BEN & JERRY'S HOMEMADE, INC.
Route 100
P.O. Box 240
Waterbury, VT 05676
May 22, 1995
Dear Stockholders:
Enclosed is a proxy statement for the 1995 Annual Meeting of
Stockholders, which will be held on Saturday, June 24, 1995 at
Sugarbush North Resort in Warren, Vermont, 05674 at 10:00 in the
morning. Also enclosed are two proxy cards, one for voting Class
A common shares and one for voting Class B common shares, and a
copy of the 1994 Annual Report to Stockholders.
On the following pages you will find a Notice of 1995 Annual
Meeting and Proxy Statement. The Notice of Annual Meeting lists
two items of formal business to address at the Annual Meeting.
We ask your support in the election of directors and in
approving Items 2-6.
We will follow the formal business with time for discussion,
and we invite your comments, questions and ideas.
After the meeting, there will be a one day party. This year
we are again calling it the One World One Heart Festival, and it
will be a wonderful one day celebration. The festival will be
held on Saturday, June 24th and will be filled with music, fun,
social activism and surprises. We hope you make plans to join us.
Sincerely,
Ben Cohen
Chairperson
Robert Holland Jr.
President and CEO
BEN & JERRY'S HOMEMADE, INC.
Route 100
P.O. Box 240
Waterbury, VT 05676
BEN & JERRY'S HOMEMADE, INC.
NOTICE OF 1995 ANNUAL MEETING OF STOCKHOLDERS
NOTICE IS HEREBY GIVEN that the 1995 Annual Meeting of
Stockholders of Ben & Jerry's Homemade, Inc. will be held at the
Sugarbush North Resort in Warren, Vermont, 05674, on Saturday the
24th of June at 10:00 a.m., Vermont time, for the following
purposes:
1.To fix the number of directors at nine and to elect nine
directors to serve for the next year.
2.To consider and act upon a proposal to adopt the Ben &
Jerry's Homemade, Inc. 1995 Equity Incentive Plan and
authorize the delivery of 500,000 shares of Class A
Common Stock from time to time thereunder.
3.To consider and act upon a proposal to amend the Articles
of Incorporation, as expressly permitted by Section 2.02 of the
Vermont Business Corporation Act, to eliminate monetary liability
of directors in suits brought by the Company or its stockholders
for breach of directors' fiduciary duty except where such
elimination is not permitted by the Vermont Business Corporation
Act.
4. To consider and act upon a proposal to amend the
Employee Stock Purchase Plan to increase the maximum
annual number of shares which may be purchased under the
Plan by any individual employee in any calendar year.
5.To consider and act upon a proposal to adopt the 1995
Non-Employee Directors' Plan for Stock in Lieu of
Directors' Cash Retainer and authorize the delivery of
25,000 shares of Class A Common Stock from time to time
thereunder.
6.To consider and act upon a proposal to ratify the
selection of Ernst & Young as independent auditors for
the 1995 fiscal year.
7.To transact any other business that may properly be
brought before the meeting or any adjourned session
thereof.
Stockholders of record at the close of business on May 1,
1995 are entitled to notice of, and to vote at, the meeting.
BY ORDER OF THE BOARD OF DIRECTORS
Frances Rathke, Secretary
Waterbury, Vermont
May 22, 1995
PLEASE COMPLETE, SIGN AND DATE THE ENCLOSED PROXIES (ONE FOR CLASS
A COMMON STOCK AND ONE FOR CLASS B COMMON STOCK) AND RETURN
PROMPTLY IN THE ENCLOSED ENVELOPE WHETHER OR NOT YOU PLAN TO
ATTEND THE ANNUAL MEETING.
<PAGE>
BEN & JERRY'S HOMEMADE, INC
Corporate Offices Mailing Address
Duxtown Commercial Plaza Route 100
Junction of Routes 2 and 100 P.O. Box 240
North Moretown, VT 05660 Waterbury, VT 05676
1995 ANNUAL MEETING OF STOCKHOLDERS
June 24, 1995
PROXY STATEMENT
The enclosed form of proxy (one for Class A Common Stock and
one for Class B Common Stock) is solicited on behalf of the Board
of Directors of Ben & Jerry's Homemade, Inc. ("Ben & Jerry's" or
the "Company") for use at the 1995 Annual Meeting of Stockholders
to be held at the Sugarbush North Resort in Warren, Vermont on
Saturday, June 24, 1995 at 10:00 a.m., Vermont time, and at any
adjourned session thereof (the "Meeting").
The expense of soliciting proxies will be borne by the
Company. Directors, officers and regular employees of the Company
(who will receive no compensation therefor in addition to their
regular salaries) may communicate directly or by mail, telephone
or other communication methods with shareholders to solicit
proxies. The Company will also reimburse brokers and other
persons for their reasonable charges and expenses in forwarding
soliciting materials to their principals or other beneficial
owners of capital stock of Ben & Jerry's.
Any proxy may be revoked prior to its exercise (i) by written
notice received by the Secretary of the Company at its mailing
address set forth above, (ii) by execution of a later-dated proxy,
or (iii) by attending the Meeting and voting the shares covered by
the proxy in person.
Stockholders of record at the close of business on May 1,
1995 are entitled to receive notice of and to vote at the Meeting.
Each share of the Company's Class A Common Stock and Class A
Preferred Stock (the "Preferred Stock") outstanding on the record
date is entitled to one vote, and each share of the Company's
Class B Common Stock is entitled to ten votes. Each share of
Class A Preferred Stock is entitled to one vote. As of the close
of business on May 1, 1995, there were outstanding and entitled to
vote 6,241,416 shares of Class A Common Stock, 926,437 shares of
Class B Common Stock and 900 shares of Class A Preferred Stock.
The Company's Annual Report for 1994 is being mailed to
stockholders with this Proxy Statement. It is expected that this
Proxy Statement will be mailed to stockholders on or about May 8,
1995.
"Signing" at the Annual Meeting. Mr. and Mrs. Gratzer of
Ballston Spa, New York have generously volunteered their
interpreting services to "sign" this year's Annual Meeting, making
it accessible to the hearing-impaired.
ITEM #1 ELECTION OF DIRECTORS
Unless authority to do so has been withheld or limited in the
proxy, it is the intention of the persons named as proxies to vote
the shares to which the proxy relates to fix the number of
directors at nine and to elect the nominees named below.
Management knows of no reason why any nominee should refuse or be
unable to serve. However, should any of the nominees refuse or be
unable to serve, it is the intention of the persons named as
proxies to act in respect to the filling of that office by voting
the shares to which the proxy relates, unless authority to do so
has been withheld or limited in the proxy, for the election of
such other person or persons as may be designated by the Board of
Directors or, in the absence of such designation, in such other
manner as they may, in their discretion, determine. In no event
will the proxy be voted for any number of directors greater than
nine. Robert Holland Jr., who became President and CEO on January
30, 1995, was elected a Director in March, 1995 to fill the
vacancy created by the resignation of Charles Lacy. All other
nominees for election were previously elected Directors of the
Company at the 1994 Annual Meeting.
Set forth below is information relating to the nominees for
the Board of Directors. Each Director elected will serve until
his/her successor is elected and qualified or until his/her
earlier resignation or removal. None of the nominees for
Director is related to any other nominee or to any executive
officer of the Company by marriage, adoption or blood.
Name Age Principal Occupation or Employment Director Since
Elizabeth Bankowski 47 Director of Social Mission 1990
Development of Ben &Jerry's
Homemade, Inc. since June1991.
Private political consultant
since January 1990. Chief of Staff
for Vermont Governor Madeline M.
Kunin from 1985 to October 1989.
Merritt C. Chandler 78 Business Manager, Addison Vermont 1987
Central Supervisory Union since 1985.
Consultant from 1982 to 1985. Until
1982, Mr. Chandler was an executive
of Xerox Corporation.
Ben Cohen 44 Chairperson of the Board of Directors 1977
since February 1989. Chief Executive
Officer of Ben & Jerry's Homemade, Inc.
from January 1, 1991 to January 30, 1995.
President from 1983 until February 1989.
Vice President from 1977 to 1983. One
of the Company's two founders in 1977.
Jeffrey Furman 51 Consultant to Ben & Jerry's Homemade, 1982
Inc. since March, 1991. Secretary to
Ben & Jerry's Homemade, Inc. from 1982
to 1991. Vice President of Ben & Jerry's
Homemade, Inc. from 1982 to March 1990.
Senior Consultant, Raven Management
Associates from 1976 to 1984.
Jerry Greenfield 44 Vice Chairperson of Ben & Jerry's 1990
Homemade, Inc. since 1990. Director
of Promotions from 1987 to 1990.
Consultant to the Company from 1985
to 1986. One of the Company's two
founders in 1977.
Robert Holland Jr. 55 President Chief Executive Officer of 1995
the Company since January 30, 1995.
In March 1995 he was elected a Director
of the Company. He had been Chairperson
and Chief Executive Officer of ROHKER-J,
a consulting firm for Fortune 500
companies since 1991. Mr. Holland was a
Director and Senior Vice President of
Gilreath Manufacturing, Inc. from
1987 to 1990 and was appointed Chairperson
and Chief Executive Officer in March 1990
until 1991. From 1984 to 1987, Mr. Holland
was Chairperson and Chief Executive Officer
of City Marketing which engaged in beverage
distribution. From 1968 through 1991,
Mr. Holland was an associate and then partner
with McKinsey & Company, Inc. where he managed
projects for global concerns involving
operational, strategic and marketing issues.
Mr. Holland is Chairperson of the Board of
Trustees at Spelman College, a trustee of
Atlanta University Center and Mutual of New
York and is a member of the Board of Directors
of Middlesex Mutual Assurance and the Harlem
Junior Tennis Program.
Fred Lager 40 Consultant to Ben & Jerry's Homemade,Inc. 1982
since February 1991. President, Chief
Executive Officer and Treasurer from
February 1989 to 1991. General Manager and
Treasurer from 1982 until February 1989.
Frederick A. Miller 48 Since 1985, he has been President of The 1992
Kaleel Jamison Consulting Group, Inc.,
a strategic cultural change and management
consulting firm he joined in 1979. Prior to
joining the firm he was Assistant Director
of Corporate Training at Connecticut
General Life Insurance Company (now Cigna).
Henry Morgan 69 Dean Emeritus of Boston University School 1987
of Management since 1986. Dean from 1979
to 1986. Director, Cambridge Bancorporation,
MedChem products, Inc. and Symbolics, Inc.
There were eleven meetings of the Board of Directors in 1994.
Directors who are not employees of the Company receive $9,000 per
year plus expenses. On December 17, 1992, two non-employee
directors, Mr. Chandler and Mr. Morgan, each received awards of
1,000 shares of the Company's Class A Common Stock under the 1992
Non-Employee Directors' Restricted Stock Plan. The shares had a
market value on the date of grant of $28.50 per share.
