Exhibit 10.37
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
This FIRST AMENDMENT TO THE EMPLOYMENT AGREEMENT by and among Xxxxxx'x
Grand Ice Cream, Inc., a Delaware corporation (the "Company") and Xxxx X.
XxXxxxx (the "Executive"), dated as of August 30, 2002 (the "Agreement"), is
dated as of July 21, 2003.
WHEREAS, the Company, Xxxxxx'x Grand Ice Cream Holdings, Inc. (formerly
known as New December, Inc.), a Delaware corporation ("New Dreyer's") and wholly
owned subsidiary of the Company, December Merger Sub, Inc., a Delaware
corporation and wholly owned subsidiary of New Dreyer's, Nestle Holdings, Inc.,
a Delaware corporation ("Nestle") and NICC Holdings, Inc., a Delaware
corporation and wholly owned indirect subsidiary of Nestle ("NICC") have entered
into an Agreement and Plan of Merger Contribution, dated as of June 16, 2002 (as
such agreement may hereafter be amended, the "Merger Agreement"), pursuant to
which, among other things, the Company and NICC have become wholly owned
subsidiaries of New Dreyer's effective as of June 26, 2003; and
WHEREAS, the Company and the Executive have entered into the Agreement
to provide for the employment of the Executive by the Company, and the Executive
wishes to serve the Company, in the capacities and on the terms and subject to
the conditions set forth in the Agreement; and
WHEREAS, in view of the fact that the Effective Time of the Merger (as
defined in the Merger Agreement) occurred later than originally anticipated, the
Company and the Executive agree that it is appropriate to amend the Agreement as
set forth in this First Amendment; and
WHEREAS, Section 9(c) of the Agreement requires that the Company cause
New Dreyer's to become a party to and co-obligor under the Agreement;
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Vesting of Deferred Options. Section 1(b) of the Agreement is
hereby amended to read as follows:
In consideration for the protections afforded to the
Executive under this Agreement, the Executive hereby waives
the vesting of the Deferred Options (as defined below) that
has occurred or may hereafter occur solely as a result of the
applicability of the change-of-control provisions of Section
11 of the Company's Stock Option Plan (1993) (the "Option
Plan") upon the approval of the Merger Agreement by the Board
of Directors of the Company (the "Board") and/or the
transactions contemplated by the Merger Agreement, and agrees
that the Deferred Options shall vest in accordance with the
schedule set forth in Exhibit A hereto, subject to the terms
of the Deferred Options, the Option Plan and the provisions of
Sections 4(a)(iv), 4(b)(iii) and 4(c)(v) of this Agreement.
Notwithstanding the foregoing, if the Merger Agreement is
terminated as a result of a Change in Control occurring before
the Effective Time of the Merger: (i) such waiver and the
preceding sentence shall be void unless expressly reaffirmed
as contemplated by Section 1(a) above; and (ii) if such
reaffirmation occurs, the Deferred Options
shall vest in three equal annual installments on each of the
first three anniversaries of the Agreement Effective Date,
with each such annual installment including a pro-rata portion
of each separate grant of Deferred Options. The "Deferred
Options" means those stock options that have been granted to
the Executive under the Option Plan that are outstanding on
the date of this Agreement that would not be vested on the
date of this Agreement, absent the fact that approval of the
Merger Agreement by the Board caused them to vest pursuant to
Section 11 of the Option Plan. In addition, the Executive
consents to the treatment of his options to purchase Company
common stock provided for in Section 2.11(e) of the Merger
Agreement. Except as provided otherwise in this Agreement or
the Merger Agreement, the Deferred Options shall continue to
be subject to the Option Plan and the terms of the underlying
award agreement, including without limitation the provision
that vested Deferred Options will remain exercisable for at
least three months following any termination of the
Executive's employment for any reason, whether during or after
the end of the Employment Period (but not after the expiration
of the original option term).
2. New Dreyer's. New Dreyer's acknowledges that, as required by
Exection 9(c) of the Agreement: (a) as of the Effective Time of the Merger on
June 26, 2003, New Dreyer's has become an additional party to the Agreement and
a co-obligor with respect to the obligations of the Company under the Agreement;
and (b) from and after the Effective Time of the Merger, the references in
Section 3(b) and 3(c) of the Agreement to the "Board" shall be deemed to refer
to the Board of Directors of New Dreyer's, and all references in the Agreement
to the Company shall be deemed to refer to both the Company and New Dreyer's.
3. Agreement Ratified. The Agreement is ratified and confirmed
without amendment, except as specifically provided above.
4. Counterparts. This First Amendment may be executed
simultaneously in two counterparts, each of which shall be deemed an original
but which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization from their respective boards
of directors, the Company and New Dreyer's each has caused these presents to be
executed in its name on its behalf, all as of the day and year first above
written.
/s/ Xxxx X. XxXxxxx
-------------------------------------
XXXX X. XXXXXXX
XXXXXX'X GRAND ICE CREAM, INC.
