Exhibit 10.34
EMPLOYMENT AGREEMENT
This Agreement is made in Burlington, Vermont by and between Ben &
Jerry's Homemade, inc. (the "Company"), a Vermont corporation, with its
principal place of business at 00 Xxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxxx, Xxxxxxx
00000-0000, and Xxxxxx X. Xxxxxxx, an individual, living at 000 Xxxxxx Xxxx,
Xxxx Xxxx, XX 00000 (the "Executive"), is effective as of the 1st day of
January, 1998 (the "Effective Date").
WHEREAS, subject to the terms and considerations hereinafter set forth,
the Company wishes to employ the Executive as its Senior Director--Business
Development 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.
a. Employment by the Company. Executive agrees to be employed by the
Company for the Term of this Agreement upon the terms and subject to the
conditions set forth in this Agreement. Executive shall serve as the Senior
Director--Business Development ("SDBD") of the Company and shall have such
duties as may be prescribed by the current Chief Executive Officer ("CEO") and
Executive shall serve in such other and/or additional position(s) as the current
CEO may determine from time to time. The SDBD will report directly to the CEO.
b. Performance of Duties. Throughout the Term of this Agreement,
Executive shall faithfully and diligently perform Executive's duties in
conformity with the reasonable directions of the CEO and in conformity with the
terms and conditions hereof and will serve the Company to the best of
Executive's ability. Executive shall devote Executive's entire working time,
attention and energies to the business and affairs of the Company, subject to
vacations and sick leave in accordance with Company's policy.
c. Place of Performance. During the Term of this Agreement, Executive
shall be based in the Company's offices in South Burlington, Vermont. Executive
will be at the Company's principal place of business in South Burlington,
Vermont and be ready, willing, and able to perform his Duties hereunder no later
than January 15, 1998. Executive shall maintain a residence in the Burlington,
Vermont area within reasonable access to Executive's place of employment.
2. Term. Subject to earlier termination as hereafter provided and subject to
renewal as provided below, the Executive's employment hereunder shall be for a
term of three (3) years, commencing on the Effective Date hereof and ending
thirty-six (36) months thereafter on December 31, 2000. The term of this
Agreement, as from time to time extended or renewed, is hereafter referred to as
"the Term of this Agreement" or "the Term hereof". This Agreement shall continue
on a year-to-year basis beyond the end of the third year (or a later year if
this Agreement has renewed), unless the Company notifies the Executive in
writing not less than six (6) months prior to the end of the third year (or
applicable later year) that the Company does not wish to renew the Agreement.
Failure by the Company to so notify Executive shall automatically renew this
Agreement for an additional one year.
3. Compensation and Benefits. As compensation for the services performed by
the Executive and subject to performance of the Executive's obligations:
a. Base Salary. The Company agrees to pay the Executive a base salary
("Base Salary") at the annual rate of Two Hundred and Fifty Thousand Dollars
($250,000.00) payable in installments consistent with the Company's payroll
practices. The Executive will be subject to annual merit salary reviews by the
CEO. Such base salary, as from time to time is then in effect, is hereafter
referred to as the "Base Salary".
b. Annual Bonus and Guarantees. The CEO is in the process of developing
a Senior Management Incentive Pool ("SMIP"). The SMIP is not presently finalized
but is in the process of being prepared for submission to and approval by the
Company's Board of Directors. When such plan is approved. Executive will
participate therein and will be treated in accordance with his position and the
terms of the SMIP and the provisions of this Section 3(b). Notwithstanding
anything to the contrary, Company shall pay to Executive, as a guaranteed bonus,
a minimum sum equal to $75,000.00 no later than January 31, 1999, for the
respective year ending December 31,1998. Bonuses for subsequent years will be
under the SMIP. and if there is no SMIP approved and in place, then the Annual
Bonus due Employee will be commensurate with the guaranteed bonus for fiscal
year ending 1998.
c. Other Benefits. The Executive shall be entitled to participate in
all of the employee benefit plans and programs of the Company, and receive the
benefits and perquisites, generally provided to executives of the same level and
responsibility as Executive. To the extent permitted by law and the provisions
of the specific plan, the eligibility date for the Executive, as the same
relates to any and all benefits, shall be March 1, 1997. Nothing in this
Agreement shall preclude the Company from terminating or amending from time to
time any employee benefit plan or program. Executive shall be entitled to four
(4) weeks of vacation per year plus the allowable personal days.
d. Business Expenses. Upon submission of itemized expense statements in
the manner specified by the Company, Executive shall be entitled to
reimbursement for reasonable travel and other reasonable business expenses duly
incurred by the Executive in the performance of Executive's duties under this
Agreement. Such reimbursement shall be in accordance with the policies and
procedures established by the Company from time to time and for executives of
the same level and responsibility as Executive.
e. 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, (ii) Expenses to move all
household goods, (iii) Interim living expenses for ninety (90) days, (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) Customary closing
costs on any new purchase of the Executive's residence in Vermont, including
standard mortgage points (not buy down interest rate expenses) and legal fees.
