EXHIBIT 10.33.2
BEN & JERRY'S HOMEMADE, INC.
NEW EMPLOYMENT AGREEMENT
BETWEEN
BEN & JERRY'S HOMEMADE INC. AND XXXXX X. XXXX
This New Restated Employment Agreement by and between Ben & Jerry's
Homemade, Inc. (the "Company"), a Vermont corporation with its principal place
of business at 00 Xxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxxx, XX 00000, and Xxxxx X. Xxxx
of Xxxxxxx Mansion, 000 Xxxxxxx Xxxx, Xxxx, Xxxxxxxxxxxx 00000 (the
"Executive"), originally effective the 31st day of December, 1996, and now, as
restated, effective March 31, 1999.
WHEREAS, the Executive is possessed of certain experience and expertise
that qualify him to provide the direction and leadership required by the
Company; and
WHEREAS, subject to the terms and conditions hereinafter set forth, the
Company wishes to continue to employ the Executive as its President and Chief
Executive Officer and the Executive wishes to accept such employment;
WHEREAS, the Executive has, as of the Effective Date, been employed for the
past twenty-seven months as the Company's Chief Executive Officer under an
Agreement effective December 31, 1996, as amended by Agreement dated as of
February 28, 1999 (together the "Predecessor Agreement"), which Predecessor
Agreement is being restated as of the Effective Date, as set forth below, as the
New Restated Employment Agreement effective March 31, 1999. The Predecessor
Agreement continues to govern all events up through March 30, 1999, other than
the March 24, 1999 grant of Options for 67,000 shares of Class A Common Stock.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises, terms, provisions and conditions set forth in this Agreement, the
parties hereby agree:
1. EMPLOYMENT. Subject to the terms and conditions set forth in this Agreement,
the Company hereby offers and the Executive hereby accepts employment commencing
March 31, 1999.
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2. TERM. Subject to earlier termination as hereafter provided and subject
to renewal as provided below, the Executive's employment under this Agreement
shall be for a term of twenty-seven months commencing on the effective date of
this New Restated Employment Agreement, namely March 31, 1999, and ending June
30, 2001. The term of this Agreement, as from time to time extended or renewed,
is hereafter referred to as "the Term of this Agreement" or "the Term hereof".
This New Restated Employment Agreement shall continue on a year-to-year basis
beyond the end of June 30, 2001 (or June 30 of a later year if this Agreement
has renewed), unless the Company notifies the Executive in writing not less than
120 days prior to June 30, 2001 (or June 30 of the applicable later year) that
the Company does not wish to renew the Agreement or unless the Executive gives
written notice to the Company of non-renewal of this Agreement not less than 120
days prior to the end of the Term on June 30, 2001 (or any June 30 of the
applicable later year). The Company's decision not to renew this Agreement shall
be treated as a termination of the Executive constituting Other Than For Cause;
provided, however, that the Company, with the Executive's prior written consent,
may elect not to renew this Agreement without also terminating the employment
status of the Executive.
3. CAPACITY AND PERFORMANCE.
a. During the Term hereof, the Executive shall serve the Company as its
Chief Executive and President.
b. During the Term hereof, the Executive shall be employed by the Company
on a full-time basis and shall have the leadership of and be
responsible to the Board of Directors for all operations of the
Company and shall have all powers and duties consistent with such
position, in accordance with the Bylaws of the Company, provided that
it is understood that the Executive has been delegated certain
authority for the Term by the Board of Directors of the Company as
provided in an instrument dated December 31, 1996, previously
delivered, which delegation (the "Delegation Agreement") is
incorporated herein by reference and shall remain in effect unless
modified or terminated by mutual written agreement during the Term
hereof.
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c. During the Term, the Executive shall devote his full business time
(other than vacations) and his best efforts, business judgment, skill
and knowledge exclusively (except as provided below) to the
advancement of the business and interests of the Company and to the
discharge of his duties and responsibilities hereunder. The Executive
shall not engage in any other business activity or serve in any
industry, trade, governmental position or as a director of any other
business or organization during the term of this Agreement requiring a
level of activity greater than the level devoted to such "outside"
activities during the 12 month period April 1, 1998 through March 31,
1999, except as may be approved by the Compensation Committee. The
Company encourages participation by the Executive in community and
charitable activities, but said Committee shall have the right to
approve or disapprove the Executive's participation in such activities
if, but only if, in the judgment of said Committee, such participation
may conflict with the Company's interests or with the Executive's
duties or responsibilities or the time required for the discharge of
those duties and responsibilities. The Executive has previously
delivered a letter, supplemented by letter dated the date hereof,
containing a true and correct list of all directorships or other
participation in committees, consulting or other business activities
which the Executive has or intends to maintain during the Term, which
have been approved by said Committee.
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d. The Executive has previously been elected to the Board of Directors.
The Company agrees to propose and recommend to the shareholders of the
Company at each appropriate Annual Meeting of such shareholders during
the Term hereof the election or re-election of the Executive as a
member of the Board.
e. On work days the Executive shall perform his duties hereunder from the
Company's executive offices in Vermont, except when at other locations
on business travel for the Company or for other activities approved by
the Board.
4. PAYMENTS AND BENEFITS. As payment for all services performed by the Executive
under and during the Term hereof and subject to performance of the Executive's
duties and the obligations pursuant to this Agreement:
a. Base Amount. During the term hereof, the Company shall pay the
Executive a base amount at the rate of Three Hundred Fifteen Thousand
Dollars ($315,000) per annum, payable in appropriate installments,
subject to increase from time to time by the Board, in its sole
discretion. Such base amount, as from time to time in effect is
hereafter referred to as the "Base Amount".
b. Stock Options Granted December 31, 1996 and January 1, 1997 Under
Predecessor Agreement
(i) The Executive received options granted on December 31, 1996 and
January 1, 1997 under the Predecessor Agreement, which are
non-statutory, non-incentive stock options, to purchase an
aggregate of 360,000 shares of Class A Common Stock of the
Company exercisable at the closing market price on Nasdaq on the
effective date of the grants thereof by the Compensation
Committee of the Board of Directors (the "Committee") under the
Company's Equity Incentive Plan (the "Plan");
(ii) The options have a Term of ten years, will become exercisable, so
long as the Executive is an employee of the Company (prior to
July 1, 1997 a consultant to the Company) under this Agreement as
it may be renewed (or under some other agreement or as otherwise
provided in Section 5), as follows:
First Year
----------
90,000 options become exercisable six months after the effective
date of this Agreement, namely June 30, 1997.
