Registration No.333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BEN & JERRY'S HOMEMADE, INC.
(Exact name of registrant as specified in its charter)
Vermont 2024 03-02675-43
(State or other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
30 Community Drive
South Burlington, Vermont 05403
(Address of Principal Executive Offices, including Zip Code)
Michael Sands Non-Statutory Stock Option Agreement
Helen Jones Non-Statutory Stock Option Agreement
Roger Legendre Non-Statutory Stock Option Agreement
Rivington Fields Hight, Jr. Non-Statutory Stock Option Agreement
Perry Odak
President and Chief Executive Officer
Ben & Jerry's Homemade, Inc.
30 Community Drive
South Burlington, VT 05403
802/846-1500
(Name, Address and Telephone Number of Agent for Service)
Please send copies of all communications to:
Howard K. Fuguet, Esquire
Ropes & Gray
One International Place
Boston, MA 02110
617-951-7000
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum Amount of
Title of securities to be Amount to be offering price per aggregate offering price registration fee
registered registered share
- ---------------------------- ------------------ ------------------------ ------------------------- -------------------
- ---------------------------- ------------------ ------------------------ ------------------------- -------------------
Class A Common Stock, par 35,000 (1) 24.25 $ 848,750.00
value $0.033 per share 2,000 (2) 28.06 56,120.00
10,000 (3) 28.063 280,630.00
3,000 (4) 28.06 84,180.00
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50,000 1,269,680.00 $352.97
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1. Shares subject to options granted pursuant to the Michael Sands
Non-Statutory Stock Option Agreement.
2. Shares subject to options granted pursuant to the Helen Jones
Non-Statutory Stock Option Agreement.
3. Shares subject to options granted pursuant to the Roger Legendre
Non-Statutory Stock Option Agreement.
4. Shares subject to options granted pursuant to the Rivington Fields
Hight, Jr. Non-Statutory Stock Option Agreement.
The date of this Registration Statement is December 10, 1999
Exhibit Index on Page 7
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The document(s) containing the information regarding the Michael Sands
Non-Statutory Stock Option Agreement, the Helen Jones Non Statutory Stock Option
Agreement, Roger Legendre Non-Statutory Stock Option Agreement, and the
Rivington Fields Hight, Jr. Non-Statutory Stock Option Agreement (collectively,
the "Plans") required by Item 1 of this Form S-8 and the statement of
availability of Registrant information, and other information required by Item 2
of this Form will be sent or given to eligible employees as specified by Rule
428(b)(1) under the Securities Act of 1933 (the "Securities Act"). In accordance
with Rule 428 and the requirements of Part I of Form S-8, such documents are not
being filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. The Registrant shall maintain a file of such
documents in accordance with the provisions of Rule 428. Upon request, the
Registrant will furnish to the Commission or its staff a copy or copies of all
of the documents included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Ben & Jerry's Homemade, Inc. (the "Corporation", or the "Registrant")
hereby incorporates the following document herein by reference:
(a) The Registrant's latest annual report on Form 10-K for the fiscal year
ended December 26, 1998, filed pursuant to Section 13 of the Securities
Exchange Act of 1934 as amended (the "Exchange Act"), filed with the
Commission on March 26, 1999.
(b) Quarterly Reports on Form 10-Q for the quarters ended March 27, 1999,
June 26, 1999 and September 25, 1999, as filed with the Commission
pursuant to Section 13 under the Exchange Act, on May 11, 1999, August
10, 1999 and November 9, 1999, respectively.
(c) The description of the Registrant's Class A Common Stock contained in
the Company's Registration Statement on Form S-1, filed pursuant to
Section 12 of the Exchange Act (No. 33-17516).
All documents subsequently filed by the Registrant pursuant to Section 13(a),
Section 13(c), Section 14 and Section 15(d) of the Exchange Act prior to the
filing of a post-effective amendment to this Registration Statement that
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold shall be deemed incorporated herein by
reference from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
<PAGE>
The Vermont Statutes Annotated, Title 8, Section 1837, as amended, regulates
indemnification by a Corporation in the following manner: a corporation may
indemnify or reimburse any person for reasonable expenses, including but not
limited to attorney fees, actually incurred by him in connection with any
action, suit or proceeding, instituted or threatened, judicial or
administrative, civil or criminal, to which he is made a party by reason of his
being or having been a director, officer or employee of an association,
provided, however, that no person can be indemnified or reimbursed, nor retain
any advancement or allowance for indemnification which may have been made by the
corporation in advance of final disposition, in relation to that action, suit or
proceeding in which and to the extent that he is found to have been guilty of a
breach of good faith, to have been negligent in the performance of his duties or
to have committed an action or failed to perform a duty for which there is
common law or statutory liability. A person, may, with the approval of the
commissioner, be indemnified or reimbursed for:
(1) Amounts paid in compromise or settlement of any action, suit or
proceeding, including reasonable expenses incurred in connection
therewith, or
(2) Reasonable expenses incurred in connection with a criminal action, suit
or proceeding in which that person has been adjudicated guilty,
negligent or liable if it shall be determined by the board of director
and by the commissioner that the person was acting in good faith and in
what he believed to be the best interests of the association and
without knowledge that the action was illegal, if the indemnification
or reimbursement is approved at an annual or special meeting of the
members by a majority of the votes eligible to be cast.
Sections 2 and 3 of the Registrant's By-laws state that the Corporation shall
indemnify an individual made a party to a proceeding because the individual is
or was a director against liability incurred in the proceeding if: (1) the
director conducted himself or herself in good faith, and (2) the director
reasonably believed: (a) in the case of conduct in the director's official
capacity with the Corporation, that the director's conduct was in its best
interests; and (b) in all other cases, that the director's conduct was at least
not opposed to its best interests, and (3) in the case of any proceeding brought
by a governmental entity, the director had no reasonable cause to believe his or
her conduct was unlawful, and the director is not finally found to have engaged
in a reckless or intentional unlawful act.