All reimbursed amounts will be grossed up for tax purposes. To be eligible for
these expense reimbursements, the Executive must commence the relocation within
one (1) year from the Effective Date, Prior to Employees's relocation to
Vermont, the Company will reimburse Executive for twice a month commuting
expenses to California. If Executive's employment with the Company is terminated
within two (2) years from the date of Employees' relocation to Vermont for any
reason other than for Cause, then Company will pay all costs (on a grossed up
basis) of relocating the Executive back to Palo Alto, California.
x. Xxxxx of Option and Terms Thereof. The Company hereby grant to
Executive, pursuant to the Company's 1997 Equity Incentive Plan (the "Plan"), an
option to purchase 52,000 shares of Class A common stock of the Company ("ISO
Option Shares") exercisable at the market price of $13.89. This ISO Option will
expire 10 years form the date of grant thereof. Provided that the Executive is
in full compliance with terms and conditions of the Plan, this ISO Option will
be exercisable over a four (4) year period of the time commencing from the
Effective Date of this Agreement, with one-fourth being exercisable on March 1,
1998 and up to additional 1/48 of the shares covered by this Option on the last
day of each month in the next three years after said anniversary of said
Effective Date. The full terms and conditions of this Option shall be set forth
in the form of the Option Certificate attached as Exhibit A.
4. Termination of Employment. Notwithstanding the provisions of Section
2 hereof, the Executive's employment hereunder shall terminate prior to the
expiration of the Term under the following circumstances.
a. Death. In the event of the Executive's death during the Term
thereof, the Company shall pay the Executive's designated
beneficiary or, if no beneficiary has been designated by the
Executive, to his estate, any earned and unpaid Base Salary;
bonuses and incentives that are earned and unpaid (pro-rated
through such termination); any accrued and unused vacation and/or
personal days; reimbursement of business expenses accrued prior to
the date of death; and continuation of the Base Salary payments
(plus continued participation in the Company's medical and
hospital employee insurance) for six (6) months after the
Executive's death. Options exercisable at date of death may be
exercised by the Executive's estate for 12 months (but not beyond
the stated term of the option).
b. Disability.
(i) The Company may terminate the Executive's employment hereunder,
upon thirty (30) days written notice to the executive, in the
event that the Executive becomes disabled during his employment
hereunder, through illness, injury, accident or condition of
either a physical or psychological nature and, as a result, is
unable to perform substantially all of his duties and
responsibilities hereunder for one hundred eighty (180)
consecutive days during any period of three hundred and sixty-five
(365) consecutive calendar days.
(ii).The Board may designate another employee lo act in the
Executive's place during any period of the Executive's disability
prior lo termination as provided in Section 4.b.i above.
Notwithstanding any such designation, the Executive shall continue
to receive from the Company (or under a disability plan) the Base
Salary in accordance with Section 3.a. and benefits in accordance
with the other provisions of Article 3, to the extent permitted by
the then-current terms of the applicable benefit plans until the
termination of his employment.
(iii)The Executive shall be entitled to participate in the Company's
long-term disability plan, to the same extent as other employees.
No finding of disability under this Section 4.b. shall be made in
respect of any cause or condition which has not been approved as a
fully disability under the applicable plan.
(iv) If any question shall arise as to whether during any period the
Executive is disabled through any illness, injury, accident or
condition of either a physical or psychological nature so as to be
unable to perform substantially all of his duties and
responsibilities hereunder, the Executive may, and at the request
of the Company shall, submit to a medical examination by a
physician selected by the Executive or his duly appointed
guardian, to whom the Company has no reasonable objection, to
determine whether the Executive is so disabled and such
determination shall for the purposes of this Agreement be
conclusive of the issue. If such question shall arise and the
Executive shall fail to submit to such medical examination, the
Company's determination of the issue shall be binding on the
Executive.
(v) Options exercisable at xxxx of termination for disability may be
exercised for 12 months (but not beyond the stated term of the
option) thereafter.
c. By the Company for Cause. The Company may terminate the Executive's
employment hereunder for Cause ("Cause") 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
after such notice. The following shall constitute Cause for
termination: the Executive's gross negligence in the performance of his
material duties and responsibilities to the Company; the commission by
the Executive of theft, embezzlement or other serious and substantial
crimes: or other deliberate willful action by the Executive that is
materially harmful to the business, interests or reputation of the
Company.
