UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
QUARTERLY REPORT PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarter ended: Commission File Number:
July 1, 1995 0-13544
BEN & JERRY'S HOMEMADE, INC.
(Exact name of registrant as specified in its charter)
VERMONT 03-0267543
(State of incorporation) (I.R.S. Employer Identification No.)
Duxtown Commercial Plaza
Junction of Rts 2 & 100
North Moretown, Vermont 05660
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code:
(802) 244-6957
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for shorter period that the registrant was required to file such
reports), and (2) has been subject to such filing requirements for
the past 90 days.
YES X NO
Indicate the number of shares outstanding of each of the
classes of common stock outstanding as of the latest practicable
date. 6,252,902 shares of Class A Common Stock and 923,601 shares
of Class B Common Stock outstanding as of July 27, 1995.
INDEX
PART I: FINANCIAL INFORMATION
Consolidated Balance Sheets
July 1, 1995 and December 31, 1994
Consolidated Statement of Income
Thirteen and twenty-six weeks ended
July 1, 1995 and June 25, 1994
Consolidated Statement of Cash Flows
Twenty-six weeks ended July 1, 1995
and June 25, 1994
Notes to Consolidated Financial Statements
Management's Discussion and Analysis of Financial
Condition and Results of Operations
PART II: OTHER INFORMATION
Item 4 - Submission of Matters to a Vote of
Security Holders
Item 6-Exhibits and Reports on Form 8-K
SIGNATURES
BEN & JERRY'S HOMEMADE, INC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements
have been prepared in accordance with generally accepted accounting
principles for interim financial statements and with the
instructions to Form 10-Q and Rule 10-01 of Regulation S-X.
Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for
complete financial statements. In the opinion of management, all
adjustments (consisting of normal recurring accruals) considered
necessary for a fair presentation have been included. For further
information, refer to the financial statements and footnotes
thereto included in the Company's Annual Report on Form 10-K for
the year ended December 31, 1994.
2. INVENTORIES
(In thousands)
July 1, December 31,
1995 1994
Ice cream, frozen yogurt and ingredients $14,109 $12,395
Paper goods 617 486
Food, beverage and gift items 204 582
$14,930 $13,463
3. ACCOUNTS PAYABLE AND ACCRUED EXPENSES
(In thousands)
July 1, December 31,
1995 1994
Trade accounts payable $9,986 $ 5,075
Accrued expenses 6,204 2,627
Accrued construction costs 2,434 2,975
Accrued payroll and related costs 1,695 1,607
Accrued promotional costs 2,971 1,580
Other 235 51
$23,525 $13,915
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
Results of Operations
The following table sets forth certain items as a percentage of
net sales which are included in the Company's Consolidated
Statement of Income and the percentage increase (decrease) of such
items as compared to the prior period;
<TABLE>
Percentage of Net Sales Percentage Increase(Decrease)
Thirteen Weeks Twenty-Six Weeks 1995 Compared to 1994
Ended Ended Thirteen Weeks Twenty-Six Weeks
July 1, June 25, July 1, June 25, Ended Ended
1995 1994 1995 1994
<S> <C> <C> <C> <C> <C> <C>
Net sales 100.0% 100.0% 100.0% 100.0% 5.6% 5.9%
Cost of sales 68.6% 72.8% 69.9% 73.9% -0.5% 0.3%
Gross profit 31.4% 27.2% 30.1% 26.1% 22.0% 21.8%
Selling, general and
administrative
expenses 24.5% 24.3% 24.4% 22.5% 6.7% 14.3%
Operating income 6.9% 2.9% 5.7% 3.6% 148.0% 69.1%
Other income(expense) -0.5% - 0.0% -0.2% 0.0% 1361.4% -381.1%
Income before
income taxes 6.4% 2.9% 5.5% 3.6% 131.5% 60.1%
Income taxes 2.5% 1.1% 2.2% 1.4% 131.7% 62.4%
Net Income 3.8% 1.8% 3.3% 2.2% 131.4% 58.9%
</TABLE>
Thirteen Weeks Ended July 1, 1995 and June 25, 1994
Net Sales
Net sales for the thirteen weeks ended July 1, 1995 increased
5.6% to $42.9 million compared to $40.7 million for the same period
in 1994. Each of the major product catogories had modest increase
in unit volume. This volume increase was combined with an increase
in the price of pints sold to distributors by 3.7% effective in
March, 1995. The pints category realized the most significant growth
from the Company's new non-fat frozen yogurt line.
Pint sales represented 82% of total net sales in the second
quarter of 1995 as compared to 84% in the same period in 1994. Net
sales of 2 1/2 gallon bulk containers represented approximately 9% of
total net sales in the second quarter of 1995, compared to 8% in
1994. Net sales of novelty products accounted for approximately 7%
of total net sales during this period in 1995 compared to 6% in
1994. Net sales from the Company's retail stores represented 2% of
total net sales in the second quarter of 1995 and 1994.
Cost of Sales and Gross profit
Cost of sales in the second quarter of 1995 decreased
approximately $153,000 or 0.5% over the same period in 1994 and
overall gross profit as a percentage of net sales was 31.4% in the
second quarter of 1995 as compared to 27.2% in the comparable period
last year.
The higher gross profit percentage in the second quarter
resulted from improved inventory management, lower raw material cost
and improved production efficiencies. In addition, the improved
gross profit reflects less product manufactured for the Company by
Edy's Grand Ice Cream, a subsidiary of Dreyer's Grand Ice Cream. In
the second quarter of 1995 approximately 20% of the packaged pints
were manufactured at the Edy's plant as compared to 43% in the
second quarter of 1994.
Selling, General and Administrative Expenses
Selling, general and administrative expenses increased 6.7%
to $10.5 million in the second quarter of 1995 from $9.9 million for
the same period in 1994. Selling, general and administrative
expenses were 24.5% of net sales in the second quarter of 1995 as
compared to 24.3% for the comparable period last year. This
increase reflects the overall strengthening of the organizational
infrastructure in order to meet the challenges of growth and
improved efficiency.
Interest Income and Interest Expense
Interest income increased $127,000 in the second quarter of
1995 as compared to the same period in the prior year . This
increase was primarily due to higher interest rates on investment
securities. Interest expense increased $353,000 in the second
quarter of 1995 as compared to the same period in the prior year.
This increase was primarily due to the capitalization of interest in
the prior year as part of the cost of the new plant currently under
construction in St. Albans, Vermont.
Income Taxes
Income taxes increased approximately $612,000 primarily due
to the increase in income as well as an effective rate of 39.5% in
1995 as compared with an effective rate of 39.4% in the prior year.
The higher effective rate is primarily due to less tax-exempt
interest income and decreases in other tax credits.
Net Income
As a result of the foregoing, net income for the second
quarter of 1995 increased 131% to $1,653,000 from $714,000 for the
second quarter of 1994. Net income was 3.8% of net sales in the
second quarter of 1995 compared to 1.8% in 1994. Net income per
share increased 130% to $.23 per share for the second quarter of
1995 as compared to $.10 per share in the second quarter of 1994.
Twenty-Six Weeks Ended July 1, 1995 and June 25, 1994
Net Sales
Net sales for the twenty-six weeks ended July 1, 1995
increased 5.9% to $77.1 million compared to $72.8 million for the
same period in 1994. Each of the major product catogories had
modest increase in unit volume. This volume increase was combined
with an increase in the price of pints sold to distributors by 3.7%
effective in March, 1995. The pints category realized the most
significant growth from the Company's new non-fat frozen yogurt
line.
