<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND
AMENDMENT NO. 1 TO
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
------------------------
BEN & JERRY'S HOMEMADE, INC.
(Name of Subject Company (Issuer))
------------------------------
VERMONT ALL NATURAL EXPANSION COMPANY
CONOPCO, INC.
UNILEVER N.V.
(Names of Filing Persons (Offerors))
------------------------------
CLASS A COMMON STOCK, PAR VALUE $.033 PER SHARE
(including the associated Class A Common Stock Purchase Rights)
and
CLASS B COMMON STOCK, PAR VALUE $.033 PER SHARE
(including the associated Class B Common Stock Purchase Rights)
(Titles of Classes of Securities)
081465106
081465205
(CUSIP Numbers of Classes of Securities)
------------------------------
RONALD M. SOIEFER, ESQ.
CONOPCO, INC.
390 PARK AVENUE
NEW YORK, NY 10022
(212) 888-1260
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications on Behalf of Filing Persons)
------------------------------
COPY TO:
RICHARD HALL, ESQ.
CRAVATH, SWAINE & MOORE
WORLDWIDE PLAZA
825 EIGHTH AVENUE
NEW YORK, NEW YORK 10019
(212) 474-1000
------------------------------
APRIL 18, 2000
------------------------------
CALCULATION OF FILING FEE
<TABLE>
<CAPTION>
TRANSACTION VALUATION* AMOUNT OF FILING FEE
<S> <C>
$364,142,012 $72,828
</TABLE>
* For purposes of calculating amount of filing fee only. The amount assumes
the purchase of 7,559,062 shares of Class A Common Stock, par value $.033
per share (the "Class A Shares"), of Ben & Jerry's Homemade, Inc. (the
"Company") and 792,819 shares of Class B Common Stock, par value $0.33 per
share (the "Class B Shares"), of the Company. Such number of shares
represents all the Class A Shares and the Class B Shares outstanding as of
April 14, 2000, plus the number of shares issuable upon the exercise of all
options, warrants and other rights to purchase Class A Shares.
[ ] Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
<TABLE>
<S> <C>
Amount Previously Paid: N/A Form or Registration No.: N/A
Filing Party: N/A Date Filed: N/A
</TABLE>
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
<TABLE>
<S> <C>
[X] third-party tender offer subject to Rule 14d-1. [ ] issuer tender-offer subject to Rule 13e-4.
[ ] going private transaction subject to Rule 13e-3. [X] amendment to Schedule 13D under Rule 13d-2.
</TABLE>
Check the following box if the filing is a final amendment reporting the
results of the tender offer: [ ]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE TO
CUSIP NOS. 081465106 PAGE 2 OF 9 PAGES
081465205
<TABLE>
<C> <S>
- ---------------------------------------------------------------------
1 Names of Reporting Persons
Identification Nos. of Above Persons (entities only)
VERMONT ALL NATURAL EXPANSION COMPANY
- ---------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group (See
Instructions) (a) / /
(b) / /
- ---------------------------------------------------------------------
3 SEC Use Only
- ---------------------------------------------------------------------
4 Source of Funds (See Instructions) AF
- ---------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) / /
- ---------------------------------------------------------------------
6 Citizenship or Place of Organization VERMONT
- ---------------------------------------------------------------------
</TABLE>
<TABLE>
<C> <S>
7 Sole Voting power
1,219,986 SHARES OF CLASS A COMMON STOCK*
------------------------------------------------------------
8 Shared Voting Power
------------------------------------------------------------
9 Sole Dispositive Power
1,219,986 SHARES OF CLASS A COMMON STOCK*
------------------------------------------------------------
10 Shared Dispositive Power
Number of Shares
Beneficially Owned
by Each Reporting
Person with
- ----------------------------------------------------------------------------------
</TABLE>
<TABLE>
<C> <S>
11 Aggregate Amount Beneficially Owned by Each Reporting Person
1,219,986 SHARES OF CLASS A COMMON STOCK*
- ---------------------------------------------------------------------
12 Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares
(See Instructions) / /
- ---------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)
APPROXIMATELY 19.9% OF THE SHARES OF CLASS A COMMON STOCK
OUTSTANDING AS OF MARCH 31, 2000*
- ---------------------------------------------------------------------
14 Type of Reporting Person (See Instructions)
CO
- ---------------------------------------------------------------------
</TABLE>
* See Note on page 4.