A director's conduct with respect to an employee benefit plan for a purpose the
director reasonably believed to be in the interests of the participants in and
beneficiaries of the plan is conduct that satisfies the preceding requirements.
The termination of a proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent is not, of itself,
determinative that the director did not meet the standard of conduct described
above. The Corporation may not indemnify a director: (i) in connection with a
proceeding by or in the right of the Corporation in which the director was
adjudged liable to the Corporation, or (ii) in connection with any other
proceeding charging improper personal benefit to the director, whether or not
involving action in the director's official capacity in which the director was
adjudged liable on the basis that personal benefit was improperly received by
the director. Indemnification permitted under the Registrant's by-laws in
connection with a proceeding by or in the right of the Corporation is limited to
reasonable expenses incurred in connection with the proceeding. Notwithstanding
the above, the Corporation will indemnify a director who was wholly successful,
on the merits or otherwise, in the defense of any proceeding to which the
director was a party because the director is or was a director of the
Corporation against reasonable expenses incurred by the director in connection
with the proceeding.
<PAGE>
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 Opinion of Ropes & Gray.
10.1 Michael Sands Non-Statutory Stock Option Agreement
10.2 Helen Jones Non-Statutory Stock Option Agreement
10.3 Roger Legendre Non-Statutory Stock Option Agreement
10.4 Rivington Fields Hight, Jr. Non-Statutory Stock Option Agreement
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Ropes & Gray (see Exhibit 5.1).
24 Power of Attorney (Included on Signature Page).
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in this Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above shall not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Securities and Exchange Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
<PAGE>
(2) That, for the purposes of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to
the Securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of South Burlington, State of Vermont, on this 10th
day of December 1999.
BEN & JERRY'S HOMEMADE, INC.
/s/Perry D. Odak
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By: Perry D. Odak
Chief Executive Officer, President
POWER OF ATTORNEY
Dated: December 10, 1999
Each person whose signature appears below constitutes and appoints Perry D. Odak
and Frances Rathke, and each of them singly, his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement on Form S-8 to be filed by Ben & Jerry's Homemade, Inc., and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission making such changes in
this Registration Statement as the person(s) so acting deems appropriate, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to
the requirements of the Securities Act of 1933, as amended, this Registration
Statement on Form S-8 has been signed below by the following persons in the
capacities indicated.
Signature Capacity Date
--------- -------- ----
/s/ Perry D. Odak Chief Executive Officer, Director December 10, 1999
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Perry D. Odak
/s/Frances G. Rathke Chief Financial Officer, Secretary December 10, 1999
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Frances G. Rathke
/s/Jerry Greenfield Chairman, Board of Directors December 10, 1999
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Jerry Greenfield
Director December 10, 1999
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Pierre Ferrari
/s/Jeffrey Furman Director December 10, 1999
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Jeffrey Furman
Director December 10, 1999
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Bennett Cohen
/s/Jennifer Henderson Director December 10, 1999
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Jennifer Henderson
/s/Frederick A. Miller Director December 10, 1999
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Frederick A. Miller
Director December 10, 1999
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Henry Morgan
<PAGE>
EXHIBIT INDEX
Number Title of Exhibit
5.1 Opinion of Ropes & Gray.
10.1 Michael Sands Non-Statutory Stock Option Agreement
10.2 Helen Jones Non-Statutory Stock Option Agreement
10.3 Roger Legendre Non-Statutory Stock Option Agreement
10.4 Rivington Fields Hight, Jr. Non-Statutory Stock Option Agreement
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Ropes & Gray (see Exhibit 5.1).
24 Power of Attorney (Included on Signature Page).
EXHIBIT 5.1
(Ropes & Gray Letterhead)
December 10, 1999
Ben & Jerry's Homemade, Inc.
30 Community Drive
South Burlington, Vermont 05403-6828
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration
statement on Form S-8 (the "Registration Statement"), to be filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, for the registration of 50,000 shares of Class A Common
Stock, $0.33 par value per share (the "Shares"), of Ben & Jerry's Homemade,
Inc., a Vermont Corporation (the "Company").
We have acted as counsel to the Company and are familiar with the
actions taken by the Company in connection with the Company's Michael Sands
Non-Statutory Stock Option Agreement, the Helen Jones Non Statutory Stock Option
Agreement, Roger Legendre Non-Statutory Stock Option Agreement, Rivington Fields
Hight, Jr. Non-Statutory Stock Option Agreement (the "Plans"). For purposes of
this opinion, we have examined the Plans and such other documents as we deemed
appropriate.
For purposes of our opinion, we have assumed that (i) any consideration
received by the Company upon the issuance or exercise of any award granted under
any of the individual Plans will at least be equal to the par value of the
Shares issuable upon the exercise of any stock options or subject to any other
award, and (ii) the number of shares to be issued upon any such exercise or
issuance, together with the total number of shares of the Company's Common Stock
previously outstanding, will not exceed the authorized number of shares of
Common Stock specified in the Company's Articles of Association as then in
effect.
Based upon the foregoing, we are of the opinion that the Shares have
been duly authorized and, when the Shares have been issued and sold and
consideration received therefor by the Company in accordance with the terms of
each of the individual Plans, will be validly issued, fully paid and
non-assessable.
We hereby consent to your filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Ropes & Gray
EXHIBIT 10.1
BEN & JERRY'S HOMEMADE, INC.
NON-STATUTORY STOCK OPTION CONTRACT
1. GRANT OF OPTION
Ben & Jerry's Homemade, Inc., a Vermont corporation (the "Company"),
has granted, by vote of the Compensation Committee of the Board of Directors of
the Company (the "Committee"), to Michael Sands (the "Participant"), an option
to purchase an aggregate of 35,000 shares of Class A Common Stock of the
Company, $.033 par value (the "Common Stock" or the "Stock") (hereinafter
referred to as the "Option" or the "Award"), at a price of $24.25 per share,
purchasable as set forth in and subject to the terms and conditions of this
Non-Statutory Stock Option Contract (the "Contract"). The Option is intended to
be a non-statutory stock option and is not an ISO. The effective date of grant
of this Option is the day the Participant joins the payroll of the Company
(hereinafter referred to as the "Grant Date").