Second Year
-----------
None
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Third - Sixth Years
-------------------
5,625 options become exercisable at the end of each month,
commencing at the start of the third year of the Term (January
1999) and monthly thereafter through the end of the sixth year.
(iii)notwithstanding any other provision of the Predecessor Agreement
or the New Restated Employment Agreement, and notwithstanding any
determination or lack of determination by the Compensation
Committee on substantial performance of the Non-Financial
Objectives in the year 1998:
(1) the initial exercisability date of all the 270,000 options
that would otherwise vest during the third - sixth years
under clause (b)(ii) above shall automatically be
accelerated in accordance with the following:
When the fair market value of the Company's Class A Common
Stock (the "Stock"), as measured by the average of the daily
closing stock prices on NASDAQ for a period of 90
consecutive days, shall have satisfied the Per Share Fair
Market Value Threshold specified below and the Committee
shall have determined that the Executive has substantially
met the Non-Financial Objectives (as defined below) for 1997
or the preceding calendar year, as the case may be, or for
the first six months of 1999 as set forth below, then such
options for 270,000 shares (after the 90,000 options that
vested six months after the date of the original Agreement
but including the accelerated vesting of options for the
first two tranches of 50,000 shares under this Section
4(b)(iii) as set forth in the table and in the second
paragraph following the table below) shall become
exercisable as follows:
Defined Per Share
Fair Market Value Number of Options
Threshold ("Threshold") Becoming Vested
----------------------- ---------------
$16 Options for 50,000 shares--became vested in
1998 (see below)
$20 Options for 50,000 shares--become vested in
February 1999 (see below)
$23 Options for 35,000 shares and Options for
15,000 shares
$27 Options for 42,000 shares and Options for
18,000 shares
$30.50 Options for 42,000 shares and Options for
18,000 shares
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In each case the aggregate number of then unvested options
entitled to accelerated vesting pursuant to this Section
4(b)(iii) (50,000; 50,000; 35,000; 15,000; 42,000, 18,000;
and 42,000, 18,000 as the case may be) shall be the options
that would regularly vest the latest under (b)(ii) above
following the date when such acceleration under this Section
4(b)(iii) has become effective.
$16 and $20 Thresholds. The $16 Threshold was satisfied in
1998 and the first 50,000 shares in the table above
accelerated and became vested. The $20 Threshold was
satisfied in early 1999, prior to the date of this
Amendment, and the second tranche of 50,000 options in the
table accelerated and vested, thereby making a total on that
date of vested options for 190,000 shares plus such number
as may have become vested on a monthly basis, since January
1, 1999, pursuant to the provisions of Section 4(b)(ii).
$23, $27 and $30.50 Thresholds Satisfied in 1999 or early
2000. If and when the $23 Threshold or the $27 Threshold or
the $30.50 Threshold is satisfied in 1999 or in 2000 (prior
to the Committee's determination by the end of February,
2000 with respect to the Executive's performance of the 1999
Non-Financial Objectives), then options for 35,000 shares
pertaining to the $23 Threshold, options for 42,000 shares
pertaining to the $27 Threshold and options for 42,000
shares pertaining to the $30.50 Threshold shall accelerate
and vest on the date such Threshold is satisfied, as the
case may be.
15,000 Options Pertaining to $23 Threshold. In the event of
a favorable additional determination by the Compensation
Committee (such determination to be made during
August-September, 1999) that the Executive has substantially
met the Additional Non-Financial Objectives for the first
six months in 1999, these options for 15,000 shares
pertaining to the $23 Threshold set forth in the above table
will accelerate and vest if and when the $23 Threshold has
been satisfied.
If the Committee's August-September, 1999 additional
determination is that the Executive has not substantially
met the Additional Non-Financial Objectives, then the
vesting of the said 15,000 options will not accelerate if
and when $23 Threshold has been satisfied and, accordingly,
in that event, said options for 15,000 shares shall
accelerate and vest only when and if the $30.50 Threshold
has been met at some subsequent date and if options for
60,000 shares pertaining to the $30.50 Threshold shall have
vested directly as a result thereof (which requires that
there be in effect at or after said subsequent date a
favorable determination by the Committee with respect to
substantial performance of the Non-Financial Objectives for
the applicable prior year made by the Committee in 2000 or
in a later year).
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$27 and $30.50 Thresholds and Options for 18,000 Shares and
Options for 18,000 Shares. In the event the $27 Threshold
has been met or the $30.50 Threshold has been met in 1999 or
in 2000 (prior to the date of the Committee's determination
on 1999 performance), the remaining 18,000 options
pertaining to the $27 Threshold (if said Threshold has been
satisfied) and the remaining 18,000 options pertaining to
the $30.50 Threshold (if said $30.50 Threshold has been
satisfied) shall not accelerate and vest at that time but
shall accelerate and vest only when there is in effect a
determination by the Committee made in the year 2000 (or in
a later year) that the Executive has substantially met the
Non-Financial Objectives for the Year 1999 or for the
applicable prior year, as the case may be. When the
remaining 18,000 options pertaining to the $30.50 Threshold
have accelerated and vested, then the second tranche of
15,000 options pertaining to the $23.00 Threshold shall
accelerate and vest, pursuant to the provisions of the
immediately preceding paragraph.
$23, $27 and $30.50 Thresholds Met Later Than 1999 or early
2000. If any of the $23, $27 or $30.50 Price Thresholds are
not met in 1999 or in 2000 (prior to the date of the
Committee's determination on performance for the Year 1999),
but instead are first met after the date in 2000 of the
Committee's said determination, then the specified
accelerated vesting of 35,000 options pertaining to the $23
Threshold, the 42,000 options and the 18,000 options
pertaining to the $27 Threshold and the 42,000 options and
the 18,000 options pertaining to the $30.50 Threshold shall
occur if (a) the Executive is, on the date such applicable
Threshold is met, an employee of the Company and (b) the
Committee's determination in effect at or subsequent to the
date such applicable Threshold is met is favorable that the
Executive has substantially met the Non-Financial Objectives
for the Year 1999 or for the applicable prior year, as the
case may be. Accelerated vesting of the 15,000 options
pertaining to the $23 Threshold shall occur only as provided
above under the heading "15,000 Options Pertaining to $23
Threshold".
(2) The Committee shall be required to make a determination
during the first year of the Term, favorable or unfavorable,
within 30 days after the date such Per Share Fair Market
Value Threshold has been met for 90 days and thereafter
shall make one determination each year, by the end of
February in each year except that the Committee shall make
an additional determination in July-August 1999 with respect
to performance of the Additional Non-Financial Objectives
for the first six months of 1999 set forth on Schedule I.
