EMPLOYMENT AGREEMENT, AS OF JANUARY 1, 1997,
BETWEEN THE COMPANY AND XXXXXXX X. XXXXX
EMPLOYMENT AGREEMENT ("Agreement") made as of January 1, 1997 between GREEN
MOUNTAIN COFFEE ROASTERS, INC., a Vermont corporation ("Employer"), and
XXXX XXXXX, an individual residing in San Antonio, Texas ("Executive").
Employer desires to employ Executive and Executive desires to be employed by
Employer as Vice President of Marketing. Employer and Employee agree as
follows:
1. Employment, Powers, Duties and Acceptance.
1.1 Employer employs Executive to render services to Employer as
Employer's Vice President of Marketing, and Executive accepts
such employment.
1.2 As Vice President of Marketing of Employer, Executive shall be
responsible for the general supervision and management of all aspects
of development and implementation of Employer's marketing strategy,
plans and programs, all under the control and supervision of the
President and Chief Executive Officer of Employer.
1.3 Executive shall be a full-time employee of Employer and shall devote
all of his working time, best efforts and full skill and attention to
Employer's business, and will faithfully serve Employer's interests.
During the term of this Agreement, Executive agrees to serve,
without additional compensation, as an officer and/or director of any
parent, subsidiary or affiliate of Employer, if elected as such.
1.4 Executive's principal place of employment shall be Waterbury, Vermont
and environs, subject to reasonable travel requirements on behalf of
Employer.
1.5 Employer acknowledges that employee is currently and will remain an
owner of Prost Marketing, Inc. and Prost Communications, Inc. and that
this is not a conflict. Also, in the event of any termination,
employee shall not be restricted from working for these companies.
2. Term. This Agreement will commence on January 1, 1997, and will continue
until terminated by either party in accordance with the provisions of
Section 4, below.
3. Compensation.
3.1 In consideration of Executive's performance of his duties and
responsibilities under this Agreement, Employer agrees to pay and
Executive agrees to accept, the following compensation:
3.1.a Base Compensation. A salary of $110,000 per annum ("Base
Compensation"), payable in installments in accordance with Employer's
standard payroll practices;
3.1.b Bonus. Such bonuses ("Bonus"), if any, as may be determined in
the sole and absolute discretion of the Board of Directors of
Employer;
3.1.c Benefits. At the option of Executive, and subject to Executive's
meeting the eligibility requirements of each respective plan,
Executive may participate in and be covered by each profit sharing,
bonus, pension, life insurance, accident insurance, health insurance,
hospitalization, and any other employee benefit plan of Employer
available generally to executives of Employer, on the same basis as
shall be available to other executives.
3.1.d Vacation. Employee shall be entitled to paid vacation of three (3)
weeks per annum accruing at the rate of 1.25 days per month during
the initial two year term of this Agreement, subject to increase to
four weeks per annum when qualified in accordance with the then-
current policies as specified in the Employer's Employee Handbook
available generally to executive-level employees of Employer.
3.1.e Reimbursement for Expenses.
3.1.e.i Moving Expenses. Upon presentation of such receipts as Employer
shall reasonably require, Employer shall reimburse Executive
for such reasonable and customary moving costs and relocation
expenses, including any personal income tax liability resulting from
reimbursement, involved in the relocation of Executive and his
family from Texas to Vermont as shall have the prior written approval
of Employer. Rates of reimbursement shall be based on applicable
IRS rules and regulations.
3.1.e.ii Expenses. Employer shall reimburse Executive for
all reasonable expenses paid or incurred by him on behalf of Employer
in the course of his employment, but payment shall be made only
against a signed, itemized list of such expenditures, utilizing
procedures and general forms for that purpose established by Employer.
3.2 Nothing in this Agreement shall prevent Employer from at any time
increasing Executive's Base Compensation, either permanently or for a
limited period, or from paying bonuses and other additional compensation
to Executive, in the event that Employer in its sole discretion shall
deem it advisable.
4. Termination.
4.1 Death. Executives's employment under this Agreement shall terminate
immediately upon the death of Executive; provided that in the event of
the death of Executive, his heirs or legal representative shall be
entitled to receive any payment pursuant to Sections 3.1.a, 3.1.b,
3.1.c, 3.1.d and 3.1.e.ii, if any, accrued as at the date of death,
and upon such payment Employer shall have no further obligation
pursuant to this Agreement.
