Exhibit 10.43.1
AMENDMENT TO EMPLOYMENT AGREEMENT
Severance Agreement dated as of January 19, 2000 between Xxxxxxx Xxxxx (the
"Executive") residing at Vermont House, 000 Xxxx Xxxxxx, Xx.000, Xxxxxxxxxx, XX
00000 and Ben & Jerry's Homemade, Inc. (the "Company"), a Vermont corporation
headquartered at 00 Xxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxxx, XX 00000.
WHEREAS, the parties wish to confirm certain severance understandings.
NOW THEREFORE, in consideration of these premises and the mutual promises set
forth below and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereby agree as follows:
1. Severance Payable on Termination by the Company Other Than For Cause, Death
or Disability
1.1 In the event of termination of the Executive by the Company for other
than Cause, Death or Disability, the Executive will be entitled to:
(i) Severance at the Executive's monthly base salary rate immediately
preceding date of notice of termination, payable for six months, plus (if
so approved by the Compensation Committee of the Board of Directors of the
Company or an officer delegated by the Committee) a second period of up to
an additional six months in the event that the employee has not found other
comparable employment, but with payments in this additional period
terminating on the date the Executive obtains comparable employment;
provided that, for officers with three or more years of employment service
at date of termination, severance at the monthly base salary rate
immediately preceding the date of notice of termination, payable for 12
months;
(ii) Continuation of health, life and other "welfare" insurance
benefits on the same terms as available to employees generally during the
period of severance payments. Other benefits (such as 401(k) or ESPP or
ESOP, which are keyed to employee status) do not continue;
(iii) The severance payments required to be made under (i) above are
not reduced by any other job earnings, i.e. no mitigation;
(iv) For officers with three or more years of service at the date of
termination, payment of the appropriate pro rata percentage (based on the
date of termination in the year) of the next annual cash bonus (if approved
by the Compensation Committee in January/February of the year following the
year of termination) provided that, in addition (if so approved and if the
Company's bottom line financial results for the year in which termination
occurs are not lower than the financial results for the preceding year),
the pro rata percentage, as determined above, shall be figured on the
"base" of a full year's bonus (which shall in no event be less than the
full year's bonus paid for the prior year) and, for other officers with
less than three years of service at date of termination, payment of the
appropriate pro rata percentage of an amount equal to the next annual cash
bonus (if approved by the Compensation Committee in January/February of the
year following the year of termination).
(v) $15,000 of outplacement services.
1.2 Cause "Cause", for the purposes of Section 1, is defined as conviction
of any crime, whether or not involving the Company, constituting a
felony; gross neglect or misconduct in the conduct of the Executive's
duties; willful or repeated failure or refusal to perform such duties
may be delegated to the Executive by the CEO.
1.3 Options. Unless provisions in some other agreement between the
Executive and the Company or provisions in the option plan under
which options held by the Executive at the date of termination were
granted are more favorable to the Executive, (i) for Executives with
three or more years of service at date of termination, unvested
options that would have vested in the first six month period after
date of termination shall accelerate and become vested, and then all
vested options may continue to be exercised for six months thereafter
and (ii) for all other Executives all vested options at the date of
termination may continue to be exercised for six months thereafter.
In each case all unvested options remaining unvested at date of
termination shall terminate.
1.4 Confidential Information
a. The Executive agrees to 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 CEO or his designee may specify, all
Documents then in the Executive's possession or control.
1.5 Covenant Not To Compete
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, after his
employment terminates, for the greater of one year or the period
during which severance payments of base amount are being made (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 business of 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. Specifically,
but without limiting the foregoing, the Executive agrees not to engage
in any manner in any activity that is directly or indirectly
competitive with the business of the Company or any of its
Subsidiaries as conducted or which has been proposed by management to
the Board within six months prior to termination of the Executive's
employment. Restricted activity also includes without limitation
accepting employment or a consulting position with any Person who is,
or at any time within twelve (12) months prior to termination of the
Executive's employment has been, a distributor of the Company or any
of its Subsidiaries. For the purposes of this Section 1.5, the
business of the Company and its Subsidiaries shall mean the
manufacture or sale of the Products. "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 with all services provided to third
parties or planned by the Company or any of its Subsidiaries, during
the Executive's employment; as used herein, "planned" refers to a
Product or service which the Company has decided to introduce within
six months from the date as of which such term is applied.
b. The Executive further agrees that during the Non-Competition
Period or in connection with the Executive's termination of
employment, 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 or
activity which such customer conducts or could conduct with the
Company or any of its Subsidiaries.
c. The provisions of this Section 1.5 shall not be deemed to
preclude the Executive from employment or engagement 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 activities do not
relate, to such competitive business, and nothing contained in this
Section 1.5 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.
d. Without limiting the foregoing, it is understood that the
Company shall not be obligated to continue to make the payments
specified in this Agreement in the event of a material breach by the
Executive of the provisions of Sections 1.4 or 1.5 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.
