grant a nonstatutory stock option to Executive
to purchase 300,000 shares of the common stock of the Company, subject to
the terms and conditions of the Company's 2000 Equity Incentive Plan and
the corresponding Stock Option Agreement issued to Executive (the
"Performance-based Option"). The exercise price of the Performance-based
Option shall be equal to the market closing price of the underlying common
stock on the trading day before the date of grant. The Performance-based
Option is not intended to qualify as an "incentive stock option" within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended.
One hundred percent (100%) of the shares subject to the Performance-based
Option shall vest on December 31, 2008; provided, however, that the vesting
of the Performance-based Option shall accelerate as follows:
(I) 100,000 shares subject to the Performance-based Option shall
vest:
(1) on the twentieth (20th) market trading day out of any
twenty-five (25) consecutive market trading days that the daily
market closing price of the Company's common stock is at or above
$30.00 per share (adjusted for post-grant splits), if such
milestone is achieved after the second anniversary of the date of
grant but on or before December 31, 2006; or
(2) on the twentieth (20th) market trading day out of any
twenty-five (25) consecutive market trading days that the daily
market closing price of the Company's common stock is at or above
$30.04 per share (adjusted for post-grant splits), if such
milestone is achieved during calendar year 2007; or
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(3) on the twentieth (20th) market trading day out of any
twenty-five (25) consecutive market trading days that the daily
market closing price of the Company's common stock is at or above
$34.24 per share (adjusted for post-grant splits), if such
milestone is achieved during calendar year 2008.
(II) 100,000 shares subject to the Performance-based Option shall
vest:
(1) on the twentieth (20th) market trading day out of any
twenty-five (25) consecutive market trading days that the daily
market closing price of the Company's common stock is at or above
$30.00 per share (adjusted for post-grant splits), if such
milestone is achieved after the second anniversary of the date of
grant but on or before December 31, 2006; or
(2) on the twentieth (20th) market trading day out of any
twenty-five (25) consecutive market trading days that the daily
market closing price of the Company's common stock is at or above
$34.94 per share (adjusted for post-grant splits), if such
milestone is achieved during calendar year 2007; or
(3) on the twentieth (20th) market trading day out of any
twenty-five (25) consecutive market trading days that the daily
market closing price of the Company's common stock is at or above
$41.05 per share (adjusted for post-grant splits), if such
milestone is achieved during calendar year 2008.
(III) 100,000 shares subject to the Performance-based Option
shall vest:
(1) on the twentieth (20th) market trading day out of any
twenty-five (25) consecutive market trading days that the daily
market closing price of the Company's common stock is at or above
$30.00 per share (adjusted for post-grant splits), if such
milestone is achieved after the second anniversary of the date of
grant but on or before December 31, 2006; or
(2) on the twentieth (20th) market trading day out of any
twenty-five (25) consecutive market trading days that the daily
market closing price of the Company's common stock is at or above
$40.46 per share (adjusted for post-grant splits), if such
milestone is achieved during calendar year 2007; or
(3) on the twentieth (20th) market trading day out of any
twenty-five (25) consecutive market trading days that the daily
market closing price of the Company's common stock is at or above
$48.96 per share (adjusted for post-grant splits), if such
milestone is achieved during calendar year 2008.
2.3 OTHER BENEFITS. Executive shall accrue vacation at a rate of four (4)
weeks per year, subject to any Company policy regarding maximum accrual of
vacation. The Company shall reimburse Executive for financial planning expenses,
up to a maximum of ten thousand dollars ($10,000) per year. Executive must
provide adequate proof of expenses incurred. In addition, Executive shall be
entitled to all rights and benefits for which he is eligible under the
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terms and conditions of the standard Company benefits and compensation practices
which may be in effect from time to time and provided by the Company to its
executives generally.
2.4 SEVERANCE AND CHANGE OF CONTROL PLANS. Except as modified in, or
inconsistent with, this Agreement, Executive is eligible for participation in,
and subject to the obligations and benefits pursuant to, the Key Employee Plan
and the Option Acceleration Plan (attached hereto as Exhibits A and B,
respectively). Subject to the terms and conditions of the Key Employee Plan and
this Agreement, Executive shall be eligible to receive the benefits listed in
the Key Employee Plan's Schedule of Benefits for the Company's Chief Executive
Officer, including participation in an outplacement program for up to six (6)
months after a Covered Termination, at a cost not exceeding ten thousand dollars
($10,000), provided, however, that the provider of such outplacement program
must be reasonably acceptable to the Company and Executive must provide the
Company adequate proof of the expenses incurred.