<PAGE>
SCHEDULE TO
CUSIP NOS. 081465106 PAGE 3 OF 9 PAGES
081465205
<TABLE>
<C> <S>
- ---------------------------------------------------------------------
1 Names of Reporting Persons
Identification Nos. of Above Persons (entities only)
CONOPCO, INC. (13-1840427)
- ---------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group (See
Instructions) (a) / /
(b) / /
- ---------------------------------------------------------------------
3 SEC Use Only
- ---------------------------------------------------------------------
4 Source of Funds (See Instructions) WC, AF
- ---------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) / /
- ---------------------------------------------------------------------
6 Citizenship or Place of Organization NEW YORK
- ---------------------------------------------------------------------
</TABLE>
<TABLE>
<C> <S>
7 Sole Voting power
1,219,986 SHARES OF CLASS A COMMON STOCK*
------------------------------------------------------------
8 Shared Voting Power
------------------------------------------------------------
9 Sole Dispositive Power
1,219,986 SHARES OF CLASS A COMMON STOCK*
------------------------------------------------------------
10 Shared Dispositive Power
Number of Shares
Beneficially Owned
by Each Reporting
Person with
- ----------------------------------------------------------------------------------
</TABLE>
<TABLE>
<C> <S>
11 Aggregate Amount Beneficially Owned by Each Reporting Person
1,219,986 SHARES OF CLASS A COMMON STOCK*
- ---------------------------------------------------------------------
12 Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares
(See Instructions) / /
- ---------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)
APPROXIMATELY 19.9% OF THE SHARES OF CLASS A COMMON STOCK
OUTSTANDING AS OF MARCH 31, 2000*
- ---------------------------------------------------------------------
14 Type of Reporting Person (See Instructions)
CO
- ---------------------------------------------------------------------
</TABLE>
* See Note on following page.
<PAGE>
SCHEDULE TO
CUSIP NOS. 081465106 PAGE 4 OF 9 PAGES
081465205
<TABLE>
<C> <S>
- ---------------------------------------------------------------------
1 Names of Reporting Persons
Identification No. of above Persons (entities
only) UNILEVER N.V.
- ---------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group (See
Instructions) (a) / /
(b) / /
- ---------------------------------------------------------------------
3 SEC Use Only
- ---------------------------------------------------------------------
4 Source of Funds (See Instructions) WC, OO
- ---------------------------------------------------------------------
5 Check If Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) / /
- ---------------------------------------------------------------------
6 Citizenship or Place of Organization THE NETHERLANDS
- ---------------------------------------------------------------------
</TABLE>
<TABLE>
<C> <S>
7 Sole Voting Power
1,219,986 SHARES OF CLASS A COMMON STOCK*
------------------------------------------------------------
8 Shared Voting Power
------------------------------------------------------------
9 Sole Dispositive Power
1,219,986 SHARES OF CLASS A COMMON STOCK*
------------------------------------------------------------
10 Shared Dispositive Power
Number of Shares
Beneficially Owned
by Each Reporting
Person with
- ----------------------------------------------------------------------------------
</TABLE>
<TABLE>
<C> <S>
11 Aggregate Amount Beneficially Owned by Each Reporting Person
1,219,986 SHARES OF CLASS A COMMON STOCK*
- ---------------------------------------------------------------------
12 Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares
(See Instructions) / /
- ---------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)
APPROXIMATELY 19.9% OF THE SHARES OF CLASS A COMMON STOCK
OUTSTANDING AS OF MARCH 31, 2000*
- ---------------------------------------------------------------------
14 Type of Reporting Person (See Instructions)
CO
- ---------------------------------------------------------------------
</TABLE>
* On April 11, 2000, Conopco, Inc. ("Conopco") entered into a Stock Option
Agreement (the "Stock Option Agreement") with Ben & Jerry's Homemade, Inc.
