Exhibit 10.1
AGREEMENT
AGREEMENT made and entered into in South Burlington, Vermont as of the
29th day of January 1998, by and between BEN & JERRY'S HOMEMADE, INC., a Vermont
corporation with its headquarters at 00 Xxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxxx,
Xxxxxxx 00000 (the "Company") and XXXXXXX XXXXX ("Xxxxx"), of 00 Xx. Xxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxx 00000.
WITNESSETH:
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WHEREAS, Xxxxx is a Founder of the Company and wishes to maintain an
active relationship between the Founders and the Company on mutually agreeable
terms, both as an employee of the Company and thereafter; and
WHEREAS, the Company desires to continue to employ Xxxxx, and Xxxxx
desires to continue to be employed by the Company, all on the terms and
conditions hereinafter provided;
WHEREAS, the Company and Xxxxx wish to confirm certain agreements and
make certain additional agreements that remain in force after the end of the
Term of Employment, as defined below; and
WHEREAS, this Agreement supersedes all prior employment agreements
between the parties.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. Employment and term of employment. The Company agrees to employ
Xxxxx, and Xxxxx hereby agrees to accept employment by the Company, under the
terms and conditions contained in this Agreement.
Subject to the termination provisions set forth in Paragraph 9 (and
6.2) hereof, the employment term (the "Term" or the "Term of Employment") shall
commence on the date hereof, and terminate on December 31, 1998, but shall
automatically renew for successive one year periods following December 31, 1998
unless either Xxxxx or the Company gives notice to the other of non-renewal at
least sixty days prior to the end of the Term then in effect.
2. Duties for the Company and Other Activities
2.1 Duties. Xxxxx shall use his best efforts to advance the best
interests of the Company under this Agreement. During the Term of Employment,
Xxxxx shall render services similar to the services he has performed since
January 1, 1997, and at a level similar to that performed since that date, as
requested from time to time by the Board of Directors of the Company (the
"Board") or by the Chief Executive Officer of the Company, and mutually agreed
to by Xxxxx. It is understood that Xxxxx'x obligation to provide services at a
level similar to that performed since January 1, 1997 shall not be required if,
in his reasonable judgment, there is a material change in the values of the
business mission of the Company, or in the implementation in practice of such
values, from that of January 1, 1997. Xxxxx may work from offices at his home or
at the headquarters of the Company in Vermont.
2.2 Other Activities. During the Term of Employment and thereafter,
Xxxxx may, to the extent not conflicting with his duties under Paragraph 2.1,
and so long as in compliance with Paragraph 6.1, and subject to the requirements
of Paragraph 11, engage in other businesses and activities, including for-profit
business and non-profit activities; provided, however, that Xxxxx (i) shall
provide written notice to such third party in the form attached hereto as
Exhibit A, and (ii) such third party duly executes and returns such notice to
Xxxxx, who shall promptly forward a copy to the Company. It is understood that
such businesses and activities are not to be undertaken by Xxxxx on behalf of
the Company. It is further understood that such written notice is not required
for the personal, non-business or non-commercial activities of Xxxxx in his
individual capacity.
3. Use of Name and Image, etc. During the Term of Employment and
Thereafter
3.1 Past Uses. Xxxxx hereby releases and discharges the Company from
any and all claims and demands arising out of or in connection with the use by
the Company of his name, image, likeness, portrait, photograph, audio or video
recordings, and facsimile signature, and all trademarks, copyrights, trade
names, and goodwill associated therewith prior to the effective date of this
Agreement. Xxxxx does not, by this Agreement, necessarily endorse or approve any
text or event with which his name, image, or facsimile signature has been used
by the Company prior to the effective date of this Agreement, and does not
consent to future use of his name, image, likeness, portrait, photograph, audio
or video recordings, and facsimile signature except as provided under paragraphs
3.2 and 3.3. The provisions of this Agreement do not enlarge or restrict the
Company's intellectual property rights except as expressly provided herein.