2.5 INDEMNIFICATION AND INSURANCE. The Company shall indemnify Executive
for all actions taken in his capacity as a director, officer, agent and employee
of the Company, to the fullest extent permitted by applicable law. In the event
the Company offers any of its officers or directors a written indemnification
agreement, it shall also offer to Executive the opportunity to enter into a like
agreement.
3. CONFIDENTIAL INFORMATION, RIGHTS AND DUTIES.
3.1 CONFIDENTIAL INFORMATION. Executive specifically agrees that he shall
not at any time, either during or subsequent to the term of the Employee's
employment with the Company, in any fashion, form or manner, either directly or
indirectly, unless expressly consented to in writing by the Company, use,
divulge, disclose or communicate to any person or entity any confidential
information of any kind, nature or description concerning any matters affecting
or relating to the business of the Company, including, but not limited to, the
Company's sales and marketing methods, programs and related data, or other
written records used in the Company's business; the Company's computer
processes, programs and codes; the names, addresses, buying habits or practices
of any of its clients or customers; compensation paid to other employees and
independent contractors and other terms of these employment or contractual
relationships; or any other confidential information of, about or concerning the
business of the Company, its manner of operations, or other data of any kind,
nature or description. The parties to this Agreement hereby stipulate that, as
between them, the above information and items are important, material and
confidential trade secrets that affect the successful conduct of the Company's
business and its good will, and that any breach of any term of this section is a
material breach of this Agreement.
3.2 COMPANY PROPERTY. Executive agrees that all office equipment, credit
cards, entry cards, identification badges, keys, notebooks, documents,
memoranda, reports, files, samples, books, correspondence, records, business
plans, forecasts, financial information, specifications, agreements, lists or
other written and graphic records, and the like, including tangible or
intangible computer programs, records and data, affecting or relating to the
business of the Company, that Executive might prepare, use, construct, observe,
possess or control (including copies thereof, in while or in part), shall be and
shall remain the Company's sole property (collectively "Company Property"). Upon
the termination of Executive's employment,
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or upon the Company's request, Executive shall return all Company Property in
his possession or control.
3.3 NON-INTERFERENCE. The parties acknowledge that any wrongful
interference with the Company's business, property, confidential information,
trade secrets, clients, customers, employees or independent contractors by
Executive during the term of his employment, or by Executive or any of
Executive's agents after the term of Executive's employment shall be a material
breach of this Agreement.
3.4 REMEDIES. Executive's duties under this Section 3 shall survive
termination of Executive's employment with the Company. The parties acknowledge
that a remedy at law for any breach or threatened breach by Executive of the
provisions of this Section 3 would be inadequate, and agree that the Company
shall be entitled to injunctive relief in case of any such breach or threatened
breach.
4. OUTSIDE ACTIVITIES.
4.1 ACTIVITIES. Except with the prior written consent of the Board,
Executive will not during his employment with the Company undertake or engage in
any other employment, occupation or business enterprise, other than ones in
which Executive is a passive investor. Upon receiving Board approval, Executive
may engage in civic and not-for-profit activities so long as such activities do
not materially interfere with the performance of his duties hereunder.
4.2 INVESTMENTS AND INTERESTS. Executive agrees not to acquire, assume or
participate in, directly or indirectly, any material position, investment or
interest known by him to be adverse or antagonistic to the Company, its business
or prospects, financial or otherwise.
4.3 NON-COMPETITION. During his employment by the Company, except on behalf
of the Company, Executive will not directly or indirectly, whether as an
officer, director, stockholder, partner, proprietor, associate, representative,
consultant, or in any capacity whatsoever engage in, become financially
interested in, be employed by or have any business connection with any other
person, corporation, firm, partnership or other entity whatsoever which were
known by him to compete directly with the Company, throughout the world, in any
line of business engaged in (or planned to be engaged in) by the Company.
