Exhibit 10.4
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 its principal place of
business in Waterbury, Vermont (the "Company") and XXXXX XXXXXXXXXX
("Xxxxxxxxxx"), a resident of Williston, Vermont.
WITNESSETH:
WHEREAS, the Company is desirous of employing Greenfield as Vice
Chairperson of the Board of Directors of the Company and Greenfield 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 Greenfield, and Greenfield hereby
agrees to accept employment as Vice 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 or by the Chief Executive
Officer 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 Vice Chairman of the Company, Greenfield shall have duties and
responsibilities as set forth in the by-laws and as determined from time to time
by the Board of Directors or by the Chief Executive Officer of the Company.
Greenfield shall use his best efforts
to advance the best interests of the Company.
4. Compensation and Benefits.
4.1 Base Salary. The Company shall pay to Greenfield a base salary ("Base
Salary") of $132,745 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 Greenfield's Base Salary with a view to an upward adjustment thereof
based upon Greenfield's 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 Greenfield for each fiscal year during the
period of Greenfield's 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
Greenfield for all reasonable expenses incurred or paid by him in the
performance of his duties hereunder, provided that Greenfield properly accounts
therefor in accordance with the policies of the Company.
4.4 Medical Benefits. The Company will provide Greenfield with medical and
hospitalization insurance and other benefits generally available to employees
during the Term.
4.5 Vacation. Greenfield shall be entitled to four weeks paid vacation per
annum at times to be mutually selected by Greenfield and the Company.
4.6 Car. As a co-founder Greenfield shall be entitled to a "Company Car",
including gas and maintenance (other than personal).
5. Protection of Confidential Information.
5.1 Covenant. Greenfield 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. Greenfield further acknowledges that the services to be performed
by him under this Agreement are of a special, unique and extraordinary
character. Greenfield 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, Greenfield 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 Greenfield 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 Greenfield
to account for and pay over to the Company all compensation, profits,
monies, accruals, increments or other benefits (collectively "Benefits")
derived or received by Greenfield as the result of any transactions
constituting a breach of any of the provisions of paragraph 5.1, and
Greenfield 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, Greenfield 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 Greenfield 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 the waiver,
following the written request by Greenfield, of the restriction on competition
by the Company with 30 days prior written notice; or (ii) upon Greenfield's
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
Greenfield from employment by a corporation some of the activities of which are
competitive with the business of the Company if Greenfield's 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 Greenfield 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 Greenfield 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. Greenfield 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. Greenfield
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 Greenfield during the
Company's time or with the use of the Company's facilities or materials.
Greenfield 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) Greenfield's willful failure to
comply with any of the material terms of this Agreement, including, without
limitation, Greenfield's violation of any covenants in Paragraphs 5.1 and 6.1;
(b) Greenfield's willful engagement, in his capacity as an executive officer of
the Company, in gross misconduct injurious to the Company, and (c) Greenfield's
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, Greenfield 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
Attention: President
If to Greenfield:
000 Xxxxx 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. Certain provisions of this Agreement survive the Term
and the expiration, including Paragraphs 5.1, 5.2, 6.1, and 6.2.
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 Greenfield 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/XXXXX XXXXXXXXXX
