Exhibit 10.26.1
EMPLOYMENT AGREEMENT
Agreement by and between Ben & Jerry's Homemade, Inc. (the
"Company"), a Vermont corporation with its principal place of business at Xxxxx
000, X.X. Xxx 000, Xxxxxxxxx, Xxxxxxx 00000, and Xxxxx Xxxxxx of Columbus,
Georgia (The "Executive"), effective as of the 21st day of August, 1995.
WHEREAS, subject to the terms and considerations hereinafter set forth,
the Company wishes to employ the Executive as its Senior Director of Operations
and Executive wishes to accept such employment;
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 as the Senior
Director of Operations, responsible to the Company's Chief Executive Officer and
President..
2. Term.
Subject to earlier termination as hereafter provided, the Executive's
employment hereunder shall be for a term of three (3) years, commencing on the
effective date hereof.
3. Performance.
During the term hereof, the Executive shall devote his full time best
efforts, business judgement, skill and knowledge to the advancement of the
business and interests of the Company.
4. Compensation and Benefits.
As compensation for all services performed by the Executive and subject to
performance of the Executive's obligations:
a. Base Salary. The Company shall pay the Executive a base salary at
the rate One Hundred and Sixty Thousand Dollars ($160,000) per
annum in accordance with the payroll practices of the Company for
its executives, subject to annual merit salary reviews by the
Chief Executive Officer.
b. Annual Incentive Award. The Executive shall be entitled to annual
incentive award (the "Incentive Award") payable in cash or Class
A common stock as determined by the Chief Executive Officer and
President after consultation with the Executive and subject to
the approval of the Compensation Committee of the Board of
Directors. The amount of the Incentive Award shall be as follows:
b.1 1995 Short Year (August 21 - December 31, 1995) shall be Forty
Thousand Dollars ($40,000) and payable within thirty days after
January 1, 1996. Half of this incentive is guaranteed and
intended to compensate the Executive for any earned bonus that
was forgone by the Executive by leaving his previous position at
his previous employer. The balance of this incentive will be
based upon the Executive's progress in addressing goals which
cover the first five months at the Company primarily addressing
orientation, assessment of the current operations, prioritization
and planning of critical work for the operations of the Company
and the overall transition of the Executive into the position, as
determined upon recommendation of the Chief Executive Officer,
subject to the approval of the Compensation Committee of the
Board of Directors.
b.2 1996 and Future Years shall not exceed 35% of the Executive's
annual base salary. 25/35% of the Incentive Award will be paid in
cash and the balance will be paid in shares of Class A common
stock issued under the Company's Restricted Stock Plan. The
annual incentive will be paid within sixty days after January 1
of the following year. The specific criteria and objectives shall
be established for any year prior to the start of each year and
will be mutually agreed upon by the Executive and the Chief
Executive Officer and President, subject to the approval of the
Compensation Committee of the Board of Directors and the
determination as to the amount of the Incentive Award earned will
be determined upon recommendation of the Chief Executive Officer,
subject to approval of the Compensation Committee.
c. Stock Options. The Executive shall receive options, which are
non-statutory, non-incentive stock options, to purchase 25,000
shares of Class A common stock of the Company exercisable at the
market price at the close of business on August 21, 1995, the
first day of your employment. The Compensation Committee formally
grants the options under the Company's 1995 Equity Incentive Plan
(the "Plan"). The options have a term of ten (10) years and
become exercisable at the rate of 5, 000 shares a year under the
following schedule: 5,000 shares on January 1, 1997, 5,000 shares
on January 1, 1998, 5,000 shares on January 1, 1999, 5000 shares
on January 1, 2000, and 5,000 shares on January 1, 2001. The full
terms of the options shall be set forth in the form of Option
Certificate attached as Exhibit A.
d. Other Benefits. The Executive shall be entitled to participate in
any of the employee benefit plans, including medical and life
insurance, 401(K) plan, personal time, etc and any other employee
benefit plans which effect Executives of the Company, except to
the extent that any benefit excludes participation by executives
of the Company. The Company may alter, modify, add to or delete
its employee benefit plans at any time as it, in its sole
judgment, determines to be appropriate.
e. 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 reasonable substantiation and documentation.
f. Car Allowance. The Company typically only provides a car
allowance to the field sales force, however, the Company
anticipates that the Executive will frequently travel to the
various operations and locations throughout the State of Vermont.
The Company will provide the Executive with a car allowance of
$542 dollars per month, and reimbursement of 80% of his gasoline
expenses. Theses amounts may be subject to taxation under IRS
guidelines, most likely reflecting what percentage of the use of
the car is for business purposes.
g. Relocation Expenses. The Company will reimburse the Executive for
the following relocation expenses: (i) Closing costs on selling
the existing home, including sales commission and legal fees, not
to exceed $15,000 dollars (ii) Expenses to move all household
goods, not to exceed $8,000 dollars, (iii)Interim living expenses
for sixty (60) days, not to exceed $2,000 dollars, (iv) Expenses
for up to two (2) house-hunting trips for the Executive and his
wife including air fare, lodging, meals and rental car, and (v)
Closing costs on any new purchase of the Executive's primary
residence, including standard mortgage points (not buy down
interest rate expenses) and legal fees, not to exceed $8,500
dollars. The Company is willing to consider reimbursement for any
expenses which exceed the limitations listed above, should the
cost of relocation increase substantially for unforeseen reasons.