The Non-Financial Objectives for each year, commencing with
the second year of the Term, shall be agreed between the
Committee and the Executive prior to the beginning of each
such year and for the first year of the Term shall be agreed
between the Committee and the Executive by June 30, 1997.
Furthermore, the Additional Non-Financial Objectives for the
first half of 1999 are agreed between the Committee and the
Executive to be as set forth in Schedule I.
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(3) The Company acknowledges the obligations of its Compensation
Committee to make its "additional determination", favorable
or unfavorable, on substantial performance of the Additional
Non-Financial Objectives by September 30, 1999 and its
yearly determination, favorable or unfavorable, with respect
to substantial performance of the Non-Financial Objectives
for the Year 1999 or a subsequent year by not later than
February in each year, and accordingly (in order to give
full effect to the provisions of this Amendment which make
certain acceleration of vesting of options contingent on a
subsequent favorable Committee determination in early 2000),
the Term of the Agreement is extended from December 31, 1999
to the date which is fifteen days after the date of the
Committee=s determination in 2000 as to whether or not the
Executive has substantially met the 1999 Non-Financial
Objectives.
(iv) Options for 200,000 shares have been granted by the Committee,
effective December 31, 1996 and the balance of options for 160,000
Shares shall be granted by the Committee effective January 1, 1997.
The full terms of the Options shall be consistent with this Section 4b
and shall be set forth in Option Certificates, subject to the
provisions of the Plan. Matters set forth herein shall control in the
event of any ambiguity between the Option Certificate or the Plan and
this Agreement.
For avoidance of doubt, this paragraph sets forth the status of the
Options for 360,000 shares of Class A Common Stock described in
Section 4b above. As of May 1, 1999, after giving effect to regular
monthly vesting and accelerated vesting, the Executive holds vested
options for 247,500 shares of Class A Common Stock in the aggregate,
including all of the options that accelerated upon the stock price
satisfying the $16 and $20 Fair Market Value Thresholds (the necessary
findings by the Compensation Committee having been made to cause such
vesting as well) and including 35,000 Options of the 50,000 tranche of
Options that potentially accelerate at the $23 Fair Market Value
Threshold which have accelerated and vested as a result of the
Amendment to this Agreement dated as of February 28, 1999, with the
remaining 15,000 Options of said tranche of 50,000 Options vesting in
the future only when and if the Committee makes the determination that
the Executive has substantially met the Non-Financial Objectives for
the first six months of 1999 (see Exhibit I hereto). As of May 1, 1999
Options for an additional 112,500 shares of Class A Common Stock were
unvested and remain subject to regular monthly vesting and accelerated
vesting as described in this Section 4b and to the applicable
provisions of Sections 5 and 6A. All of the Options that are vested as
of May 1, 1999 are irrevocably vested.
b.b Stock Options Granted in Year 1999.
(i) The Executive received Options which are non-statutory,
non-incentive stock options, to purchase an aggregate of 67,000
shares of Class A Common Stock of the Company exercisable at a
purchase price of $24.625, being the closing market price on
Nasdaq on March 24,1999, the effective date of the 1999 grant
thereof by the Compensation Committee of the Board of Directors
(the "Committee") under the Company's 1995 Equity Incentive Plan
(the "Plan");
(ii) The Options for 67,000 shares have a Term of ten years, will
become initially exercisable so long as the Executive is an
employee of the Company under this Agreement as it may be renewed
(or under some other agreement or as otherwise provided in
Section 5), as follows:
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commencing with the month of January, 2000, 1,396 options become
exercisable at the end of each month through the month of
November, 2003 and 1,388 Options shall vest at December 31, 2003;
(iii)Provided, however, that the initial exercisability date of one
half of the 67,000 options granted in 1999 that would otherwise
vest during the period set forth in (ii) immediately above shall
automatically be accelerated and shall vest as follows:
as to 16,750 options, if the Compensation Committee determines
that the Executive has substantially met the Non-Financial
Objectives for the calendar year 2000; and as to 16,750 options,
if the Compensation Committee determines that the Executive has
substantially met the Non-Financial Objectives for the first six
months of calendar year 2001.
The aggregate number of the then-unvested options provided by
this Section 4 bb entitled to accelerated vesting under this
clause (ii) immediately above (16,750 in each case) shall be the
options that would regularly vest the latest under Section
4(b)(b)(ii) above following the date when such acceleration has
become effective.
The Committee shall be required to make a determination as to whether the
Executive has substantially met the Year 2000 Non-Financial Objectives by not
later than January 31, 2001 and as to whether the Executive has substantially
met the Non-Financial Objectives for the first six months of the Year 2001 by
not later than June 30, 2001. In the event that this Agreement has not been
renewed on and after June 30, 2001, the Committee shall nonetheless be required
to make such determination by not later than July 31, 2001, and in the event of
a favorable determination by the Committee, the acceleration of 16,750 Options
shall be effective, notwithstanding the termination of this Agreement on June
30, 2001.
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The Non-Financial Objectives for the Year 1999 have been substantially
agreed between the Committee and the Executive and, when fully agreed, shall be
set forth on Schedule II. The Non-Financial Objectives for the Year 2000 and the
Non-Financial Objectives for the first six months of the Year 2001 shall be
agreed between the Committee and the Executive by December 31, 1999 and by
December 31, 2000, respectively and when so agreed shall be attached to this
Agreement by way of supplementary Schedules. The Company recognizes that the
Executive may be irreparably harmed if the Committee does not act in good faith
to diligently reach agreement with the Executive, on the timely basis set forth
above, as to the Non-Financial Objectives for the Year 1999, the Year 2000 and
the first six months of the Year 2001 and that the Executive may be irreparably
harmed if the Committee does not make a determination as to whether the
Executive has substantially met the Year 1999 Non-Financial Objectives by not
later than February 28, 2000, as to whether the Executive has successfully met
the Non-Financial Objectives for the Year 2000 by not later than January 31,
2001 and as to whether the Executive has substantially met the Non-Financial
Objectives for the first six months of the Year 2001 by not later than June 30,
2001. The Executive confirms, in connection with the foregoing, that he will act
in good faith to diligently reach agreement, on the timely basis set forth
above, on the Non-Financial Objectives for the Year 1999, the Year 2000 and
first six months of the Year 2001.