Pint sales represented 86% of total net sales in the first
half of 1995 as compared to 87% for the same period in 1994. Net
sales of 2 1/2 gallon bulk containers represented approximately 7% of
total net sales for this period in 1995 and 1994. Net sales of
novelties accounted for approximately 5% of total net sales during
the first half of 1995 compared to 4% in 1994. Net sales from the
Company's retail stores represented 2% of total net sales in the
first half of 1995 and 1994.
Cost of Sales and Gross Profit
Cost of sales in the first half of 1995 increased
approximately $141,000 or 0.3% over the same period in 1994 and
overall gross profit as a percentage of net sales was 30.1% in 1995
as compared to 26.1% for the comparable period in 1994. The higher
gross profit percentage in the first half of 1995 is due to improved
inventory management, lower raw material costs and improved
production efficiencies. In addition the improved gross profit
reflects less product manufactured for the Company by Edy's Grand
Ice Cream, a subsidiary of Dreyer's Grand Ice Cream. In the first
half of 1995 approximately 23% of the packaged pints manufactured by
the Company were produced by Edy's as compared to 43% for the same
period in 1994.
Selling, General and Administrative Expenses
Selling, general and administrative expenses increased 14% to
$18.9 million for the first six months of 1995 from $16.4 million
for the same period in 1994. Selling, general and administrative
expenses were 24.4% of net sales for the first six months of 1995 as
compared to 22.6% for the same period last year. This increase
primarily reflects strengthening of the Company's organizational
infrastructure in order to prepare for increased growth.
Interest Income and Interest Expense
Interest income increased $266,000 for the first six months
of 1995 as compared to the same period in the prior year . This
increase was primarily due to higher interest rates on investment
securities. Interest expense increased $304,000 for the first six
months 1995 as compared to the same period in the prior year. This
increase was primarily due to the capitalization of interest in the
prior year as part of the cost of the new plant currently under
construction in St. Albans, Vermont.
Income Taxes
Income taxes increased $650,000 primarily reflecting the
increase in income as well as an effective rate of 39.7% in 1995 as
compared with an effective rate of 39.4% in the prior year. The
higher effective rate is primarily due to less tax-exempt interest
income and decreases in other tax credits.
Net Income
As a result of the foregoing, net income for the first half
of 1995 increased 59% to $2.6 million from $1.6 million for the same
period in 1994. Net income was 3.3% of net sales in the first half
of 1995 compared to 2.2% for the same period in 1994. Net income
per share increased 57% to $.36 per share for the first half of 1995
as compared to $.23 per share for the same period in 1994.
Liquidity and Capital Resources
The Company's working capital at July 1, 1995 was
approximately $41.5 million as compared to $37.5 million at December
31, 1994. This $4 million increase was primarily due to increases
in accounts receivable, inventories and cash and cash equivalents,
partially offset by increased accounts payable.
As of July 1, 1995 the Company had $25.1 million of cash and
cash equivalents, an increase of $4.3 million since December 31,
1994. Net cash provided by operations in the first half of 1995 was
approximately $6.1 million. In addition, approximately $5.5
million was used for net additions to property, plant and equipment,
primarily for the new plant currently under construction in St.
Albans, Vermont. Funds were provided by cash from operations and
cash and investments available at December 31, 1994.
Since December 31, 1994 trade receivables, inventory,
accounts payable and accrued expenses have increased $8.2 million,
$1.5 million, and $9.6 million respectively. These increases
reflect the seasonality of the Company's net sales and production
requirements.
During the second quarter of 1989, the Company entered into a
manufacturing and warehouse agreement with Edy's Grand Ice Cream, a
subsidiary of Dreyer's Grand Ice Cream, Inc., to manufacture product
at Edy's plant in Fort Wayne, Indiana in accordance with
specifications and quality control provided by the Company and
provisions requiring the use of dairy products from Vermont. This
agreement expires in September 1995. The agreement specifies
certain minimum quantities which the Company is obligated to
purchase, which represented approximately 437,000 gallons or $3
million in future commitments at July 1, 1995. The agreement also
specifies certain maximum quantities which the Company may require
Edy's to manufacture. This agreement assists the Company in meeting
its current and near-term expected demand. Because per unit
manufacturing costs are higher under this agreement than at the
Company's plants, the Company expects this agreement to continue to
have an adverse impact on its gross profit as a percentage of net
sales throughout the term of this agreement.
In October 1992, the Company began construction of a new
plant in St. Albans, Vermont. The cost of building and equipping
the New Plant is currently estimated to be approximately $40
million, of which $35.6 million has been spent to date ($3.5 million
in the first half of 1995). Construction is currently scheduled to
be completed in 1995, with the new plant fully operational in the
latter part of 1995.
In addition to the new plant, the Company anticipates 1995
capital expenditures of approximately $5 million of which $2.0
million was spent in the first half of 1995. These projects include
equipment upgrades in the Waterbury and Springfield plants.
Management believes that internally generated funds, cash
currently on hand, investments held in marketable securities
(pending their use in the business), and equipment lease financing
will be adequate to meet anticipated operating and capital
requirements.
The Company also has an aggregate of $20,000,000 lines of
credit with The First National Bank of Boston and Key Bank. These
are unsecured agreements providing for borrowings from time to
time, expiring September 29, 1995, with interest at either banks'
Base Rate or the Eurodollar rate plus 1.25%. As of August 4, 1995,
there have been no borrowings under these line of credit agreements.
ITEM 4 - SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company's 1995 Annual Meeting of Stockholders was held
on Saturday, June 24, 1995. The stockholders voted to (1) elect
nine members of the Board of Directors to serve for the next year;
(2) approve the adoption of the 1995 Equity Incentive Plan; (3)
approve the amendment to the Articles of Incorporation to provide
for protection for directors from exposure to monetary liability in
certain circumstances; (4) approve the amendment to the Employee
Stock Purchase Plan to increase the maximum annual number of shares
which may be purchased by any individual employee in any calendar
year; (5) approve the adoption of the 1995 Non-Employee Director's
Plan for Stock in Lieu of Directors' Cash Retainer; (6) ratify the
appointment of Ernst & Young as the Company's independent auditors
for the fiscal year ending December 31, 1995.
(1) The tabulation of votes for the nominees for directors were
as follows:
For Abstain
Elizabeth Bankowski 12,839,604 77,377
Merritt C. Chandler 12,832,052 84,929
Ben Cohen 12,840,323 76,658
Jeffrey Furman 12,838,067 78,914
Jerry Greenfield 12,846,551 70,430
Robert Holland Jr. 12,845,118 71,863
Fred Lager 12,845,310 71,671
Frederick A. Miller 12,838,912 78,069
Henry Morgan 12,842,435 74,546
(2) The vote on the adoption of the 1995 Equity Incentive Plan was
9,908,753 for; 364,582 against; with 2,643,646 abstaining.
(3) The vote on the the amendment to the Articles of Incorporation
to provide for protection for directors from exposure to monetary
liability in certain circumstances was 12,608,207 for; 160,815
against; with 147,959 abstaining.
(4) The vote on the amendment to the Employee Stock Purchase Plan
was 10,874,502 for; 106,206 against; with 1,936,273 abstaining.
(5) The vote on the adoption of the 1995 Non-Employee Director's
Plan for Stock in Lieu of Directors' Cash Retainer was 10,321,070
for; 129,943 against; with 2,465,968 abstaining.
(6) The vote on the appointment of the Company's independent
accountants was 12,494,417 for; 66,366 against; with 356,198
abstaining.
ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibit (11) Statement Re: Computation of Per Share
Earnings
Exhibit (10.29) 1995 Equity Incentive Plan
Exhibit (10.20.1) Amendment to the Employee Stock
Purchase Plan
Exhibit (10.30) Non-Employee Director's Plan for Stock in
Lieu of Directors' Cash Retainer
Exhibit (3.1.3) Amendment to Articles of Association
Exhibit (27) Financial Data Schedules
(b) No reports on Form 8-K were filed during the quarter ended
July 1, 1995, for
which this report is filed.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this Report to be duly signed
on its behalf by the undersigned thereunto duly authorized, being
also its principal financial officer.
BEN & JERRY'S HOMEMADE, INC.
DATE: August 7, 1995 BY: /s/Frances Rathke
Frances Rathke, Chief Financial Officer
And Secretary/Treasurer
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
See accompanying notes.
$ in thousands, except per share amounts.
This schedule contains unaudited summary financial information extracted from
the second quarter 10-Q and is qualified in its entirety by reference to such
10-Q.
</LEGEND>
<S> <C> <C>
<PERIOD-TYPE> 3-MOS 6-MOS
<FISCAL-YEAR-END> DEC-30-1995 DEC-30-1995
<PERIOD-START> APR-02-1995 JAN-01-1995
<PERIOD-END> JUL-01-1995 JUL-01-1995
<CASH> 25123 25123
<SECURITIES> 0 0
<RECEIVABLES> 21876 21876
<ALLOWANCES> 0 0
<INVENTORY> 14930 14930
<CURRENT-ASSETS> 66297 66297
<PP&E> 61205 61205
<DEPRECIATION> 0 0
<TOTAL-ASSETS> 133834 133834
<CURRENT-LIABILITIES> 24777 24777
<BONDS> 0 0
<COMMON> 240 240
0 0
1 1
<OTHER-SE> 0 0
<TOTAL-LIABILITY-AND-EQUITY> 125150 133834
<SALES> 42936 77141
<TOTAL-REVENUES> 0 0
<CGS> 29440 53943
<TOTAL-COSTS> 0 0
<OTHER-EXPENSES> 124 372
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 112 (223)
<INCOME-PRETAX> 2731 4256
<INCOME-TAX> 1078 1692
<INCOME-CONTINUING> 0 0
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 1653 2564
<EPS-PRIMARY> .23 .36
<EPS-DILUTED> 0 0
</TABLE>
EXHIBIT 11
BEN & JERRY'S HOMEMADE, INC.
COMPUTATION OF NET INCOME PER COMMON SHARE
<TABLE>
Thirteen weeks ended Twenty-Six weeks ended
7/1/95 6/25/94 7/1/95 6/25/94
<S> <C> <C> <C> <C>
Primary:
Average shares outstanding 7,182,802 7,144,464 7,166,090 7,144,546
Net effect of dilutive stock options -
based on the treasury stock
method using average
market price 39,755 26,575
Totals 7,222,557 7,144,464 7,192,665 7,144,546
Net Income $1,653,000 $714,000 $2,564,000 $1,616,000
Per share amount $0.23 $0.10 $0.36 $0.23
Fully diluted:
Average shares outstanding 7,182,802 7,144,464 7,166,090 7,144,546
Net effect of dilutive stock options -
based on the treasury stock
method using quarter-end
market price which is greater
than average market price 40,724 2,531 40,724 1,265
Totals 7,223,526 7,146,995 7,166,090 7,145,811
Net Income $1,653,000 $714,000 $2,564,000 $1,616,000
Per share amount $0.23 $0.10 $0.36 $0.23
</TABLE>
EXHIBIT 10.29
BEN & JERRY'S HOMEMADE, INC.
1995 EQUITY INCENTIVE PLAN
1. PURPOSE
The purpose of this 1995 Equity Incentive Plan (the "Plan") is
to advance the interests of Ben & Jerry's Homemade, Inc. (the
"Company") by enhancing its ability to attract and retain
employees and other persons or entities who are in a position to
make significant contributions to the success of the Company and
its subsidiaries through ownership of shares of the Company's
Class A Common Stock ("Stock").
The Plan is intended to accomplish these goals by enabling the
Company to grant Awards in the form of Options, Stock Appreciation
Rights, Restricted Stock or Unrestricted Stock Awards, Deferred
Stock Awards, Cash or Stock Performance Awards, Loans or
Supplemental Grants, or combinations thereof, all as more fully
described below.
2. ADMINISTRATION
The Board may, in its discretion, delegate some or all of its
powers with respect to the Plan to a committee, shall consist of
at least three directors. Notwithstanding the foregoing sentence,
the committee, if one is appointed, may consist of at least two
directors if permissible pursuant to Rule 16b-3 under the 1934
Act. A majority of the members of the committee shall constitute
a quorum, and all determinations of the committee shall be made by
a majority of its members. Any determination of the committee
under the Plan may be made without notice or meeting of the
committee by a writing signed by a majority of the committee
members.
The Board of Directors has determined that the Plan will be
administered by the Compensation Committee of the Board of
Directors of the Company (the "Committee"). The Committee will
have authority, not inconsistent with the express provisions of
the Plan and in addition to other authority granted under the
Plan, to (a) grant Awards at such time or times as it may choose;
(b) determine the size of each Award, including the number of
shares of Stock subject to the Award; (c) determine the type or
types of each Award; (d) determine the terms and conditions of
each Award; (e) waive compliance by a Participant (as defined
below) with any obligations to be performed by the Participant
under an Award and waive any term or condition of an Award; (f)
amend or cancel an existing Award in whole or in part (and if an
Award is cancelled, grant another Award in its place on such terms
as the Committee shall specify), or settle any award by paying the
cash value of the Stock otherwise issuable, except that the
Committee may not, without the consent of the holder of an Award,
take any action under this clause with respect to such Award if
such action would adversely affect the rights of such holder; (g)
prescribe the form or forms of instruments that are required or
deemed appropriate under the Plan, including any written notices
and elections required of Participants, and change such forms from
time to time; (h) adopt, amend and rescind rules and regulations
for the administration of the Plan; and (i) interpret the Plan and
decide any questions and settle all controversies and disputes
that may arise in connection with the Plan. Such determinations
and actions of the Committee, and all other determinations and
actions of the Committee made or taken under authority granted by
any provision of the Plan, will be conclusive and will bind all
parties. Nothing in this paragraph shall be construed as limiting
the power of the Board or the Committee to make adjustments under
Section 7.3 or Section 8.6.
3. EFFECTIVE DATE AND TERM OF PLAN
The Plan, having been adopted by the Board of Directors on April 21,
1995, will become effective on the date on which it is
approved by the stockholders of the Company. Grants of Awards
under the plan may be made prior to that date (but after Board
adoption of the Plan), subject to such stockholder approval of the
Plan.
No Award may be granted under the Plan after April 21, 2005, but
Awards previously granted may extend beyond that date.
4. SHARES SUBJECT TO THE PLAN
Subject to the adjustment as provided in Section 8.6 below, the
aggregate number of shares of Stock that may be delivered under
the Plan will be 500,000. If any Award requiring exercise by the
Participant for delivery of Stock terminates without having been
exercised in full, or if any Award payable in Stock or cash is
satisfied in cash rather than Stock, the number of shares of Stock
as to which such Award was not exercised or for which cash was
substituted will be available for future grants.
Stock delivered under the Plan may be either authorized but
unissued Stock or previously issued Stock acquired by the Company
and held in treasury. No fractional shares of Stock will be
delivered under the Plan.