4.2 Termination Without Cause. Executives employment under this Agreement
shall terminate immediately upon thirty days' prior written notice from
Executive to Employer of his voluntary resignation or thirty days' prior
written notice from Employer to Executive of his termination without
cause. In the event of termination by either party without cause,
Executive shall continue to perform his duties pursuant to this
Agreement until the termination date, if requested by Employer, his
compensation during the termination period to be payable at his then
current rate of Base Compensation, provided however, that Employer
shall have the right to require Executive to cease performance of his
duties and resign from all offices any time on or after the date of
notice of termination, and Executive's performance obligations and
offices shall terminate as at that date. In the event that Executive
is terminated by Employer without cause:
4.2.a prior to the first anniversary date of this Agreement,
Executive shall be entitled to payment of five (5) months Base
Compensation, plus any Bonus accrued and remaining unpaid as at the date
of notice of termination, payable in installments in accordance with
Employer's then-current payroll practices; or
4.2.b after the first anniversary date of this Agreement, Executive shall be
entitled to payment of five months' Base Compensation at his then-
current rate of compensation, plus any Bonus accrued as at the date of
notice of termination, payable in installments in accordance with
Employer's then-current payroll practices. Upon payment by Employer in
accordance with 4.2.a or 4.2.b, as applicable, Employer shall have no
further obligation pursuant to this Agreement.
4.3 Disability. If Executive is unable to perform his services due to
illness, injury or incapacity for a period of more than ninety (90)
consecutive days, Employer may terminate Executive's employment and this
Agreement immediately upon written notice, in which case Executive shall
be entitled to compensation as provided in Section 4.2, above, less any
payments to Executive pursuant to any policy of disability maintained
by Employer or its affiliates for the benefit of Executive.
4.4 Termination by Employer for Cause. Executive's employment under
this Agreement shall terminate immediately upon written notice from
Employer to Executive of termination for cause, and Employer shall have
no further obligation pursuant to this Agreement. For purposes of this
Section 4.4, the term "for cause" shall mean and include any of the
following events: fraud, misappropriation or embezzlement by Executive
involving Employer or any subsidiary or affiliate thereof;
the conviction in any jurisdiction of Executive for any crime involving
moral turpitude or which constitutes a felony; Executive's demonstrated
voluntary unwillingness to perform his duties, including Executive's
failure or refusal to carry out or perform such actions or duties as
he is specifically directed to carry out or perform by the President
and Chief Executive Officer of Employer, provided that Executive shall
not be required to perform any illegal or unethical act; the willful
engaging by Executive in conduct which has or could reasonably be
expected to have a material adverse effect on Employer or any of its
subsidiaries or affiliates; or the material breach by Executive of any
representations, warranties, agreements or covenants made by Executive
in this Agreement or any other agreement between Employer and Executive.
In the event of termination of this Agreement by Employer for cause,
Executive shall be entitled to no further compensation except
compensation pursuant to Sections 3.1.a, 3.1.b, 3.1.c or 3.1.d or
3.1.e.ii which may have accrued prior to such termination, and Employer
shall have no further obligation hereunder.
5. Confidentiality Agreement; Covenant Not to Compete or Hire Certain
Employees.
5.1 Confidentiality Agreement. Executive acknowledges that he will have
access to proprietary, confidential information of Employer and its
affiliates, which information Executive acknowledges constitutes a
special and unique asset of Employer. Executive agrees during the term
of this Agreement and thereafter:
5.1.a to keep secret and retain in the strictest confidence all information
about business and financial matters (such as costs, profits, strategic
and marketing plans, customer and supplier lists, formulae and methods
of operation and production) of Employer and its affiliates; their
employment policies and plans; and any other proprietary information
relating to Employer and its affiliates, their operations, business
and financial affairs (collectively, but excluding information
known to Executive prior to his employment with Employer, the
"confidential information") and not to disclose the confidential
information to anyone not then an officer, director or authorized
employee of Employer or any of its affiliates, nor utilize such
confidential information, either during or after the termination of
his employment with Employer, except in the course of performing his
duties pursuant to this Agreement or with Employer's express written
consent or except to the extent that such confidential information
can be shown to have been in the public domain through no fault of
Executive; and
5.1.b to deliver to Employer on demand, all memoranda, notes, records,
reports and other documents relating to Employer's or any of its
affiliates' business, financial affairs or operations and all property
associated therewith, which he may then possess or have under his
control. Upon request of Employer, Executive agrees to certify that
such delivery is complete, and that any and all copies made have been
delivered or destroyed. Employer agrees to give access to Executive
to such facilities of Employer as may be necessary for retrieval of
Executive's personal files and property after termination.