The full terms of the Options for 67,000 shares shall be consistent with
this Section 4bb and shall be set forth in an Option Certificate subject to the
provisions of the Plan. Matters set forth herein shall control in the event of
any ambiguity between the Option Certificate or the Plan and this Agreement.
c. Medical and Hospitalization Insurance. The Executive (and his family)
shall be entitled to participate in the Medical and Hospitalization
Insurance benefit plan for Company employees on the terms applied to
an employee.
d. Life Insurance. The Executive shall be entitled to participate in the
Life Insurance benefit plan for Company employees on the terms applied
to an employee.
e. Other Benefits. During the Term hereof and subject to any contribution
therefor generally required of executives of the Company, the
Executive shall be entitled to participate in the 401(k) plan and in
any other employee benefit plans from time to time in effect for
executives of the Company generally (in each case on terms applicable
to an employee), except to the extent such other plans are profit
sharing or bonus plans or stock plans or are in a category of benefit
otherwise provided to the Executive under this Agreement.
The Company may alter, modify, add to or delete its employee benefit
plans (including its medical and hospitalization and life insurance
plans) at any time as it, in its sole judgment, determines to be
appropriate.
f. Business Expenses. The Company shall pay or reimburse the Executive
for all reasonable business expenses of the Executive in the
performance of his duties and responsibilities hereunder, subject to
such reasonable substantiation and documentation as may be specified
by the Company from time to time. The Executive shall be entitled to a
car, as specified by agreement between the parties, during the Term,
with payments and all car operating expenses to be paid for by the
Company.
5. Termination of Employment and Severance Benefits. Notwithstanding the
provisions of Section 2 hereof, the Executive's employment hereunder shall
terminate prior to the expiration of the Term under the following circumstances:
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a. Death. In the event of the Executive's death during the term hereof,
the Company shall pay to the Executive's designated beneficiary or, if
no beneficiary has been designated by the Executive, to his estate,
any earned and unpaid Base Amount that is earned but unpaid,
reimbursement of business expenses accrued prior to the date of death,
and continuation of Base Amount payments (plus continued participation
in the Company's medical and hospital employee insurance) for
six-months after the Executive's death. Options exercisable at date of
death may be exercised by the Executive's estate for 12 months (but
not beyond the stated term of the option), and unvested options are
terminated.
b. Disability.
i. The Company may terminate the Executive's employment hereunder,
upon thirty (30) days written notice to the Executive, in the
event that the Executive becomes disabled during his employment
hereunder through any illness, injury, accident or condition of
either a physical or psychological nature and, as a result, is
unable to perform substantially all of his duties and
responsibilities hereunder for one hundred eighty (180)
consecutive days during any period of three hundred and
sixty-five (365) consecutive calendar days.
ii. The Board may designate another employee to act in the
Executive's place during any period of the Executive's disability
prior to termination as provided in b.i above. Notwithstanding
any such designation, the Executive shall continue to receive
from the Company (or under a disability plan) the Base Amount in
accordance with Section 4.a and benefits in accordance with the
other provisions of Section 4, to the extent permitted by the
then-current terms of the applicable benefit plans until the
termination of his employment.
iii. The Executive shall be entitled to participate in the Company's
long-term disability plan, to the same extent as other employees.
No finding of disability under this Section 5b shall be made in
respect of any cause or condition which has not been approved as
a full disability under the applicable plan.
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iv. If any question shall arise as to whether during any period the
Executive is disabled through any illness, injury, accident or
condition of either a physical or psychological nature so as to
be unable to perform substantially all of his duties and
responsibilities hereunder, the Executive may, and at the request
of the Company shall, submit to a medical examination by a
physician selected by the Executive or his duly appointed
guardian, to whom the Company has no reasonable objection, to
determine whether the Executive is so disabled and such
determination shall for the purposes of this Agreement be
conclusive of the issue. If such question shall arise and the
Executive shall fail to submit to such medical examination, the
Company's determination of the issue shall be binding on the
Executive.
v. Options exercisable at date of termination for disability may be
exercised for 12 months (but not beyond the stated term of the
option) thereafter, and unvested options are terminated.
c. By the Company for Cause. The Company may terminate the Executive's
employment hereunder for Cause ("Cause") any time upon written notice to the
Executive setting forth in reasonable detail the nature of such Cause, and the
Executive's failure to cure within thirty (30) days after such notice. The
following, as determined by the Board in its reasonable judgment, shall
constitute Cause for termination: the Executive's gross negligence in the
performance of his material duties and responsibilities to the Company; the
commission by the Executive of theft, embezzlement or other serious and
substantial crimes or intentional wrongful engagement in competitive activity in
violation of Section 9 below; or other deliberate willful action by the
Executive that is materially harmful to the business, interests or reputation of
the Company.
For purposes of Section 5c, no act, or failure to act, shall be "willful"
unless done, or omitted to be done, without reasonable belief that the action or
omission was in the best interests of the Company.
Notwithstanding the foregoing, the Executive shall not be deemed to have
been terminated for Cause unless and until there shall have been delivered to
him a notice of termination, and such termination shall have been approved by
the vote of two-thirds of the members of the Board of Directors (excluding the
Executive) at a meeting of the Board (after reasonable notice to the Executive
and an opportunity for him, together with counsel, to be heard before the Board
of Directors) finding that, in the good faith opinion of the Board of Directors,
the above standard of termination for Cause was met in such case and that such
Cause was not cured.
Upon the giving of notice of termination of the Executive's employment
hereunder for Cause following the determination of the Board under the preceding
paragraph, the Company shall have no further obligation or liability to the
Executive, other than for Base Amount earned and unpaid at the date of
termination, any options that are vested which shall continue to be exercisable
for 30 days (unless such options are terminated by vote of the Committee as
provided in the Plan, provided that the Company and the Executive agree that all
of the Options that are vested as of May 1, 1999, namely options for 247,500
shares, shall not be subject to termination by vote of the Committee in its
discretion under the Plan, in the event that the Executive is terminated for
Cause under this Section 5c), and payments or reimbursement of business expenses
accrued prior to the date of termination. All other options shall terminate.
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d. By the Company Other than for Cause. The Company may terminate the
Executive's employment hereunder other than for Cause ("Other Than For Cause")
at any time upon notice to the Executive, provided that the Board of Directors
determines, after consultation with the Executive and after setting forth the
reasons for the Board's actions, that retention of the Executive as the Chief
Executive Officer would no longer be in the best interests of the Company. In
the event of such termination during the first year of the Term (or, upon vote
of two-thirds of the members of the Board, excluding the Executive, that a
decision should not be made in the first year, then in the first 15 months of
the Term), the Company shall continue to pay the Executive the Base Amount at
the rate in effect on the date of termination for twenty-four months. In the
event of such termination following the first year of the Term (or, upon vote of
two-thirds of the members of the Board, excluding the Executive, that a decision
should not be made in the first year, then following the first 15 months of the
Term), the Company shall continue to pay the Executive the Base Amount at the
rate in effect on the date of termination for twelve months. Subject to any
employee contribution applicable to the Executive on the date of termination,
the Company shall continue to contribute, for the period during which the Base
Amount is continued hereunder, to the cost of the Executive's participation
(including his family) in the Company's group medical and hospitalization
insurance plans and group life insurance plan, provided that the Executive is
entitled to continue such participation under applicable law and plan terms.