3.2.Confirmatory Grant of Name, Trademark, and Other Rights. Xxxxx
hereby irrevocably confirms the exclusive, perpetual, royalty-free, worldwide
right of the Company to use his first name in the name "Xxx & Jerry's", and his
photograph in the form of the label reproduced on the "Consent" attached as
Exhibit B (used either together with the photograph of Xxxxx Xxxxxxxxxx included
on Exhibit B or separately), and his photograph in the form of the three labels
reproduced on the attached Exhibit C, in each case in connection with labels or
packaging of products sold by the Company from time to time and ancillary
promotional or image materials of the company (including materials such as, but
not limited to, signs, brochures, T shirts and giant pint lids).
Xxxxx further confirms that the tradename "Ben & Jerry's" and
associated goodwill are the exclusive property of the Company.
3.3.Additional Grant, Subject to Written Consent, Regarding Certain
Other Uses.
Other than the uses specified in Paragraph 3.2, the Company may use, on uses not
within Paragraph 3.2 above, even if released and discharged under Paragraph 3.1
above, Xxxxx'x first name, image, likeness, portrait, photograph, audio or video
recordings, and/or facsimile signature, only with his express written consent as
to each proposed use.
Within 30 days of the effective date of this Agreement, the Company
shall present to the Xxxxx a list and description of all uses for which it
requests consent at this time. Xxxxx shall respond to the request for such uses
within 30 days thereafter, and shall execute all appropriate documents
reasonably requested by the Company in aid of each consented use.
The Company shall discontinue any use not within Paragraph 3.2 to which
Xxxxx does not consent as follows: For any such use in product packages,
coupons, certificates, and point of sale materials, the Company may consume its
stock, if any, existing as of the effective date of this Agreement. For all
other such uses, the Company shall have a commercially reasonably period of
time, not exceeding six months from the date of this Agreement, to discontinue
such use.
The Company shall thereafter afford a reasonable prior opportunity to
Xxxxx or his designee to review each matter as to which Xxxxx has the right to
consent under this paragraph, and in turn Xxxxx agrees, upon request of the
Company, to respond to any proposed use that requires consent under this
Paragraph, and shall execute all appropriate documents reasonably requested by
the Company in aid of each consented use.
3.4. Duty Not to Disparage. So long as he is receiving payments under
this Agreement, Xxxxx shall use his best efforts not to disparage publicly the
Company or its products or the Company's rights under Paragraph 3.
3.5. Specific Enforcement. The provisions of this Paragraph 3 are
material consideration to this Agreement, and the parties acknowledge that
damages caused by breach of these provisions will be difficult to quantify. The
parties therefore consent to the award of equitable relief, including
prohibitory and mandatory, preliminary or permanent, injunctions for material
breach of these provisions which is not reasonably cured within 30 days after
notice, as well as damages for any material breach, in a proceeding under
Paragraph 13.2.
3.6 Assignment, etc. The rights granted or confirmed to the Company
under this Paragraph 3 may not be assigned during the lifetime of Xxxxx except
in connection with a merger or consolidation of the Company or sale of transfer
of all or substantially all of the business or assets of the Company. The grant
or confirmation of rights to the Company under this Paragraph 3 shall be binding
upon Xxxxx and his heirs, legal representatives, and assigns.
Uses by the Company under Paragraph 3 shall encompass the Company, its
subsidiaries and any affiliates in a joint venture, franchise or license in
which the Company (or any subsidiary) has a significant economic interest. The
term "use" shall include, for any permitted use, re-use, publication, and
reproduction in whole or in part in any and all media.
4. Compensation and Benefits During the Term of Employment.
4.1 Base Salary. During the Term of Employment, the Company shall pay
to Xxxxx a base salary ("Base Salary") of $200,000 per annum, payable monthly,
beginning as of May 1, 1997. Once a year the Board shall, in its discretion,
review Xxxxx'x Base Salary with a view to an upward adjustment thereof.