1.6 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 1.4 and 1.5 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 1.4 and 1.5
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 seek preliminary and permanent
injunctive relief against any breach or threatened breach by the
Executive of any of said covenants, without having to post bond. The
parties further agree that, in the event that any provision of
Section 1.4 or 1.5 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 geographic 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.
1.7 This Section 1 shall not be applicable while the Executive has an
Employment Agreement providing for severance that would be applicable
to a termination other than for cause on the applicable date of such
termination.
2. Severance Payable After a Change in Control
2.1 In the event of a termination by the Company other than for Cause,
Death or Disability within the first two years after a Change in
Control (as defined) or termination by the Executive within the first
two years after a Change in Control for Good Reason (as defined),
severance shall be payable or provided to the Executive as follows
(and subject to the provisions of the additional subsections of
Section 2):
(i) A single lump sum equal to the sum of (a) one and a half
times (i.e. 18 months) annual base salary for the Executive in effect
immediately prior to the date of the Change in Control or immediately
prior to the date of termination (whichever is greater) and (b) an
amount equal to one and a half times the last year's annual cash bonus
paid to the Executive.
(ii)Health, life and other welfare benefits shall continue for
one year on the same terms available to employees generally.
(iii) The Company's contribution to the 401(k) account of the
Executive shall continue for one year at the same rate (but in no
event lower than the rate in effect prior to the Change in Control) as
applicable to employees generally or, if such continuation is not
permitted by the Company's 401(k) plan, then the amount of the
Company's contribution shall be made by a lump sum payment and/or
distribution of Company stock made to the Executive at the time said
payment/distribution is made to employees generally.
2.2 "Cause" shall have the meaning set forth in Section 1.2 above.
2.3 "Change in Control" shall be defined as follows:
A "Change in Control" shall be deemed to have occurred if the
conditions set forth in any one of the following paragraphs shall have
been satisfied:
(a) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 35% or more of
the combined voting power of the Company's then outstanding
securities; or
(b) during any period of not more than two consecutive years (not
including any period prior to October 26, 1994), individuals who at
the beginning of such period constitute the Board and any new director
(other than a director designated by a Person who has entered into an
agreement with the Company to effect a transaction described in Clause
(a), (c) or (d) of this Section 2.3) whose election by the Board or
nomination for election by the Company's stockholders was approved by
a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof; or
(c) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than
(1) a merger or consolidation which would result in the
voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining
outstanding or being converted into voting securities of the
surviving entity) 60% or more of the combined voting power
of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or
consolidation, or
(2) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in
which no person acquires 35% or more of the combined voting
power of the Company's then outstanding securities; or
(d) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all the Company's assets.
Notwithstanding the foregoing provisions of this Section 2.3, a "Change in
Control" will not be deemed to have occurred solely because of (i) the ownership
or acquisition of securities of the Company (or any reporting requirement under
the Securities Exchange Act of 1934) relating thereto by an employee benefit
plan maintained by the Company for the benefit of employees or by ownership of
securities of the Company that were beneficially owned as of December 31,1998 by
any of Xxx Xxxxx, Xxxxx Xxxxxxxxxx, Xxxxxxx Xxxxxx and Xxxxx Xxxx; provided,
however, that a "Change of Control" under Section 2.3 shall be deemed to have
occurred in the event any of Xxx Xxxxx, Xxxxx Xxxxxxxxxx or Xxxxxxx Xxxxxx
becomes the Beneficial Owner, directly or indirectly, of Common Stock or other
voting securities of the Company representing an amount of beneficial ownership
which is (i) greater than 35% of the combined voting power of the Company's then
outstanding voting securities (the threshold under Section 2.3(a)) and (ii)
greater than the amount beneficially owned by any such Person as of December 31,
1998, by at least 22% of the number of outstanding shares of Common Stock of the
Company as of December 31, 1998 (adjusted for stock splits and the like).