Upon any such termination, unvested options shall become exercisable to the
extent provided immediately below:
If terminated in the first year, i.e. calendar 1997 (or, upon vote of
two-thirds of the members of the Board of Directors, excluding the Executive,
that a decision should not be made in the first year, then in the first 15
months of the Term), 30,000 options if:
(i) the Earnings per share of Class A and Class B Common Stock
("EPS") for 1997 shall have increased 5% or more over EPS for
1995; or
(ii) the Consolidated Net Sales for 1997 have increased 12% or more
over Consolidated Net Sales for 1996; or
(iii)the Defined Per Share Fair Market Threshold of $16 (as defined
in Section 4b(iii) has been satisfied by the date of any such
termination and options have accelerated with respect to such
Threshold under Section 4b(iii).
In the event that results for the year 1997 are not available
because the year 1997 has not ended when the termination occurs,
the above thresholds shall be determined on a proportional basis
on the basis of the three months, six months or nine months
results that are available.
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If terminated in the second year, i.e. calendar 1998 (or only commencing
within the fourth month of the second year, upon vote of two-thirds of the
members of the Board of Directors, excluding the Executive), 50% of the unvested
options if
(i) EPS for 1998 shall have increased 10% over EPS for 1997 and 15%
over EPS for 1995; or
(ii) the Consolidated Net Sales for 1998 shall have increased 15% over
1997 (or, if higher, Consolidated Net Sales for 1996).
If terminated in the third calendar year, i.e. 1999, 50% of the
then unvested options (including the options granted in 1996 -
1997 and the options granted in 1999) if (i) EPS for 1999 shall
have increased 12% over EPS for 1998 (or, if higher, EPS for 1997
or 1995); or (ii) the Consolidated Net Sales for 1999 shall have
increased 15% over Consolidated Net Sales for 1998 (or, if
higher, Consolidated Net Sales for 1997 or 1996); or (iii) the
Defined Per Share Fair Market Value of $27 (as defined in Section
4b(iii)) has been satisfied in 1999 and options have been
accelerated with respect to such Threshold under Section 4b(iii).
If terminated in the fourth calendar year, i.e. the year 2000, or
thereafter, 50% of the then unvested options, provided that 75% of the then
unvested options shall vest in the event of a termination without cause as a
result of the Company delivering a notice of nonrenewal in order to preclude a
renewal of the Agreement on and after June 30, 2001 or June 30 of a following
year, as the case may be.
All other unvested options shall terminate.
Vested options (after giving effect to the above paragraphs) shall be
exercisable for the following periods (but not beyond the stated termination
date of the options) after any such termination, as provided immediately below:
If terminated in the first year (1997) (or upon vote of two-thirds of the
members of the Board of Directors, excluding the Executive, in the first 15
months of the Term), for three months after termination.
If terminated in the second year (1998) (or only commencing with the fourth
month of the second year, upon vote of two-thirds of the members of the Board of
Directors, excluding the Executive that a decision should not be made in the
first year) for nine months after termination.
- 14 -
If terminated in the third calendar year (1999), for nine months after
termination.
If terminated in the fourth calendar year (2000), for 12 months after
termination.
If terminated in the fifth calendar year (2001), for 18 months after
termination.
If terminated thereafter, for 24 months after termination.
In the event that certain provisions pertaining to the first calendar year
(1997) of his Term are extended to the first 15 months of the Term by 2/3 vote
of the Board of Directors, excluding the Executive, the Company shall give the
Executive certain notice of at least 30 days prior to the end of the First Year
(1997).
The provisions of this clause (d) shall apply to all Options for 360,000
shares and for 67,000 shares that have been granted to date to the Executive.
e. By the Executive for Good Reason in the Absence of Cause. The
Executive may terminate his employment hereunder for Good Reason
("Good Reason"), upon notice to the Company setting forth in
reasonable detail the nature of such Good Reason, and the
Company's failure to remedy such matter within thirty (30) days
after receipt of such notice. The following shall constitute Good
Reason for termination by the Executive:
i. Failure of the Company to continue the Executive in the
position of Chief Executive Officer;
ii. Diminution in the nature or scope of the Executive's
responsibilities, duties or authority;
iii. Failure of the Company to provide the Executive the Base
Amounts and benefits in accordance with the terms of Section
4 or to observe any other material provision of this
Agreement; or
iv. Failure of the shareholders of the Company to elect or
re-elect the Executive as a director of the Company at each
annual meeting during the term of this Agreement, commencing
with the 1997 annual meeting to be held in June, 1997.
In the event of such termination, Base Amount, benefits and
options (including acceleration, period of exercisability and
termination of options) shall be paid or provided in the same
manner and extent as for a termination Other Than For Cause under
5d above.
f. Notwithstanding the foregoing, in the event of a termination
under 5d or 5e prior to June 30, 1997, the options for 90,000
shares that vest June 30, 1997 shall be accelerated and become
exercisable for 90 days upon any such termination.
- 15 -
6. Effect of Termination. The provisions of this Section 6 shall apply to
termination due to the expiration of the Term, termination pursuant to Section
5, non-renewal or otherwise.
a. Except for benefits expressly continued pursuant to Section 5,
benefits shall terminate pursuant to the terms of the applicable
benefit plans based on the date of termination of the Executive's
employment without regard to any continuation of Base Amounts to
the Executive following such date of termination.
b. The provisions of this Agreement shall survive any termination if
so provided herein or if necessary or desirable fully to
accomplish the purposes of such provision, including without
limitation the obligations of the Executive under Sections 7, 8
and 9 hereof and all indemnifications provided for in this
Agreement (including Sections 12 and 15). The obligation of the
Company to make payments to or on behalf of the Executive under
Section 5d and 5e hereof is expressly conditioned upon the
Executive's continued full performance of obligations under
Sections 7, 8 and 9 hereof. The Executive agrees that, except as
expressly provided in Section 5 with respect to continuation of
Base Amount and stock options as expressly provided, no
compensation is earned after termination of this Agreement, its
non-renewal or termination of employment or as a result of the
non-renewal of this Agreement or other termination of employment.
