Exhibit 10.1.2
EMPLOYMENT AGREEMENT:
AGREEMENT made and entered into as of the 1st day of May, 1995, by and between
BEN & JERRY'S HOMEMADE, INC., a Vermont corporation with principal place of
business in Waterbury, Vermont (the "Company") and Xxx Xxxxx ("Xxxxx"), a
resident of Williston, Vermont.
WITNESSETH:
WHEREAS, the Company is desirous of employing Xxxxx as Chairperson of the
Board of Directors of the Company and Xxxxx is desirous of committing himself to
serve the Company in such capacities, all on the terms and conditions
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. Employment. The Company agrees to employ Xxxxx, and Xxxxx hereby agrees to
accept employment as Chairperson of the Board of Directors of the Company for
the Term in accordance with the terms and conditions set forth in this
Agreement, the by-laws of the Company and the instructions given from time to
time by the Board of Directors of the Company .
2. Term. Subject to the termination provisions set forth in Paragraph 9 hereof,
the employment term (the "Term") of this Agreement shall terminate on April 30,
1997, unless extended by the parties.
3. Duties. As Chairman of the Board of Directors of the Company, Xxxxx shall
have duties and responsibilities as set forth in the by-laws and as determined
from time to time by the Board of Directors . Xxxxx shall devote substantially
all of his time to the business and affairs of the
Company during normal working hours and shall use his best efforts to advance
the best interests of the Company. In the event that Xxxxx wishes to serve as a
director, officer, member of any committee or as a consultant for a person other
than the Company, he must first obtain the prior written approval of the Board
of Directors of the Company and, if authorized to render such service, then only
under terms and conditions established by the Board.
4. Compensation and Benefits.
4.1 Base Salary. The Company shall pay to Xxxxx a base salary ("Base
Salary") of $132,500 per annum for the fiscal year ending 1995. Within ninety
days of the beginning of each fiscal year the Board of Directors of the Company
will review Xxxxx'x Base Salary with a view to an upward adjustment thereof
based upon Xxxxx'x performance, the performance of the Company, inflation,
comparable salaries of other executives with similar responsibilities and other
relevant factors.
4.2 Bonus. The Company shall pay Xxxxx for each fiscal year during the
period of Xxxxx'x employment hereunder, commencing with the fiscal year ending
December 31, 1995, a bonus ("Bonus") in an amount to be determined by the Board
of Directors of the Company in its discretion. The Bonus shall be payable within
90 days after receipt by the Company of financial statements of the Company,
certified by the independent certified public accountants of the Company in
accordance with generally accepted accounting principles 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 hereunder, provided that Xxxxx properly accounts therefor in
accordance with the policies of the Company.
4.4 Medical Benefits. The Company will provide Xxxxx with medical and
hospitalization insurance and other benefits generally available to employees
during the Term.
4.5 Vacation. 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. As a co-founder Xxxxx shall be entitled to a "Company Car',
including gas and maintenance (other than personal).
5. Protection of Confidential Information.
5.1 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 a special, unique and extraordinary character.
Xxxxx further acknowledges that the business of the Company is conducted
throughout the United States and that he is therefore capable of competing with
the Company from nearly any location in the United States. In recognition of the
foregoing, Xxxxx covenants and agrees:
(a) That he will keep secret all confidential of the Company and not
use them himself or disclose them to anyone outside of the Company, either
during or
after the Term 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
this Agreement, 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.
5.2 Specific Remedies. If Xxxxx commits a breach, or threatens to commit a
breach, of any of the provisions of paragraph 5.1, the Company shall have (I)
the right and remedy to have such provisions specifically enforced by any court
having equity jurisdiction, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to the Company and
that money damages will not provide adequate remedy to the Company, 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.
6. Restriction on Competition
6.1 Covenant. In recognition of the consideration described in Paragraph 4
and below in this Paragraph, Xxxxx covenants and agrees that, so long as he is
employed under this Agreement and for a period of two (2) years 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; (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.
In consideration for the agreement not to compete as set forth herein, in
addition to the Compensation and Benefits provided in Paragraph 4 of this
Agreement, (A) the Company agrees to pay Xxxxx 100% of his then current Base
Salary during the two year period following the expiration of the Term, provided
however, that such payments shall terminate (i) upon Xxxxx'x accepting
non-competitive employment with another company; (ii) upon the waiver, following
the written request by Xxxxx, of the restriction on competition by the Company
with 30 days prior written notice; or (iii) upon Xxxxx'x termination of
employment by the Company with cause as defined in Paragraph 9 hereof or
termination of this Agreement by the Company under Paragraph 6.2 or 9; (B) the
provisions of this Paragraph 6.1 shall not be deemed to preclude Xxxxx from
employment by a corporation some of the activities of which are competitive with
the business of the Company if Xxxxx'x employment does not relate, directly or
indirectly, to such competitive business; and (iv) nothing contained in this
paragraph 6.1 shall be deemed to prohibit Xxxxx 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 more
than 2% of any class of series of outstanding securities of such corporation.
6.2 Remedies. In the event of the violation by Xxxxx of any of the
covenants of Paragraphs 5.1 or 6.1, such violation shall be deemed to be "cause"
for termination pursuant to the terms of Paragraph 9 hereof, and, in addition,
the Company shall have the right and
remedy to have the provisions of Paragraph 6.1 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.
7. Independence, Severability and Non-Exclusivity. Each of the rights and
remedies enumerated in Paragraphs 5.2 and 6.2 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 5.1 or 6.1 or if any of the rights or remedies enumerated in
Paragraphs 5.2 or 6.2, or any part of any of them, is hereafter construed to be
invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants or rights or remedies which shall be given full effect
without regard to the invalid portions. The parties intend to and do hereby
confer jurisdiction to enforce the covenants contained in Paragraphs 5.1 and 6.1
upon the United States Federal District Court for the District of Vermont and
the courts of the State of Vermont. If any of the covenants contained in
Paragraphs 5.1 or 6.1 is held to be unenforceable because of the duration of
such provision or the 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 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") 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 development or creation in any
appropriate case.
9. Termination. This Agreement shall terminate, 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 Paragraphs 5.1 and 6.1; (b) Xxxxx'x
willful engagement, in his capacity as an executive officer of the Company, in
gross misconduct injurious to the Company, and (c) Xxxxx'x failure to carry out
direction from the Board of Directors of the Company or the Chief Executive
Officer of the Company; and (ii) pursuant to Paragraph 6.2 hereof.
In the event of termination of this Agreement by the Company for cause as
defined in this paragraph, Xxxxx shall have no further rights under this
Agreement but thereafter shall continue to be subject to the provisions of
Paragraphs 5, 6, 7, and 8 hereof.
10. 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 sent by prepaid telegram, or
mailed first-class, postage prepaid, by
registered or certified mail, 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.
X.X. Xxx 000
Xxxxxxxxx, Xxxxxxx
If to Xxxxx:
00 Xx. Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
11. General.
11.1 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Vermont (other than
conflict of laws).
11.2 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.
11.3 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.
11.4 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.
11.5 Assignability. This Agreement may not be assigned by Xxxxx or the
Company.
11.6 Amendments; Waivers. This Agreement may be amended, modified,
superseded, canceled, 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 a 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 term or
covenant contained in this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first written above.
BEN & JERRY'S HOMEMADE, INC.
By: ______________________
/s/Xxx Xxxxx