The Board of Directors has an Audit Committee, on which
Messrs. Chandler, Lager and Morgan, none of whom are employees of the
Company, serve. This committee met three times in 1994. The
Audit Committee reviews with management and the Company's
independent public accountants the Company's financial statements,
the accounting principles applied in their preparation, the scope
of the audit, any comments made by the accountants upon the
financial condition of the Company and its accounting controls and
procedures, and such other matters as the committee deems
appropriate.
The Board of Directors also has a Compensation Committee,
which reviews salary and related compensation matters relating to
officers of the Company, reviews the compensation of all executive
officers of the Company, makes recommendations to the Board
regarding policy changes related to compensation, and administers
certain compensation plans, including the 1991 Restricted Stock
Plan and the 1985 Stock Option Plan and the Employee Stock
Purchase Plan. Messrs. Chandler, Miller and Morgan, none of whom
are employees of the Company, serve on this committee and it met
five times in 1994.
Recommendation of the Board of Directors
The Board of Directors recommends that the stockholder
vote to fix the number of directors at nine and for each
of the nine nominees.
<PAGE>
EXECUTIVE COMPENSATION
Summary Compensation Table
The following table sets forth the cash compensation paid by
the Company in respect of Fiscal Years 1992 - 1994 as well as certain
other compensation paid, awarded or accrued for those years to the
Company's Chief Executive Officer and the Company's other
executive officers at the end of the 1994 fiscal year whose total
annual salary and bonuses exceeded $100,000:
<TABLE>
<CAPTION>
Long-Term
Annual Compensation Compensation
Name and Other Annual Restricted All Other
Principal Position Year Salary Bonus<F1> Compensation<F2> Stock Awards Compensation<F3>
<S> <C> <C> <C> <C> <C> <C>
Ben Cohen 1994 $132,500 --- --- --- $2,650
Chairperson and CEO 1993 $133,212 --- --- --- $2,664
1992 $123,173 $600 --- --- $2,469
Jerry Greenfield 1994 $132,745 --- --- --- $2,655
Vice Chairperson 1993 $132,517 --- --- --- $2,650
1992 $123,173 $600 --- --- $2,469
Charles Lacy<F4> 1994 $150,358 $735 --- --- $3,000
President and COO 1993 $150,262 $1,970 --- --- $3,045
1992 $131,346 $2,714 $20,498 --- $2,635
Frances Rathke 1994 $121,398 $611 --- --- $2,440
CFO, Treasurer 1993 $110,000 $1,581 --- --- $2,232
and Secretary 1992 $97,557 $2,206 $8,078 --- $1,959
Elizabeth Bankowski 1994 $115,803 $328 --- --- $2,323
Director of Social 1993 $105,000 $694 --- --- $2,114
Mission Development 1992 $87,691 $1,041 --- --- ---
<FN>
<F1>"Bonus" includes discretionary distributions under the
Company's
profit sharing plan pursuant to which a cash bonus was awarded
to all employees (other than co-founders, Ben Cohen and Jerry
Greenfield) and also includes the $600 bonus paid to all
employees in 1992.
<F2>"Other Annual Compensation" includes tax reimbursement on
restricted stock awards made in 1991 and gross up.
<F3>"All Other Compensation" includes company contributions to
401(K) plans.
<F4>Mr. Lacy resigned as President and COO in January 1995.
</TABLE>
<PAGE>
<TABLE>
Option/SAR Grants in 1994
<CAPTION>
Potential
Realizable
Value at
Percentage Assumed Annual
of Total Rates of
Options/ Stock Price
SARS Exercise Appreciation
Options/ Granted to or for Option Term
SARS Employees Base Price Expiration
Granted in 1994<F1> (per share) Date 5% 10%
<S> <C> <C> <C> <C> <C> <C>
Ben Cohen 0 0 0 0 0 0
Jerry Greenfield 0 0 0 0 0 0
Charles Lacy 1,430 .8% $16.75 3/31/04 $15,064 $38,174
Frances Rathke 1,185 .7% $16.75 3/31/04 $12,483 $31,634
Elizabeth Bankowski 970 .5% $16.75 3/31/04 $10,218 $25,894
----
<FN>
<F1>Options granted on March 31, 1994 have a
ten year term with 50% vesting in two years
and the remaining 50% vesting in four
years.
</TABLE>
<TABLE>
Aggregated Option/SAR Exercises in 1994 and 1994 Year-End
Option/SAR Values
<CAPTION>
Shares
Acquired Value of Unexercised
on Number of Unexercised In-The-Money Options/
Exercise Options/SARS at12/31/94 SARS at 12/31/94
(#) Realized Exercisable Unexercisable Exercisable Unexercisable
<S> <C> <C> <C> <C> <C> <C>
Ben Cohen 0 0 0 0 0 ---
Jerry Greenfield 0 0 0 0 0 ---
Charles Lacy 0 0 0 1,430 0 ---
Frances Rathke 0 0 0 1,185 0 ---
Elizabeth Bankowski 0 0 0 970 0 ---
</TABLE>
<PAGE>
Compensation Committee Report on Executive Compensation
The Compensation Committee of the Board of Directors is
composed of three independent, non-employee directors who have no
interlocking relationships as defined by the Securities and
Exchange Commission and whose names appear below. The Committee
is responsible for reviewing salary and related compensation
matters relating to the Chief Executive Officer and the other
officers of the Company and making recommendations to the Board
regarding compensation policy changes for the Company. The
Committee also administers the Company's Stock Option Plan (under
which stock options were granted for the first time in 1994), the
1991 Restricted Stock Plan (under which no restricted stock awards
were made in 1994) and the 1986 Employee Stock Purchase Plan.
General Compensation Philosophy
In 1994 the Company's compensation policy changed.
Historically, the Company paid its highest paid executive officer
a base salary, including benefits, of no more than a certain
multiple (seven to one in 1994) of the base salary, including
benefits, of its lowest paid full-time employee at the Company's
plants with over one year of service. Items not included in this
calculation were stock awards or options granted under the
Company' Restricted Stock Plan or Stock Option Plan.
After careful consideration, the Board of Directors concluded
that the seven-to-one salary ratio needed to be replaced; in
particular the ratio had become a barrier to recruiting
experienced people who can keep the Company true to, and
successful at, realizing all three parts of its corporate mission
statement. The Board of Directors voted unanimously in May, 1994
to discontinue the ratio as a formal compensation policy, while
continuing to apply a principle of salary compression and also a
policy of "linked prosperity", which is intended to achieve more
alignment of the interests of management with those of the
shareholders by means of including in compensation packages
certain "at-risk" components of incentive pay. The new
Compensation Philosophy was applied when the Company hired Robert
Holland Jr. as President and CEO in January 1995, as outlined
below.
The Company is presently engaged in a review and
reformulation of its entire compensation programs, for presentation to the
Compensation Committee and the Board of Directors. The proposed
1995 Equity Incentive Plan, proposed as Item 2 for stockholder
approval, is a key element in the program.
The Company operates in the competitive environment of the
ice cream and frozen dessert industry. While applying a principle of
salary compression and "linked prosperity", the Company strives to
maintain compensation programs that allow the Company to respond
to the competitive pressures within this industry. The Company's
compensation philosophy is to offer compensation opportunities
linked to the Company's three-part mission, individual performance
and overall contribution to the Company's success and the
enhancement of shareholder value. These compensation
opportunities are intended to enable the Company to attract,
retain and motivate the management talent necessary to ensure the
Company's long-term growth, both financial and non-financial (i.e.
social performance).
Compensation Components
It is the Committee's objective to have a substantial portion
of the Chief Executive Officer's compensation contingent ("at risk")
upon the Company's successful performance, as well as his or her
contribution to the Company's success in meeting its three-part
mission, balancing both short and long-term goals. The
compensation program for the Company's Chief Executive Officer,
effective January 30, 1995, consists of three main components: (1)
a base salary; (2) an annual bonus; and, (3) long-term incentives.
The second and third elements constitute the "at risk" portion of
the Chief Executive Officer's overall compensation program. These
three components are in addition to the Company's employee
benefits, which include hospital and health insurance, life
insurance, 401(k) Retirement Plan, Employee Stock Purchase Plan
and the Company's informal profit sharing plan.
Base Salary. The Committee annually reviews the base salary
of the Chief Executive Officer and other officers. In determining
salary adjustments, the Committee considers the Company's success
in achieving the three-part mission objectives, the CEO's
individual performance, and the CEO's base salary in relation to
the lower-to-mid end of the competitive range of pay for the
position.
Annual Incentive Bonus. The annual incentive bonus is the
first "at risk" element in the Company's Chief Executive Officer
compensation program. At the beginning of each year, the Board of
Directors is to establish the three-part mission objectives for
that year, including business plan revenue and profitability
targets and non-financial objectives. The Committee then will
establish an annual incentive bonus award target for the CEO.
Long-Term Incentive Program. The long-term incentive program
is the second "at risk" element of the Company's compensation program
in which it is intended that the Chief Executive Officer, all
other executive officers and all key employees will be eligible to
participate. The Committee may also grant, from time to time,
options across the board to all levels of employees. The adoption
of the proposed Equity Incentive Plan is integral to this part of
the Company's compensation program. The Committee views the
granting of stock options as a significant method of aligning
management's long-term interests with those of the shareholders.
This approach brings into balance short and long-term compensation
with the Company's goals, fosters the retention of key executive
and management personnel, and incents the achievement of superior
performance at the different employee levels within the Company.
Long-term incentive awards to executives will be based upon
criteria which include an individual's current position with the
Company, total compensation, the executive's performance in the
recent period, expected contributions to the achievement of the
Company's long-term performance goals, and competitive practice.
1994 Compensation of the Chief Executive Officer
While serving as Chairperson and CEO in 1994, Mr. Cohen's
1994 base salary, as approved by the Committee, was $132,500, as
compared with $133,212 for the year 1993. Mr. Cohen did not
receive any incentive stock awards in 1994. Mr. Cohen did not
participate in the Company's informal profit sharing plan. He
currently spends the principal portion of his time on his
responsibilities as Chairperson of the Board of Directors, new
product development and corporate responsibility initiatives.
1995 Compensation of the Chief Executive Officer
Mr. Holland, the Company's President and Chief Executive
Officer, receives a 1995 annual base salary of $250,000 and he is
entitled to an annual incentive award in an amount up to but not
exceeding $125,000, subject to a sliding scale based upon the
extent to which the Compensation Committee determines that Mr.
Holland has met objectives to be established shortly for 1995.