6A. Change in Control.
In the event of Termination Other than for Cause or Termination for
Good Reason, after a Change in Control (as defined below) all unvested options
at the date of any such termination shall accelerate and become immediately
exercisable at the date of such termination.
A "Change in Control" shall be deemed to have occurred if the
conditions set forth in any one of the following paragraphs shall have been
satisfied:
(a) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 35% or more
of the combined voting power of the Company's then outstanding
securities; or
- 16 -
(b) during any period of not more than two consecutive years (not
including any period prior to October 26, 1994), individuals who
at the beginning of such period constitute the Board and any new
director (other than a director designated by a Person who has
entered into an agreement with the Company to effect a
transaction described in Clause (a), (c) or (d) of this Section
6A) whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election
or nomination for election was previously so approved, cease for
any reason to constitute a majority thereof; or
(c) the shareholders of the Company approve a merger or consolidation
of the Company with any other corporation, other than
(1) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining
outstanding or being converted into voting securities of the
surviving entity) 60% or more of the combined voting power
of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or
consolidation, or
(2) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in
which no person acquires 35% or more of the combined voting
power of the Company's then outstanding securities; or
(d) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all the
Company's assets.
Notwithstanding the foregoing provisions of this Section 6A, a
"Change in Control" under Section 6A(a) will not be deemed to
have occurred solely because of the ownership or acquisition of
securities of the Company (or any reporting requirement under the
Securities Exchange Act of 1934) relating thereto by an employee
benefit plan maintained by the Company for the benefit of
employees or by ownership of securities of the Company that were
beneficially owned as of December 31, 1998 by any of Xxx Xxxxx,
Xxxxx Xxxxxxxxxx, Xxxxxxx Xxxxxx and Xxxxx Xxxx, provided,
however, that a "Change of Control" under Section 6A(a) shall be
deemed to have occurred in the event of any of Xxx Xxxxx, Xxxxx
Xxxxxxxxxx or Xxxxxxx Xxxxxx becomes the Beneficial Owner,
directly or indirectly, of Common Stock or other voting
securities of the Company representing an amount of beneficial
ownership which is (i) greater than 35% of the combined voting
power of the Company's then outstanding voting securities (the
threshold under Section 6A(a)) and (ii) greater than the amount
beneficially owned by any such Person as of December 31, 1998, by
at least 22% of the number of outstanding shares of Common Stock
of the Company as of December 31, 1998 (adjusted for stock splits
and the like).
- 17 -
In addition, a Change in Control shall not be deemed to have
occurred for purposes of this Section 6A if the Executive is the
person obtaining control or a member of any group obtaining
control in the defined Change of Control or if the Executive
continues to act as the Chief Executive Officer of the Company
thereafter, provided that if the Executive ceased to be the Chief
Executive Officer within not more than 12 months after the date
of a Change in Control, then all unvested options shall
accelerate and become exercisable just prior to the date he
ceases to be the Chief Executive Officer.
In the foregoing provisions of this definition of "Change in
Control", the following terms shall have the meanings set forth
below:
"Person" shall have the meaning given in Section 3 (a) (9)
of the Securities Exchange Act of 1934, as modified and used
in Sections 13 (d) and 14 (d) thereof; however, a Person
shall not include
(1) the Company or any controlled subsidiary of the Company,
(2) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or
(3) a corporation or other entity owned, directly or indirectly,
by the shareholders of the Company in substantially the same
proportions as their ownership of stock of the Company.
"Beneficial Owner" shall have the meaning defined in Rule
13d-3 under the Securities Exchange Act of 1934 as amended
from time to time.
Notwithstanding the provisions of Section 5d or e, the
vested options (including those accelerated hereunder) may
be exercised for 30 months thereafter in the event of a
termination under Sections 5d or 5e after a Change in
Control has occurred.
- 18 -
7. Confidential Information.
a. The Executive acknowledges that the Company and its Subsidiaries
continually develop Confidential Information, as defined in
Section 14 hereof, that the Executive may develop Confidential
Information for the Company or its Subsidiaries and that the
Executive may learn of Confidential Information during the course
of employment. The Executive will comply with the policies and
procedures of the Company and its Subsidiaries for protecting
Confidential Information and shall never disclose to any Person
(except as required by applicable law or legal process or for the
proper performance of his duties and responsibilities to the
Company and its Subsidiaries, or in connection with any
litigation between the Company and the Executive (provided that
the Company shall be afforded a reasonable opportunity in each
case to obtain a protective order), or use for his own benefit or
gain, any Confidential Information obtained by the Executive
incident to his employment or other association with the Company
or any of its Subsidiaries. The Executive understands that this
restriction shall continue to apply after his employment
terminates, regardless of the reason for such termination.
b. All documents, records, tapes and other media of every kind and
description relating to the business, present or otherwise, of
the Company or its Subsidiaries and any copies, in whole or in
part, thereof (the "Documents"), whether or not prepared by the
Executive, shall be the sole and exclusive property of the
Company and its Subsidiaries. The Executive shall safeguard all
Documents and shall surrender to the Company at the time his
employment terminates, or at such earlier time or times as the
Board or its designee may specify, all Documents then in the
Executive's possession or control.
8. Assignment of Rights to Intellectual Property. The Executive shall
promptly and fully disclose all Intellectual Property to the Company. The
Executive hereby assigns and agrees to assign to the Company (or as otherwise
directed by the Company) the Executive's full right, title and interest in and
to all Intellectual Property which can be registered or which is capable of
being protected by the Company as a trade secret. The Executive agrees to
execute any and all applications for domestic and foreign patents, copyrights or
other proprietary rights and to do such other acts (including without limitation
the execution and delivery of instruments of further assurance or confirmation)
requested by the Company to assign such Intellectual Property to the Company and
to permit the Company to enforce any patents, copyrights or other proprietary
rights to such Intellectual Property. The Executive will not charge the Company
for time spent in complying with these obligations. All copyrightable works that
the Executive creates shall be considered "work made for hire".