5.2 Non-Compete. During the term of this Agreement, and for a period
of six (6) months following termination of this Agreement, Executive
agrees that he will not, without Employer's prior written consent
(which may be withheld for any reason or for no reason in Employer's
sole discretion), do anything adverse to the interests of Employer,
and shall not, directly or indirectly himself or by or through a
family member or otherwise, alone or as a member of a partnership or
joint venture, or as a principal, officer, director, consultant,
employee or stockholder of any other entity, compete with Employer or
be engaged in or connected with any other business competitive with that
of Employer or any affiliate thereof; provided, however, that Executive
may own as a passive investment not more than one percent (1%) of the
securities of any publicly held corporation that may engage in a
business; and competitive with that of Employer or any affiliate
provided, however, Executive may establish a wholesale distribution
business competitive with that of Employer if Executive owns a majority
of the outstanding equity of such business. For purposes of this
Agreement, a "competitive business" shall mean a business engaged in
the wholesale, retail and/or catalog sale of roasted coffee beans and
related products.
5.3 Non-solicitation of Employees. Executive shall not at any time during
the one-year period following the termination of his employment with
Employer for any reason whatsoever: employ any individual who was
employed by Employer or any affiliate during the year immediately
preceding his termination; or in any material respect cause,
influence, or participate in the employment of any such individual by
any business that is competitive with any of the businesses engaged in
by Employer or any affiliate.
5.4 Non-solicitation of Customers and Suppliers. Executive shall not
at any time during the one-year period following the termination of his
employment directly or indirectly: solicit for himself or any person
the business of any individual or business which was a material
customer or material supplier of Employer or any affiliate at any
time during the one-year period immediately preceding such termination;
or persuade or attempt to persuade any such customer or supplier to
cease doing business or to reduce the amount of business it does with
Employer or any affiliate.
5.5 Equitable Remedies. It is agreed that Executive's obligations and
the rights of Employer pursuant to this Section 5 are unique and that
any breach or threatened breach by Executive of any of the foregoing
provisions of this Section 5 cannot be remedied solely by damages at
law. In the event of a breach or a threatened breach by Executive of
any of the provisions of this Section 5, Employer shall be entitled to
injunctive relief to enforce its rights and restraining Executive and
any business, firm, partnership, individual, corporation or entity
participating in such breach or threatened breach. Nothing in this
section shall be construed as prohibiting Employer from pursuing any
other remedies available at law or in equity for such breach or
threatened breach, including the recovery of damages and the immediate
termination of Executive. In addition to any such remedies,
Employer shall be entitled to recover its net costs, including
reasonable attorneys' fees and costs, to enforce its rights pursuant to
this Section 5 or prevent a breach or threatened breach.
6. Relationship to Parties.
Nothing in this Agreement shall be deemed to constitute a partnership
between or a joint venture by the parties, nor be deemed to constitute either
Executive or Employer the agent of the other except as specifically provided.
Neither Executive nor Employer shall be or become liable or bound by any
representation act or omission whatsoever of the other made contrary to the
provisions of this Agreement.
7. Assignment.
This Agreement shall be binding upon the successors and assigns of
Employer. Neither this Agreement nor any rights to any payments hereunder
shall be assignable by Executive.
8. Notices. All notices and communications hereunder shall be in writing
and be given by registered or certified mail, postage and registration or
certification fees prepaid, and shall be deemed given when so mailed as follows:
If to Employer: Green Mountain Coffee, Inc.
00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
With a copy to: H. Xxxxxxx Xxxxxxx, Xx., Esq.