5. ELIGIBILITY AND PARTICIPATION
Those eligible to receive Awards under the Plan ("Participants")
will be key persons in the employ of the Company or any of its
subsidiaries ("Employees") and other key persons, entities or
employees (including without limitation non-Employee directors of
the Company or a subsidiary of the Company) who, in the opinion of
the Committee, are in a position to make a significant
contribution to the success of the Company or its subsidiaries. A
"subsidiary" for purposes of the Plan will be a corporation in
which the Company owns, directly or indirectly, stock possessing
50% or more of the total combined voting power of all classes of
stock.
Options for no more than 200,000 shares can be granted to any
individual in any one year under the Plan.
6. TYPES OF AWARDS
6.1. OPTIONS
(a) Nature of Options. An Option is an Award entitling the
recipient on exercise thereof to purchase Stock at a specified
exercise price.
Both "incentive stock options," as defined in Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code") (any Option
intended to qualify as an incentive stock option being hereinafter
referred to as an "ISO"), and Options that are not incentive stock
options, may be granted under the Plan. ISOs shall be awarded
only to Employees. Once an ISO has been granted, no action by the
Committee that would cause the Option to lose its status as an
incentive stock option under the Code will be effective without
the consent of the Option holder.
(b) Exercise Price. The exercise price of an Option will be
determined by the Committee, subject to the following:
(1) The exercise price of an ISO shall not be less than
100% (110% in the case of an ISO granted to a ten-percent
shareholder) of the fair market value of the Stock subject to
the Option, determined as of the time the Option is granted. A
"ten-percent shareholder" is any person who at the time of grant
owns, directly or indirectly, or is deemed to own by reason of
the attribution rules of Section 424(d) of the Code, stock
possessing more than 10% of the total combined voting power of
all classes of stock of the Company or of its parent or
subsidiary corporation.
(2) In no case may the exercise price paid for Stock be
less than the par value per share of the Stock.
(3) The Committee may reduce the exercise price of an
Option at any time after the time of grant, but in the case of
an Option originally awarded as an ISO, only with the consent of
the Participant.
(c) Duration of Options. The latest date on which an Option
may be exercised will be the tenth anniversary (fifth anniversary,
in the case of an ISO granted to a ten-percent shareholder) of the
day immediately preceding the date the Option was granted, or such
earlier date as may have been specified by the Board at the time
the Option was granted.
(d) Exercise of Options. An Option will become exercisable
at such time or times, and on such conditions, as the Committee
may specify. The Committee may at any time and from time to time
accelerate the time at which all or any part of the Option may be
exercised.
Any exercise of an Option must be in writing, signed by the
proper person and delivered or mailed to the Company, accompanied
by (1) any documents required by the Committee and (2) payment in
full in accordance with paragraph (e) below for the number of
shares for which the Option is exercised.
(e) Payment for Stock. Stock purchased on exercise of an
Option must be paid for as follows: (1) in cash or by check
(acceptable to the Company in accordance with guidelines
established for this purpose), bank draft or money order payable
to the order of the Company, or (2) through the delivery of shares
of Stock (which in the case of Shares acquired from the Company,
have been outstanding for at least six months) having a fair
market value on the last business day preceding the date of
exercise equal to the purchase price, or (3) by delivery of an
unconditional and irrevocable undertaking by a broker to deliver
promptly to the Company sufficient funds to pay the exercise
price, or (4) if so permitted by the instrument evidencing the
Option (or in the case of an Option which is not an ISO, by the
Committee on or after grant of the Option), by delivery of a
promissory note of the Option holder to the Company, payable on
such terms as are specified by the Board, or (5) by any
combination of the permissible forms of payment; provided, that if
the Stock delivered upon exercise of the Option is an original
issue of authorized Stock, at least so much of the exercise price
as represents the par value of such Stock must be paid in cash.
In the event that payment of the Option price is made under (2)
above, the Committee may provide that the Option holder be granted
an additional Option covering the numbers of shares surrendered,
at an exercise price equal to the fair market value of a share of
Stock on the date of surrender.
(f) Discretionary Payments. If the market price of shares
of Stock subject to an Option (other than an Option which is in
tandem with a Stock Appreciation Right as described in Section 6.2
below) exceeds the exercise price of the Option at the time of its
exercise, the Committee may cancel the Option and cause the
Company to pay in cash or in shares of Common Stock (at a price
per share equal to the fair market value per share) to the person
exercising the Option an amount equal to the difference between
the fair market value of the Stock which would have been purchased
pursuant to the exercise (determined on the date the Option is
cancelled) and the aggregate exercise price which would have been
paid. The Committee may exercise its discretion to take such
action only if it has received a written request from the person
exercising the Option, but such a request will not be binding on
the Committee.
6.2. Stock Appreciation Rights.
(a) Nature of Stock Appreciation Rights. A Stock
Appreciation Right is an Award entitling the recipient on exercise
of the Right to receive an amount, in cash or Stock or a
combination thereof (such form to be determined by the Committee),
determined in whole or in part by reference to appreciation in
Stock value.
Except as provided below, a Stock Appreciation Right entitles
the Participant to receive, with respect to each share of Stock as
to which the Right is exercised, the excess of the share's fair
market value on the date of exercise over its fair market value on
the date the Right was granted. The Committee may provide at the
time of grant that the amount the recipient is entitled to receive
will be adjusted upward or downward under rules established by the
Committee to take into account the performance of the Stock in
comparison with the performance of other stocks or an index or
indices of other stocks. The Committee may also grant Stock
Appreciation Rights providing that following a Change in Control
of the Company, as defined in Exhibit A, the holder of such Right
will be entitled to receive, with respect to each share of Stock
subject to the Right, an amount equal to the excess of a specified
value (which may include an average of values) for a share of
Stock during a period preceding such Change in Control over the
fair market value of a share of Stock on the date the Right was
granted.
(b) Grant of Stock Appreciation Rights. Stock Appreciation
Rights may be granted in tandem with, or independently of, Options
granted under the Plan. A Stock Appreciation Right granted in
tandem with an Option which is not an ISO may be granted either at
or after the time the Option is granted. A Stock Appreciation
Right granted in tandem with an ISO may be granted only at the
time the Option is granted.
(c) Rules Applicable to Tandem Awards. When Stock
Appreciation Rights are granted in tandem with Options, the
following will apply:
(1) The Stock Appreciation Right will be exercisable only
at such time or times, and to the extent, that the related
Option is exercisable and will be exercisable in accordance with
the procedure required for exercise of the related Option.
(2) The Stock Appreciation Right will terminate and no
longer be exercisable upon the termination or exercise of the
related Option, except that a Stock Appreciation Right granted
with respect to less than the full number of shares covered by
an Option will not be reduced until the number of shares as to
which the related Option has been exercised or has terminated
exceeds the number of shares not covered by the Stock
Appreciation Right.
(3) The Option will terminate and no longer be exercisable
upon the exercise of the related Stock Appreciation Right.
(4) The Stock Appreciation Right will be transferable only
with the related Option.
(5) A Stock Appreciation Right granted in tandem with an
ISO may be exercised only when the market price of the Stock
subject to the Option exceeds the exercise price of such option.
(d) Exercise of Independent Stock Appreciation Rights. A
Stock Appreciation Right not granted in tandem with an Option will
become exercisable at such time or times, and on such conditions,
as the Committee may specify. The Committee may at any time
accelerate the time at which all or any part of the Right may be
exercised.
Any exercise of an independent Stock Appreciation Right must
be in writing, signed by the proper person and delivered or mailed
to the Company, accompanied by any other documents required by the
Committee.
6.3. Restricted and Unrestricted Stock.
(a) Nature of Restricted Stock Award. A Restricted Stock
Award entitles the recipient to acquire, for a purchase price to
be specified by the Committee, but in no event less than par
value, shares of Stock subject to the restrictions described in
paragraph (d) below ("Restricted Stock").