9. Restricted Activities. The Executive agrees that some restrictions on
his activities during and after his employment are necessary to protect the
goodwill, Confidential Information and other legitimate interests of the Company
and its Subsidiaries, and that the agreed restrictions set forth below will not
deprive the Executive of the ability to earn a livelihood:
- 19 -
a. While the Executive is employed by the Company and, after his
employment terminates, for the greater of one year or the period
during which severance payments of Base Amount are being made
(the "Non-Competition Period"), the Executive shall not, directly
or indirectly, whether as owner, partner, investor, consultant,
agent, employee, co-venturer or otherwise, compete with the
business of the Company or any of its Subsidiaries within the
United States, or within any foreign country in which the
Products are sold at the date of termination of employment, or
undertake any planning for any business competitive with the
Company or any of its Subsidiaries. Specifically, but without
limiting the foregoing, the Executive agrees not to engage in any
manner in any activity that is directly or indirectly competitive
with the business of the Company or any of its Subsidiaries as
conducted or which has been proposed by management to the Board
within six months prior to termination of the Executive's
employment. Restricted activity also includes without limitation
accepting employment or a consulting position with any Person who
is, or at any time within twelve (12) months prior to termination
of the Executive's employment has been, a distributor of the
Company or any of its Subsidiaries. For the purposes of this
Section 9, the business of the Company and its Subsidiaries shall
mean the manufacture or sale of the Products.
b. The Executive further agrees that during the Non-Competition
Period or in connection with the Executive's termination of
employment, the Executive will not hire or attempt to hire any
employee of the Company or any of its Subsidiaries, assist in
such hiring by any Person, encourage any such employee to
terminate his or her relationship with the Company or any of its
Subsidiaries, or solicit or encourage any customer or vendor of
the Company or any of its Subsidiaries to terminate its
relationship with them, or, in the case of a customer, to conduct
with any Person any business or activity which such customer
conducts or could conduct with the Company or any of its
Subsidiaries.
c. The provisions of this Section 9 shall not be deemed to preclude
the Executive from employment or engagement during the
Non-Competition Period following termination of employment
hereunder by a corporation, some of the activities of which are
competitive with the business of the Company, if the Executive's
activities do not relate, to such competitive business, and
nothing contained in this Section 9 shall be deemed to prohibit
the Executive, during the Non-Competition Period following
termination of employment hereunder, from acquiring or holding,
solely as an investment, publicly traded securities of any
competitor corporation so long as such securities do not, in the
aggregate, constitute one-half of 1% of the outstanding voting
securities of such corporation.
Without limiting the foregoing, it is understood that the Company
shall not be obligated to continue to make the payments specified
in Section 5d and 5e in the event of a material breach by the
Executive of the provisions of Sections 7, 8 or 9 of this
Agreement, which breach continues without having been cured
within 30 days after written notice to the Executive specifying
the breach in reasonable detail.
- 20 -
10. Enforcement of Covenants. The Executive acknowledges that he has
carefully read and considered all the terms and conditions of this Agreement,
including the restraints imposed upon him pursuant to Sections 7, 8 and 9
hereof. The Executive agrees that said restraints are necessary for the
reasonable and proper protection of the Company and its Subsidiaries and that
each and every one of the restraints is reasonable in respect to subject matter,
length of time and geographic area. The Executive further acknowledges that,
were he to breach any of the covenants contained in Sections 7, 8 or 9 hereof,
the damage to the Company would be irreparable. The Executive therefore agrees
that the Company, in addition to any other remedies available to it, shall be
entitled to seek preliminary and permanent injunctive relief against any breach
or threatened breach by the Executive of any of said covenants, without having
to post bond. The parties further agree that, in the event that any provision of
Section 7, 8 or 9 hereof shall be determined by any court of competent
jurisdiction to be unenforceable by reason of its being extended over too great
a time, too large a geographic area or too great a range of activities, such
provision shall be deemed to be modified to permit its enforcement to the
maximum extent permitted by law.
11. Conflicting Agreements. The Executive hereby represents and warrants
that the execution of this Agreement and the performance of his obligations
hereunder will not breach or be in conflict with any other agreement to which
the Executive is a party or is bound and that the Executive is not now subject
to any covenants against competition or similar covenants that would affect the
performance of his obligations hereunder. The Executive will not disclose to or
use on behalf of the Company any proprietary information of a third party
without such party's consent.
12. Indemnification. The Company shall indemnify the Executive to the full
extent provided for Company directors and executive officers in its then current
Articles of Incorporation or By-Laws, and in any event shall indemnify the
Executive to the fullest extent permitted under the Vermont Business Corporation
Law, including an undertaking to advance litigation expenses. The Executive
agrees to promptly notify the Company of any actual or threatened claim arising
out of or as a result of his employment with the Company. The Company agrees to
maintain Directors and Officers Liability Insurance for the benefit of Executive
during the Term of this Agreement and for any other period during which
Executive shall be employed having coverage and policy limits no less favorable
to directors and officers than those in effect at the date of this New Restated
Employment Agreement.
13. No Duty to Mitigate. Following a termination of employment, the
Executive shall not be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to the Executive under any of
the provisions of this Agreement and such amounts shall not be reduced whether
or not the Executive obtains other employment.
14. Definitions. Words or phrases which are initially capitalized or are
within quotation marks shall have the meanings provided in Section 14 and as
provided elsewhere herein. For purposes of this Agreement, the following
definitions apply:
- 21 -
a "Confidential Information" means any and all information of the
Company and its Subsidiaries that is not generally known by others
with whom they compete or do business, or with whom they plan to
compete or do business and any and all information not readily
available to the public, which, if disclosed by the Company or its
Subsidiaries could reasonably be of benefit to such person or business
in competing with or doing business with the Company. Confidential
Information includes without limitation such information relating to
(i) the development, research, testing, manufacturing, plant
operational processes, marketing and financial activities, including
costs, profits and sales, of the Company and its Subsidiaries, (ii)
the Products and all formulas therefor, (iii) the costs, sources of
supply, financial performance and strategic plans of the Company and
its Subsidiaries, (iv) the identity and special needs of the customers
and suppliers of the Company and its Subsidiaries and (v) the people
and organizations with whom the Company and its Subsidiaries have
business relationships and those relationships. Confidential
Information also includes comparable information that the Company or
any of its Subsidiaries have received belonging to others or which was
received by the Company or any of its Subsidiaries with an agreement
by the Company that it would not be disclosed. Confidential
Information does not include information which (a) is or becomes
available to the public generally (other than as a result of a
disclosure by the Executive), (b) was within the Executive's
possession prior to the date hereof or prior to its being furnished to
the Executive by or on behalf of the Company, provided that the source
of such information was not bound by a confidentiality agreement with
or other contractual, legal or fiduciary obligation of confidentiality
to the Company or any other party with respect to such information,
(c) becomes available to the Executive on a non-confidential basis
from a source other than the Company, provided that such sources is
not bound by a confidentiality agreement with or other contractual,
legal or fiduciary obligation of confidentiality to the Company or any
other party with respect to such information, or (d) was independently
developed by you without reference to the Confidential Information.
b. "Intellectual Property" means inventions, discoveries,
developments, methods, processes, formulas, compositions, works,
concepts and ideas (whether or not patentable or copyrightable or
constituting trade secrets) conceived, made, created, developed
or reduced to practice by the Executive (whether alone or with
others, whether or not during normal business hours or on or off
Company premises) during the Executive's employment that relate
to the Products of the Company or any of its Subsidiaries.
c. "Products" mean all products planned, researched, developed,
tested, manufactured, sold, licensed, leased or otherwise
distributed or put into use by the Company or any of its
Subsidiaries, together with all services provided to third
parties or planned by the Company or any of its Subsidiaries,
during the Executive's employment; as used herein, "planned"
refers to a Product or service which the Company has decided to
introduce within six-months from the date as of which such term
is applied.
d. "Employment" shall mean employment of the Executive as an
independent contractor prior to July 1, 1997 and as an employee
commencing July 1, 1997.