2. PURPOSE OF OPTION
In granting this Option, the Committee has determined that the Option
will advance the interests of the Company by enhancing its ability to (a)
attract and retain a Participant who is in a position to make significant
contributions to the success of the Company and its subsidiaries and (b)
encourage this Participant to take into account the long-term interests of the
Company through ownership of shares of the Company's Stock. This Option is
granted to induce the Participant to join the Company as an employee.
3. EXERCISE OF OPTION
(a) EXERCISE SCHEDULE
Except as otherwise provided in this Agreement, this Option may be
exercised during the period ending ten (10) years after the Grant Date
(hereinafter the "Expiration Date") on a cumulative basis as described below: on
and after one year from the date in July 2000 which is the first anniversary of
the Grant Date as to 25% of the Option; and thereafter, as to an additional 1/48
of the Option on the last day of each month, commencing with the month of August
2000, so that the Option becomes 100% exercisable on July 31, 2003.
4. ADMINISTRATION
This Contract 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 Contract and in
addition to other authority granted under the Contract, to (a) grant Awards at
such time or times as it may choose; (b) determine the size of each Option or
other 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 canceled, grant another Award in
its place on such terms as the Committee shall specify but not by way of "option
repricing" as defined in Section 6), 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
<PAGE>
such holder; (g) prescribe the form or forms of instruments that are required or
deemed appropriate under the Contract, including any written notices and
elections required of the Participant, and change such forms from time to time;
(h) adopt, amend and rescind rules and regulations for the administration of the
Contract; and (i) interpret the Contract and decide any questions and settle all
controversies and disputes that may arise in connection with the Contract. 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 Contract, 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. 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 Contract may be made without notice or meeting of the
Committee by a writing signed by a majority of the Committee members.
5. SHARES SUBJECT TO THE CONTRACT
Subject to the adjustment as provided in Section 8.6 below, the
aggregate number of shares of Stock that may be delivered under the Contract
will be 35,000. 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 Contract 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 Contract
6. THE OPTION
Exercise Price, etc. The exercise price of the Option has been
determined by the Committee to be 26.5625, which is equal to the fair market
value of the stock on June 24, 1999, the fair market value of the Stock at the
time of grant by the Committee.
The Committee may not, notwithstanding any other provision of the Plan,
reduce the exercise price of the Option at any time after the time of grant with
or without the consent of the Participant, thereby prohibiting the cancellation
of higher priced Options and the reissue of lower priced Options, i.e. repricing
options. 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 the 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.
Payment for Stock. Stock purchased on exercise of the 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
<PAGE>
(4) if so permitted by the instrument evidencing the Option (or 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 but unissued 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.
Discretionary Payments. If the market price of shares of Stock subject
to the Option 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 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 canceled) 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.
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 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 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 the Option 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 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.
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 maybe) 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
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 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 Committee
may determine), and shall thereupon terminate, unless the Option provides by its
<PAGE>
terms for immediate termination in the event of a Status Change. If the Status
Change results from a discharge for cause, the Option will terminate if the
Committee so determines in its discretion either before or after such
termination of employment. In no event, however, shall the Option 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.
7.3 A Change in Control Provision
As used herein, a Change in Control and related definitions shall have
the meanings as set forth in Section 7.3 C below.
Immediately prior to the occurrence of a Change in Control, the Option
shall automatically become fully exercisable unless the Committee shall
otherwise expressly provide at the time of grant.
In addition to the foregoing and Section 6, the Committee may at any
time prior to or after a Change in Control accelerate the exercisability of the
Option.
7.3 B Certain Corporate Transactions.
(a) 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 complete liquidation of the Company or the sale or transfer of substantially
all of the Company's assets (a "Covered Transaction"), the Option will terminate
as of the effective date of the Covered Transaction, provided that at least
twenty (20) days prior to the effective date of any such merger, consolidation,
liquidation or sale of assets, but subject to Paragraphs (c) and (d) below, the
Committee shall make the Option exercisable immediately prior to consummation of
such Covered Transaction (to the extent that the Option is not exercisable
immediately prior to the consummation of the Covered Transaction pursuant to
Section 7.3 A).
(b) If the Option is subject to performance or other conditions (other
than conditions relating the mere 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 Option will terminate, because the conditions have not been
satisfied, as of the date of the Covered Transaction notwithstanding Paragraph
(a) above.
(c) With respect to the outstanding Option held by the participant who,
following the Covered Transaction, will be employed by 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 of the Committee described
in Paragraphs (a) above or in addition to any Option being exercisable
immediately prior to consummation of the Covered Transaction pursuant to Section
7.3A above, arrange to have such surviving or acquiring corporation or affiliate
assume the Option or grant to the Participant a replacement Option which, in the
judgment of the Committee, is substantially equivalent to the Option
<PAGE>
7.3 C Change in Control and Related Definitions.
A "Change in Control" shall be deemed to have occurred if the
conditions set forth in any one of the following paragraphs shall have been
satisfied:
(a) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 35% or more of the
combined voting power of the Company's then outstanding securities; or
(b) during any period of not more than two consecutive years (not
including any period prior to October 26, 1994), individuals who at the
beginning of such period constitute the Board and any new director (other than a
director designated by a Person who has entered into an agreement with the
Company to effect a transaction described in Clause (a), (c) or (d) of Section
7.3 C) whose election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof; or
(c) the shareholders of the Company approve a merger or consolidation
of the Company with any other corporation, other than
(1) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or being converted into
voting securities of the surviving entity) 60% or more of the combined
voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation, or
(2) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no person
acquires 35% or more of the combined voting power of the Company's then
outstanding securities; or
(d) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all the Company's assets.