Mr. Holland received non-incentive stock options to purchase
180,000 shares of Class A Common Stock at an exercise price of $10
13/16 per share, equal to the fair market value at the date of
grant and becoming exercisable at the times specified in the
option (see "Certain Relationships and Related Transactions").
Merritt C. Chandler
Frederick A. Miller
April 21, 1995 Henry Morgan
Certain Relationships and Related Transactions
Mr. Cohen, Chairperson, Chief Executive Officer and a
director, has an employment agreement which has been extended for a term
ending May 1, 1997. The agreement provides for a base salary,
which may be increased by the Board (the Board has currently fixed
such base salary at $132,500) and he is entitled to an incentive
bonus at the discretion of the Board. The agreement also provides
for certain medical benefits and a covenant not to compete during
the term of the agreement and for a four-year period thereafter, in
consideration of payment by the Company (except as otherwise
provided in the agreement) of the then current base salary during
the first two years of such four-year period.
Mr. Greenfield, Vice Chairperson, a director and President of
the Ben & Jerry's Foundation, has an employment agreement which
has been extended for a term ending May 1, 1997. The agreement
provides for a base salary, which may be increased by the Board
(the Board has currently fixed such base salary at $132,500) and
he is entitled to an incentive bonus at the discretion of the
Board. The agreement also provides for certain medical benefits
and a covenant not to compete during the term of the agreement and
for a four-year period thereafter, in consideration of payment by
the Company (except as otherwise provided in the agreement) of the
then current base salary during the first two years of such four-year period.
Mr. Holland was hired January 30, 1995 as President and Chief
Executive Officer and in March 1995 replaced Mr. Lacy as a
Director. Under Mr. Holland's Employment Agreement which has a
term of four years, Mr. Holland is entitled to a base salary of
$250,000 per year, subject to increase from time to time by the
Board of Directors, and an annual incentive award, payable in cash
or vested shares of Class A Common Stock as determined by the
Compensation Committee of the Board of Directors, in an amount up
to but not exceeding $125,000, with all or such portion thereof to
be earned on a sliding scale based upon the extent to which the
Committee determines that Mr. Holland has met in each fiscal year
the objectives previously established for that year by the
Compensation Committee. For 1995, the Incentive Award Objectives
will be financial objectives and then for years 1996 and beyond
the Objectives will be financial and non-financial in nature (i.e.
Internal Culture and External Social Responsibility, etc.).
Under the Company's 1985 Stock Option Plan, Mr. Holland
received non-incentive stock options to purchase 180,000 shares of
Class A Common Stock of the Company at an exercise price of
10 13/16 per share equal to the fair market value at the date of grant.
The options have a term of eight years and become exercisable at
the rate of 20,000 shares a year for the first four years, and
thereafter at the rate of 25,000 a year so long as Mr. Holland is
an employee of the Company, provided that, in lieu of said
"regular" annual vesting of options during the fifth through
eighth years, options for 25,000 shares which are at the time the
latest options to become "regularly" exercisable by the passage of
time become exercisable, by acceleration, upon the Committee's
determination by March 15th of each year, commencing March 15,
1996, that Mr. Holland has met the Non-Financial Option Objectives
previously established for that fiscal year by the Committee.
The Agreement provides for termination of employment by the
Company for cause (as defined). The Agreement also provides for
termination by the Company other than for cause or by Mr. Holland
for good reason (as defined), in each of which events Mr. Holland
is entitled to receive for the remaining period of the four year
term his base salary and an amount equal to the average Incentive
Award that was earned prior to termination under the Agreement
times the period remaining and all options which could have become
exercisable upon "regular" annual vesting prior to the end of the
four year term shall be accelerated and become vested upon such
termination. The Agreement also provides that during the term and
for two years thereafter Mr. Holland will not compete with the
Company.
In February 1991 Mr. Lager retired as an employee of the
Company and President (and Chief Executive Officer). Mr. Lager first
provided services to the Company in 1982 and has been
instrumental, along with the co-founders of the Company, in its
emergence as a leading super premium ice cream business and a
socially responsible Vermont company. Mr. Lager is currently a
director of and a consultant to the Company.
Under the terms of the Employment Agreement dated January 1,
1984 between the Company and Mr. Lager, Mr. Lager is entitled, in
consideration of his covenant not to compete for the period of two
years after termination of employment, to severance compensation
during that two year period at his annual base salary level in
effect on the date of termination of employment ($100,000 per
year). The Employment Agreement was amended December 30, 1990 to
(i) extend the termination date from December 31, 1989 to February
2, 1991, (ii) provide that the Company pay for family health
insurance coverage under the Company's regular employee health
insurance plan for a twelve year period after termination, (iii)
transfer to Mr. Lager a $1 million life insurance policy then
held by the Company on Mr. Lager's life and to provide for
continued payment by the Company of the premiums due on the life
insurance policy (currently $11,165 per year) until the date when
the policy becomes "self-funding", which is estimated to be
December 31, 2002, and (iv) extend the non-compete provisions for
an additional three years (without any additional payment) beyond
the two-year post-employment non-competition period provided for
in the original Employment Agreement.
Under the terms of a Consulting Agreement dated as of January
17, 1991, Mr. Lager agrees to furnish management consulting
services to the Company upon the Company's request (up to
approximately 40 hours per month at the Company's request, subject
to holidays and vacations) for a five-year period, commencing
February 3, 1991, with compensation being paid at the rate of
$75,000 for the first year, and with $5,000 annual increases for
each of the following four years. Under the Consulting Agreement
Mr. Lager has agreed not to compete with the Company during the
term of and for a period of two years following the expiration of
the Consulting Agreement.
Mr. Lager's Consulting Agreement was amended effective July
1, 1994 to reflect additional consulting services during the period
the Company was searching for a new Chief Executive Officer. Mr.
Lager has been the Acting Director of Manufacturing since October
1994. The Amendment covered the period July 1, 1994 through
December 31, 1994 and suspended the Original Consulting Agreement
payments until the end of this specified period. Under the terms
of the Amendment, Mr. Lager agreed to furnish management
consulting services to the Company on a full-time basis with
compensation at the rate of $3,300 per week plus reasonable out-
of-pocket expenses for the period July 1, 1994 through December
31, 1994 and the termination date of Mr. Lager's Original
Consulting Agreement was extended from February 2, 1996 to July
31, 1996. Effective January 1, 1995 the arrangement for Mr.
Lager's full-time consulting services has been extended until such
time as the CEO and the Board determine that Mr. Lager's full-time
consulting services are no longer needed, at which time Mr. Lager
will provide consulting services at the request of the Company and
at the rate and terms specified in the Original Consulting
Agreement. Commencing January 1, 1995, Mr. Lager's compensation
for full-time consulting services under the arrangement presently
in effect is at the rate of $20,000 per month, in addition to
payments under Mr. Lager's Original Consulting Agreement at $7,900
per month, plus reasonable out-of-pocket expenses. It is
contemplated that Mr. Lager shall return to the consulting level
under the original Consulting Agreement level once a new Director
of Manufacturing has been hired.
Subsequent to year-end 1990, Mr. Furman retired as an
employee of the Company and as Secretary. Mr. Furman first provided
services to the Company in 1978, and has been instrumental, along
with the co-founders of the Company, in its emergence as a leading
super premium ice cream business and a socially responsible
Vermont company. Mr. Furman is currently a director of and a
consultant to the Company.
Under the terms of a Severance and Non-Competition Agreement
dated as of December 31, 1990, Mr. Furman received to a two-year
severance/non-competition payments similar to those to be paid to
Mr. Lager. Under the terms of the Agreement, Mr. Furman is
entitled, as severance and in consideration of his covenant not to
compete for a period of five years after termination of
employment, to compensation payable for the first two years after
termination on March 2, 1991 at the annual rate of $60,000. The
Severance and Non-Competition Agreement also provides for the
Company to pay for family health insurance coverage under the
Company's regular employee health insurance plan for an eight-year
period after termination. In 1994, Mr. Furman was paid $70,300
for consulting services in connection with his work on behalf of
the Company as the Chair of the CEO Search Committee and
consultant for certain projects including the Russian joint
venture, franchise "partnershops" and "alternative" supplier
arrangements.
The Company entered into an Employment Agreement dated as of
August 18, 1994 with Mr. Lacy. Under the terms of the Agreement,
Mr. Lacy received a base salary of $150,358 per year for the
fiscal year ending December 31, 1994 plus reasonable out-of-pocket
expenses and medical benefits. In addition, the Employment
Agreement provides Mr. Lacy is entitled, in consideration of his
covenant not to compete for the period of four years after the
date of termination of employment (whether such termination is
involuntary or voluntary subject to certain provisions) to
severance compensation during the two year period after
termination at the annual rate of $150,000 plus medical insurance
coverage for a period of four years after termination and the
transfer to Mr. Lacy of a $1 million life insurance policy on Mr.
Lacy's life and to provide for continued payment by the Company of
the premiums on the policy for five years following the date of
such termination of employment. In 1995 Mr. Lacy resigned as
President, COO and Director of the Company and has agreed to
continue with the Company for a period of time during the
transition to a new Chief Executive Officer.
Messrs. Cohen, the Chairperson, and Furman, a director of and
consultant to the Company, are the principal stockholders of
Community Products, Inc. Community Products, Inc. sells Rain
Forest Crunch cashew-brazilnut buttercrunch candy to be included
in Ben & Jerry's Rain Forest Crunch flavor ice cream to the
Company. During the year ended December 31, 1994, the Company
purchased Rain Forest Crunch cashew-brazilnut buttercrunch candy
to be included in Ben & Jerry's Rain Forest Crunch flavor ice
cream for an aggregate purchase price of approximately $1,500,000
from Community Products, Inc. The candy was purchased from
Community Products, Inc. at competitive prices and on standard
terms and conditions. Although the Company expects to purchase
additional quantities of candy from Community Products, Inc. and
had purchase commitments of approximately $1,500,000 as of April
1995, severance of Ben & Jerry's relationship with this supplier
would not have a material effect on the Company's business.
Stock Performance Graph
The following graph sets forth information comparing the
cumulative total return to holders of the Company's Common Stock
(Class A and Class B) over the last five years (the "Measuring
Period") with (1) the cumulative total return of the NASDAQ Stock
Market Index (U.S.) and (2) the cumulative total return of the
Standard and Poors Food Index, assuming in each case the
investment of $100 on December 31, 1989. The yearly change in
cumulative total return is measured by dividing (i) the sum of (a)
the cumulative amount of dividends for each fiscal year, assuming
dividend reinvestment, and (b) the change in share price between
the beginning and end of the Measuring Period, by (ii) the share
price at the beginning of the Measuring Period. The Company has
not paid any cash dividends.