5. TERMINATION OF EMPLOYMENT.
5.1 AT-WILL EMPLOYMENT. Executive's employment relationship with the
Company is at-will. Either Executive or the Company shall have the right to
terminate Executive's employment with the Company at any time, with or without
Cause (as defined in the Key Employee Plan), and with or without advance notice.
5.2 TERMINATION FOR CAUSE, DEATH OR DISABILITY OR VOLUNTARY TERMINATION. If
the Company terminates Executive's employment at any time for Cause, or if
Executive's employment is terminated due to his death or Disability (as defined
in the Key Employee Plan), or if Executive voluntarily terminates his employment
other than due to a "Voluntary Termination with Good Reason" (as defined in the
Key Employee Plan), Executive's salary shall cease on the date of termination,
and Executive will not be entitled to severance pay, pay in lieu
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of notice or any other such compensation or benefits, other than payment of
salary and vacation accrued through the date of termination and other benefits
as expressly required in such event by applicable law or the terms of applicable
benefit plans. Executive's stock options shall cease vesting on the date of
termination and shall be exercisable under the terms of the Company's 2000
Equity Incentive Plan and the corresponding Stock Option Agreements issued to
Executive.
5.3 SEVERANCE BENEFITS. In the event (i) the Company terminates Executive's
employment without Cause or if Executive terminates his employment due to a
Voluntary Termination with Good Reason or (ii) Executive's employment is
terminated in a Change of Control Termination (as defined in the Key Employee
Plan), Executive shall be eligible for the severance benefits provided pursuant
to a Covered Termination (if (i)) or pursuant to a Change of Control Termination
(if (ii)), as applicable, under the Key Employee Plan (as identified in the Key
Employee Plan's Schedule of Benefits for the Company's Chief Executive Officer),
subject to Executive's signing and making effective a Release Agreement as set
forth in Section 9 below.
5.4 CESSATION. If Executive violates any provision of Sections 3, 7 or 8 of
this Agreement, any severance payments or other benefits being provided to
Executive will cease immediately, and Executive will not be entitled to any
further compensation from the Company.
6. CHANGE OF CONTROL.
6.1 DEFINITION. Notwithstanding the definition of Change of Control
contained in Section 7(e) of the Key Employee Plan or Section 3 of the Option
Acceleration Plan, as applied to Executive for purposes of this Agreement, the
Key Employee Plan and the Option Acceleration Plan, "Change of Control" shall
mean the occurrence of any of the following: (i) a sale of all or substantially
all of the assets of the Company; (ii) a merger or consolidation involving the
Company in which the Company is not the surviving corporation and the
shareholders of the Company immediately prior to the completion of such
transaction hold, directly or indirectly, less than fifty percent (50%) of the
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") or comparable
successor rules) of the securities of the surviving corporation (excluding any
shareholders who possessed a beneficial ownership interest in the surviving
corporation prior to the completion of such transaction); (iii) a reverse merger
involving the Company in which the Company, is the surviving corporation but the
shares of common stock of the Company (the "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, and the
shareholders of the Company, immediately prior to the completion of such
transaction hold, directly or indirectly, less than fifty percent (50%) of the
beneficial ownership (within the meaning of Rule l3d-3 promulgated under the
Exchange Act, or comparable successor rules) of the surviving entity or, if more
than one entity survives the transaction, the controlling entity; (iv) an
acquisition by any person, entity or group within the meaning of Section 13(d)
or 14(d) of the Exchange Act or any comparable successor provisions (excluding
any employee benefit plan, or related trust, sponsored or maintained by the
Company or an Affiliate of the Company) of the beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable
successor rules) of securities of the Company representing at least fifty
percent (50%) of the combined voting power entitled to vote in the election of
directors; or, (v) in the event that the individuals who, as of the Effective
Date,
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are members of the Company's Board of Directors (the "Incumbent Board"), cease
for any reason to constitute at least fifty percent (50%) of the Company's Board
of Directors. (If the election, or nomination for election by the Company's
shareholders, of any new member of the Company's Board of Directors is approved
by a vote of at least fifty percent (50%) of the Incumbent Board, such new
member of the Company's Board of Directors shall be considered as a member of
the Incumbent Board.)