4.2 Bonus. The Company may, if determined by the Board, pay Xxxxx for
each calendar year during the period of Xxxxx'x employment hereunder, commencing
with the year ending December 31, 1998, a bonus ("Bonus") in an amount to be
determined by the Board in its discretion. Any Bonus shall be payable within 90
days after receipt by the Company of the annual financial statements of the
Company, certified by the independent certified public accountants of the
Company in accordance with generally accepted accounting principles uniformly
applied on a consistent basis.
4.3 Out-of-Pocket Expenses. The Company shall promptly pay or reimburse
Xxxxx for all reasonable expenses incurred or paid by him in the performance of
his duties during the Term of Employment, provided that Xxxxx properly accounts
therefor in accordance with the policies of the Company.
4.4 Medical Benefits. The Company shall provide Xxxxx and his
dependents with health and hospitalization insurance, and any other medical and
dental benefits generally available to employees during the Term of Employment.
4.5 Vacation. During the Term of Employment, Xxxxx shall be entitled to
four weeks paid vacation per annum at times to be mutually selected by Xxxxx and
the Company.
4.6 Car. During the Term of Employment, Xxxxx shall be entitled to a
"Company Car" for use while engaged in his duties under this Agreement. The
Company shall pay or reimburse Xxxxx for gas, maintenance, and repair, other
than personal use.
4.7 Life Insurance. The Company shall provide Xxxxx with the same life
insurance benefits as available to employees generally during the Term of
Employment.
4.8 Founders' Office. The Company shall provide Xxxxx with an office at
the Company's headquarters in Vermont, to be situated, furnished, equipped,
supported, and staffed in a manner substantially the same as the present
"Founders' Office," for use by Xxxxx in connection with Company business, or,
subject to the other provisions of this Agreement, personal affairs, or any
other matter.
5. Protection of Confidential Information During the Term of Employment
and Thereafter.
5.1 Confidentiality Covenant. Xxxxx acknowledges that his employment by
the Company has and will continue to bring him into close contact with many
confidential affairs of the Company, including information about costs, profits,
markets, sales, products, key personnel, pricing policies, operational methods,
strategic and other business plans, manufacturing processes and other business
affairs, methods of information not readily available to the public, and plans
for future developments. Xxxxx further acknowledges that the services to be
performed by him under this Agreement are of special, unique and extraordinary
character. Xxxxx further acknowledges that the business of the Company is
conducted throughout the United States and in certain countries outside the
United States and that he is therefore capable of competing with the Company
from nearly any location in the United States and from certain foreign
locations. In recognition of the foregoing, Xxxxx covenants and agrees:
(a) That he will keep secret all confidential affairs of the Company
and not use them himself or disclose them to anyone outside of the
Company, either during or after the Term of Employment, except in
accordance with the performance of his duties or with the Company's
prior written consent; and
(b) That he will deliver promptly to the Company on termination of the
Term of Employment, or at any time the Company may so request, all
memoranda, notes, records, reports and other documents (and all copies
thereof) relating to the Company's business, which he may then possess
or have under his control, except for personal mementos and effects as
he may reasonably identify and retain.
5.2 Specific Remedies. If Xxxxx commits a breach, or threatens to
commit a breach, of any of the provisions of paragraph 5.1 (which is not
reasonably cured within 30 days after notice), then the Company shall have the
right and remedy (i) to have such provisions specifically enforced, and (ii) the
right and remedy to require Xxxxx to account for and pay over to the Company all
compensation, profits, monies, accruals, increments or other benefits
(collectively "Benefits") derived or received by Xxxxx as the result of any
transactions constituting a breach of any of the provisions of paragraph 5.1,
and Xxxxx hereby agrees to account for and pay over such Benefits to the
Company. Disputes arising under this Paragraph 5 shall be resolved as provided
for in Paragraph 13.2 of this Agreement.