<TABLE>
<CAPTION>
Date Ben & Jerry's NASDAQ US Stocks S&P Food Index
<S> <C> <C> <C>
12/31/89 100 100 100
12/31/90 94 85 108
12/31/91 235 136 157
12/31/92 362 159 157
12/31/93 205 181 144
12/31/94 121 177 161
</TABLE>
The above stock performance graph is required by regulations
adopted by the Securities and Exchange Commission.
Stock Ownership Filings
Under the securities laws of the United States, the Company's
directors, certain of its officers, and any persons holding more
than ten percent of the Company's Common Stock are required to
report their ownership of the Company's Common Stock and any
changes in that ownership to the Securities and Exchange
Commission. Specific due dates for these reports have been
established and the Company is required to report in this proxy
statement any failure to file by these dates during 1994. All of
these filing requirements were satisfied by its directors and
officers and, to the knowledge of the Company, ten percent holders
except as follows. Mr. Lacy was required to file a Form 4 on
December 10, 1994 with respect to sales of 2,000 and 1,000 shares
of Class A Common Stock on November 8 and 18, 1994 respectively.
These transactions were reported on a Form 5 on February 8, 1995.
ITEM #2 PROPOSED ADOPTION OF THE BEN & JERRY'S
HOMEMADE, INC. 1995 EQUITY INCENTIVE PLAN
General
The Company has a 1985 Stock Option Plan which was approved
by stockholders in 1985. The Plan was not used until recently. In
1994, as part of the general process in which the Board moved from
the "7 to 1" salary ratio to its current compensation philosophy
(see "Compensation Committee Report" herein), the Compensation
Committee of the Board of Directors (the "Committee") granted
options for a total of 177,898 shares of Class A Common Stock to
approximately 500 employees across all levels of the Company. In
January, 1995 the Committee granted options for 180,000 shares to
Robert Holland, Jr. in connection with his selection as the new
President and CEO of the Company. The Board has decided that the
continued use of options must be an integral part of the Company's
compensation program.
Although options for an additional 182,721 shares of Class A
Common Stock can still be granted under the 1985 Stock Option
Plan, no options may be granted under that Plan after August 11,
1995. Thus, Ben & Jerry's will need to have a new stock option
plan under which options can be granted when the 1985 Plan expires
in August, 1995. Since waiting to obtain stockholder approval of
a new stock option plan at the 1996 Annual Meeting would be
administratively impracticable, the Board has adopted the Ben &
Jerry's Homemade, Inc. 1995 Equity Incentive Plan and is
presenting it for stockholder approval at the 1995 Annual Meeting.
Similarly, the Board believes that the Company needs the
ability to issue shares of Class A Common restricted stock to employees.
The Company has a 1986 Restricted Stock Plan (under which no
further shares may be awarded) and has a 1991 Restricted Stock
Plan under which 69,450 shares of Class A Common Stock may still
be awarded, but none could be awarded after December 31, 1995.
Accordingly, to meet the Company's needs, the Board has
adopted, subject to stockholder approval at the 1995 Annual Meeting, the
Ben & Jerry's Homemade, Inc. 1995 Equity Incentive Plan (the
"Equity Incentive Plan") under which shares of Class A Common
Stock may be awarded in the form of stock options, restricted
shares and other stock-based awards, together with a potential for
cash performance awards.
Description of the Ben & Jerry's Homemade, Inc. Equity Incentive
Plan.
On April 21, 1995 the Board of Directors adopted, subject to
approval by the stockholders at the 1995 Annual Meeting, the
1995 Equity Incentive Plan. The Equity Incentive Plan, which is
administered by the Compensation Committee (the "Committee"), no
members of which may participate in the Equity Incentive Plan,
permits the granting of a variety of stock and stock-based awards
and related benefits, including stock options, restricted and
unrestricted shares, deferred stock, cash and stock performance
awards, rights to receive cash or shares with respect to increases
in the value of the Class A Common Stock, cash payments sufficient
to offset the federal, state, and local ordinary income taxes of
participants resulting from transactions under the Equity
Incentive Plan, and loans to participants in connection with
awards, all as more fully described below.
A copy of the Plan is attached as Exhibit A, and the
following summary description is qualified by the text of the complete Plan
so attached as Exhibit A.
Eligible Participants; Maximum Number of Shares. The Equity
Incentive Plan's eligibility criteria encompass officers and other
key employees as well as all other employees of the Company and
its subsidiaries, and other persons who are in a position to make
a significant contribution to the Company and its subsidiaries.
As of May 1, 1995, 570 persons, including two Directors,
were eligible to participate in the Equity Incentive Plan.
Options for no more than 200,000 shares can be granted to any
individual in any one year under the Plan.
Subject to adjustment for stock splits and similar events,
the total number of shares of Class A Common Stock (the "Common
Stock") that can be issued under the Equity Incentive Plan is
500,000 shares. If any award under the Equity Incentive Plan
which requires exercise by the participant for the delivery of
Common Stock terminates without having been exercised in full, or
if any award payable in Common Stock or cash is satisfied in cash
rather than Common Stock, the number of shares of Common Stock as
to which such award was not exercised or for which cash was
substituted will be available for future grants. The Equity
Incentive Plan is not required to be qualified under Section
401(a) of the Internal Revenue Code, nor is it subject to the
provisions of the Employees Retirement Income Security Act of
1974.
Stock Options. The Equity Incentive Plan permits the
granting of options that qualify as incentive stock options under the
Internal Revenue Code ("incentive options" or "ISOs") and stock
options that do not so qualify ("nonstatutory options"). The
option exercise price of each option shall be determined by the
Committee. The option price of an ISO may not be less than 100%
of the fair market value of the shares on the date of grant in the
case of ISOs (110% in the case of ISOs granted to a greater than
ten percent stockholder). The option price of a nonstatutory
option may be not less than par value. However, the Committee's
present intention is not to grant options at below the fair market
value of the Stock on the effective date of grant. Subject to
these limitations, the Committee may reduce the exercise price of
an option at any time after the time of grant with the consent of
the participant, but the option will be treated as a new option
granted on the date of such reduction.
The term of each option will be fixed by the Committee, but
may not exceed ten years from the date of grant (five years in the
case of an ISO granted to a greater than ten-percent stockholder).
The Committee will determine at what time or times each option may
be exercised. Options may be made exercisable in installments,
and the exercisability of options may be accelerated by the
Committee. The Committee may, in its discretion, provide that
upon exercise of an option, instead of receiving shares free from
restrictions under the Plan, the participant will receive shares
of Restricted Stock or Deferred Stock Awards as defined below.
Also, if the market price of the Common Stock subject to an option
exceeds the price of the option at the time of exercise, the
Committee may, in its discretion, and upon request by an employee,
cancel the option and pay to the employee an amount in cash or
Common Stock equal to the difference between the fair market value
of the Common Stock which would have been purchased pursuant to
the exercise (determined on the date the option is canceled) and
the aggregate exercise price which would have been paid.
The exercise price of options granted under the Equity
Incentive Plan must be paid in full in cash or by check, bank draft or money
order, or if the terms of the option permit (or for a nonstatutory
option, if the Committee so permits at or after the grant of the
option), by shares of Common Stock which have been owned for at
least six months (unless the Committee approves in any instance a
shorter period), by a promissory note, 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 by any combination of the foregoing, provided that the
par value of shares of Common Stock must be paid in cash or by
check or other instrument acceptable to the Company.
Stock Appreciation Rights. The Committee may also grant
stock appreciation rights, alone or in conjunction with options,
entitling the holder upon exercise to receive an amount in any
combination of cash or shares of unrestricted Common Stock,
Restricted Stock or Deferred Stock Awards (as determined by the
Committee), in general measured by the increase since the date of
grant in the value of the shares covered by such right. Stock
appreciation rights granted in tandem with options will be
exercisable only at such time or times, and to the extent, that
the related option is exercisable and will terminate upon the
exercise of the related stock appreciation right.
Treatment of Options and Stock Appreciation Rights Upon
Termination of Employment. If a participant's employment
terminates by reason of death or total or permanent disability,
any option or stock appreciation right then held by the
participant that is not exercisable immediately prior to such
termination of employment will terminate on that date. Any
remaining options and stock appreciation rights will remain
exercisable for one year from the date of termination of the
employment. In the event of any other termination of employment
(or, in the case of a non-employee participant, in the event such
participant ceases to be affiliated with the Company), all options
and stock appreciation rights held by the participant that are not
then exercisable shall promptly terminate; the participant's
remaining options and stock appreciation rights will remain
exercisable for a period of three months or such longer period as
may be established by the Committee. (Termination of employment
of an employee for cause will result in immediate termination of
all awards if the Committee so determines before or after the date
of such termination.) Notwithstanding the post-termination
exercise periods described above, no option or stock appreciation
right may be exercised beyond its original term.
Restricted Stock and Unrestricted Stock. The Committee may
also award shares of Common Stock subject to such conditions and
restrictions as the Committee may determine ("Restricted Stock").
The purchase price of shares of Restricted Stock shall be not less
than par value (or past services of equivalent value). Recipients
of Restricted Stock must accept an award within 60 days of the
grant of such award by written instrument and tender full payment,
if any, in order to have any rights with respect to the Restricted
Stock. The Committee may at any time accelerate the dates on
which the restrictions will lapse. Generally, shares of
Restricted Stock are non-transferable, and if a participant who
holds shares of Restricted Stock terminates employment or
otherwise ceases to be affiliated with the Company for any reason
including death or disability prior to the lapse or waiver of the
restrictions, the employee must resell to the Company the shares
of Restricted Stock for the amount paid for such shares, or
forfeit them to the Company if no cash was paid; provided,
however, that the Committee may provide that the restrictions
lapse upon any such termination of employment. Prior to the lapse
of restrictions on shares of Restricted Stock, the participant
will have all rights of a stockholder with respect to the shares,
including voting and dividend rights, subject only to the
conditions and restrictions generally applicable to Restricted
Stock.
Any participant making an election under Section 83(b) of the
Internal Revenue 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.
The Committee may also grant shares which are free from any
restrictions under the Equity Incentive Plan ("Unrestricted
Stock"). The purchase price of Unrestricted Stock must be not
less than par value (or past services of equivalent value).
Deferred Stock. The Committee may also make deferred stock
awards under the Equity Incentive Plan ("Deferred Stock Awards").
Deferred Stock Awards entitle the recipient to receive shares of
Common Stock in one or more installments at a future date or
dates, and on such conditions as determined by the Committee.
Except as otherwise specified in the grant or agreed to by the
Committee, all such rights to which the participant has not
become irrevocably entitled will terminate upon the participant's
death, retirement or other termination of employment or other
affiliation with the Company. The Committee may at any time
accelerate the time at which delivery of all or any part of the
shares will take place.