Notwithstanding the foregoing provisions of this Section 7.3C, a
"Change in Control" will not be deemed to have occurred solely because of (i)
the ownership or acquisition of securities of the Company (or any reporting
requirement under the Securities Exchange Act of 1934) relating thereto) by an
employee benefit plan maintained by the Company for the benefit of employees or
by ownership or acquisition (whether accomplished by merger, consolidation,
purchase or otherwise) by any of Ben Cohen, Jerry Greenfield, Jeffrey Furman and
Perry Odak or their "affiliates" or "associates" (as such terms are defined in
Rule 12b-2 under the Act) or members of their families (or trusts for their
benefit) or charitable trusts established by any of them and/or other related
management group.
In the foregoing provisions of this Section 7.3 C, the following terms
shall have the meanings set forth below:
<PAGE>
"Person" shall have the meaning given in Section 3 (a) (9) of the
Securities Exchange Act of 1934, as modified and used in Sections 13 9d and 14
(d) thereof; however, a Person shall not include
(1) the Company or any controlled subsidiary of the Company,
(2) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company
or
(3) a corporation or other entity owned, directly or indirectly,
by the shareholders of the Company in substantially the same proportions as
their ownership of stock of the Company.
"Beneficial Owner" shall have the meaning defined in Rule 13d-3
under the Securities Exchange Act of 1934 as amended from time to time.
8. GENERAL PROVISIONS
8.1. Documentation of Awards.
The Option will be evidenced by such written instruments, if any, as
may be prescribed by the Committee 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 this Contract, the receipt of the Option 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
Option, 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 Option 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 this Contract or to remove restriction from shares previously
delivered under the Option until all conditions of the Option 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 the Option 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.
<PAGE>
8.4. Tax Withholding.
The Company will withhold from any cash payment made pursuant to the
Option an amount sufficient to satisfy all federal, state and local withholding
tax requirements (the "withholding requirements").
In the case of an Option 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.
8.5. Nontransferability of the Option.
The Option may not be transferred other than by will or by the laws of
descent and distribution, and during a Participant's lifetime the Option 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 this Contract, the Committee will make any
appropriate adjustments to the maximum number of shares that may be delivered
under this Contract under Section 5 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 the Option then outstanding or subsequently granted, any
exercise prices relating to the Option and any other provision of the Option
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 this
Contract.
8.7. Employment Rights, Etc.
Neither the adoption of this Contract nor the grant of the Option 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 the Option
granted under this Contract 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.
<PAGE>
8.8. Fair Market Value
For purposes of this Contract, 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 this Contract nor the grant of the Option to the
Participant will affect the Company's right to grant to such Participant cash or
Stock awards that are not subject to this Contract, 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 or times amend this Contract (and the
Committee may amend any outstanding Option) for any purpose which may at the
time be permitted by law, provided that (except to the extent expressly required
or permitted by this Contract) no such amendment may adversely affect the rights
of any Participant (without the Participant's consent) under the Option.
This Option shall be governed by and construed in accordance with the
laws of the State of Vermont.
BEN & JERRY'S HOMEMADE, INC.
EXHIBIT 10.2
BEN & JERRY'S HOMEMADE, INC.
NON-STATUTORY STOCK OPTION AGREEMENT
[Follows 1995 Plan]
1. GRANT OF OPTION
Ben & Jerry's Homemade, Inc. ("Ben & Jerry's" or the "Company"), a
Vermont corporation, hereby, by action of the Compensation Committee of the
Board of Directors of the Company, grants to Helen Jones, an employee of the
Company (the "Employee" or a "Participant"), an option to purchase 2,000 shares
of Class A Common Stock of the Company, $.033 par value ("Common Stock" or
"Stock") (hereinafter referred to as the "Option"), at a price of $28.06 per
share, which is not less than the fair market value, purchasable as set forth in
and subject to the terms and conditions of this Stock Option Agreement (the
"Agreement"). The Option is intended to be a non-statutory stock option. The
date of grant of the Option is July 1, 1999 (hereinafter referred to as the
"Grant Date"). The term "Award" shall also include the Option.
2. THE COMMITTEE
The Option shall be administered by the Compensation Committee of the
Board of Directors (the "Committee"), which shall have all of the powers here
that it has under the Ben & Jerry's 1995 Equity Incentive Plan, as if such
powers were set forth in full herein.
In granting the Option, the Committee has determined that the Option
will advance the interests of Ben & Jerry's by enhancing its ability to (a)
attract and/or retain an employee who is in a position to make significant
contributions to the success of the Company and its subsidiaries and (b)
encourage this Employee to take into account the long-term interests of the
Company through ownership of shares of the Company's Stock.
3. EXERCISE OF OPTION
Except as otherwise provided in this Agreement, this Option may be
exercised prior to July 1, 2009 (the "Expiration Date") as follows: said Option
being exercisable over a four year period, with 25% of the Option vesting at the
end of the first year anniversary of the grant date and with 1/48 of the Option
vesting at the close of each month thereafter, commencing with the month of
August 2000, such that the Option for 2,000 Shares would be fully vested on July
31, 2003.
4. SHARES OF STOCK
Stock delivered under this Agreement may be either authorized but
unissued or previously issued stock acquired by the Company and held in the
Treasury. No fractional shares of stock will be delivered under this Agreement.
5. INTENTIONALLY DELETED.
6. TYPES OF AWARDS
6.1. Option
Subsections (a) and (b) intentionally left blank.
<PAGE>
(c) Duration of Option. The latest date (the Expiration Date")
on which the Option may be exercised will be the tenth anniversary of
the day immediately preceding the date the Option was granted, or such
earlier date as may have been specified by the Committee at the time
the Option was granted.
(d) Exercise of Option. 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. If desired, the Committee may provide for vesting
prior to the date the option becomes exercisable.
Any exercise of the 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 the
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 this instrument (or by the Committee
on or after the grant of the Option), by delivery of a promissory note
by the Option holder to the Company, payable on such terms as are
specified by the Committee, 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 the Option 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.
Sections 6.2 - 6.6 intentionally left blank.