In addition, a Change in Control shall not be deemed to have occurred for
purposes of this Section 2.3 if the Executive is the person obtaining control or
a member of any group obtaining control in the defined Change of Control.
In the foregoing provisions of this definition of "Change in Control", the
following terms shall have the meanings set forth below:
"Person" in Section 2.3 shall have the meaning given in Section 3 (a) (9) of the
Securities Exchange Act of 1934, as modified and used in Sections 13 9d and 14
(d) thereof; however, a Person shall not include
(1) the Company or any controlled subsidiary of the Company,
(2) a trustee or other fiduciary holding securities under an employee benefit
plan of the Company or
(3) a corporation or other entity owned, directly or indirectly, by the
shareholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
"Beneficial Owner" in Section 2.3 shall have the meaning defined in Rule 13d-3
under the Securities Exchange Act of 1934 as amended from time to time.
2.4 "Good Reason" shall be defined as follows:
(i) Failure of the Company to continue the Executive in the
position the Executive had twelve months prior to the date of a Change
in Control or any portion of greater responsibility the Executive may
have held immediately prior to the Change in Control;
(ii)Diminution in the nature or scope of the Executive's
responsibilities, duties or authority; or
(iii) Failure of the Company to provide the Executive the base
amounts, bonus and benefits in accordance with the terms of any
employment agreement in effect immediately prior to the Change in
Control between the Executive and the Company or, if there is no such
employment agreement, the levels of base salary, bonus or aggregate
benefits taken together that were in effect immediately prior to the
Change in Control.
2.5 Options. Unless provisions in some other agreement (including an
option grant) between the Executive and the Company or applicable
provisions in the option plan under which options held by the
Executive were granted are more favorable to the Executive, and
except as may be provided on terms more favorable to the Executive in
Section 1 of this Agreement, with respect to a termination of the
Executive Other Than For Cause, all unvested options held by the
Executive shall accelerate and become vested immediately prior to the
Change in Control and shall continue to be exercisable for six
months.
2.6 Excise Tax Limitation. Notwithstanding Section 2.1 of this Agreement,
in the event that any Payment (as hereinafter defined) would be
subject in whole or in part to the excise tax (the "Excise Tax")
under Section 4999 of the Internal Revenue Code (the "Code"), then
the severance payments payable under Section 2.1 of this Agreement
shall be reduced to the extent, but only to the extent, necessary so
that no portion of any Payment is subject to the Excise Tax (the
"Severance Reduction"). However, no Severance Reduction shall be made
unless the net amount of the Total Payments (as hereinafter defined)
after such Severance Reduction and after deduction of the net amount
of federal, state and local income taxes on such reduced Total
Payments would be greater than the net amount of the Total Payments
without the Severance Reduction but after deduction of the Excise Tax
and the net amount of federal, state and local income taxes on such
unreduced Total Payments. The determination as to whether a Severance
Reduction is to be made and, if so, the amount of any such reduction
shall be made by the firm of certified public accountants that had
been acting as the Company's auditors prior to the Change in Control
or by such other firm of certified public accountants, benefits
consulting firm or legal counsel as the Board may designate for such
purpose, with the approval of the Executive, prior to the Change in
Control.
The Company shall provide the Executive with the auditor's
calculations of the amounts referred to in this Section 2.6 and such
supporting materials as are reasonably necessary for the Executive to
evaluate the Company's calculation.
For purposes of this Section 2.6, the term "Payment" means any
"payment in the nature of compensation" (as that term is used in
Section 280G of the Code") to or for the benefit of the Executive,
whether or not paid pursuant to this Agreement, that is contingent or
under Section 280G of the Code would be presumed to be contingent on
a Change in Control; and the term "Total Payments" means the
aggregate of all Payments.
2.7 Additional Provisions. The provisions of Section 1.4 shall continue
to be applicable after a termination of employment under Subsection
2.1. The provisions of Section 1.5 shall remain applicable.
3. Other Provisions
3.1 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 and provided that nothing in this
Section shall limit the provisions of Section 2.
3.2 Severability. If any portion or provision of this Agreement shall to
any extent be declared illegal or unenforceable by a 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
be not be affected thereby, and each portion and provision of this
Agreement shall be valid and enforceable to the fullest extent
permitted by law.