6. Restriction on Competition During the Term of Employment and
Thereafter.. .
6.1 Covenant. Xxxxx covenants and agrees that:
(A) during the Term of Employment (as it may be extended) and for a
period of three (3) years (the "Severance Period') thereafter, he will
not (i) enter, directly or indirectly, into the employ of or render,
directly or indirectly, any services to any person, firm or corporation
engaged in any business competitive with any business of the Company or
any subsidiary at the time that he commences such employ or services;
(ii) engage, directly or indirectly, in any such business for his own
account; or (iii) become interested, directly or indirectly, in any
such business as an individual partner, shareholder, creditor,
director, officer, principal, agent, employee, trustee, consultant,
advisor or in any other relationship or capacity; and
(B) after the Severance Period, he will not (i) enter, directly or
indirectly, into the employ of or render, directly or indirectly, any
services to any person, firm or corporation engaged in the frozen
dessert business, or engaged in material competition with any other
business material to the Company or any subsidiary as of the end of the
Term of Employment; (ii) engage, directly or indirectly, in any such
business for his own account; or (iii) become interested, directly or
indirectly, in any such business as an individual partner, shareholder,
creditor, director, officer, principal, agent, employee, trustee,
consultant, advisor or in any other capacity;
6.2 Consideration. In consideration for Xxxxx'x agreement not to
compete as set forth herein, in addition to the Compensation and Benefits
provided in Paragraph 4 of this Agreement, the Company agrees to pay Xxxxx
severance ("Severance"), on a monthly basis, equal to 100% of his then current
rate of annual Base Salary (measured at the date of the end of the Term of
Employment, as it may have been extended) during the Severance Period, provided,
however, that such payments shall terminate upon earlier termination of Xxxxx'x
employment by the Company for "cause" as defined in Paragraph 9 (and 6.4) hereof
or termination of the Company's obligations to make payments under Paragraph 6.4
or 11.5 of this Agreement.
The Severance Payments during the three year Severance Period under
this Paragraph 6.2 shall, in the event of Xxxxx'x death, be paid to his estate
or designated beneficiaries.
6.3 Limitations on the Covenant.
6.3.1 The provisions of Paragraph 6.1 shall not be deemed to preclude
Xxxxx from employment by or consulting for any person some of whose activities
are competitive with the business of the Company if Xxxxx'x employment or
consulting does not relate, directly or indirectly, to such competitive
business.
6.3.2 Nothing contained in paragraph 6.1 shall be deemed to prohibit
Xxxxx (A) from acquiring or holding, solely for investment, publicly traded
securities of any corporation that competes with the Company so long as such
securities do not, in the aggregate, constitute more than 2% of any class or
series of outstanding securities of such corporation, or (B) from serving as a
director, officer, member of any committee, employee, or consultant for a person
other than the Company who does not engage in any business competitive with any
business of the Company.
6.3.3 The Company may at any time, upon Xxxxx'x request to the Board,
waive in writing the covenants in Paragraph 6.1 as to one or more activities.
6.3.4 It is understood that if Xxxxx engages in a business activity
which is permitted under Paragraph 6.1, and the Company subsequently begins to
compete in that business, then Xxxxx may continue to engage in such business
activity without restriction. In that case, the covenant of Paragraph 6.1 shall
not apply to such permitted activity, and the remedies for violation of the
covenant provided in Paragraphs 6.2, 9.2, and 11.5 shall not be available to the
Company.
6.3.5 After the Severance Period, Xxxxx may compete with the Company in
any line of business upon 90 days advance notice to the Company, provided,
however, that payments by the Company to Xxxxx under Paragraph 11.1, and
benefits under Paragraphs 11.3 and 11.4, shall thereupon terminate.