7. EVENTS AFFECTING OUTSTANDING AWARDS
7.1. Death and Total or Permanent Disability.
Except as otherwise provided by the Committee, if a Participant dies or
is totally or permanently disabled as determined by the Committee, the following
will apply:
<PAGE>
(a) All Options held by the Participant immediately prior to
death or total or permanent disability, as the case may be, shall, if
not then exercisable, be accelerated and become exercisable at such
time and then all options so held by the Participant may be exercised
by the Participant's executor or administrator or the person or persons
to whom the Option is transferred by will or the applicable laws of
descent and distribution or the Participant's guardian, 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 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, the Option held by the
Participant immediately prior to death or total permanent disability,
as the case may be, to the extent it is not then exercisable shall
terminate at the date of death or total or permanent disability as the
case may be.
(b) Intentionally left blank.
(c) Intentionally left blank.
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 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 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 Committee 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 (gross negligence or acts
done with a malicious intent, as determined by the Committee), 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 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.
<PAGE>
(b) Intentionally left blank.
(c) Intentionally left blank.
7.3 A Change in Control Provision
As used herein, a Change in Control and related definitions shall have
the meanings as set forth in Section 7.3 C below.
Immediately prior to the occurrence of a Change in Control:
(a) Each Option shall automatically become fully exercisable
unless the Committee shall otherwise expressly provide at the time of
grant.
(b) Intentionally left blank.
In addition to the foregoing and Section 6.1(d), the Committee
may at any time prior to or after a Change in Control accelerate the
exercisability of any Options.
7.3 B Certain Corporate Transactions
(a) 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 complete liquidation of the Company
or the sale or transfer of substantially all of the Company's assets (a
"Covered Transaction"), all outstanding options will terminate as of
the effective date of the Covered Transaction, provided that at least
twenty (20) days prior to the effective date of any such merger,
consolidation, liquidation or sale of assets, but subject to Paragraphs
(c) and (d) below, the Committee shall make all outstanding Options
exercisable immediately prior to consummation of such Covered
Transaction (to the extent that such Options are not exercisable
immediately prior to the consummation of the Covered Transaction
pursuant to Section 7.3A).
(b) Intentionally left blank.
(c) If an outstanding Option is subject to performance or
other conditions (other than conditions relating the mere 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
Option or Other Award will terminate, because the conditions have not
been satisfied, as of the date of the Covered Transaction
notwithstanding Paragraph (a) and (b) above.
(d) With respect to an outstanding Option or Other Award held
by the Participant who, following the Covered Transaction, will be
employed by 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 of the Committee described in
Paragraphs (a) or (b) above or in addition to any Option being
exercisable immediately prior to consummation of the Covered
Transaction pursuant to Section 7.3A above, arrange to have such
surviving or acquiring corporation or affiliate assume the Option or
Other Award or grant to the Participant a replacement or substitute
Option or other Award on such terms as the Committee approves.
7.3 C Change in Control and Related Definitions
<PAGE>
A "Change in Control" shall be deemed to have occurred if the
conditions set forth in any one of the following paragraphs shall have been
satisfied:
(a) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 35% or more of
the combined voting power of the Company's then outstanding securities;
or
(b) during any period of not more than two consecutive years
(not including any period prior to December 31, 1996), individuals who
at the beginning of such period constitute the Board and any new
director (other than a director designated by a Person who has entered
into an agreement with the Company to effect a transaction described in
Clause (a), (c), or (d) of Section 7.3 C) whose election by the Board
or nomination for election by the Company's stockholders was approved
by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof; or
(c) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than:
(1) a merger or consolidation which would result in
the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining
outstanding or being converted into voting securities of the
surviving entity) 60% or more of the combined voting power of
the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation; or
(2) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in
which no person acquires 35% or more of the combined voting
power of the Company's then outstanding securities;
(d) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all the Company's assets.
Notwithstanding the foregoing provisions of this Section 7.3C,
a "Change in Control" will not be deemed to have occurred solely
because of (i) the ownership or acquisition of securities of the
Company (or any reporting requirement under the Securities Exchange Act
of 1934 relating thereto) by an employee benefit plan maintained by the
Company for the benefit of employees or by ownership or acquisition
(whether accomplished by merger, consolidation, purchase or otherwise)
by any of Ben Cohen, Jerry Greenfield, Jeffrey Furman and Perry Odak or
their "affiliates" or "associates" (as such terms are defined in Rule
12b-2 under the Act) or members of their families (or trusts for their
benefit) or charitable trusts established by any of them and/or other
related management group.
In the foregoing provisions of this Section 7.3, the following
terms shall have the meanings set forth below:
"Person" shall have the meaning given in Section 3 (a) (9) of the
Securities Exchange Act of 1934, as modified and used in Sections 13 9D and
14(d) thereof; however, a Person shall not include:
<PAGE>
(1) the Company or any controlled subsidiary of the Company;
(2) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company; or,
(3) a corporation or other entity owned, directly or
indirectly, by the shareholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
"Beneficial Owner" shall have the meaning defined in Rule 13d-3 under the
Securities Exchange Act of 1934 as amended from time to time.
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 this Agreement, 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 this Agreement 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 this Agreement (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.
<PAGE>
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.
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 this
Agreement, 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 this Agreement.
8.7. Employment Rights, Etc.
Neither the execution of this Agreement 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.
<PAGE>
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 this Agreement, fair market value of a share of Stock
on any date will be the closing price 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 the execution of this Agreement nor the grant of Awards to the
Participant will affect the Company's right to grant to such Participant cash or
Stock awards that are not subject to this Agreement, 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 Committee may at any time or times amend this Agreement for any
purpose which may at the time be permitted by law, or may at any time terminate
this Agreement, provided that no amendment or termination of this Agreement may
adversely affect the rights of the Participant (without the Participant's
consent).
IN WITNESS WHEREOF, each of the parties has caused the Agreement to be
executed and delivered as of the date first above written.
EXHIBIT 10.3
BEN & JERRY'S HOMEMADE, INC.