Performance Awards (Cash or Stock). The Committee may also
grant awards based on certain performance criteria ("Performance
Awards") entitling the recipient to receive, without payment,
shares of Common Stock or cash in such combinations as the
Committee may determine. Payment of the award may be conditioned
on achievement of personal, corporate, departmental or any other
category of performance goals and such other conditions as the
Committee shall determine. Except as otherwise specified in the
grant or agreed to by the Committee, rights under a Performance
Award to which the participant has not become irrevocably entitled
will terminate upon a participant's death, retirement or other
termination of employment or other affiliation with the Company.
Any conditions in an award may be waived or modified by the
Committee at any time.
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 Common 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 Board [to be checked]
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. However, no Loan may have a term (including
extensions) exceeding ten years in duration.
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 will be liable with respect to
the award, plus (2) an additional amount on a grossed-up basis
necessary to make the participant whole after tax, discharging all
the participant's income tax liabilities arising from the
Supplemental Grant. Except as otherwise specified in the grant or
agreed to by the Committee, rights under a Supplemental Grant to
which the participant has not become irrevocably entitled will
terminate upon a participant's death, retirement or other
termination of employment or other affiliation with the Company.
No award granted under the Equity Incentive Plan (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 an employee's lifetime an
award requiring exercise may be exercised only by the participant
(or in the event of the participant's incapacity, the person
legally appointed to act on the participant's behalf).
Adjustments in Common Stock; Certain Corporate Transactions.
In the event of a stock dividend, stock split and certain other
changes in the Company's capitalization, including extraordinary
distributions to shareholders, the Committee will make appropriate
adjustment to the maximum number of shares that may be delivered
under the Plan, the number of shares subject to outstanding
awards, the exercise price of outstanding awards, and other
appropriate adjustments. The Committee may also make such
adjustments in other circumstances if it deems the adjustments
necessary to avoid distortion in the operation of the Plan.
In the event the Company is acquired under prescribed
circumstances, all outstanding awards will terminate. The
Committee in its discretion may, however, accelerate the
exercisability of (or lift restrictions applicable to) outstanding
awards, or if the participant will be employed by the acquiring
corporation or an affiliate, may arrange for replacement awards.
Withholding Requirements. The grant or exercise of awards
may be subject to tax withholding requirements, as described below.
Where Common Stock may be delivered under an award, the Committee
may require that the participant or other appropriate person
either remit to the Company an amount necessary to satisfy
withholding requirements or make other satisfactory arrangements
(including, if the Committee so permits, the holding back of
shares from payments under the award).
Where a participant purchases Common Stock under an award for
a price equal to the par value of the Stock, the Committee may
determine that the price has been satisfied by past services
rendered by the participant.
Effect, Discontinuance, Cancellation, Amendment and
Termination. The Committee may at any time discontinue granting awards under
the Equity Incentive Plan. The Board may at any time or times
amend the Equity Incentive Plan (and the Committee may amend any
outstanding award) or any outstanding award for any purpose which
may at the time be permitted by law, or may at any time terminate
the Equity Incentive Plan as to any further grants of awards,
except that the following amendments may not be made without the
approval of the stockholders of the Company: increase in the
maximum number of shares available under the Plan or change in the
group of persons eligible to receive awards under the Plan. No
amendment or termination of the Equity Incentive Plan may
adversely affect the rights of any participant (without the
participant's consent) under any award previously granted.
Federal Income Tax Effects
In general, neither the grant nor the exercise of an
incentive stock option will result in taxable income to the option holder or
a deduction to the Company. However, option holders exercising
incentive stock options may become subject to the alternative
minimum tax by reason of that exercise.
If the stock received upon the exercise of an incentive stock
option is held for at least two years from the date of grant and
at least one year after the date of exercise, any gain or loss
recognized upon the disposition of the stock will be considered
long-term capital gain or loss and will be taxed accordingly. If
shares received upon exercise of an incentive stock option are
disposed of before the holding period requirements described above
have been satisfied (a "disqualifying disposition"), the option
holder will realize ordinary income, and the Company will be
entitled to a deduction, equal in general to the difference
between the option price and the value of the stock on the date of
exercise. The amount of ordinary income realized on a
disqualifying disposition may be limited when the stock is sold
for less than its value on the exercise date. Incentive options
granted to an optionee will be treated for Federal income tax
purposes as non-statutory options (see below) to the extent the
aggregate value (determined as of the time of grant) of the stock
for which the options first become exercisable in any calendar
year exceeds $100,000.
In the case of non-statutory options, no income results upon
the grant of the option. When an option holder exercises a non-
statutory option, he or she will realize ordinary income, subject
to withholding, equal in general to the excess of the then-fair
market value of the stock over the option price . The Company
will in general be entitled to a deduction equal to the amount of
ordinary income realized by the optionee, provided the Company
satisfies certain withholding and reporting requirements.
Special rules will apply in the case of officers or directors
subject to the short-swing profit limitations of Section 16(b) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), who exercise options within six months of the grant of
those options.
Section 162(m) of the Internal Revenue Code limits to $1
million the deduction a public
corporation may claim with respect to the remuneration paid in any
year to any of the Corporation's top five officers. The deduction
limitation is subject to a number of important exceptions,
including an exception for so-called "performance-based"
compensation. It is anticipated that options granted under the
Plan as proposed to be amended will be eligible for an exception
from the $1 million deduction limitation. However, final
regulations under Section 162(m) have not yet been issued.
The Internal Revenue Code also imposes a 20% additional tax,
and denies a deduction, where remuneration paid in connection with a
change in control exceeds specified limits. In determining
whether these limits have been exceeded, options that vest upon a
change in control of the Company may be taken into account.
The foregoing summary is limited to Federal income tax
consequences and does not purport to be a complete description of
those taxes.
Recommendation of the Board of Directors
The Board of Directors unanimously recommends a vote FOR
the Equity Incentive Plan.
Vote Required for Approval
Approval of the Equity Incentive require the affirmative vote
of the holders of the shares of Class A Common Stock, Class B Common
Stock and Class A Preferred Stock, voting together as a single
class, representing a majority of the votes cast on the proposal.
The Equity Incentive Plan will become effective upon stockholder
approval thereof.
ITEM #3 PROPOSED AMENDMENT TO THE
ARTICLES OF INCORPORATION
The Vermont Business Corporation Act, which became effective
January 1, 1994 and replaced a statute that the out-moded in
various respects, authorizes the inclusion in the Articles of
Incorporation of Vermont Business Corporations of a provision
eliminating or limiting, with certain specified exceptions, the
liability of the directors to the Corporation or its shareholders
for money damages. On April 21, 1995 the Board of Directors
adopted, subject to shareholder approval at the 1995 Annual
Meeting, the proposed amendment to the Articles of Incorporation,
a copy of which is attached as Exhibit B to the Proxy Statement.
The proposed amendment provides that directors are not subject to
monetary liability in suits brought by the Company or its
stockholders for breach of a director's fiduciary duty except in
the following classes of cases where such elimination is not
permitted by the Vermont Business Corporation Act: (i) where the
director received personal financial benefit, (ii) where the
director intentionally caused harm to the Company, (iii) where the
director improperly approved a specified unlawful distribution by
the Company, and (iv) where the director committed an intentional
violation of criminal law.
The official commentary to the Model Business Corporation
Act,
on which the Vermont Business Corporation Act was largely based,
states that "Developments in the mid- and late 1980s highlighted
the need to permit reasonable protection of directors from
exposure to personal liability, in addition to indemnification [of
directors, which in the Company's case, is permitted by the
Company's By-Laws in accordance with the Vermont Business
Corporation Act], so that directors would not be discouraged from
fully and freely carrying out their duties, including responsible
entrepreneurial risk-taking.
The proposed amendment provides for specified protection for
directors, as permitted by Section 2.02 of the Vermont Business
Corporation Act, and contains appropriate exclusions where
monetary relief continues to be available in lawsuits brought by
the Corporation's stockholders, does not prevent equitable relief
against directors, and has no application in suits brought against
directors by persons other than stockholders or in suits brought
against directors by stockholders for matters other than breach of
directors' fiduciary duties.
The proposed amendment will leave in place the standard of
conduct to which directors are required to conform under the
Vermont Business Corporation Act, although, with respect to
monetary liability of directors in suits by the Company or its
stockholders for breach of fiduciary duties by directors, in
instances where the directors' conduct would have been found to be
grossly negligent, the proposed amendment would eliminate any such
monetary liability (except for four categories of conduct where
the amendment does not apply). The concept of negligence or gross
negligence will no longer be a significant factor for purposes of
determining monetary liability of directors for breach of
fiduciary duty after adoption of the proposed amendment. The
proposed amendment will be prospective only, and will not affect
the rights of stockholders to pursue monetary claims under Federal
law, including the Federal securities laws.
The Board believes that the Vermont Legislature acted
responsibly in adopting the new Vermont Business Corporation Act,
replacing an act that had been originally enacted in the year
1969, and that, given the significant duties and responsibilities
of directors of a public company like Ben & Jerry's, adoption of
the proposed amendment to the Articles of Incorporation, as
permitted by Section 2.02 of the Vermont Business Corporation Act,
will contribute to responsible entrepreneurial risk-taking
decisions by the Board of Directors in furtherance of the
Company's three part corporate mission, and that, accordingly, it is
in the best interest of the Company and its stockholders for the
Company's stockholders to so amend the Company's Articles of
Incorporation.
Recommendation of the Board of Directors
The Board of Directors has approved the proposed amendment to
the Articles of Incorporation of the Company and believes that
such amendment is advisable and in the best interests of the
Company and its stockholders. Accordingly, the Board of
Directors recommends a vote FOR approval of the proposed
amendment.
Vote Required
The affirmative vote of the holders of outstanding shares of Class A
Common Stock, Class B Common Stock and Class A Preferred Stock,
voting together as a single class, constituting at least a majority
of all votes entitled to be cast on the proposal, is required to
approve the amendment.
ITEM 4. PROPOSED AMENDMENT TO THE BEN & JERRY'S HOMEMADE, INC.
1986 EMPLOYEE STOCK PURCHASE PLAN
General
The Ben & Jerry's Homemade, Inc. 1986 Employee Stock Purchase
Plan was originally adopted by the Board of Directors on May 22,
1986 and then approved by the stockholders on June 28, 1986.
On April 21, 1995 the Board of Directors adopted, subject to
shareholder approval, an amendment (the "Amendment") to increase
the maximum annual number of shares which may be purchased under
the Plan by any individual employee in any calendar year. The
Amendment increases the maximum annual number from 400 shares to
the total of that number of shares which (if elected to be
purchased at the end of the two six month Option Periods in the
calendar year) results from the grant by the Company at the start
of each such six month Option Period of options to purchase shares
having a fair market value at the start of each such six month
period of not more than $12,500. The proposed maximum annual
number of shares is the maximum annual number permitted by Section
423 of the Internal Revenue Code. The maximum annual number is
calculated in accordance with the Internal Revenue Code in terms
of options granted (rather than shares actually purchased) and in
terms of the fair market value of the shares under option at the
start of the six month Option Period (not the fair market value of
shares actually purchased at the end of the Option Period). The
form of Amendment is set forth as Exhibit C to this Proxy
Statement.