6.4 Remedies. In the event of the violation by Xxxxx of any of the
covenants of Paragraphs 2.2, 3, 5.1, 6.1 or 8, and unless such violation shall
be remedied within 30 days after receiving notice of it from the Company, such
violation shall be deemed to be "cause" within the meaning of Paragraph 9 for
termination of the Term of Employment and (to the extent therein provided) of
the Company's obligations to make any payments under this Agreement. The Company
shall have the right and remedy to have the provisions of Paragraphs 2.2, 3,
5.1, 6.1 or 8 specifically enforced, it being acknowledged and agreed that any
such violation or threatened violation will cause irreparable injury to the
Company and that money damages will not provide an adequate remedy to the
Company. Disputes arising under this Paragraph 6 shall be resolved as provided
for in Paragraph 13.2 of this Agreement.
7. Independence, Severability and Non-Exclusivity; Jurisdiction. Each
of the rights and remedies enumerated in Paragraphs 2.2, 3, 5.2, 6.4 and 8 shall
be independent of the other and shall be severally enforceable and all of such
rights and remedies shall be in addition to and not in lieu of any other rights
and remedies available to the Company under the law or in equity. If any of the
covenants contained in Paragraphs 2.2, 3, 5.1, 6.1 or 8 or if any of the rights
or remedies enumerated in Paragraphs 2.2, 3, 5.2, 6.4 or 8, or any part of any
of them, is hereafter construed to be invalid or unenforceable, then (i) the
same shall not affect the remainder of the covenants or rights or remedies which
shall be given full effect without regard to the invalid portions and (ii) in
addition if any of the covenants contained in Paragraphs 2.2, 3, 5.1, 6.1 or 8
is held to be unenforceable because of the duration of such provision or the
subject matter or area covered thereby, 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 then be enforceable.
8. Product Development. Xxxxx acknowledges that during the Term of
Employment he may conceive of, discover, invent or create new products or
product improvements whether patentable or copyrightable or not (all of the
foregoing being collectively referred to herein as "Product Developments"), that
he may conceive of, discover, invent or create various business opportunities
relating to the business of the Company, and that various business opportunities
relating to the business of the Company may be presented to him by reason of his
relationship created by this Agreement. Xxxxx acknowledges that all of the
foregoing shall be owned by and
belong exclusively to the Company and that he shall not have any personal
interest therein, provided that they are either related in any manner to the
business of the Company, or are conceived or made on or presented to Xxxxx
during the Company's time or with the use of the Company's facilities or
materials. Xxxxx shall (i) disclose promptly any such Product Developments and
business opportunities to the Company; (ii) assign to the Company, without
additional compensation, the entire rights to such Product Developments and
business opportunities; (iii) execute all documents and instruments necessary to
carry out the foregoing; and (iv) give testimony in support of its or his
developments or creation in any appropriate case.
Provided, however, that if the Company does not implement or act upon
any such Product Development or business opportunity during the Term of
Employment or the Severance Period, then Xxxxx'x rights, title and interest in
any Product Development or business opportunity conceived of, discovered,
invented or created by Xxxxx shall revert to Xxxxx upon the termination of his
employment for any reason. In use of any such Product Development, Xxxxx shall
be subject to the covenant against competition specified in Paragraph 6.
Provided further, that if the Chief Executive Officer of the Company so
consents in writing, Xxxxx'x rights, title and interest in any Product
Development or business opportunity conceived of, discovered, invented or
created by Xxxxx shall revert to Xxxxx at any time.
Disputes arising under this Paragraph 8 shall be resolved as provided
for in Paragraph 13.2 of this Agreement.