NON-STATUTORY STOCK OPTION AGREEMENT
[Follows 1995 Plan]
1. GRANT OF OPTION
Ben & Jerry's Homemade, Inc. ("Ben & Jerry's" or the "Company"), a
Vermont corporation, hereby, by action of the Compensation Committee of the
Board of Directors of the Company, grants to Roger Legendre, an employee of the
Company (the "Employee" or a "Participant"), an option to purchase 10,000 shares
of Class A Common Stock of the Company, $.033 par value ("Common Stock" or
"Stock") (hereinafter referred to as the "Option"), at a price of $28 1/16 per
share, which is not less than the fair market value, purchasable as set forth in
and subject to the terms and conditions of this Stock Option Agreement (the
"Agreement"). The Option is intended to be a non-statutory stock option. The
date of grant of the Option is July 1, 1999 (hereinafter referred to as the
"Grant Date"). The term "Award" shall also include the Option.
2. THE COMMITTEE
The Option shall be administered by the Compensation Committee of the
Board of Directors (the "Committee"), which shall have all of the powers here
that it has under the Ben & Jerry's 1995 Equity Incentive Plan, as if such
powers were set forth in full herein.
In granting the Option, the Committee has determined that the Option
will advance the interests of Ben & Jerry's by enhancing its ability to (a)
attract and/or retain an employee who is in a position to make significant
contributions to the success of the Company and its subsidiaries and (b)
encourage this Employee to take into account the long-term interests of the
Company through ownership of shares of the Company's Stock.
3. EXERCISE OF OPTION
Except as otherwise provided in this Agreement, this Option may be
exercised prior to July 1, 2009 (the "Expiration Date") as follows: said Option
being exercisable over a four year period, with 25% of the Option vesting at the
end of the first year anniversary of the grant date and with 1/48 of the Option
vesting at the close of each month thereafter, commencing with the month of
August 2000, such that the Option for 10,000 Shares would be fully vested on
July 31, 2003.
4. SHARES OF STOCK
Stock delivered under this Agreement may be either authorized but
unissued or previously issued stock acquired by the Company and held in the
Treasury. No fractional shares of stock will be delivered under this Agreement.
5. INTENTIONALLY DELETED.
6. TYPES OF AWARDS
6.1. Option
Subsections (a) and (b) intentionally left blank.
<PAGE>
(c) Duration of Option. The latest date (the Expiration Date")
on which the Option may be exercised will be the tenth anniversary of
the day immediately preceding the date the Option was granted, or such
earlier date as may have been specified by the Committee at the time
the Option was granted.
(d) Exercise of Option. 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. If desired, the Committee may provide for vesting
prior to the date the option becomes exercisable.
Any exercise of the 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 the
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 this instrument (or by the Committee
on or after the grant of the Option), by delivery of a promissory note
by the Option holder to the Company, payable on such terms as are
specified by the Committee, 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 the Option 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.
Sections 6.2 - 6.6 intentionally left blank.
7. EVENTS AFFECTING OUTSTANDING AWARDS
7.1. Death and Total or Permanent Disability.
Except as otherwise provided by the Committee, if a Participant dies or
is totally or permanently disabled as determined by the Committee, the following
will apply:
<PAGE>
(a) All Options held by the Participant immediately prior to
death or total or permanent disability, as the case may be, shall, if
not then exercisable, be accelerated and become exercisable at such
time and then all options so held by the Participant may be exercised
by the Participant's executor or administrator or the person or persons
to whom the Option is transferred by will or the applicable laws of
descent and distribution or the Participant's guardian, 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 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, the Option held by the
Participant immediately prior to death or total permanent disability,
as the case may be, to the extent it is not then exercisable shall
terminate at the date of death or total or permanent disability as the
case may be.
(b) Intentionally left blank.
(c) Intentionally left blank.
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 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 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 Committee 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 (gross negligence or acts
done with a malicious intent, as determined by the Committee), 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 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) Intentionally left blank.
<PAGE>
(c) Intentionally left blank.
7.3 A Change in Control Provision
As used herein, a Change in Control and related definitions shall have
the meanings as set forth in Section 7.3 C below.
Immediately prior to the occurrence of a Change in Control:
(a) Each Option shall automatically become fully exercisable
unless the Committee shall otherwise expressly provide at the time of
grant.
(b) Intentionally left blank.
In addition to the foregoing and Section 6.1(d), the Committee
may at any time prior to or after a Change in Control accelerate the
exercisability of any Options.
7.3 B Certain Corporate Transactions
(a) 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 complete liquidation of the Company
or the sale or transfer of substantially all of the Company's assets (a
"Covered Transaction"), all outstanding options will terminate as of
the effective date of the Covered Transaction, provided that at least
twenty (20) days prior to the effective date of any such merger,
consolidation, liquidation or sale of assets, but subject to Paragraphs
(c) and (d) below, the Committee shall make all outstanding Options
exercisable immediately prior to consummation of such Covered
Transaction (to the extent that such Options are not exercisable
immediately prior to the consummation of the Covered Transaction
pursuant to Section 7.3A).
(b) Intentionally left blank.
(c) If an outstanding Option is subject to performance or
other conditions (other than conditions relating the mere 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
Option or Other Award will terminate, because the conditions have not
been satisfied, as of the date of the Covered Transaction
notwithstanding Paragraph (a) and (b) above.
(d) With respect to an outstanding Option or Other Award held
by the Participant who, following the Covered Transaction, will be
employed by 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 of the Committee described in
Paragraphs (a) or (b) above or in addition to any Option being
exercisable immediately prior to consummation of the Covered
Transaction pursuant to Section 7.3A above, arrange to have such
surviving or acquiring corporation or affiliate assume the Option or
Other Award or grant to the Participant a replacement or substitute
Option or other Award on such terms as the Committee approves.
7.3 C Change in Control and Related Definitions
<PAGE>
A "Change in Control" shall be deemed to have occurred if the
conditions set forth in any one of the following paragraphs shall have been
satisfied:
(a) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 35% or more of
the combined voting power of the Company's then outstanding securities;
or
(b) during any period of not more than two consecutive years
(not including any period prior to December 31, 1996), individuals who
at the beginning of such period constitute the Board and any new
director (other than a director designated by a Person who has entered
into an agreement with the Company to effect a transaction described in
Clause (a), (c), or (d) of Section 7.3 C) whose election by the Board
or nomination for election by the Company's stockholders was approved
by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof; or
(c) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than:
(1) a merger or consolidation which would result in
the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining
outstanding or being converted into voting securities of the
surviving entity) 60% or more of the combined voting power of
the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation; or
(2) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in
which no person acquires 35% or more of the combined voting
power of the Company's then outstanding securities;
(d) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all the Company's assets.