6.2 CHANGE OF CONTROL ACCELERATION. In the event of a Change of Control,
Executive shall be eligible for accelerated vesting of his stock options as
described in the Option Acceleration Plan, subject to Executive's signing and
making effective a Release Agreement in a form acceptable to the Company.
6.3 PARACHUTE PAYMENTS. In the event that the severance, acceleration of
stock options and other benefits provided for in this Agreement or otherwise
payable to Executive (i) constitute "parachute payments" within the meaning of
Section 28OG (as it may be amended or replaced) of the Internal Revenue Code of
1986, as amended or replaced (the "Code") and (ii) but for this Section 6.3,
would be subject to the excise tax imposed by Section 4999 (as it may be amended
or replaced) of the Code (the "Excise Tax"), then Executive's benefits hereunder
shall be either
(A) provided to Executive in full, or
(B) provided to Executive only as to such lesser extent which would
result in no portion of such benefits being subject to the Excise Tax,
whichever of the foregoing amounts, taking into account the applicable
federal, state and local income taxes and the Excise Tax, results in the
receipt by Executive on an after-tax basis, of the greatest amount of
benefits, notwithstanding that all or some portion of such benefits may be
taxable under the Excise Tax. Unless the Company and Executive otherwise
agree in writing, any determination required under this Section 6.3 shall
be made in writing in good faith by the Company's independent public
accountants (the "Accountants"). In the event of a reduction in benefits
hereunder, Executive shall be given the choice of which benefits to reduce.
For purposes of making the calculations required by this Section 6.3, the
Accountants may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of the Code. The Company and Executive shall
furnish to the Accountants such information and documents as the
Accountants may reasonably request in order to make a determination under
this Section 6.3. The Company shall bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated by this
Section 6.3.
7. RESTRICTIVE COVENANT.
In the event Executive's employment with the Company is terminated due to a
Change in Control Termination (as such term is defined in the Key Employee
Plan), then for two (2) years immediately following the termination date,
Executive shall not, without first obtaining the prior written approval of the
Company, directly or indirectly engage or prepare to engage in the coffee
business in any way or in any place, or directly or indirectly engage or prepare
to engage in any other activities in competition with the Company, or accept
employment or establish a business
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relationship with a business engaged in or preparing to engage in competition
with the Company, in any geographical location in which the Company as of the
termination date either conducts or plans to conduct business. If Executive
violates this Section 7, it is agreed that any severance benefits otherwise due
to be received by Executive after such violation will immediately cease, and
further that (a) despite the cessation of such benefits, the release provided by
Executive in connection with such benefits will remain in full force and effect
and (b) the Company's remedy of cessation of payment of severance benefits to
Executive is non-exclusive.
8. NONSOLICITATION.
While employed by the Company, and for two (2) years immediately following
the termination of Executive's employment, Executive shall not to directly or
through others solicit, attempt to solicit, induce, or otherwise cause any
employee or independent contractor or consultant to terminate his or her
relationship with the Company in order to become an employee, consultant or
independent contractor to or for any other person or entity. For two (2) years
immediately following the termination of Executive's employment, Executive shall
not directly or indirectly solicit (for a business competitive with the Company)
the business of any customer of the Company which at the time of the termination
of Executive's employment or one (1) year immediately prior thereto was listed
on the Company's customer list. If Executive violates this Section 8, it is
agreed that any severance benefits otherwise due to be received by Executive
after such violation will immediately cease, and further that (a) despite the
cessation of such benefits, the release provided by Executive in connection with
such benefits will remain in full force and effect and (b) the Company's remedy
of cessation of payment of severance benefits to Executive is non-exclusive.
9. RELEASE.
Prior to receiving any of the severance benefits set forth in Sections 5.3
and 6.2 of this Agreement, Executive shall execute and make effective a Release
Agreement substantially in the form attached hereto as Exhibit C (the "Release")
after his termination of employment. Unless the Release is executed and made
effective by Executive and delivered to the Company within twenty-one (21) days
after the termination of Executive's employment with the Company, Executive
shall not receive any severance benefits from the Company. Additionally, unless
the Release is executed and made effective by Executive and delivered to the
Company within twenty-one (21) days after the termination of Executive's
employment with the Company, the acceleration of Executive's Options as provided
in this Agreement shall not apply and Executive's Options in such event may be
exercised following the date of Executive's termination only to the extent
provided under their original terms in accordance with the Company's 2000 Equity
Incentive Plan (or other applicable stock option plan), the corresponding Stock
Option Agreement issued to Executive.