9. Termination of the Term of Employment. The Term of Employment under
this Agreement shall terminate under any of the following conditions:
9.1 (A) at the option of the Company (i) for cause, which shall be
defined as: (a) Xxxxx'x willful failure to comply with any of
the material terms of this Agreement, including, without
limitation, Xxxxx'x violation of any covenants in Paragraph
2.2, 3, 5.1, 6 and 8, unless such failure shall be remedied
within 30 days after receiving notice of it from the Company;
(b) Xxxxx'x willful engagement, in his capacity as an employee
of the Company, in gross misconduct injurious to the Company,
and (c) Xxxxx'x failure to carry out duties as agreed with the
Company under Paragraph 2.1 hereof; and (d) pursuant to
Paragraph 6.4 hereof. It is expressly understood and agreed by
the Company that expression by Xxxxx, whether public or
private, of his opinion as a private individual concerning
public issues, including endorsements of candidates or causes,
and participation in political, social, and environmental
organizations or events, shall not be cause for termination.
(B) upon the death of Xxxxx.
(C) at the option of Xxxxx upon not less than 60 days prior
notice to the Company given not earlier than July 30, 1998.
9.2 In the event of termination of the Term of Employment at the option
of the Company for cause as defined in Paragraph 9, Xxxxx shall continue to be
subject to his obligations contained in Paragraphs 2.2, 3, 5, 6, 7, 8, and 11
hereof. The Company shall also be entitled, as a remedy awarded under Paragraph
13.2, to terminate its obligation to make payments and to provide benefits under
Paragraph 6.1 or under 11.1, 11.3, and 11.4 as the case may be, in the event of
a material breach, not remedied within 30 days after notice by Company, of the
provisions of Paragraph 2.2, 3, 5.1, 6.1, or 11.2.
9.3 In the event of termination of the Term of Employment at the option
of Xxxxx under subparagraph 9.1(C) above, all the provisions of this Agreement
(including those requiring the Company to make certain payments and to provide
benefits to Xxxxx) applicable to the period after the end of the Term of
Employment, including Paragraphs 2.2, 3, 5, 6, 7, 8, and 11, shall remain in
effect.
10. Services After Term of Employment. During the Severance Period and
afterwards, Xxxxx shall be available to serve as a consultant to the Company
regarding such matters and at such times requested by the Board or by the Chief
Executive Officer of the Company, and as agreed to by Xxxxx. Xxxxx may also make
public appearances on behalf of the Company, if any, upon such request and as
agreed in his discretion. The Company shall promptly pay or reimburse Xxxxx for
all reasonable expenses incurred or paid by him in the performance of such
services, provided that Xxxxx properly accounts therefor in accordance with the
policies of the Company.
11. Other Payments, Benefits and Duties.
11.1. Payments.
11.1.1 Annual Payment After the Severance Period. In consideration of
the services specified in Paragraph 10, and in consideration of the covenants in
Paragraph 6.1, beginning as of three years after termination of the Term of
Employment, the Company shall pay Xxxxx, during his lifetime, the annual sum of
$75,000 payable quarterly, and provide the benefits specified below in this
Paragraph 11. Such payments, and the benefits provided in Paragraphs 11.3 and
11.4, shall terminate upon Xxxxx'x notice to the Company pursuant to Paragraph
6.3.5.
11.1.2 Annual Adjustment. The payment provided for in Paragraph 11.1.1
shall increased annually by the percentage increase, if any, in the Consumer
Price Index for Class C cities in the Northeast Region for the preceding year,
as promulgated by the Bureau of Labor Statistics of the U.S. Department of
Labor, or a successor index or comparable index for Xxxxxxxxxx County, Vermont,
if one shall be determined by the Bureau of Labor Statistics. This increase
shall begin effective upon the anniversary of the first year of payments under
Paragraph 11.1.1, and shall continue annually until the year that Xxxxx attains
age 65.
11.2. Insurance.
11.2.1 Health Insurance. Xxxxx, his wife or significant other, and his
dependents, may remain persons covered by the Company's health
insurance plan after the Term of Employment and until such time as
both Xxxxx and his wife (or significant other) qualify for federal and
state Medicare benefits as they may then be available, by paying the
Company's normal COBRA rate then in effect from time to time, with the
deductible then in effect for a person with the salary rate that Xxxxx
had immediately before retirement, provided that the Company makes
such coverage generally available to its employees. Nothing in this
Agreement shall preclude the Company from selecting a different health
insurance plan.