Notwithstanding the foregoing provisions of this Section 7.3C,
a "Change in Control" will not be deemed to have occurred solely
because of (i) the ownership or acquisition of securities of the
Company (or any reporting requirement under the Securities Exchange Act
of 1934 relating thereto) by an employee benefit plan maintained by the
Company for the benefit of employees or by ownership or acquisition
(whether accomplished by merger, consolidation, purchase or otherwise)
by any of Ben Cohen, Jerry Greenfield, Jeffrey Furman and Perry Odak or
their "affiliates" or "associates" (as such terms are defined in Rule
12b-2 under the Act) or members of their families (or trusts for their
benefit) or charitable trusts established by any of them and/or other
related management group.
In the foregoing provisions of this Section 7.3, the following
terms shall have the meanings set forth below:
"Person" shall have the meaning given in Section 3 (a) (9) of the
Securities Exchange Act of 1934, as modified and used in Sections 13 9D and
14(d) thereof; however, a Person shall not include:
<PAGE>
(1) the Company or any controlled subsidiary of the Company;
(2) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company; or,
(3) a corporation or other entity owned, directly or
indirectly, by the shareholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
"Beneficial Owner" shall have the meaning defined in Rule 13d-3 under the
Securities Exchange Act of
1934 as amended from time to time.
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 this Agreement, 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 this Agreement 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.
<PAGE>
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 this Agreement (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.
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 this
Agreement, 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
<PAGE>
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 this Agreement.
8.7. Employment Rights, Etc.
Neither the execution of this Agreement 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 this Agreement, fair market value of a share of Stock
on any date will be the closing price 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 the execution of this Agreement nor the grant of Awards to the
Participant will affect the Company's right to grant to such Participant cash or
Stock awards that are not subject to this Agreement, 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 Committee may at any time or times amend this Agreement for any
purpose which may at the time be permitted by law, or may at any time terminate
this Agreement, provided that no amendment or termination of this Agreement may
adversely affect the rights of the Participant (without the Participant's
consent).
IN WITNESS WHEREOF, each of the parties has caused the Agreement to be
executed and delivered as of the date first above written.
EXHIBIT 10.4
BEN & JERRY'S HOMEMADE, INC.
NON-STATUTORY STOCK OPTION AGREEMENT
[Follows 1995 Plan]
1. GRANT OF OPTION
Ben & Jerry's Homemade, Inc. ("Ben & Jerry's" or the "Company"), a
Vermont corporation, hereby, by action of the Compensation Committee of the
Board of Directors of the Company, grants to Rivington Fields Hight, Jr. an
employee of the Company (the "Employee" or a "Participant"), an option to
purchase 3,000 shares of Class A Common Stock of the Company, $.033 par value
("Common Stock" or "Stock") (hereinafter referred to as the "Option"), at a
price of $28.06 per share, which is not less than the fair market value,
purchasable as set forth in and subject to the terms and conditions of this
Stock Option Agreement (the "Agreement"). The Option is intended to be a
non-statutory stock option. The date of grant of the Option is July 1, 1999
(hereinafter referred to as the "Grant Date"). The term "Award" shall also
include the Option.
2. THE COMMITTEE
The Option shall be administered by the Compensation Committee of the
Board of Directors (the "Committee"), which shall have all of the powers here
that it has under the Ben & Jerry's 1995 Equity Incentive Plan, as if such
powers were set forth in full herein.
In granting the Option, the Committee has determined that the Option
will advance the interests of Ben & Jerry's by enhancing its ability to (a)
attract and/or retain an employee who is in a position to make significant
contributions to the success of the Company and its subsidiaries and (b)
encourage this Employee to take into account the long-term interests of the
Company through ownership of shares of the Company's Stock.
3. EXERCISE OF OPTION
Except as otherwise provided in this Agreement, this Option may be
exercised prior to July 1, 2009 (the "Expiration Date") as follows: said Option
being exercisable over a four year period, with 25% of the Option vesting at the
end of the first year anniversary of the grant date and with 1/48 of the Option
vesting at the close of each month thereafter, commencing with the month of
August 2000, such that the Option for 3,000 Shares would be fully vested on July
31, 2003.
4. SHARES OF STOCK
Stock delivered under this Agreement may be either authorized but
un-issued or previously issued stock acquired by the Company and held in the
Treasury. No fractional shares of stock will be delivered under this Agreement.
5. INTENTIONALLY DELETED.
6. TYPES OF AWARDS
6.1. Option
Subsections (a) and (b) intentionally left blank.
<PAGE>
(c) Duration of Option. The latest date (the Expiration Date")
on which the Option may be exercised will be the tenth anniversary of
the day immediately preceding the date the Option was granted, or such
earlier date as may have been specified by the Committee at the time
the Option was granted.
(d) Exercise of Option. 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. If desired, the Committee may provide for vesting
prior to the date the option becomes exercisable.
Any exercise of the 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 the
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 this instrument (or by the Committee
on or after the grant of the Option), by delivery of a promissory note
by the Option holder to the Company, payable on such terms as are
specified by the Committee, 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 the Option 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.
Sections 6.2 - 6.6 intentionally left blank.
7. EVENTS AFFECTING OUTSTANDING AWARDS
7.1. Death and Total or Permanent Disability.
Except as otherwise provided by the Committee, if a Participant dies or
is totally or permanently disabled as determined by the Committee, the following
will apply:
<PAGE>
(a) All Options held by the Participant immediately prior to
death or total or permanent disability, as the case may be, shall, if
not then exercisable, be accelerated and become exercisable at such
time and then all options so held by the Participant may be exercised
by the Participant's executor or administrator or the person or persons
to whom the Option is transferred by will or the applicable laws of
descent and distribution or the Participant's guardian, 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 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, the Option held by the
Participant immediately prior to death or total permanent disability,
as the case may be, to the extent it is not then exercisable shall
terminate at the date of death or total or permanent disability as the
case may be.