10. GENERAL PROVISIONS.
10.1 NOTICES. Any notices provided hereunder must be in writing and shall
be deemed effective upon the earlier of personal delivery (including personal
delivery by facsimile transmission or the third day after mailing by first class
mail, to the Company at its primary office location and to Executive at his
address as listed on the Company payroll.
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10.2 SEVERABILITY. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
10.3 WAIVER. If either party should waive any breach of any provisions of
this Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
10.4 COMPLETE AGREEMENT. This Agreement, together with Key Employee Plan
and the Option Acceleration Plan, constitutes the entire agreement between
Executive and the Company and is the complete, final, and exclusive embodiment
of their agreement and supersedes any prior agreement written or otherwise
between Executive and the Company with regard to this subject matter. It is
entered into without reliance on any promise or representation other than those
expressly contained herein, and it cannot be modified or amended except in a
writing signed by the Executive and a duly authorized member of the Board.
10.5 COUNTERPARTS. This Agreement may be executed in separate counterparts,
any one of which need not contain signatures of more than one party, but all of
which taken together will constitute one and the same Agreement.
10.6 HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
10.7 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and inure
to the benefit of and be enforceable by Executive, the Company and their
respective successors, assigns, heirs, executors and administrators, except that
Executive may not assign any of his duties hereunder and he may not assign any
of his rights hereunder without the written consent of the Company, which shall
not be withheld unreasonably.
10.8 ATTORNEYS' FEES. If either party hereto brings any action to enforce
his or its rights hereunder, the prevailing party in any such action shall be
entitled to recover his or its reasonable attorneys' fees and costs incurred in
connection with such action.
10.9 ARBITRATION. To provide a mechanism for rapid and economical dispute
resolution, Executive and the Company agree that any and all disputes, claims,
or causes of action, in law or equity, arising from or relating to this
Agreement or its enforcement, performance, breach, or interpretation, will be
resolved, to the fullest extent permitted by law, by final, binding, and
confidential arbitration held in San Francisco, California and conducted by
Judicial Arbitration & Mediation Services/Endispute ("JAMS"), or its successor,
under its then-existing Rules and Procedures. EXECUTIVE ACKNOWLEDGES THAT BY
AGREEING TO THIS ARBITRATION PROCEDURE, BOTH EXECUTIVE AND THE COMPANY WAIVE THE
RIGHT TO RESOLVE ANY SUCH DISPUTE THROUGH A TRIAL BY JURY OR JUDGE OR
ADMINISTRATIVE PROCEEDING. The arbitrator shall: (a) have the authority to
compel adequate discovery for the resolution of the dispute and to award such
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relief as would otherwise be permitted by law; and (b) issue a written
arbitration decision including the arbitrator's essential findings and
conclusions and a statement of the award. The arbitrator shall be authorized to
award any or all remedies that Executive or the Company would be entitled to
seek in a court of law. The Company shall pay all JAMS' arbitration fees in
excess of those which would be required if the dispute were decided in a court
of law. Nothing in this Section 10.9 is intended to prevent either Executive or
the Company from obtaining injunctive relief in court to prevent irreparable
harm pending the conclusion of any such arbitration.
10.10 GOVERNING LAW. All questions concerning the construction, validity
and interpretation of this Agreement will be governed by the law of the State of
California as applied to contracts made and to be performed entirely within
California.
10.11 CLAIMS, INQUIRIES AND APPEALS. Notwithstanding any of the time
periods set forth in Sections 10(b), 10(c) and 10(d) of the Key Employee Plan
relating to written notice periods for denial of claims, extension of time for
review of claims, appeal period for request of review of denial, period of
review by Plan Administrator upon request of review, and extension of time for
review of denial, all such time periods for purposes of this Agreement and for
purposes of the Key Employee Plan (with respect to application of the same for
Executive), shall be thirty (30) days.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first above written.
PEET'S COFFEE & TEA, INC.