11.2.2 Distribution Rights or Payment in Lieu Thereof. The Company
agrees in good faith to investigate the feasibility of granting Xxxxx
a ten year exclusive distributorship with respect to the Company's ice
cream products line to a certain jurisdiction in the Caribbean, and if
the Company determines that this is feasible, the Company and Xxxxx
agree to negotiate in good faith the terms of a mutually acceptable
distribution agreement. In the event that Company determines, by
written notice to Xxxxx, that this is not feasible or in the event the
parties fail, by March 15, 1998, to negotiate such a mutually
acceptable distribution agreement, then the Company shall pay to
Xxxxx, the sum of $135,000 payable in three annual payments of $45,000
each, the first on April 1, 1998, the second on April 1, 1999, and the
third on April 1, 2000. These annual payments under Paragraph 11.2.2
shall, in the event of Xxxxx'x death, be paid to his estate or
designated beneficiaries.
11.3 Founder's Office. The Company shall provide a Founder's Office, of
similar functionality and expense to the Founders' Office described in Paragraph
4.8, in a place in Vermont to be designated by Xxxxx (subject to approval by of
the Company, which shall not be unreasonably withheld) for a period of two years
(but not after the death of Xxxxx) after expiration or termination of the Term
of Employment.
11.4 Free Products for Life. The Company shall provide to Xxxxx, and
after his death shall provide to two persons designated by Xxxxx in writing
before his death, reasonable amounts of free ice cream and other Company
products for their respective lives. Furthermore, when Xxxxx is a material
participant in or supporter of any public event, the interests of which are
aligned with the Company's statement of values, entitled "Leading with
Progressive Values Across our Business," adopted by the Board of Directors of
the Company on November 20, 1997, a copy of which is attached hereto as Exhibit
D, as amended by the Board from time to time, the Company will provide, free of
charge, a reasonable and adequate amount of Ben & Jerry's products for each
person reasonably expected to attend such events.
11.5 Breach. Wilful breach by Xxxxx of the material provisions of
Paragraph 2.2, 3, 5.1, 6.1, 8, or 11.6, if not remedied within 30 days after
notice by the Company to Xxxxx, shall entitle the Company, as a remedy under
Paragraph 13.2, to terminate its obligation to make payments under Paragraph
11.1 or to provide benefits under Paragraphs 11.3 and 11.4 of this Agreement.
Payments by the Company that would, but for this Paragraph 11.5, have been made
to Xxxxx, shall be made by the Company to an escrow agent mutually agreeable to
the Company and to Xxxxx, and shall be distributed from escrow to the Company or
to Xxxxx upon final judgment or settlement pursuant to a proceeding under
Paragraph 13.2.
11.6 Non-Company Activities. In conducting non-Company activities
during the Term of Employment, during the Severance Period or thereafter, Xxxxx
agrees to comply with the following provisions:
11.6.1 No Agency. Xxxxx will not hold himself as acting on
behalf of the Company. Xxxxx has no authority to act
for or to bind the Company without the approval of
the Chief Executive Officer of the Company.
11.6.2 Letterhead. So long as he is a director of the
Company, and subject to Paragraph 2.2 (which if
applicable requires the Exhibit A procedure specified
in Paragraph 2.2), Xxxxx may use Company letterhead
imprinted with the legend set out on Exhibit E, or
such other legend as may be reasonably acceptable to
the Company, that he is acting in his personal
capacity and is not acting on behalf of the Company.
11.6.3 Company Resources. Other than the resources and
personnel of the Founders Office provided under
Paragraphs 4.8 and 11.3, Xxxxx will not use Company
personnel or resources except with the express
written consent of the Chief Executive Officer of the
Company.