(b) Intentionally left blank.
(c) Intentionally left blank.
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 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 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 Committee 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 (gross negligence or acts
done with a malicious intent, as determined by the Committee), 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 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) Intentionally left blank.
<PAGE>
(c) Intentionally left blank.
7.3 A Change in Control Provision
As used herein, a Change in Control and related definitions shall have
the meanings as set forth in Section 7.3 C below.
Immediately prior to the occurrence of a Change in Control:
(a) Each Option shall automatically become fully exercisable
unless the Committee shall otherwise expressly provide at the time of
grant.
(b) Intentionally left blank.
In addition to the foregoing and Section 6.1(d), the Committee
may at any time prior to or after a Change in Control accelerate the
exercisability of any Options.
7.3 B Certain Corporate Transactions
(a) 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 complete liquidation of the Company
or the sale or transfer of substantially all of the Company's assets (a
"Covered Transaction"), all outstanding options will terminate as of
the effective date of the Covered Transaction, provided that at least
twenty (20) days prior to the effective date of any such merger,
consolidation, liquidation or sale of assets, but subject to Paragraphs
(c) and (d) below, the Committee shall make all outstanding Options
exercisable immediately prior to consummation of such Covered
Transaction (to the extent that such Options are not exercisable
immediately prior to the consummation of the Covered Transaction
pursuant to Section 7.3A).
(b) Intentionally left blank.
(c) If an outstanding Option is subject to performance or
other conditions (other than conditions relating the mere 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
Option or Other Award will terminate, because the conditions have not
been satisfied, as of the date of the Covered Transaction
notwithstanding Paragraph (a) and (b) above.
(d) With respect to an outstanding Option or Other Award held
by the Participant who, following the Covered Transaction, will be
employed by 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 of the Committee described in
Paragraphs (a) or (b) above or in addition to any Option being
exercisable immediately prior to consummation of the Covered
Transaction pursuant to Section 7.3A above, arrange to have such
surviving or acquiring corporation or affiliate assume the Option or
Other Award or grant to the Participant a replacement or substitute
Option or other Award on such terms as the Committee approves.
7.3 C Change in Control and Related Definitions
<PAGE>
A "Change in Control" shall be deemed to have occurred if the
conditions set forth in any one of the following paragraphs shall have been
satisfied:
(a) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 35% or more of
the combined voting power of the Company's then outstanding securities;
or
(b) during any period of not more than two consecutive years
(not including any period prior to December 31, 1996), individuals who
at the beginning of such period constitute the Board and any new
director (other than a director designated by a Person who has entered
into an agreement with the Company to effect a transaction described in
Clause (a), (c), or (d) of Section 7.3 C) whose election by the Board
or nomination for election by the Company's stockholders was approved
by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof; or
(c) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than:
(1) a merger or consolidation which would result in
the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining
outstanding or being converted into voting securities of the
surviving entity) 60% or more of the combined voting power of
the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation; or
(2) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in
which no person acquires 35% or more of the combined voting
power of the Company's then outstanding securities;
(d) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all the Company's assets.
Notwithstanding the foregoing provisions of this Section 7.3C,
a "Change in Control" will not be deemed to have occurred solely
because of (i) the ownership or acquisition of securities of the
Company (or any reporting requirement under the Securities Exchange Act
of 1934 relating thereto) by an employee benefit plan maintained by the
Company for the benefit of employees or by ownership or acquisition
(whether accomplished by merger, consolidation, purchase or otherwise)
by any of Ben Cohen, Jerry Greenfield, Jeffrey Furman and Perry Odak or
their "affiliates" or "associates" (as such terms are defined in Rule
12b-2 under the Act) or members of their families (or trusts for their
benefit) or charitable trusts established by any of them and/or other
related management group.
In the foregoing provisions of this Section 7.3, the following
terms shall have the meanings set forth below:
"Person" shall have the meaning given in Section 3 (a) (9) of the
Securities Exchange Act of 1934, as modified and used in Sections 13 9D and
14(d) thereof; however, a Person shall not include:
<PAGE>
(1) the Company or any controlled subsidiary of the Company;
(2) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company; or,
(3) a corporation or other entity owned, directly or
indirectly, by the shareholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
"Beneficial Owner" shall have the meaning defined in Rule 13d-3 under the
Securities Exchange Act of
1934 as amended from time to time.
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 this Agreement, 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 this Agreement 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 this Agreement (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.
<PAGE>
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.
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 this
Agreement, 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 this Agreement.
8.7. Employment Rights, Etc.
Neither the execution of this Agreement 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.
<PAGE>
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 this Agreement, fair market value of a share of Stock
on any date will be the closing price 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 the execution of this Agreement nor the grant of Awards to the
Participant will affect the Company's right to grant to such Participant cash or
Stock awards that are not subject to this Agreement, 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 Committee may at any time or times amend this Agreement for any
purpose which may at the time be permitted by law, or may at any time terminate
this Agreement, provided that no amendment or termination of this Agreement may
adversely affect the rights of the Participant (without the Participant's
consent).
IN WITNESS WHEREOF, each of the parties has caused the Agreement to be
executed and delivered as of the date first above written.
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Michael Sands Non-Statutory Stock Option Agreement, the
Helen Jones Non-Statutory Stock Option Agreement, the Roger Legendre Stock
Option Agreement, and the Rivington Fields Hight, Jr. Stock Option Agreement of
Ben & Jerry's Homemade, Inc., of our report dated January 22, 1999, except for
Note 17, as to which the date is February 26, 1999, with respect to the
consolidated financial statements and schedule of Ben & Jerry's Homemade, Inc.
included in its Annual Report (Form 10-K) for the year ended December 26, 1998,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Boston, Massachusetts
December 3, 1999