The Board believes that each eligible employee should have
the opportunity to purchase the maximum annual number of shares of
stock in the Company that is permitted for plans of this type by
the applicable tax laws. At May 1, 1995, approximately 568
employees were eligible to participate. As of May 1, 1995 a total
of 75,065 shares of Class A Common Stock (the "Common Stock") had
been purchased under the Ben & Jerry's Homemade, Inc. 1986
Employee Stock Purchase Plan, leaving an aggregate of 224,935
shares that may still be delivered under that Plan.
Set forth below is a summary description of the Ben & Jerry's
Homemade, Inc. Employee Stock Purchase Plan as now in effect, and
including the proposed amendment increasing the maximum annual
number of shares that may be purchased by any eligible employee in
any calendar year (the "Plan").
Purpose of the Plan; Purchase Price
The purpose of the Plan is intended to provide a method for
eligible employees to acquire an interest in the future of the
Company by purchasing its Class A Common Stock (the "Common
Stock") at a reduced price. The Company expects that the Plan, as
proposed to be amended, will further encourage such stock
ownership and increase the employees' proprietary interest in the
Company's success.
Under the Plan, eligible employees of the Company and its
subsidiaries are given the option (under each six month Option
Period) to purchase shares of Common Stock at 85% of the lower of
the fair market value of the Common Stock (i) on the date of
commencement of each six month Option Period and (ii) on the date
of the end of each such six month Option Period. Employees
participate by means of payroll deductions. The Plan is intended
to qualify as an "employee stock purchase plan" under Section 423
of the Internal Revenue Code.
Administration
The Plan is administered by the Compensation Committee of the
Board of Directors of the Company (the "Committee"). No member of
the Committee is eligible to participate in the Plan.
Eligibility
Each employee of the Company having at least six months of
continuous service on the date of grant of an option under each
Option Period will be eligible to participate in the Plan.
However, any employee who immediately after the grant of an option
is determined under the provisions of Sections 423 and 424(d) of
the Internal Revenue Code of 1986 (the "Code") to own 5% or more
of the total combined voting power or value of all classes of the
Company's stock would not be eligible to participate. In
addition, no employee may be granted an option under the Plan
which would permit his or her rights to purchase shares of the
Company's Common Stock under all employee stock purchase plans of
the Company and any parent and subsidiary corporations to accrue
at a rate which exceeds $25,000 in fair market value of such stock
(determined at the time the option is granted) for each calendar
year during which any such option granted to him or her is
outstanding at any time. The Amendment will, in effect, adopt
this Internal Revenue Code maximum annual amount as the annual
limit for each individual employee under the Plan. See
"Individual Maximum Annual Limit".
Shares Subject to the Plan
Subject to adjustment as explained below under "Changes in
Stock", the stock which may be issued and sold under the Plan
cannot exceed in the aggregate 300,000 shares of stock of the
Company, of which 75,065 shares had been sold as of May 1, 1995,
leaving an aggregate of 224,935 shares available for delivery
under the Plan. If options granted under the Plan expire, lapse
or otherwise terminate without being exercised, the shares of
stock not purchased under such options again become available for
delivery under the Plan. Stock delivered upon the exercise of
options may, as determined by the Board of Directors, be either
Class A Common Stock or Class B Common Stock, or a combination of
both, and may be either authorized but unissued shares or shares
previously issued and reacquired by the Company. However,
consistent with a rule of the NASDAQ National Market System, only
Class A Common Stock will currently be issued under the Plan.
Method of Participation; Six Month Option Periods;
Purchase Price
Under the Plan, options are granted twice yearly, on January
1 and July 1 and are exercisable effective on the succeeding June 30
or December 31. Options are exercisable through accumulation of
payroll deductions over the option period (of not less than 2% nor
more than 10% of the employee's compensation, as defined in the
Plan), for the number of whole shares, not in excess of the number
of shares for any one six-month option period described below
under "Individual Maximum Annual Limit".
The purchase price for shares will be the lower of 85% of the
fair market value of the Common Stock (i) at the time of grant at
the start of the six month Option Period or (ii) at the time of
exercise at the end of the six month Option Period. The fair
market value of the Common Stock shall be the Closing Price (as
determined in accordance with the terms of the Plan) on the
applicable date. The number of shares each employee is entitled
to purchase is subject to proportionate reduction in the event the
number of shares then being offered under the Plan is over-
subscribed. As set forth above, the Board of Directors has
presently determined to make available only Class A Common Stock
for purchase under the Plan.
Individual Maximum Annual Limit
The maximum annual number of shares that may be purchased
under the Plan by an individual in any calendar year shall be the total
of the number of shares which (if elected to be purchased at the
end of each of the two six month Option Periods in any calendar
year) results from the grant by the Company at the start of each
such six month Option Period of options to purchase shares having
a fair market value at the start of each such six month Option
Period of not more than $12,500.
Cancellation and Withdrawal; Termination of Employment
An employee who holds an option under the Plan may at any
time prior to exercise thereof cancel all (but not less than all) of
his or her options by delivery of written notice to the Company.
Such cancellation will not have any effect upon such employees
eligibility to participate in subsequent six month Option Periods.
Upon such cancellation, the balance in the withholding account of
the employee shall be returned to him or her, with interest
(determined in accordance with the provisions of the Plan) at a
simple interest rate of 6% per annum, or such higher or lower rate
as may be established in advance by the Board of Directors. (The
Board has currently established the rate of interest as the
average rate paid during each Option Period to the Company by
Howard National Bank, Waterbury, Vermont on the cash deposits made
by the Company in said bank under the Plan.) In the event that an
optionee ceases to be employed by the Company prior to the end of
an Option Period for any reason other than death, his or her
Option shall terminate and the balance in the withholding account
of the employee shall be returned with interest as provided above.
Rights in Event of Death of Employee
An employee may elect to have the amount credited to his or
her withholding account at the time of his death applied to the
exercise of his or her option for the benefit of named
beneficiaries or to cancel his or her option upon death as
provided above. In the absence of an election, the death of an
employee will be deemed to effect a cancellation of the employee's
option.
Changes in Stock
In the event there is a change in the outstanding stock of
the Company due to a stock dividend, split-up, recapitalization,
merger, consolidation, reorganization or other capital change, the
aggregate number and class of shares available under the Plan and
under any outstanding options, the option price, the individual
share limit described under "Individual Maximum Annual Limit"
above, and other provisions, will be appropriately adjusted.
Amendments and Termination of Plan
The Board of Directors has the right to amend the Plan at any
time, but cannot make an amendment (other than in the event of a
change in capital stock, as described above) relating to the
aggregate number of shares available under the Plan or the
employees or class of employees eligible to participate, without
the approval of the shareholders within twelve months before or
after its adoption by the Board. The Board of Directors may
suspend or terminate the Plan at any time, but such termination
will not affect the rights of employees and others holding options
at the time of termination. Unless extended by the Board and the
stockholders, the Plan will terminate in any case when all or
substantially all of the shares reserved for the purposes of the
Plan have been purchased.
Conditions of Issue
The Plan provides that the Company's obligation to issue and
deliver any shares of Common Stock thereunder shall be subject to
the approval required of any governmental authority in connection
with the authorization, issuance, sale or transfer of said shares,
to any requirements of any national securities exchange applicable
thereto, and to compliance by the Company with other applicable
legal requirements in effect from time to time.
Resale of Shares Purchased Under the Plan
In order to carry out the purposes of the Plan, participating
employees may not (except as permitted by the Board) sell or
otherwise transfer any shares purchased under the Plan for such
period, not exceeding two years, as is specified by the Board.
The Board presently intends to continue to specify a one-year
holding period. The Company is advised that, after the expiration
of any such period, shares acquired under the Plan by employees
who are not "affiliates" of the Company may be sold by such
employees without registration under the Securities Act of 1933,
as amended. An "affiliate" of a company is a person that directly
or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with such company.
Public resales by employees who are "affiliates" will be subject
to registration or compliance with the requirements of Rule 144
under the Securities Act of 1933, other than the holding period
requirements of Paragraph (d) of that Rule.
Nontransferability of Options
Each employee's rights in an option will be exercisable
during his or her lifetime only by him or her and may not be sold,
pledged, assigned or otherwise transferred. In the event that an
employee violates the foregoing provisions, any options held by
him or her may be terminated by the Company and, upon return of
the balance of the employee's withholding account, all of the
employee's rights under the Plan will terminate.
Exercise of Options at the End of Each Option Period
If an employee is a participant in the Plan on the last
business day of an Option Period, he or she shall be deemed to have
exercised the option granted to him or her for that period. Upon
such exercise, the Company shall apply the balance of the
participant's withholding account to the purchase of the amount of
whole shares, not in excess of the individual limit described
under "Individual Maximum Annual Limit", purchasable under the
Plan and as soon as practicable thereafter issue and deliver
certificates for such shares to the participant, and shall return
to him or her the balance, if any, of his or her withholding
account in excess of the total purchase price of the shares so
issued. No fractional shares will be issued pursuant to the Plan.
In the event of the death of an employee, the Company is not
obligated to deliver any shares and/or cash to a beneficiary until
the Company has received proof of the beneficiary's identity,
existence and valid designation. An optionee shall have no rights
as a shareholder with respect to shares covered by his option
until such shares are fully paid and until the date of the
issuance of a stock certificate to him or her.
No Continuance of Employment
Nothing contained in the provisions of the Plan shall impose
any obligation on the Company and its subsidiaries to continue the
employment of any optionee or interfere in any way with the right
of the Company to terminate the employment of any of its employees
at any time; nor shall the Plan be construed to give the Company
the right to require any employee to remain in its employ or to
interfere with an employee's right to terminate his employment at
any time.
Effective Date of Proposed Amendment
If the proposed Amendment is approved by stockholders, it
will become effective on that date and therefore will be in effect for
the six month Option Period commencing July 1, 1995.
Federal Income Tax Information
The following summarizes certain federal income tax
consequences of participation in the Plan. It does not cover employment taxes
except as specified, nor does it cover other federal, state, local
or foreign tax consequences, if any.
Rights granted under the Plan are intended to quality for
favorable federal income tax treatment associated with rights
granted under an employee stock purchase plan which qualifies
under Section 423 of the Code.