11.7 Directorship. Service as a director of the Company or any
compensation therefor is not covered by this Agreement.
11.8 Services after the Term of Employment. After the Term of
Employment, Xxxxx may perform services for the Company, in addition to those in
Paragraph 10, as are mutually agreed from time to time by Xxxxx and the Board or
the Chief Executive Officer, provided that his reasonable out-of-pocket expenses
are advanced or reimbursed to him by the Company, and subject to agreement
regarding other terms and conditions, if any.
12. Notices. All notices, requests, consents and other communications,
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally or mailed first-class,
postage prepaid, by registered or certified mail, addressed as follows (or to
such other address as either party shall designate by notice in writing to the
other in accordance herewith):
If to the Company:
Ben & Jerry's Homemade, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: President
If to Xxxxx:
00 Xx. Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
13. General.
13.1 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Vermont (other than its
rules for choice of law).
13.2 Dispute Resolution. All disputes concerning this Agreement shall
be resolved , and all remedies shall be available, only as provided in this
Paragraph 13.2.
13.2.1 In the event that one party believes the other party
to have committed a material breach of this
Agreement, for which the party wishes to pursue a
remedy, then the party shall give 30 days notice of
the breach.
13.2.2 Upon written notice by either party, the parties each
agree to select a mediator and to promptly mediate in
good faith any controversy, claim or dispute arising
between the parties arising out of or related to this
Agreement, its performance or any breach or claimed
breach thereof.
13.2.3 In the event that such non-binding mediation does
not resolve any such matter, then such matter, and
any other dispute arising under this Agreement, the
parties irrevocably submit to the jurisdiction and
venue of the United States District Court for the
District of Vermont at Burlington and the Vermont
Superior Court for Xxxxxxxxxx County 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 will be
brought or maintained only in such court.
13.3 Captions. The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
13.4 Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the parties relating to the subject matter hereof, and
supersedes all prior arrangements, arrangements and understandings, written or
oral, between the parties relating to the subject matter hereof except as
provided in the last sentence of Paragraph 3.1 Certain
provisions of this Agreement survive the Term of Employment and any termination
of payments by the Company, including Paragraphs 3, 5, 6, 8, 10, 11, and 13.
13.5 No Other Representations. No representation, promise or inducement
has been made by either party that is not embodied in this Agreement, and
neither party shall be bound or liable for any alleged representation, promise
or inducement not so set forth.
13.6 Assignability. Subject to Paragraph 3.6, this Agreement may not be
assigned by Xxxxx or the Company, except that Xxxxx may assign part or all of
payments from the Company for the benefit of his dependents, heirs, or
beneficiaries, and the Company may assign this Agreement in a merger,
consolidation, sale or transfer of all or substantially all of the business and
assets of the Company. Subject to the foregoing, this Agreement shall bind each
party and its successors, heirs, personal representatives and assigns.
13.7 Amendments; Waivers. This Agreement may be amended, modified,
superseded, renewed or extended and the terms or covenants hereof may be waived,
only by a written instrument executed by both of the parties hereto, or in the
case of a waiver, by the party waiving compliance. The failure of either party
at any time or times to require performance of any provision hereof shall in no
manner affect the right at the later time to enforce the same. No waiver in this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be, or construed as, a further or continuing waiver of any such
breach, or a waiver of the breach of any other terms or covenant contained in
this Agreement.
13.8 No Presumption. This Agreement has been prepared by the parties'
lawyers to reflect the parties' mutual agreement. No presumption shall be
implied or asserted that the terms of this Agreement are to be construed against
either party.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
BEN & JERRY'S HOMEMADE, INC.
/s/ Xxxxx X. Xxxx
By: _________________________________
Xxxxx Xxxx
Chief Executive Officer
Duly Authorized
/s/ Xxxxxxx Xxxxx
---------------------------------
Xxxxxxx Xxxxx