(b) Acceptance of Award. A Participant who is granted a
Restricted Stock Award will have no rights with respect to such
Award unless the Participant accepts the Award by written
instrument delivered or mailed to the Company accompanied by
payment in full of the specified purchase price, if any, of the
shares covered by the Award. Payment may be by certified or bank
check or other instrument acceptable to the Committee.
(c) Rights as a Stockholder. A Participant who receives
Restricted Stock will have all the rights of a stockholder with
respect to the Stock, including voting and dividend rights,
subject to the restrictions described in paragraph (d) below and
any other conditions imposed by the Committee at the time of
grant. Unless the Committee otherwise determines, certificates
evidencing shares of Restricted Stock will remain in the
possession of the Company until such shares are free of all
restrictions under the Plan.
(d) Restrictions. Except as otherwise specifically provided
by the Plan, Restricted Stock may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of, and
if the Participant ceases to be an Employee or otherwise suffers a
Status Change (as defined at Section 7.2 below) for any reason,
must be offered to the Company for purchase for the amount of cash
paid for the Stock, or forfeited to the Company if no cash was
paid. These restrictions will lapse at such time or times, and on
such conditions, as the Committee may specify. Upon lapse of all
restrictions, Stock will cease to be Restricted Stock for purposes
of the Plan. The Committee may at any time accelerate the time at
which the restrictions on all or any part of the shares will
lapse.
(e) Notice of Election. Any Participant making an election
under Section 83(b) of the Code with respect to Restricted Stock
must provide a copy thereof to the Company within 10 days of the
filing of such election with the Internal Revenue Service.
(f) Other Awards Settled with Restricted Stock. The
Committee may, at the time any Award described in this Section 6
is granted, provide that any or all the Stock delivered pursuant
to the Award will be Restricted Stock.
(g) Unrestricted Stock. The Committee may, in its sole
discretion, approve the sale to any Participant of shares of Stock
free of restrictions under the Plan for a price which is not less
than the par value of the Stock.
6.4. Deferred Stock Awards.
A Deferred Stock Award entitles the recipient to receive shares
of Stock to be delivered in the future. Delivery of the Stock
will take place at such time or times, and on such conditions, as
the Committee may specify. The Committee may specify that a
Deferred Stock Award may be forfeited if certain conditions are or
are not satisfied. The Committee may at any time accelerate the
time at which delivery of all or any part of the Stock will take
place. At the time any Award described in this Section 6 is
granted, the Committee may provide that, at the time Stock would
otherwise be delivered pursuant to the Award, the Participant will
instead receive an instrument evidencing the Participant's right
to future delivery of Stock.
6.5. Performance Awards; Performance Goals.
(a) Nature of Performance Awards. A Performance Award
entitles the recipient to receive, without payment, an amount in
cash or Stock or a combination thereof (such form to be determined
by the Committee) following the attainment of Performance Goals.
"Performance Goals" are goals which may be related to personal
performance, corporate performance, departmental performance or
any other category of performance deemed by the Committee to be
important to the success of the Company. The Committee will
determine the Performance Goals, the period or periods during
which performance is to be measured and all other terms and
conditions applicable to the Award.
(b) Other Awards Subject to Performance Condition. The
Committee may, at the time any Award described in this Section 6
is granted, impose the condition (in addition to any conditions
specified or authorized in this Section 6 or any other provision
of the Plan) that Performance Goals be met prior to the
Participant's realization of any payment or benefit under the
Award.
6.6. Loans and Supplemental Grants.
(a) Loans. The Company may make a loan to a Participant
("Loan"), either on the date of or after the grant of any Award to
the Participant. A Loan may be made either in connection with the
purchase of Stock under the Award or with the payment of any
Federal, state and local income tax with respect to income
recognized as a result of the Award. The Committee will have full
authority to decide whether to make a Loan and to determine the
amount, terms and conditions of the Loan, including the interest
rate (which may be zero), whether the Loan is to be secured or
unsecured or with or without recourse against the borrower, the
terms on which the Loan is to be repaid and the conditions, if
any, under which it may be forgiven. However, no Loan may have a
term (including extensions) exceeding ten years in duration.
(b) Supplemental Grants. In connection with any Award, the
Committee may at the time such Award is made or at a later date,
provide for and grant a cash award to the Participant
("Supplemental Grant") not to exceed an amount equal to (1) the
amount of any federal, state and local income tax on ordinary
income for which the Participant may be liable with respect to the
Award, determined by assuming taxation at the highest marginal
rate, plus (2) an additional amount on a grossed-up basis intended
to make the Participant whole on an after-tax basis after
discharging all the Participant's income tax liabilities arising
from all payments under this Section 6. Any payments under this
subsection (b) will be made at the time the Participant incurs
Federal income tax liability with respect to the Award.
7. EVENTS AFFECTING OUTSTANDING AWARDS
7.1. Death and Total or Permanent Disability.
If a Participant dies or is totally or permanently disabled, the
following will apply:
(a) All Options and Stock Appreciation Rights held by the
Participant immediately prior to death or total or permanent
disability, as the case may be, to the extent then exercisable,
may be exercised by the Participant's executor or administrator or
the person or persons to whom the Option or Right is transferred
by will or the applicable laws of descent and distribution, at any
time within the one year period ending with the first anniversary
of the Participant's death, or total or permanent disability, as
the case may be (or such shorter or longer period as the Committee
may determine), and shall thereupon terminate. In no event,
however, shall an Option or Stock Appreciation Right remain
exercisable beyond the latest date on which it could have been
exercised without regard to this Section 7. Except as otherwise
determined by the Committee, all Options and Stock Appreciation
Rights held by a Participant immediately prior to death or total
or permanent disability, as the case may be, that are not then
exercisable shall terminate at the date of death or total or
permanent disability, as the case may be.
(b) Except as otherwise determined by the Committee, all
Restricted Stock held by the Participant must be transferred to
the Company (and, in the event the certificates representing such
Restricted Stock are held by the Company, such Restricted Stock
will be so transferred without any further action by the
Participant) in accordance with Section 6.3 above.
(c) Any payment or benefit under a Deferred Stock Award,
Performance Award, or Supplemental Grant to which the Participant
was not irrevocably entitled prior to death or total or permanent
disability, as the case may be, will be forfeited and the Award
canceled as of the time of death, or total or permanent
disability, as the case may be, unless otherwise determined by the
Committee.
7.2. Termination of Service (Other Than By Death or
Disability).
If a Participant who is an Employee ceases to be an Employee for
any reason other than death or total or permanent disability, as
the case may be, or if there is a termination (other than by
reason of death or total or permanent disability, as the case may
be) of the consulting, service or similar relationship in respect
of which a non-Employee Participant was granted an Award hereunder
(such termination of the employment or other relationship being
herein referred to as a "Status Change"), the following will
apply:
(a) Except as otherwise determined by the Committee, all
Options and Stock Appreciation Rights held by the Participant that
were not exercisable immediately prior to the Status Change shall
terminate at the time of the Status Change. Any Options or Rights
that were exercisable immediately prior to the Status Change will
continue to be exercisable for a period of three months (or such
longer period as the Board may determine), and shall thereupon
terminate, unless the Award provides by its terms for immediate
termination in the event of a Status Change. If the Status Change
results from a discharge for cause, all Awards will terminate if
the Committee so determines in its discretion either before or
after such termination of employment. In no event, however, shall
an Option or Stock Appreciation Right remain exercisable beyond
the latest date on which it could have been exercised without
regard to this Section 7. For purposes of this paragraph, in the
case of a Participant who is an Employee, a Status Change shall
not be deemed to have resulted by reason of (i) a sick leave or
other bona fide leave of absence approved for purposes of the Plan
by the Committee, so long as the Employee's right to reemployment
is guaranteed either by statute or by contract, or (ii) a transfer
of employment between the Company and a subsidiary or between
subsidiaries, or to the employment of a corporation (or a parent
or subsidiary corporation of such corporation) issuing or assuming
an option in a transaction to which section 424(a) of the Code
applies.