All reimbursed amounts will be grossed up for tax purposes.
5. Termination of Employment and Severance Benefits.
The Executive's employment hereunder shall terminate prior to the
expiration of the term of this Agreement under the following circumstances:
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 Base Salary, bonuses and incentives
that are earned but unpaid, pro-rated through the date of his
death and payment or reimbursement of business expenses accrued
prior to the date of death.
b. By the Company for Cause. The Company may terminate the
Executive's employment hereunder for Cause at 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. The following, as determined by the
Board in its reasonable judgement, shall constitute Cause for
termination:
I. The Executive's willful failure to perform (other than by
reason of disability) or negligence (measured against
standards generally prevailing in the Company's industry) in
the performance of his duties and responsibilities to the
Company; or
ii. Other deliberate willful action by the Executive that is
materially harmful to the business, interests or reputation
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. Upon giving notice of termination of the
Executive's employment hereunder for Cause following the Executive's failure to
cure, the Company shall have no further obligation or liability to the
Executive, other than for business expenses accrued prior to the date of
termination. Upon termination of employment for Cause, all options shall
terminate.
c. By the Company other than for Cause. The Company may terminate
the Executive's employment hereunder other than for Cause at any
time upon notice to the Executive. In the event of such
termination, then, for a period of one year, the Company shall
continue to pay the Executive the Base Salary and Annual
Incentive Award at the rate in effect on the date of termination
and the prior years Incentive Award and shall continue to
contribute, subject to any employee contribution applicable to
the Executive on the date of termination, for such one year
period, to the cost of the Executive's participation (including
his family) in the Company's group medical and hospitalization
insurance plans, provided that the Executive is entitled to
continue such participation under applicable law and plan terms.
Upon termination of employment for other than Cause, all options
shall terminate.
6. Effect of Termination.
Except for medical and hospitalization insurance coverage continued
pursuant to Section 5.c. and options as provided in the Equity Incentive Plan,
all benefits shall terminate on termination of the Executive's employment or
expiration of this Agreement. Provisions of this Agreement shall survive any
termination if so provided herein or if necessary or desirable to fully
accomplish the purposes of such provision, including without limitation the
obligations of the Executive under Sections 7, 8 and 9 hereof.
7. Confidential Information.
a. 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 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 Chief Executive Officer or
his designee may specify, all Documents that in 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. 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:
a. While the Executive is employed by the Company and for two years
after his employment terminates (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 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.
b. The Executive further agrees that while he is employed by the
Company and during the Non-Competition Period, 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 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 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 employment does not relate,
directly or indirectly, 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 5(b) in the
event of a material breach by the Executive of the provisions of Sections 7, 8
and 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.
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 and 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 preliminary and permanent injunctive
relief against any breach or threatened breach by the Executive of any of said
covenants. The parties further agree that, in the event that any provision of
Section 7, 8 and 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 geographical 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. Indemnification.
The Company shall indemnify the Executive to the extent provided for the
Company executive officers in its then current Articles of Incorporation or By-
laws. 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.
12. Full Settlement.
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.
13. Definitions.
Words or phrases which are initially capitalized or are within quotation
marks shall have the meanings provided in this Section 13 and as provided
elsewhere herein. For purposes of this Agreement the following definitions
apply:
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 would assist in competition against
them. 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
thereof, (iii) the costs, source of supply, financial performance
and strategic plans of the Company and its Subsidiaries, (iv) the
identify 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 any
understanding that it would not be disclosed.
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 either the Products or any prospective activity of the Company
and 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 will all services provided or planned by
the Company or any of its Subsidiaries, during the Executive's
employment.
14. Withholding.
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.
15. 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.
16. Severability.
If any portion or provision of this Agreement shall to any extent be
declared illegal or unenforceable by 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.
17. 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.
18. 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 Executive Officer and President.
19. Entire Agreement.
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.
20. Amendment.
This Agreement may be amended or modified only by a written instrument
signed by the Executive and by an expressly authorized officer of the Company.
21. Governing Law and Consent to Jurisdiction.
This is a Vermont contract and shall be construed and enforced under and be
governed in all respects by the laws of the State of Vermont, without regard to
the conflict of laws principles thereof, and any legal proceeding brought in
connection with the negotiation, construction or performance of this Agreement
or relating to the Executive's relationship with the Company may be initiated
solely in the United States District Court of Vermont or the Washington County
Superior Court, District of Vermont.
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
mentioned.
BEN & JERRY'S HOMEMADE, INC.
___________________________ By: _____________________________
/s/Xxxxx Xxxxxx, Executive /s/Xxxxxx Xxxxxxx, Jr.,
Chief Executive Officer and
President