- 22 -
e. "Termination of Employment" prior to July 1, 1997 shall mean
termination of the Executive's status as an independent
contractor.
15. Withholding Prior to July 1, 1997. The Company acknowledges that the
Executive presently has a consulting engagement and as a result is unable to
become an employee prior to July 1, 1997, although he will start under the
Agreement on the date hereof, at the request of the Company. Commencing July 1,
1997 the Executive shall be designated President in addition to being the Chief
Executive Officer and shall be an employee of the Company. Accordingly, prior to
July 1, 1997, the Executive shall be the Chief Executive Officer but shall act
as an independent contractor to the Company as provided above. For services in
any period in which the Executive is an independent contractor, the Executive
agrees to pay all FICA tax due on payments to him and all other taxes due
thereon and further agrees to indemnify the Company from and against any and all
withholding taxes, and from any interest and penalties arising from the
Company's failure to withhold on amounts paid by the Company to the Executive.
It is understood, notwithstanding any of the foregoing provisions of this
Agreement, that the Executive shall not be entitled to participate in benefit
and welfare plans and policies of the Company that are applicable to employees
while the Executive is an independent contractor, and the Executive shall
indemnify the Company from any liabilities, penalties and interest or
disqualification of any qualified plans from the related decision (hereby
consented to by the Executive) not to include the Executive in any such plans
except as a person becoming an employee on July 1, 1997.
15.1 Withholding After July 1, 1997. The Executive agrees that all payments
made by the Company under this Agreement shall be reduced by any tax or other
amounts required to be withheld by the Company under applicable law.
16. Assignment. Neither the Company nor the Executive may make any
assignment of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other; provided, however,
that, in the event that the Company shall hereafter effect a reorganization,
consolidate with, or merge into, any other Person or transfer all or
substantially all of its properties or assets to any other Person, the Company
shall require such Person or the resulting entity to assume expressly and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it. This Agreement shall inure to the
benefit of and be binding upon the Company and the Executive, their respective
successors, executors, administrators, heirs and permitted assigns.
- 23 -
17. Severability. If any portion or provision of this Agreement shall to
any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
18. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of either party to
require the performance of any term or obligation of this Agreement, or the
waiver by either party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
19. Notices. Any and all notices, requests, demands and other
communications provided for by this Agreement shall be in writing and shall be
effective when delivered in person or deposited in the United States mail,
postage prepaid, registered or certified, and addressed to the Executive at his
last known address on the books of the Company or, in the case of the Company,
at its principal place of business, attention Chief Financial Officer, with a
copy to Ropes & Xxxx, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000, Attention:
Xxxxxx X. Xxxxxx, Esq., or to such other address as either party may specify by
notice to the other.
20. Entire Agreement. This Agreement (and any letters, Exhibits or
Schedules setting out Non-Financial Objectives for various periods referred to
in this Agreement) constitutes the entire agreement between the parties and
supersedes all prior communications, representations and understandings, written
or oral, with respect to the terms and conditions of the Executive's employment.
21. Amendment. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by a expressly authorized officer of the
Company.
- 24 -
22. Governing Law, Arbitration and Consent to Jurisdiction. This contract
and shall be construed and enforced under and be governed in all respects by the
laws of the State of New York, without regard to the conflict of laws principles
thereof. The parties each agree to promptly select a mediator and promptly
mediate in good faith any controversy, claim or dispute arising between the
parties hereto arising out of or related to this Agreement, its performance or
any breach or claimed breach thereof. In the event that such mediation does not
resolve any such matter, then such matter other than any matter in which
injunctive relief or other equitable relief is sought. shall be definitively
resolved through binding arbitration conducted in the City of New York, by a
panel of three (3) arbitrators in accordance with the then current Commercial
Arbitration Rules of the American Arbitration Association, provided, however,
that notwithstanding anything to the contrary in such Commercial Arbitration
Rules, the parties shall be entitled in the course of any arbitration conducted
pursuant to this Section to seek and obtain discovery from one another to the
same extent and by means of the same mechanisms authorized by Rules 27 through
37 of the Federal Rules of Civil Procedure. The power and office of the
arbitrators shall arise wholly and solely from this Agreement and the then
current Commercial Arbitration Rules of the American Arbitration Association.
The award of the panel or a majority of them so rendered shall be final and
binding, and judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereto.
To the extent a dispute is not to be arbitrated in accordance with the
foregoing, each of the Company and the Executive (i) irrevocably submits to the
jurisdiction of the United States District Court for the Southern District of
New York and to the jurisdiction of the state courts of the State of New York
for the purpose of any suit or other proceeding arising out of or based upon
this Agreement or the subject matter hereof and agrees that any such proceeding
shall be brought or maintained only in such court, and (ii) waives, to the
extent not prohibited by applicable law and agrees not to assert in any such
proceedings, any claim that it is not subject personally to the jurisdiction of
the above-named courts, that he or it is immune from extraterritorial injunctive
relief or other injunctive relief, that any such proceeding brought or
maintained in a court provided for above may not be properly brought or
maintained in such court, should be transferred to some other court or should be
stayed or dismissed by reason of the pendency of some other proceeding in some
other court, or that this Agreement or the subject matter hereof may not be
enforced in or by such court.
- 25 -
IN WITNESS WHEREOF, this Agreement has been executed by the Company, by its
duly authorized officer, and by the Executive, as of the date first above
written.
THE EXECUTIVE: BEN & JERRY'S HOMEMADE, INC.
/s/Xxxxx Xxxx By: /s/Xxxxxxx Xxxxxx
------------- -----------------
Title: Chief Financial Officer
- 26 -
