EMPLOYMENT AGREEMENT, AS OF NOVEMBER 19, 1996,
BETWEEN THE COMPANY AND XXXX X. XXXXXX
EMPLOYMENT AGREEMENT ("Agreement") made as of November 19, 1996 between GREEN
MOUNTAIN COFFEE ROASTERS, INC., a Vermont corporation ("Employer"), and
XXXX X. XXXXXX, an individual residing in Underhill, Vermont ("Executive").
Employer desires to employ Executive and Executive desires to be employed by
Employer as Vice President of Administration. 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 Administration, and Executive accepts
such employment.
1.2 As Vice President of Administration of Employer, Executive shall
be responsible for the general supervision and management of all
aspects of development and implementation of Employer's policies,
plans, and programs with respect to personnel of Employer and
management of the corporate administrative department, 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.
2. Term. This Agreement will commence on November 19, 1996, 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, up to a maximum of
20% of Base Compensation, 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 four
(4) weeks per annum accruing at the rate of 1.66 days per month.
3.1.e Reimbursement for 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 and 3.1.b, 3.1c, 3.1d, or 3.1 e, 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. Executive's 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.
4.3 Disability. If, after being reasonablely accommodated by Employer,
Executive is unable to perform his services due to illness, injury or
incapacity for a period of more than thirty (30) 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 or 3.1.b, 3.1c, 3.1d. Or 3.1e, 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 (in any medium whatsoever) 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 competitive with that of Employer or any
affiliate. 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 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 X. Xxxxxx
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 October 4, 1996.
9.2 Waiver. 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.
9.5 Governing Law. This Agreement is made in and shall be construed and
interpreted under the laws of the State of Vermont, and Executive
consents to personal jurisdiction in 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 two 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. Except for the rights of Employer pursuant to Section 5,
above, 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 X. Xxxxxx
-----------------------------
Xxxx X. Xxxxxx