(b) Except as otherwise determined by the Committee, all
Restricted Stock held by the Participant at the time of the Status
Change must be transferred to the Company (and, in the event the
certificates representing such Restricted Stock are held by the
Company, such Restricted Stock will be so transferred without any
further action by the Participant) in accordance with Section 6.3
above.
(c) Any payment or benefit under a Deferred Stock Award,
Performance Award, or Supplemental Grant to which the Participant
was not irrevocably entitled prior to the Status Change will be
forfeited and the Award cancelled as of the date of such Status
Change unless otherwise determined by the Committee.
7.3. Certain Corporate Transactions.
In the event of a consolidation or merger in which the Company
is not the surviving corporation or which results in the
acquisition of substantially all the Company's outstanding Stock
by a single person or entity or by a group of persons and/or
entities acting in concert, or in the event of the sale or
transfer of substantially all the Company's assets or a
dissolution or liquidation of the Company (a "covered
transaction"), all outstanding Awards will terminate as of the
effective date of the covered transaction, and the following rules
shall apply:
(a) Subject to paragraphs (b) and (c) below, the Committee may
in its sole discretion, prior to the effective date of the covered
transaction, (1) make each outstanding Option and Stock
Appreciation Right exercisable in full, (2) remove the
restrictions from each outstanding share of Restricted Stock, (3)
cause the Company to make any payment and provide any benefit
under each outstanding Deferred Stock Award, Performance Award,
and Supplemental Grant which would have been made or provided with
the passage of time had the transaction not occurred and the
Participant not suffered a Status Change (or died), and (4)
forgive all or any portion of the principal of or interest on a
Loan.
(b) If an outstanding Award is subject to performance or other
conditions (other than conditions relating only to the passage of
time and continued employment) which will not have been satisfied
at the time of the covered transaction, the Committee may in its
sole discretion remove such conditions. If it does not do so,
however, such Award will terminate as of the date of the covered
transaction notwithstanding paragraph (a) above.
(c) With respect to an outstanding Award held by a participant
who, following the covered transaction, will be employed by or
otherwise providing services to a corporation which is a surviving
or acquiring corporation in such transaction or an affiliate of
such a corporation, the Committee may, in lieu of the action
described in paragraph (a) above, arrange to have such surviving
or acquiring corporation or affiliate grant to the Participant a
replacement award which, in the judgment of the Committee, is
substantially equivalent to the Award.
8. GENERAL PROVISIONS
8.1. Documentation of Awards.
Awards will be evidenced by such written instruments, if any, as
may be prescribed by the Board from time to time. Such
instruments may be in the form of agreements to be executed by
both the Participant and the Company, or certificates, letters or
similar instruments, which need not be executed by the Participant
but acceptance of which will evidence agreement to the terms
thereof.
8.2. Rights as a Stockholder, Dividend Equivalents.
Except as specifically provided by the Plan, the receipt of an
Award will not give a Participant rights as a stockholder; the
participant will obtain such rights, subject to any limitations
imposed by the Plan or the instrument evidencing the Award, upon
actual receipt of Stock. However, the Committee may, on such
conditions as it deems appropriate, provide that a Participant
will receive a benefit in lieu of cash dividends that would have
been payable on any or all Stock subject to the Participant's
Award had such Stock been outstanding. Without limitation, the
Committee may provide for payment to the Participant of amounts
representing such dividends, either currently or in the future, or
for the investment of such amounts on behalf of the Participant.
8.3. Conditions on Delivery of Stock.
The Company will not be obligated to deliver any shares of Stock
pursuant to the Plan or to remove restriction from shares
previously delivered under the Plan (a) until all conditions of
the Award have been satisfied or removed, (b) until, in the
opinion of the Company's counsel, all applicable federal and state
laws and regulation have been complied with, (c) if the
outstanding Stock is at the time listed on any stock exchange,
until the shares to be delivered have been listed or authorized to
be listed on such exchange upon official notice of notice of
issuance, and (d) until all other legal matters in connection with
the issuance and delivery of such shares have been approved by the
Company's counsel. If the sale of Stock has not been registered
under the Securities Act of 1933, as amended, the Company may
require, as a condition to exercise of the Award, such
representations or agreements as counsel for the Company may
consider appropriate to avoid violation of such Act and may
require that the certificates evidencing such Stock bear an
appropriate legend restricting transfer.
If an Award is exercised by the Participant's legal
representative, the Company will be under no obligation to deliver
Stock pursuant to such exercise until the Company is satisfied as
to the authority of such representative.
8.4. Tax Withholding.
The Company will withhold from any cash payment made pursuant to
an Award an amount sufficient to satisfy all federal, state and
local withholding tax requirements (the "withholding
requirements").
In the case of an Award pursuant to which Stock may be
delivered, the Committee will have the right to require that the
Participant or other appropriate person remit to the Company an
amount sufficient to satisfy the withholding requirements, or make
other arrangements satisfactory to the Committee with regard to
such requirements, prior to the delivery of any Stock. If and to
the extent that such withholding is required, the Committee may
permit the Participant or such other person to elect at such time
and in such manner as the Committee provides to have the Company
hold back from the shares to be delivered, or to deliver to the
Company, Stock having a value calculated to satisfy the
withholding requirement.
If at the time an ISO is exercised the Committee determines that
the Company could be liable for withholding requirements with
respect to a disposition of the Stock received upon exercise, the
Committee may require as a condition of exercise that the person
exercising the ISO agree (a) to inform the Company promptly of any
disposition (within the meaning of section 424(c) of the Code) of
Stock received upon exercise, and (b) to give such security as the
Committee deems adequate to meet the potential liability of the
Company for the withholding requirements and to augment such
security from time to time in any amount reasonably deemed
necessary by the Committee to preserve the adequacy of such
security.
8.5. Nontransferability of Awards.
No Award (other than an Award in the form of an outright
transfer of cash or Unrestricted Stock) may be transferred other
than by will or by the laws of descent and distribution, and
during a Participant's lifetime an Award requiring exercise may be
exercised only by him or her (or in the event of the Participant's
incapacity, the person or persons legally appointed to act on the
Participant's behalf).
8.6. Adjustments in the Event of Certain Transactions.
(a) In the event of a stock dividend, stock split or
combination of shares, recapitalization or other change in the
Company's capitalization, or other distribution to common
stockholders other than normal cash dividends, after the effective
date of the Plan, the Committee will make any appropriate
adjustments to the maximum number of shares that may be delivered
under the Plan under Section 4 above.
(b) In any event referred to in paragraph (a), the Committee
will also make any appropriate adjustments to the number and kind
of shares of stock or securities subject to Awards then
outstanding or subsequently granted, any exercise prices relating
to Awards and any other provision of Awards affected by such
change. The Committee may also make such adjustments to take into
account material changes in law or in accounting practices or
principles, mergers, consolidations, acquisitions, dispositions or
similar corporate transactions, or any other event, if it is
determined by the Committee that adjustments are appropriate to
avoid distortion in the operation of the Plan.