By: /s/ Christopher P. Mottern
-----------------------------
Christopher P. Mottern
President and Chief Executive Officer
Date: May 6, 2002
ACCEPTED AND AGREED
PATRICK J. O'DEA
By: /s/ Patrick J. O'Dea
-----------------------
Date: May 6, 2002
Exhibit A - Peet's Coffee & Tea Key Employee Severance Benefit Plan
Exhibit B - Peet's Companies, Inc. Change of Control Option Acceleration Plan
Exhibit C - Release Agreement
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EXHIBIT A
PEET'S COFFEE & TEA KEY EMPLOYEE SEVERANCE BENEFIT PLAN
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EXHIBIT B
PEET'S COMPANIES, INC. CHANGE OF CONTROL OPTION ACCELERATION PLAN
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EXHIBIT C
RELEASE AGREEMENT
I understand that my employment with Peet's Coffee & Tea, Inc. (the "Company")
terminated effective _____________________, ____ (the "Separation Date"). The
Company has agreed that if I choose to sign this Release Agreement ("Release"),
the Company will pay me certain severance benefits (minus the standard
withholdings and deductions) pursuant to the terms of the Key Employee Agreement
entered into as of the _____ day of May, 2002 between myself and the Company
(the "Agreement"). I understand that I am not entitled to such benefits unless
I sign this Release, and it becomes fully effective. I understand that,
regardless of whether I sign this Release, the Company will pay me all of my
accrued salary and vacation through the Separation Date, to which I am entitled
by law.
In consideration for the severance benefits I am receiving under the Agreement,
as described therein, I hereby agree to release the Company and its officers,
directors, agents, attorneys, employees, shareholders, parents, subsidiaries,
affiliates, successors, and assigns, of and from any and all claims,
liabilities, demands, causes of action, costs, expenses, attorneys' fees,
damages, indemnities and obligations of every kind and nature, in law, equity,
or otherwise, known or unknown, suspected and unsuspected, disclosed and
undisclosed, liquidated or contingent, arising out of or in any way related to
agreements, events, acts or conduct at any time prior to and including the
execution date of this Release, including but not limited to: any and all such
claims and demands directly or indirectly arising out of or in any way connected
with my employment with the Company or the conclusion of that employment; claims
or demands related to salary, bonuses, commissions, incentive payments, stock,
stock options, or any ownership or equity interests in the Company, vacation
pay, personal time off, fringe benefits, expense reimbursements, severance
benefits, or any other form of compensation; claims pursuant to any federal, any
state or any local law, statute, common law or cause of action including, but
not limited to, the federal Civil Rights Act of 1964, as amended; the federal
Americans with Disabilities Act of 1990; the federal Employee Retirement Income
Security Act; the California Fair Employment and Housing Act, as amended; tort
law; contract law; wrongful discharge; discrimination; harassment; fraud;
misrepresentation; defamation; libel; emotional distress; and breach of the
implied covenant of good faith and fair dealing.
In releasing claims unknown to me at present, I am waiving all rights and
benefits under Section 1542 of the California Civil Code, and any law or legal
principle of similar effect in any jurisdiction: "A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
I understand that if I am forty (40) years of age or older as of the Separation
Date this paragraph will apply and this Release will not be effective until the
ADEA Effective Date, defined below. I acknowledge that I am knowingly and
voluntarily waiving and releasing any rights I may have under the federal Age
Discrimination in Employment Act of 1967, as amended ("ADEA"). I also
acknowledge that the consideration given for the waiver in the above paragraph
is in addition to anything of value to which I was already entitled. I have
been advised by this
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writing, as required by the ADEA that: (a) my waiver and release do not apply to
any claims that may arise after my signing of this Release; (b) I should consult
with an attorney prior to signing this Release; (c) I have twenty-one (21) days
within which to consider this Release (although I may choose to voluntarily sign
this Release earlier); (d) I have seven (7) days after I sign this Release to
revoke it; and (e) this Release will not be effective until the eighth day after
this Release has been signed by me (the "ADEA Effective Date").
I understand that if I am less than forty (40) years of age as of the Separation
Date, the immediately preceding paragraph will not apply and this Release will
be effective on the date I execute and return it to the Company.
I accept and agree to the terms and conditions stated above:
Date PATRICK J. O'DEA
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