For purposes of this Section 4.c., no act, or failure to act, shall be
"willful" unless done, or omitted to be done, without reasonable belief
that the action or omission was in the best interests 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, and such termination shall
have been approved by the vole of two-thirds of the members of the
Board of Directors at a meeting of the Board (after reasonable notice
to the Executive and an opportunity for him, together with counsel, to
be heard before the Board of Directors) finding that, in the good faith
opinion of the Board of Directors, the above standard of termination
for Cause was met in such case and that such Cause was not cured.
Upon the giving of notice of termination of the Executive's employment
hereunder for Cause following the determination of the Board under the
preceding paragraph, the Company shall have no further obligation or
liability to the Executive, other than for any earned and unpaid Base
Salary; bonuses and incentives that are earned but unpaid (pro-rated
through any such termination); any accrued but unused vacation and/or
personal days: any options that are vested which shall continue for 30
days; and payments or reimbursement of business expenses accrued prior
to the termination under this Section 4.c.
d. Termination By Company Other Than For Cause. In the event that
Executive's employment hereunder is terminated by the Company during
the Agreement Term for any reason other than as provided in Sections
4.a.,4,b., or 4.c. hereof or if the Executive terminates for Good
Reason (as defined in Section 4.e. below), then the Company shall pay
to Executive, within thirty (30) days of the date of such termination,
any earned and unpaid Base Salary; bonuses and incentives that are
earned but unpaid (pro-rated through any such termination); any accrued
but unused vacation and/or personal days: and a lump sum equal to his
then current Base Salary plus any guaranteed bonus and/or SMIP bonus
until the end of the Term; provided, however, in no event will the "end
of the Term" be for more than twenty-four (24) months and for no less
than for twelve (12) months following the effective date of
termination. Subject to any employee contribution applicable to the
Executive on the date of termination, the Company shall continue lo
contribute, for the balance of the Term or twelve (12) months whichever
is greater, to the cost of the Executive's participation (including his
family) in the Company's group medical and hospitalization insurance
plans and group life insurance plan.
e. By the Executive for Good Reason in the Absence of Cause. Employment
with the Company may be regarded as having been constructively
terminated by the Company, and the Executive may therefor terminate his
employment for Good Reason and thereupon become entitled to the
benefits of Section 4.d. just as if he had been terminated Other Than
For Cause, if, before the end of the Term (or any renewal thereof), one
or more of the following events shall occur: (i) without the
Executive's express written consent, the assignment to the Executive of
any duties or the reduction of the Executive's duties, either of which
results in a diminution in the Executive's position or responsibilities
with the Company in effect immediately prior to such assignment, or the
removal of the Executive from such position and responsibilities: (ii)
without the Executive's express written consent, a reduction by the
Company in the then current Base Salary or Bonus opportunity of the
Executive immediately prior to such reduction; (iii) a reduction by the
Company in the kind or level of employee benefits to which the
Executive is entitled immediately prior to such reduction with the
result that the Executive's overall benefits package is significantly
reduced: (iv) any purported termination of the Executive's employment
by the Company which is not effected for Death, Disability or for
Cause, or any purported termination for which the grounds relied upon
are not valid: (v) any material breach by the Company of any provision
of this Agreement: (vi) the Company terminates Xxxxx X. Xxxx for any
reason; and (vii) a Change in Control shall be deemed to have occurred.
For purposes of this Agreement, the term "Change in Control" shall mean
the occurrence of any of the following events: (1) any "person" (as
such term is used in Sections 13 (d) and 14 (d) of the Securities
Exchange Act of 1934 [the "Act]) is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Act)' directly or indirectly, of
securities of the Company representing 50% or more of the combined
voting power of the Company's then outstanding securities in the
election of directors: (2) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board of Directors in
office immediately prior to such transaction or event constitute less
than a majority of the Board of Directors thereafter, or (3) during any
period of twelve consecutive months, individuals who at the beginning
of such period constituted the Board of Directors (including for this
purpose any new director whose election or nomination for election by
the Company's stockholders was approved by a vote of at least
two-thirds of the directors then still in office who were directors at
the beginning of such period) cease for any reason to constitute at
least a majority of the Board of Directors. Notwithstanding the
foregoing sentence, a "Change in Control" will not be deemed to have
occurred solely because of the acquisition of securities of the Company
(or any reporting requirement under the Act relating thereto) by an
employee benefit plan maintained by the Company for the benefit of
employees or an acquisition by Xxx Xxxxx, Xxxxx Xxxxxxxxxx, Xxxx Xxxxx,
Xxxxxxx Xxxxxx and Xxxxx Xxxx or their "affiliates" or "associates" (as
such terms are defined in Rule 12b-2 under the Act) or members of their
families (or trusts for their benefit) or charitable trusts established
by any of them or other related management group.