A participant will be taxed on amounts withheld for the
purchase of shares of Common Stock as if such amounts were actually
received. Other than this, no income will be taxable to a
participant until disposition of the shares acquired, and the
method of taxation will depend upon the holding period of the
purchased shares.
If the purchased shares of Common Stock are disposed of more
than two years after the beginning of the applicable offering
period and more than one year after the exercise date or if the
participant dies at any time while holding the stock, then the
lesser of (a) the excess of the fair market value of the stock at
the time of such disposition over the purchase price or (b) 15% of
fair market value of the stock as of the beginning of the
applicable offering period will be treated as ordinary income.
Any further gain or any loss will be taxed as a long-term capital
gain or loss. Net long-term capital gains for individuals are
currently subject to a maximum marginal federal income tax rate of
28%, and the maximum marginal rate for ordinary income is
currently 39.6%.
If the stock is sold or disposed of by the participant before
the expiration of either of the holding periods described above (a
"disqualifying disposition"), then the excess of the fair market
value of the stock on the exercise date over the exercise price
will be treated as ordinary income at the time of such
disposition. The Company may, in the future, be required to
withhold income taxes relating to such ordinary income from other
payments made to the participant. The balance of any gain on a
sale will be treated as capital gain. Even if the stock is sold
for less than its fair market value on the exercise date, the same
amount of ordinary income is attributed to the participant, and a
capital loss is recognized equal to the difference between the
sales price and the fair market value of the stock on the exercise
date. Any capital gain or loss will be long or short-term
depending on whether the stock has been held for more than one
year.
There are no federal income tax consequences to the Company
by reason of the grant or exercise of rights under the Plan. The
Company will, in general, be entitled to a deduction to the extent
amounts are taxed as ordinary income to a participant by reason of
a disqualifying disposition of the purchased shares of stock, but
will not be entitled to a deduction in respect of the ordinary
income realized by a participant upon a later disposition, or
realized upon death. The Company's deduction may be limited under
Code Section 162(m) and may be subject to disallowance for failure
to satisfy related withholding obligations, if any.
Recommendation of the Board of Directors
The Board of Directors believes it is important to have the
Amended Employee Stock Purchase Plan to encourage the purchase by
employees of Common Stock of the Company. The Board recommends
a vote FOR the Amendment to the Employee Stock Purchase
Plan.
Vote Required
The proposed Amendment to the Employee Stock Purchase Plan
must be approved by a majority of the votes cast of the outstanding
shares of Class A Common Stock, Class B Common Stock and Class A
Preferred Stock, voting together, of the Company present in person
or represented by proxy at the meeting, and entitled to vote on
this matter.
ITEM 5. APPROVAL OF 1995 NON-EMPLOYEE DIRECTORS' PLAN
FOR STOCK IN LIEU OF DIRECTORS' CASH RETAINER
The 1995 Non-Employee Directors' Plan for Stock in Lieu of
Directors' Cash Retainer (the "Directors' Plan") was adopted by
the Board of Directors on April 21, 1995, subject to approval by
the Company's stockholders. If stockholder approval is obtained,
the Directors' Plan will become effective on the date of the
Annual Meeting.
The principal features of the Directors' Plan are summarized
below. The summary is qualified in its entirety by the full text
of the Directors' Plan, which is set forth as Exhibit D to this
Proxy Statement.
General
The purposes of the Directors' Plan are to promote the
long-term success of the Company by more closely aligning the interests of
the non-employee directors and the stockholders of the Company, to
provide an additional inducement for the non-employee directors to
remain as directors of the Company and to provide a means through
which the Company may attract able persons to serve as directors
of the Company.
The aggregate number of shares which may be issued under the
Directors' Plan is 25,000 shares of the Company's Class A Common
Stock (the "Common Stock"), subject to proportionate adjustment in
the event of stock splits and similar events. The shares may be
either authorized but unissued shares or treasury shares or a
combination of such shares. Under the Plan, electing eligible
directors will relinquish their annual cash retainer (currently
$9,000), and Common Stock will be issued in lieu thereof.
Administration
The Directors' Plan will be administered by the Board of
Directors or by a committee appointed by the Board of Directors
and consisting of members of the Board (the "Committee").
The Committee has the power to interpret the Directors' Plan
and to prescribe rules, regulations and procedures. All questions of
interpretation and application of the Directors' Plan are subject
to the determination of the Committee.
Stock in Lieu of Cash Retainer
Under the Directors' Plan, each person who is a member of the
Board of Directors of the Company and who is not an employee or
full-time consultant of the Company or any of its subsidiaries (an
"Eligible Director") and who so elects by written notice to the
Company will be paid annually, in lieu of the cash retainer
payable for his or her service on the Board, in shares of Common
Stock having a fair market value (as of the date of payment) equal
to the amount of such retainer. The "retainer" payable to an
Eligible Director, who so elects, does not include meeting fees,
if any, payable for attendance at meetings of the Board or
committees. (The Company presently does not pay meeting fees.)
The payment of Common Stock to Eligible Directors shall generally
be made on the date 30 days after the Annual Meeting of
Stockholders at which directors are elected (or, in the case of an
Eligible Director elected as a director by the Board, on the date
30 days after such election). An Eligible Director shall be
entitled to receive shares of Common Stock in lieu of annual cash
retainer only if he or she serves as a director of the Company
through the date of the first meeting of the Board of Directors
following the Annual Meeting (or such election by the Board) and
files the appropriate election in accordance with the provisions
of the Directors' Plan.
Federal Income Tax Consequences
The following is a brief summary of the principal federal
income tax consequences of the issuance of shares of Common Stock in lieu
of cash retainers under present law.
A director will recognize taxable income for federal income
tax purposes upon receipt of shares of Common Stock in lieu of the
annual cash retainer equal to the fair market value of the shares.
In each instance that an amount is treated as compensation
received, the Company is entitled to a corresponding deduction in
the same amount for compensation paid.
Amendment and Termination
The Board of Directors may amend, alter, suspend, discontinue
or terminate the Directors' Plan or any issuance of shares of Common
Stock thereunder, except that no such action by the Board of
Directors may impair the rights of a participant in the Directors'
Plan with respect to shares of Common Stock issued to him or her
under the Directors' Plan without such participant's consent. The
Directors' Plan will remain in effect until it is terminated by
the Board of Directors or until no Common Stock remains available
for issuance under the Directors' Plan, and the Company has no
further rights or obligations with respect to Common Stock under
the Directors' Plan.
Recommendation of the Board of Directors
The Board of Directors believes it is important to adopt the
1995 Non-Employee Directors' Plan for Stock in Lieu of Directors'
Cash Retainer to encourage the purchase by such directors of
Common Stock of the Company. The Board recommends a vote FOR
the 1995 Non-Employee Directors' Plan for Stock in Lieu of
Directors' Cash Retainer.
Vote Required
The proposed Non-Employee Directors' Plan for Stock in Lieu
of Directors' Cash Retainer must be approved by a majority of the
votes cast of the outstanding shares of Class A Common Stock,
Class B Common Stock and Class A Preferred Stock, voting together,
of the Company present in person or represented by proxy at the
meeting, and entitled to vote on this matter.
ITEM #6 RATIFICATION OF SELECTION OF AUDITORS
The Board of Directors has selected the independent public
accounting firm of Ernst & Young to audit the accounts of the
Company for the fiscal year 1995. The Board of Directors has
recommended that stockholders ratify this selection. The Board of
Directors will review its selection if this proposal is not
approved by the stockholders of the Company at the Annual Meeting.
Neither the firm of Ernst & Young nor any of its partners has
a direct or materially indirect financial interest in the Company.
Representatives of the firm of Ernst & Young will be present at
the Annual Meeting with the opportunity to make a statement if
they desire to do so and will be available to reply to stockholder
inquiries.
Recommendation of the Board of Directors
The Board of Directors recommends a vote FOR the
proposal to ratify the selection of Ernst & Young as the
Company's independent auditors for 1995.
Vote Required
The affirmative vote of a majority of the votes properly cast
on the matter by all shares of outstanding stock of the Company,
voting together, at the Annual Meeting is required to ratify the
selection of Ernst & Young as the Company's independent auditors
for 1995.
<PAGE>
Security Ownership of Certain Beneficial Owners and
Management
The following table sets forth certain information as of May
1, 1995 with respect to the beneficial ownership of the outstanding
shares of Class A Common Stock, Class B Common Stock and Preferred
Stock by (i) all persons owning of record, or beneficially to the
knowledge of the Company, more than five percent of the
outstanding shares of Class A Common Stock, Class B Common Stock
or Preferred Stock, (ii) each director and executive officer of
the Company individually, (iii) all directors and officers of the
Company as a group and (iv) The Ben & Jerry's Foundation, Inc.
The mailing address of each of the persons shown and of the
Foundation is c/o the Company, P.O. Box 240, Route 100, Waterbury,
Vermont 05676.
<TABLE>
<CAPTION>
Amount of Amount of
Beneficial Beneficial Amount of
Ownership of Ownership of Beneficial
Class A Class B Ownership of
Common Stock CommonStock Preferred Stock
Percentage Percentage Percentage
Number of Number of Number of
of Outstanding of Outstanding of Outstanding
Shares Shares <F1> Shares Shares <F2> Shares Shares
<S> <C> <C> <C> <C> <C> <C>
Ben Cohen <F3> 614,373 9.8% 487,876 52.6% -- --
Robert Holland Jr * -- -- -- -- --
Fred Lager <F4> 25,600 * 53,600 5.8% -- --
Jeffrey Furman <F5>, <F6> 10,000 * 30,300 3.3% -- --
Merritt C. Chandler 1,072 * 36 * -- --
Henry Morgan 2,700 * -- -- -- --
Jerry Greenfield <F5> 135,000 2.2% 90,000 9.7% -- --
Frederick A. Miller 400 * -- -- -- --
Elizabeth Bankowski 2,835 * -- -- -- --
Frances Rathke 3,315 * -- -- -- --
All officers and directors
as a group (10 persons) 795,295 12.7% 661,812 71.3% -- --
The Ben & Jerry's
Foundation, Inc. <F7> -- -- -- -- 900 100%
______________________
*Less than 1%
<FN>
<F1>Based on the number of shares of Class A Common Stock
outstanding as of May 1, 1995. Each share of Class A Common
Stock entitles the holder to one vote.
<F2>Based on the number of shares of Class B Common Stock
outstanding as of May 1, 1995. Each share of Class B Common
Stock entitles the holder to ten votes except as may be
limited by law.
<F3>Under the regulations and interpretations of the Securities
and Exchange Commission, Mr. Cohen may be deemed to be a
parent of the Company.
<F4>Mr. Lager owns these shares jointly with his wife.