8.7. Employment Rights, Etc.
Neither the adoption of the Plan nor the grant of Awards will
confer upon any person any right to continued retention by the
Company or any subsidiary as an Employee or otherwise, or affect
in any way the right of the Company or subsidiary to terminate an
employment, service or similar relationship at any time. Except
as specifically provided by the Committee in any particular case,
the loss of existing or potential profit in Awards granted under
the Plan will not constitute an element of damages in the event of
termination of an employment, service or similar relationship even
if the termination is in violation of an obligation of the Company
to the Participant.
8.8. Deferral of Payments.
The Committee may agree at any time, upon request of the
Participant, to defer the date on which any payment under an Award
will be made.
8.9. Past Services as Consideration.
Where a Participant purchases Stock under an Award for a price
equal to the par value of the Stock the Committee may determine
that such price has been satisfied by past services rendered by
the Participant.
8.10. Fair Market Value
For purposes of the Plan, fair market value of a share of Stock
on any date will be the average of the bid and asked prices in the
over-the-counter market with respect to such Stock, as reported by
the National Association of Securities Dealers, Inc. Automated
Quotation System or such other similar system then in use; or, if
on any such date such Stock is not quoted by any such
organization, the average of the closing bid and asked prices with
respect to such Stock, as furnished by a professional market maker
making a market in such Stock selected by the Committee; or if
such prices are not available, the fair market value of such Stock
as of such date as determined in good faith by the Committee; or,
where necessary, in order to achieve the intended Federal income
tax result, the value of a share of Stock as determined by the
Committee in accordance with the applicable provisions of the
Code.
9.EFFECT, DISCONTINUANCE, CANCELLATION, AMENDMENT AND
TERMINATION
Neither adoption of the Plan nor the grant of Awards to a
Participant will affect the Company's right to grant to such
Participant cash or Stock awards that are not subject to the Plan,
to issue to such Participant Stock as a bonus or otherwise, or to
adopt other plans or arrangements under which Stock be issued to
Employees. The Committee may at any time discontinue granting
Awards under the Plan.
The Board may at any time or times amend the Plan (and the
Committee may amend any outstanding Award) for any purpose which
may at the time be permitted by law, or may at any time terminate
the Plan as to any further grants of Awards, provided that (except
to the extent expressly required or permitted by the Plan) no such
amendment will, without the approval of the stockholders of the
Company, (a) increase the maximum number of shares available under
the Plan, (b) change the group of persons eligible to receive
Awards under the Plan, (c) extend the time within which Awards may
be granted, or (d) amend the provisions of this Section 9, and no
amendment or termination of the Plan may adversely affect the
rights of any Participant (without the Participant's consent)
under any Award previously granted.
EXHIBIT 10.20.1
Section 6 of the Employee Stock Purchase Plan as amended.
SECTION 6. GRANT OF OPTIONS
Each person who is a participant on the first day of an
option period shall, as of such day, be granted an option for such
period. Such option shall be for the lesser of (a) that number of
shares of Stock which (if elected to be purchased at the end of a
six month option period) results from the grant by the Company of
options to purchase shares of Stock having a fair market value at
the start of such six month period of not more than $12,500 or (b)
the number of whole shares of Stock to be determined by dividing
(i) the balance in the participant's withholding account on the
last day of the option period, by (ii) the purchase price per
share of the Stock determined under Section 7. The Company shall
reduce, on a substantially proportionate basis, the number of
shares of Stock receivable by each participant upon exercise of
his option for an option period in the event that the number of
shares then available under the Plan is otherwise insufficient.
EXHIBIT 10.30
BEN & JERRY'S HOMEMADE, INC.
1995 NON-EMPLOYEE DIRECTORS' PLAN FOR STOCK
IN LIEU OF DIRECTORS' CASH RETAINER
1. Purpose
The purpose of this Plan is to (1) encourage ownership of
Company Stock by non-employee directors and thereby align such
directors' interests more closely with the interests of
stockholders of the Company, and (2) assist the Company in
securing and retaining highly qualified persons to serve as non-
employee directors, in which position they may contribute to the
long-term growth and profitability of the Company, by affording
such persons an opportunity to acquire Stock.
2. Definitions
Whenever used in this Plan, the following terms will have the
respective meanings set forth below:
(a) "Board" means the Company's Board of Directors as
constituted from time to time.
(b) "Committee" means the committee described in Section 4.
(c) "Company" means Ben & Jerry's Homemade, Inc., a Vermont
corporation.
(d) "Fair Market Value" of Stock means average of the
official closing prices of the Stock on the NASDAQ National Market
System or such other securities exchange or automated quotation
system on which the Stock shall be primarily traded at the time of
such determination (the "Exchange") on the ten trading days
preceding the day on which Fair Market Value is being determined
on which Stock transactions took place, as reported on Composite
Tape for transactions on the Exchange.
(e) "Participant" means a non-employee, and non-full-time
consultant, director who is eligible to receive, and receives
Stock under the Plan.
(f) "Plan" means this 1995 Non-Employee Directors' Plan for
Stock in Lieu of Directors' Cash Retainer..
(g) "Retainer" means the annual amount of cash retainer
payable to a non-employee director of the Company for a full
year's service on the Board, or such lesser amount as may be
payable to any non-employee director in respect of service on the
Board of less than a full year, and excluding meeting fees payable
for attendance at meetings of the Board or committees.
(h) "Stock" means the Class A Common Stock, par value $.033
per share, of the Company.
3. Number and Source of Shares Available Under the Plan
The total number of shares of Stock reserved and available
for issuance under the Plan is 25,000 subject to adjustment as
provided in Section 7 below. Such shares may be previously issued
and outstanding shares of Stock reacquired by the Company and held
in its treasury, or may be authorized but unissued shares of
Stock, or may consist partly of each.
4. Administration of the Plan
The Plan shall be administered by a committee (the
"Committee") of the Board designated by the Board for that
purpose. Unless and until a Committee is appointed the Plan shall
be administered by the entire Board, and references in the Plan to
the "Committee" shall be deemed references to the Board. The
Committee shall have authority, not inconsistent with the express
provisions of the Plan, (a) to issue Stock granted in accordance
with this Plan to such directors as are eligible to receive Stock;
(b) to prescribe the form of forms of instruments required under
the Plan and to change such forms from time to time; (c) to adopt,
amend and rescind rules and regulations for the administration of
the Plan; and (d) to interpret the Plan and to decide any
questions and settle all controversies and disputes that may arise
in connection with the Plan. Such determination of the Committee
shall be conclusive and shall bind all parties.
5. Eligibility
Each director of the Company who, on any date on which Stock
is to be delivered (as specified in Section 6), is not an
employee or a full-time consultant of the Company or any parent or
subsidiary of the Company and is entitled to receive a Cash
Retainer (an "Eligible Director") will be eligible to receive
Stock under the Plan.
6. Stock in Lieu of Cash Retainer
In lieu of the annual cash Retainer payable to each Eligible
Director, Stock will be paid, upon the prior written election of
an Eligible Director to so receive Stock, in the amount of such
cash Retainer each year for so long as this Plan is in effect, to
the extent and subject to the terms and conditions set forth
below:
(a) Annual Stock Payment. The number of shares of Stock to
be paid under this Section 6, in the event of an election by an
Eligible Director to so receive Stock, will be equal to (i) the
amount of the annual cash Retainer payable to each Eligible
Director at the rate then in effect divided by (ii) the Fair
Market Value of Stock as determined on the date of payment. No
fractional shares of Stock will be granted; instead, the cash
remainder will be paid to the Participant. The delivery of Stock
hereunder shall be contingent upon service by the Participant
through the date of the first meeting of the Board of Directors
following the Annual Meeting (or such election by the Board). On
the date 30 days after the date of the annual meeting of
stockholders at which directors are elected (or, in the case of a
director elected by the Board, the date 30 days after such
election) or as promptly as practicable thereafter, the Company
will deliver to each Participant who has filed an election one or
more certificates representing the Stock, registered in the name
of the Participant (or, if directed by the Participant, in joint
names of the Participant and his or her spouse).