Moreover, notwithstanding the foregoing provision, if such transaction
takes place after June 30, 1998 and follows a decision by Xxxxx (or his
estate or heirs) or by the Board of Directors, in the event that Xxx
Xxxxx (his estate or heirs) is no longer a controlling stockholder as
determined by the board of Directors in the exercise of its reasonable
judgment) to change the present policy of independence for the Company,
in order to thereby continue to realize its potential, lo a policy of
favorable considering the prospect of a sale of all or substantially
all assets or a merger or other business combination or sale of
outstanding stock in which a change pursuant to the preceding paragraph
is made as a result of performance of the Company which is not
satisfactory in his or their judgment, then such transaction shall not
constitute a Change in Control fit being understood that a change in
the policy of independence of the Company as a result of a hostile or
unsolicited bid for control of the company shall not constitute a
Change in Control for this purpose)
f. No Duty to Mitigate. 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.
5. 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 CE 0 or his designee may
specify, all Documents that are then in the Executive's possession or control.
6. 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".
7. 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 white 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 7 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 7 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 more than five percent (5%) of
the outstanding voting securities of such corporation.
8. 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 5, 6, and 7
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 5, 6, and 7 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 Sections 5, 6, 7 and 8 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.
9. 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 and the laws of the state of the Company's
incorporation. 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.
10. Definitions. Words or phrases, which are initially capitalized or are
within quotation marks shall have the meanings provided in this Section 10 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, (iiJ 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 identity 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 lo 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.
11. 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.
12. 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.
13. 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.
14. 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 lo
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.
15. 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 CEO.
16. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements, communications,
representations and understandings, written or oral, with respect to the terms
and conditions of the Executive's employment.
17. 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.
18. 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 conflict
of laws principles thereof. The parties each agree to promptly 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 (Washington County superior.
District 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.
19. Other Obligations. Executive represents and warrants that neither
Executive's employment with the Company nor Executive's performance of his
obligations hereunder will conflict with or violate or otherwise are
inconsistent with any other obligations, legal or otherwise, which Executive may
have.
20. Cooperation. Following termination of employment with the Company,
Executive shall cooperate with the Company, as reasonably requested by the
Company, to affect a transition of Executive's responsibilities and to ensure
that the Company is aware of all matters being handled by Executive.
21. Remedies For Breach. The parties hereto agree that Executive is
obligated under this Agreement to render personal services during the Agreement
Term of a special, unique, unusual, extraordinary and intellectual character,
thereby giving this Agreement peculiar value, and, in the event of a breach of
any covenant of Executive herein, the injury or imminent injury to the value and
the goodwill of the Company's business could not be reasonable or adequately
compensated in damages in an action at law. Accordingly, Executive expressly
acknowledges that the Company shall be entitled to specific performance,
injunctive relief or any other equitable remedy against Executive, without the
posting of a bond, in the event of any breach or threatened breach of any
provision of this Agreement by Executive (including Sections 5, 6 and 7 hereof).
Without limiting the generality of the foregoing, if Executive breaches Sections
5 or 6 or 7 hereof, such breach will entitle the Company to enjoin Executive
from disclosing any Confidential Information to any competing business, to
enjoin such competing business from receiving Executive or using any such
Confidential Information and/or to enjoin Executive from rendering personal
services to or in connection with such competing business. The rights and
remedies of the parties hereto are cumulative and shall not be exclusive, and
each such party shall be entitled to pursue all legal and equitable rights and
remedies and to secure performance of the obligations and duties of the other
under this Agreement, and the enforcement of one or more of such rights remedies
by a party shall in no way preclude such party from pursuing, at the same time
or subsequently, any and all other rights and remedies available to it.
22. Assistance in Proceedings. Etc. Executive shall, during and after
expiration of the Agreement Term, upon reasonable notice, furnish such
information and proper assistance to the Company as may reasonably be required
by the Company in connection with any legal or quasi-legal proceeding, including
any external or internal investigation, involving the Company or any of its
affiliates or in which any of them is, or may become, a party.
23. Survival. Cessation or termination of Executive's employment with the
Company shall not result in termination of this Agreement. The respective
obligations of each of the parties and their respective rights and benefits
afforded to each other, all as provided in Agreement, shall survive cessation or
termination of Executive's employment hereunder. This Agreement shall not
terminate upon, and shall remain in full force and effect following, expiration
of the Agreement Term and all rights and obligations of the parties hereto as
and to the extent provided herein shall survive such expiration.
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.
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxx
------------------------------ By: ----------------------------------------
Xxxxxx X. Xxxxxxx, Executive Xxxxx X. Xxxx, Chief Executive Officer