Xxxxxxx & Xxxxxxx
000 Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
If to Executive: Xx. Xxxx Xxxxx
At his address then current on the books and records of Employer
The foregoing addresses may be changed by notice given in the manner set
forth in this Section 10.
9. Miscellaneous.
9.1 Entire Agreement. This Agreement contains the entire understanding
of the parties hereto with respect to the employment of Executive by
Employer during the term hereof, and the provisions hereof may not be
altered, amended, waived, terminated or discharged in any way
whatsoever
except by subsequent written agreement executed by the party charged
therewith. This Agreement supersedes all prior employment agreements,
letters, understandings and arrangements between Executive and Employer
pertaining to the terms of the employment of Executive by Employer,
including, without limitation, that certain letter from Employer to
Executive dated July 11, 1996.
9.2 Waiver of Breach. A waiver by either of the parties of any of the
terms or conditions of this Agreement, or of any breach, shall not be
deemed a waiver of such terms or conditions for the future or of any
other term of condition, or of any subsequent breach.
9.3 Provision not Enforceable. Any provision of this Agreement which
is prohibited or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions. Without limiting the generality of the foregoing sentence,
if any of the covenants contained in Section 5 are construed to be
invalid or unenforceable, the same shall not affect the remainder of
the covenant or covenants, which shall be given full effect. If any
provisions of Section 5 are held to be unenforceable because of
their scope or duration, the parties agree that the court making such
determination shall have the power to reduce the duration and/or
area of such provision and, in its reduced form, said provision shall
be enforceable.
9.4 Deductions and Set-Offs. Employer shall have the right to deduct
and withhold from Executive's compensation the amounts required to be
deducted and withheld by Employer pursuant to any present or future law.
In the event that Employer makes any payments or incurs any charges
for Executive's account or Executive incurs any personal charges with
Employer, Employer shall have the right and Executive hereby
authorizes Employer to recoup such payments or charges by deducting
and withholding the aggregate amount thereof from any compensation
otherwise payable to Executive hereunder. These deductions must be made
within sixty (60) days from the date the charges were made.
9.5 Governing Law. This Agreement is made in and shall be construed
and interpreted under the laws of the State of Vermont.
9.6 Captions. The captions in this Agreement are not part of the
provisions hereof, are merely for the purpose of reference and shall
have no force or effect for any purpose whatsoever, including the
construction of the provisions of this Agreement.
9.7 Counterparts. This Agreement may be executed in three counterparts,
each of which shall be an original, and which together shall constitute
one agreement.
9.8 Employee Handbook or Manual. In the event of any conflict between
this Agreement and any Employee Manual or Handbook circulated by Employer
now or in future, this Agreement shall control.
10. Arbitration. Any controversy or claim arising out of or relating to
this Agreement or its breach shall be settled by binding arbitration in the
city of Burlington, Vermont in accordance with the rules of the American
Arbitration Association. The decision of the arbitrator shall be final
and binding upon the parties and may be enforced in any court of
competent jurisdiction. The arbitrator is expressly permitted to award
reasonable attorneys' fees and costs to the prevailing party.
ACKNOWLEDGMENT OF ARBITRATION
EACH OF THE UNDERSIGNED UNDERSTANDS THAT THIS AGREEMENT CONTAINS AN AGREEMENT
TO ARBITRATE. AFTER SIGNING THIS DOCUMENT, EACH PARTY UNDERSTANDS THAT IT
WILL NOT BE ABLE TO BRING A LAWSUIT CONCERNING ANY DISPUTE THAT MAY ARISE
WHICH IS COVERED BY THE ARBITRATION AGREEMENT, UNLESS IT INVOLVES A QUESTION
OF CONSTITUTIONAL OR CIVIL RIGHTS. INSTEAD EACH PARTY AGREES TO SUBMIT ANY
SUCH DISPUTE TO AN IMPARTIAL ARBITRATOR.
IN WITNESS WHEREOF, the parties hereby have executed this Agreement as
of the date first above written.
GREEN MOUNTAIN COFFEE ROASTERS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx, President
and Chief Executive Officer
/s/ Xxxx Xxxxx
--------------------------------
Xxxx Xxxxx