<F5>By virtue of their positions as two of the three current
directors of the Foundation, which has the power to vote or
dispose of the Preferred Stock, each of Messrs. Greenfield, a
co-founder, Director and Vice Chairman of the Company, and
Furman, a Director of and consultant to the Company, may be
deemed, under the regulations and interpretations of the
Securities and Exchange Commission, to own beneficially the
Preferred Stock.
<F6>Does not include 210 shares of Class A Common Stock and 105
shares of Class B Common Stock owned by Mr. Furman's wife, as
to which he disclaims beneficial ownership.
<F7>While the Foundation is an entity legally separate from the
Company, it may be deemed to be an affiliate of the Company
under the securities laws.
</TABLE>
VOTING
Consistent with state law and under the Company's by-laws, a
majority of the shares entitled to be cast on a particular matter,
present in person or represented by proxy, constitutes a quorum as
to such matter. Votes cast by proxy or in person at the Annual
Meeting will be counted by persons appointed by the Company to act
as Judges of Election for the meeting.
The nine nominees for election as Directors at the Annual
Meeting who receive the greatest number of votes properly cast for
the election of Directors shall be elected Directors. A majority
of the votes properly cast on the matter in necessary to approve
any other matter which comes before the Annual Meeting, except
where law or the Company's Articles of Association or by-laws
require otherwise.
The Judges of Election will count the total number of votes
cast "for" approval of proposals, other than the election of Directors,
for purposes of determining whether sufficient affirmative votes
have been cast. The Judges of Election will count shares
represented by proxies that withhold authority to vote for a
nominee for election as a Director or that reflect abstentions and
"broker non-votes" (i.e., shares represented at the Annual Meeting
held by brokers or nominees as to which (i) instructions have not
been received from the beneficial owners or persons entitled to
vote and (ii) the broker or nominee does not have the
discretionary voting power on a particular matter) only as shares
that are present and entitled to vote on the matter for purposes
of determining the presence of a quorum, but neither abstentions
nor broker non-votes will have any effect on the outcome of voting
on the matter.
MISCELLANEOUS
Each of the Compensation Committee Report on Executive
Compensation and the Stock Performance Graph shall not be deemed
incorporated by reference by any general statement incorporating
this proxy statement into any filing under the Securities Act of
1933 or under the Securities Exchange Act of 1934, except to the
extent that the Company later specifically incorporates this
information by reference, and shall not otherwise be deemed filed
under such Acts.
STOCKHOLDER PROPOSALS
Any stockholder proposal intended for presentation at the
1996 Annual Meeting must be received by the Secretary of the Company at
the Company's headquarters in Waterbury, Vermont by January 22,
1996.
GENERAL
The proxy confers discretionary authority with respect to any
other business which may come before the Annual Meeting of
Stockholders, including rules for the conduct of the meeting. The
Board of Directors knows of no other matter to be presented at the
Meeting. It is the intention of the persons named as proxies to
vote the shares to which the proxies relate according to their
best judgement if any matters not included in the Proxy Statement
do properly come before the Meeting, unless the contrary is
indicated.
You are encouraged to exercise your right to vote by marking the
appropriate boxes, and dating and signing the enclosed proxy cards.
It is not necessary to mark any box if you wish to vote in accordance
with the recommendations of the Board of Directors. The proxy cards
may be returned in the enclosed envelope, which is postage-paid if
mailed in the United States. A prompt response will be helpful and
your cooperation is appreciated.
May 22, 1995 Ben & Jerry's Homemade, Inc.
CLASS A COMMON STOCK
BEN & JERRY'S HOMEMADE, INC.
This Proxy is solicited on behalf of the Board of Directors.
The undersigned hereby appoints Ben Cohen, Jeffrey Furman and
Fred Lager, and each of them, as proxies, each with the power to
appoint his substitute and hereby authorizes any of them to
represent and to vote, as designated below, all the shares of Class
A Common Stock of Ben & Jerry's Homemade, Inc. held of record by
the undersigned on May 1, 1995 at the Annual Meeting of
Stockholders to be held on June 24, 1995 at Sugarbush North Resort
in Warren, Vermont at 10:00 a.m., Vermont time, or any adjournment
thereof.
1. Election of Directors
FOR all nominees listed below or if any nominee is not available
for election, such substitute as the Directors may designate
(except as marked to the contrary below)
WITHHOLD AUTHORITY to vote for nominees listed below
Elizabeth Bankowski, Merritt C. Chandler, Ben Cohen, Jeffrey
Furman, Jerry Greenfield, Robert Holland Jr., Fred Lager,
Frederick A. Miller, Henry Morgan
(INSTRUCTION: To withhold authority to vote for any individual
nominee, write that nominee's name in the space provided below.)
___________________________________________________________________
2. APPROVING the adoption of the 1995 Equity Incentive Plan.
FOR AGAINST ABSTAIN
___________________________________________________________________
3. APPROVING the amendment to the Articles of Incorporation to
provide for protection for directors from exposure to monetary
liability in certain circumstances.
FOR AGAINST ABSTAIN
___________________________________________________________________
4. APPROVING 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.
FOR AGAINST ABSTAIN
___________________________________________________________________
5. APPROVING the adoption of the 1995 Non-Employee Directors' Plan
for Stock in Lieu of Directors' Cash Retainer.
FOR AGAINST ABSTAIN
___________________________________________________________________
6. APPROVING the selection of Ernst & Young as the Company's
independent auditors for 1995.
In their discretion, the proxies are authorized to vote upon such
other business as may properly come before the meeting or any
adjournment thereof.
This proxy when properly executed will be voted in the manner
directed herein by the undersigned stockholder. IF NO DIRECTION IS
MADE, THIS PROXY WILL BE VOTED FOR ELECTION OF DIRECTORS AND FOR
ALL PROPOSALS.
Dated____________, 1995
_______________________
Signature
_______________________
Signature if held jointly
Please sign exactly as name appears above. When shares are held by
joint tenants, both should sign. When signing as attorney,
executor, administrator, trustee or guardian, please give full
title as such. If a corporation, please sign in full corporate
name by President or other authorized officer. If a partnership,
please sign in partnership name by authorized person.
Ben & Jerry's Homemade, Inc.
Class A Common Stock
Bring this stub to the Annual Meeting of Stockholders
Dear Stockholder:
We hope you will join us at this year's Annual Meeting of Stockholders!
Please complete, sign and date the proxies and return promptly in the
enclosed envelope whether or not you plan to attend the meeting. If you
plan on attending the meeting, PLEASE SAVE THIS STUB AND BRING IT WITH
YOU to speed the registration process! By presenting this stub (or a
statement from your broker) at one of the Express Lines for registration,
you will receive a sticker that entitles you to free ice cream at our
One World One Heart Festival.
If you plan to vote your proxy at the meeting, please bring the proxy
card to the Proxy Voting Line at registration. After voting your proxy
you will receive a sticker that entitles you to free ice cream at our
One World One Heart Festival.
We look forward to seeing you there!
Ben & Jerry's Homemade, Inc.
<PAGE>
CLASS B COMMON STOCK
BEN & JERRY'S HOMEMADE, INC.
This Proxy is solicited on behalf of the Board of Directors.
The undersigned hereby appoints Ben Cohen, Jeffrey Furman and
Fred Lager, and each of them, as proxies, each with the power to
appoint his substitute and hereby authorizes any of them to
represent and to vote, as designated below, all the shares of Class
B Common Stock of Ben & Jerry's Homemade, Inc. held of record by
the undersigned on May 1, 1995 at the Annual Meeting of
Stockholders to be held on June 24, 1995 at Sugarbush North Resort
in Warren, Vermont at 10:00 a.m., Vermont time, or any adjournment
thereof.
1. Election of Directors
FOR all nominees listed below or if any nominee is not available
for election, such substitute as the Directors may designate
(except as marked to the contrary below)
WITHHOLD AUTHORITY to vote for nominees listed below
Elizabeth Bankowski, Merritt C. Chandler, Ben Cohen, Jeffrey
Furman, Jerry Greenfield, Robert Holland Jr., Fred Lager,
Frederick A. Miller, Henry Morgan
(INSTRUCTION: To withhold authority to vote for any individual
nominee, write that nominee's name in the space provided below.)
___________________________________________________________________
2. APPROVING the adoption of the 1995 Equity Incentive Plan.
FOR AGAINST ABSTAIN
___________________________________________________________________
3. APPROVING the amendment to the Articles of Incorporation to
provide for protection for directors from exposure to monetary
liability in certain circumstances.
FOR AGAINST ABSTAIN
___________________________________________________________________
4. APPROVING 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.
FOR AGAINST ABSTAIN
___________________________________________________________________
5. APPROVING the adoption of the 1995 Non-Employee Directors' Plan
for Stock in Lieu of Directors' Cash Retainer.
FOR AGAINST ABSTAIN
___________________________________________________________________
6. APPROVING the selection of Ernst & Young as the Company's
independent auditors for 1995.
In their discretion, the proxies are authorized to vote upon such
other business as may properly come before the meeting or any
adjournment thereof.
This proxy when properly executed will be voted in the manner
directed herein by the undersigned stockholder. IF NO DIRECTION IS
MADE, THIS PROXY WILL BE VOTED FOR ELECTION OF DIRECTORS AND FOR
ALL PROPOSALS.
Dated____________, 1995
_______________________
Signature
_______________________
Signature if held jointly
Please sign exactly as name appears above. When shares are held by
joint tenants, both should sign. When signing as attorney,
executor, administrator, trustee or guardian, please give full
title as such. If a corporation, please sign in full corporate
name by President or other authorized officer. If a partnership,
please sign in partnership name by authorized person.
Ben & Jerry's Homemade, Inc.
Class B Common Stock
Bring this stub to the Annual Meeting of Stockholders
Dear Stockholder:
We hope you will join us at this year's Annual Meeting of Stockholders!
Please complete, sign and date the proxies and return promptly in the
enclosed envelope whether or not you plan to attend the annual meeting.
If you plan on attending the meeting, PLEASE SAVE THIS STUB AND
BRING IT WITH YOU to speed the registration process. By presenting this
stub (or a statement from your broker) at one of the Express Lines for
registration, you will receive a sticker that entitles you to free ice
cream at our One World One Heart Festival.
If you plan to vote your proxy at the meeting, please bring the proxy
card to the Proxy Voting Line at registration. After voting your
proxy you will receive a sticker that entitles you to free ice cream
at our One World One Heart Festival.
We look forward to seeing you there!
Ben & Jerry's Homemade, Inc.
EXHIBIT A
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 B
PROPOSED AMENDMENT TO ARTICLES OF INCORPORATION
No director of the Corporation shall be personally liable
to the Corporation or its stockholders for money damages for any
action taken, or any failure to take any action, 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
liability 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.
EXHIBIT C
Section 6 of the Employee Stock Purchase Plan as proposed to be
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 D
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.