By: /s/ T. Xxxx Xxxxxx
---------------------------------
Name: T. Xxxx Xxxxxx
Title: Chairman of the Board and
Chief Executive Officer
XXXXXX'X GRAND ICE CREAM HOLDINGS,
INC.
By: /s/ T. Xxxx Xxxxxx
---------------------------------
Name: T. Xxxx Xxxxxx
Title: Chairman of the Board and
Chief Executive Officer
Exhibit A
VESTING SCHEDULE FOR DEFERRED OPTIONS
Page: 1
OPTIONS AND AWARDS SUMMARY XXXXXX'X GRAND ICE CREAM, INC.
File: Optsum
[ ] ID:00-0000000
Date: 8/4/2003
[ ] 0000 Xxxxxxx Xxxxxx
Time: 3:50:21PM
As of: 6/27/2003
[ ] Xxxxxxx, Xxxxxxxxxx 00000
Current Market Value: $79.000000
XXXX X. XXXXXXX ID: ###-##-####
00 XXXXXXXXX XXXX
XXXXXX, XX XXX 00000
OPTION NO.: 001326 OPTION DATE: 9/1/2000 SHARES: 8,350 PRICE: $21.437500 PLAN: IS93 TYPE: ISO
V E S T I N G S C H E D U L E T R A N S A C T I O N S C A N C E L L A T I O N S
Granted Full Vest Exercisable Total Price Expires Date Type Shares Value Date Reason Shares
0 6/14/2002 0 $0.00 9/1/2010
2,783 12/1/2003 0 $0.00 9/1/2010
2,783 12/1/2004 0 $0.00 9/1/2010
2,784 4/3/2006 0 $0.00 9/1/2010
8,350 0 $0.00
OPTION NO.: 001340 OPTION DATE: 2/14/2001 SHARES: 8,100 PRICE: $31.125000 PLAN: NQ93 TYPE: NQ
V E S T I N G S C H E D U L E T R A N S A C T I O N S C A N C E L L A T I O N S
Granted Full Vest Exercisable Total Price Expires Date Type Shares Value Date Reason Shares
0 6/14/2002 0 $0.00 2/14/2011
2,700 6/26/2004 0 $0.00 2/14/2011
2,700 6/26/2005 0 $0.00 2/14/2011
2,700 4/3/2006 0 $0.00 2/14/2011
8,100 0 $0.00
OPTION NO.: 001613 OPTION DATE: 2/7/2002 SHARES: 9,020 PRICE: $39.395000 PLAN: NQ93 TYPE: NQ
V E S T I N G S C H E D U L E T R A N S A C T I O N S C A N C E L L A T I O N S
Granted Full Vest Exercisable Total Price Expires Date Type Shares Value Date Reason Shares
0 6/14/2002 0 $0.00 2/7/2012
3,007 6/26/2004 0 $0.00 2/7/2012
3,007 6/26/2005 0 $0.00 2/7/2012
3,006 4/3/2006 0 $0.00 2/7/2012
9,020 0 $0.00
OPTION NO.: A01339 OPTION DATE: 2/14/2001 SHARES: 3,887 PRICE: $31.125000 PLAN: IS93 TYPE: ISO
V E S T I N G S C H E D U L E T R A N S A C T I O N S C A N C E L L A T I O N S
Granted Full Vest Exercisable Total Price Expires Date Type Shares Value Date Reason Shares
0 6/14/2002 0 $0.00 2/14/2011
1,296 12/1/2003 0 $0.00 2/14/2011
1,296 12/1/2004 0 $0.00 2/14/2011
1,295 4/3/2006 0 $0.00 2/14/2011
3,887 0 $0.00
OPTION NO.: AA1339 OPTION DATE: 2/14/2001 SHARES: 1,263 PRICE: $31.125000 PLAN: NQ93 TYPE: NQ
V E S T I N G S C H E D U L E T R A N S A C T I O N S C A N C E L L A T I O N S
Granted Full Vest Exercisable Total Price Expires Date Type Shares Value Date Reason Shares
0 6/14/2002 0 $0.00 2/14/2011
421 6/26/2004 0 $0.00 2/14/2011
421 6/26/2005 0 $0.00 2/14/2011
421 4/3/2006 0 $0.00 2/14/2011
1,263 0 $0.00
OPTION NO.: AA1588 OPTION DATE: 2/7/2002 SHARES: 1,930 PRICE: $39.395000 PLAN: NQ93 TYPE: NQ
V E S T I N G S C H E D U L E T R A N S A C T I O N S C A N C E L L A T I O N S
Granted Full Vest Exercisable Total Price Expires Date Type Shares Value Date Reason Shares
0 6/14/2002 0 $0.00 2/7/2012
643 6/26/2004 0 $0.00 2/7/2012
643 6/26/2005 0 $0.00 2/7/2012
644 4/3/2006 0 $0.00 2/7/2012
1,930 0 $0.00
Total Options Exercisable: 0
Total Price: $0.00
Total Potential Gain: $0.00