(b) Method of Electing to Receive Stock in Cash of Annual
Cash Retainer. In order to receive Stock under the Plan, the
Director must complete and deliver to the Company a written
election form on which he/she designates the election to receive
Stock. The election shall be irrevocable unless modified or
revoked as provided in this Section. In order to modify or revoke
an election, the Director must complete and deliver to the Company
a Change of Election form providing that said modification or
revocation shall be effective with respect to the annual retainer
payable on or after the first calendar quarter of the year which
begins at least six months following the date the Company receives
the Change of Election form.
(c) Rights of the Participant. Except for the terms and
conditions set forth in this Plan, a Participant paid Stock in
lieu of the annual Cash Retainer will have all of the rights of a
holder of the Stock, including the right to receive dividends paid
on such Stock and the right to vote the Stock at meetings of
stockholders of the Company. Upon delivery, such Stock will be
nonforfeitable.
7. Adjustment Provisions
In the event any recapitalization, reorganization, merger,
consolidation, spin-off, combination, repurchase, exchange of
shares or other securities of the Company, stock split or reverse
split, extraordinary dividend, liquidation, dissolution, or other
similar corporate transaction or event affects Stock such that an
adjustment is determined by the Board to be appropriate in order
to prevent dilution or enlargement of Participants' rights under
the Plan, then the Board shall, in a manner that is proportionate
to the change to the Stock and is otherwise equitable, adjust any
or all of the number or kind of shares of Stock reserved for
issuance under the Plan.
8. Changes to the Plan
The Board may amend, alter, suspend, discontinue, or
terminate the Plan or authority to deliver Stock under the Plan;
provided, however, that, without the consent of an affected
Participant, no such amendment, alteration, suspension,
discontinuation, or termination may impair the rights of such
Participant under any Stock theretofore paid to him or her
hereunder.
9. General Provisions
(a) Consideration for Stock Issued. Stock will be paid
under the Plan in consideration of the services of Participants as
directors of the Company.
(b) Compliance with Securities Laws, Listing Requirements,
and Other Laws and Obligations. The Company shall not be
obligated to deliver any shares of Stock under this Plan, (a)
until, in the opinion of the Company's counsel, all applicable
federal and state laws and regulations have been complied with,
(b) if the outstanding Stock is at the time listed on any stock
exchange, or quoted on any automated quotation system, until the
shares to be delivered have been listed or authorized to be listed
or quoted on such exchange or system upon official notice of
issuance, and (c) until all other legal matters in connection with
the issuance and delivery of such shares have been approved by the
Company's counsel. If the sale of Stock has not been registered
under the Securities Act of 1933, as amended, the Company may
require, as a condition to the payment of Stock, such
representations or agreements as counsel for the Company may
consider appropriate to avoid violation of such Act and may
require that the certificates evidencing such Stock bear an
appropriate legend restricting transfer.
(c) No Right to Continue as a Director. Nothing contained
in the Plan or any agreement hereunder will confer upon any
Participant any right to continue to serve as a director of the
Company.
(d) No Shareholder Rights Conferred. Nothing contained in
the Plan or any agreement hereunder will confer upon any director
any rights of a shareholder of the Company unless and until shares
of Stock are issued to such Participant upon the payment of Stock.
(e) Governing Law. The validity, construction, and effect
of the Plan and any agreement hereunder will be determined in
accordance with the laws of the State of Vermont and applicable
federal law.
10. Effective Date and Duration of Plan
The Plan will become effective at the time that it is
approved by the Board, subject to approval by the stockholders of
the Company by a majority of the votes cast by the holders of the
Class A Common Stock and the Class B Common Stock, voting
together, present in person or represented by proxy, and entitled
to vote. The Plan will remain in effect until such time as the
Board may act to terminate the Plan, or until such time as no
Stock remains available for issuance under the Plan and the
Company has no further rights or obligations under the Plan with
respect to Stock granted issued under the Plan.
VERMONT SECRETARY OF STATE
Location: 81 River Street Mail: 109 State Street
Montpelier, Vt 05609-1104 (802) 828-2386
ARTICLES OF AMENDMENT
Name of Corporation Ben & Jerry's Homemade, Inc.
A corporation may amend its articles of incorporation at anytime
to add or change a provision that is required or permitted in the
articles of incorporation or to delete a provision not required.
If a corporation has not yet issued shares, its incorporators or
board of directors may adopt one or more amendments to the
corporation's articles of incorporation.
The text and date of each amendment adopted.
No director of the Corporation shall be personally liable to
the corporation or its stockholders for money damages for any
action taken, solely as a director, based on a failure to
discharge his or her own duties in accordance with Section 8.30
(entitled "General Standards for Directors") of the Vermont
Business Corporation Act, except for: (i) the amount of financial
benefit received by a director to which the director is not
entitled; (ii) an intentional or reckless infliction of harm on
the Corporation or the shareholders; (iii) a violation of Section
8.33 (entitled "Liability for Unlawful Distributions; Statute of
Limitations") of the Vermont Business Corporation Act; or (iv)
an intentional or reckless criminal act. The foregoing
additional provisions shall not be construed in any way so as to
impose or create any duty or liability.
Amendment adopted June 24, 1995.
If the amendment provides for an exchange, reclassification, or
cancellation of issued shares, state the provisions for
implementing the amendment if not contained in the amendment
itself.
N/A
If the amendment was adopted by the incorporators or board of
directors, without shareholder action, make a statement to that
effect and that shareholder action was not required.
N/A
If the amendment was approved by shareholders.
(A) the designation, number of outstanding shares, number of
votes entitled to be cast by each voting group entitled to vote
separately on the amendment, and number of votes of each voting
group represented at the meeting.
There were outstanding and entitled to vote on the Amendment the
following shares of capital stock, entitled to vote together as a
single voting group on the Amendment:
6,241,416 shares of Class A Common Stock, $.033 par value,
entitled to one vote per share
926,437 shares of Class B Common Stock, $.033 par value,
entitled to ten votes per share
900 shares of Class A Preferred Stock, $1.00 par value, entitled
to one vote per share
Represented at the Annual Meeting of Stockholders held June
24, 1995 were 5,313,761 outstanding shares of Class A Common
Stock, $.033 par value, entitled to one vote per share or an
aggregate of 5,313,761 votes, 760,322 shares of Class B Common
Stock, $.033 par value, entitled to ten votes per share or an
aggregate of 7,603,220 votes and 0 outstanding shares of Class A
Preferred Stock, $1.00 par value, entitled to one vote per share
or an aggregate of 0 votes, amounting in total to 12,916,981
votes.
(B) either the total number of votes cast for and against the
amendment by each voting group entitled to vote separately on the
amendment or the total number of undisputed votes cast for the
amendment by each voting group and a statement that the number
cast for the amendment by each voting group was sufficient for
approval by that voting group.
The total number of votes cast for the Amendment by all of
the shares of capital stock voting together as a group was
12,608,207 and the total number of shares votes cast against the
Amendment was 160,815. The number of votes cast for the
Amendment was sufficient for approval of the Amendment.
Signature:/s/Frances Rathke Title: Treasurer & Secretary
Date: August 4, 1995
$25.00 FEE MUST BE ATTACHED
THIS APPLICATION MUST BE TYPEWRITTEN OR PRINTED AND MUST BE FILED
IN DUPLICATE.
OFFICE OF SECRETARY OF STATE
FILED
fee of $ Has been paid.