3.3 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.
3.4 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 and, in the case of the Company, at its principal place
of business, attention Chief Executive Officer, with a copy to Ropes &
Xxxx, Attention Xxxxxx X. Xxxxxx, Esq., Xxx Xxxxxxxxxxxxx Xxxxx,
Xxxxxx, XX 00000.
3.5 Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to severance upon a termination by
the Company other than for cause and with respect to severance upon a
termination by the Company other than for cause or by the Executive
for Good Reason after a Change in Control and with respect to Options
upon a Change in Control and supersedes all prior and contemporaneous
communications, representations and understandings, written or oral,
with respect thereto, except (i) as otherwise expressly provided
herein and (ii) as otherwise provided in any other written agreement
or benefit plan that is more favorable to the Executive with respect
to severance or options, it being understood that, as to matters
relating to severance or options pursuant to Section 1 of this
Agreement, that the provisions of this Agreement shall be applicable
only after the Executive's present Employment Agreement with the
Company is no longer in effect, and that the provisions of Section 2
of this Agreement relating to options and payments after a Change in
Control shall be immediately in effect.
3.6 Amendment. This Agreement may be amended or modified only by a
written instrument signed by the Executive and by a duly authorized
officer of the Company.
3.7 Governing Law, Arbitration 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 Vermont internal conflict of laws principles thereof.
The parties each agree to promptly and mutually select a mediator and
promptly mediate in good faith any controversy, claim or dispute
arising between the parties hereto arising out of or related to this
Agreement and its performance or any breach or claimed breach
thereof. In the event that mediation does not resolve any such
matter, then such matter other than any matter in which injunctive
relief or other equitable relief is sought shall be definitively
resolved through binding arbitration conducted in the City of
Burlington, Vermont, by a panel of three (3) arbitrators in
accordance with the then current Commercial Arbitration Rules of the
American Arbitration Association; provided, however, that
notwithstanding anything to the contrary in such Commercial
Arbitration Rules, the parties shall be entitled in the course of any
arbitration conducted pursuant to this Section to seek and obtain
discovery from one another to the same extent and by means of the
same mechanisms authorized by Rules 27 through 37 of the Federal
Rules of Civil Procedure. The power and office of the arbitrators
shall arise wholly and solely from this Agreement and the then
current Commercial Arbitration Rules of the American Arbitration
Association. The award of the panel or a majority of them so rendered
shall be final and binding, and judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction
thereto.
To the extent a dispute is not to be arbitrated in accordance with
the foregoing, each of the Company and the Executive (i) irrevocably
submits to the jurisdiction of the United States District Court of
Vermont and to the jurisdiction of the state courts of Vermont for
the purpose of any suit or other proceeding arising out of or based
upon the Agreement or the subject matter hereof and agrees that any
such proceeding shall be brought or maintained only in such court,
and (ii) waives, to the extent not prohibited by applicable law, and
agrees not to assert in any such proceedings, any claim that it is
not subject to the jurisdiction of the above-named courts, that he or
it is immune from extraterritorial injunctive relief or other
injunctive relief, that any such proceeding brought or maintained in
a court provided for above may not be properly brought or maintained
in such court, should be transferred to some other court or should be
stayed or dismissed by reason of the pendency of some other
proceeding in some other court, or that this Agreement or the subject
matter hereof may not be enforced in or by such court.
3.8 Protection of Reputation. During the period of employment and during
any period in which severance payments or benefits are paid or
provided under this Agreement, the Executive agrees that he will take
no action which is intended to, or would reasonably be expected to,
harm the Company or its reputation or which would reasonably be
expected to lead to unwanted or unfavorable publicity to the Company
(it being understood that competition which does not breach Section
1.5 shall not be deemed to be a breach of this Section).
3.9 Survival. Cessation or termination of Executive's employment with the
Company shall not result in termination of this Agreement. The
respective obligations of Executive and the rights and benefits
afforded to the Company as provided in this Agreement after
termination of employment shall survive cessation or termination of
Executive's employment hereunder.
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 written.
BEN & JERRY'S HOMEMADE, INC.
/s/Xxxxxxx Xxxxx By:/s/Xxxxx X. Xxxx
---------------- -------------------
Executive Xxxxx X. Xxxx
Chief Executive Officer