(the "Company"), pursuant to which the Company granted Conopco an option,
subject to certain conditions, to purchase up to 1,219,986 shares (the
"Option Shares") of Class A Common Stock, par value $.033 per share, of the
Company at a purchase price of $43.60 per Option Share. Conopco's right to
purchase the Option Shares is reflected in Rows 7, 9 and 11 of each of the
tables above. A copy of the Stock Option Agreement is incorporated herein by
reference to Exhibit (2)(c) to the Statement on Schedule 13D (the "13D")
filed by Conopco on April 18, 2000; the Stock Option Agreement is described
more fully in Section 12 of the Offer to Purchase, incorporated herein by
reference to Exhibit (2)(a) to the 13D.
<PAGE>
This Tender Offer Statement on Schedule TO also constitutes Amendment No. 1
to the Statement on Schedule 13D with respect to the acquisition by Vermont All
Natural Expansion Company (the "Purchaser"), Conopco, Inc. ("Conopco") and
Unilever N.V. ("Unilever") of beneficial ownership of 1,219,986 shares of
Class A Common Stock, par value $.033 per share (the "Option Shares"), of the
Company (as defined below), subject to the Stock Option Agreement dated as of
April 11, 2000 (the "Stock Option Agreement"), by and between the Company and
Conopco, as permitted by Instruction G to Schedule TO.
ITEM 1. SUMMARY TERM SHEET.
The information set forth in the "Summary Term Sheet" contained in the Offer
to Purchase dated April 18, 2000 (the "Offer to Purchase"), is incorporated
herein by reference.
ITEM 2. SUBJECT COMPANY INFORMATION.
(a) The name of the subject company is Ben & Jerry's Homemade, Inc., a
Vermont corporation (the "Company"), with its principal executive offices at 30
Community Drive, South Burlington, Vermont 05403. The telephone number of the
Company's principal executive offices is (802) 846-1500.
(b) This Schedule TO relates to (i) shares of Class A Common Stock, par
value $.033 per share (the "Class A Shares"), of the Company, together with the
associated rights (the "Class A Rights") to purchase Class A Shares pursuant to
the Class A Rights Agreement dated as of July 30, 1998, between the Company and
American Stock Transfer Trust Company, as amended (the "Class A Rights
Agreement"), and (ii) shares of Class B Common Stock, par value $.033 per share
(the "Class B Shares" and, together with the Class A Shares, the "Shares"),
together with the associated rights (the "Class B Rights") to purchase Class B
Shares pursuant to the Class B Rights Agreement dated as of July 30, 1998,
between the Company and American Stock Transfer Trust Company (together with the
Class A Rights Agreement, the "Company Rights Agreements"). Information
concerning the number of outstanding Shares is set forth in the "Introduction"
of the Offer to Purchase and is incorporated herein by reference.
(c) Information concerning the principal market in which the Class A Shares
are traded and the high and low sales prices of the Class A Shares for each
quarterly period during the past two years and trading in the over-the-counter
market of Class B Shares is set forth in Section 6 ("Price Range of the Class A
Shares; Dividends on the Shares") of the Offer to Purchase and is incorporated
herein by reference.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSONS.
This Schedule TO is being filed by the Purchaser, a Vermont corporation, and
Conopco, a New York corporation, and Unilever, a company formed under the laws
of The Netherlands. The Purchaser is a wholly owned subsidiary of Conopco, which
is a direct subsidiary of Unilever United States, Inc., a Delaware corporation
("UNUS"). UNUS is directly owned 75% by Unilever and 25% by Unilever PLC, an
English public limited company. Information concerning the principal business,
the address and business telephone of the principal offices of each of the
Purchaser, Conopco, UNUS and Unilever is set forth in Section 9 ("Certain
Information Concerning the Purchaser, Conopco and Unilever") of the Offer to
Purchase and is incorporated herein by reference. The information set forth in
Section 9 ("Certain Information Concerning the Purchaser, Conopco and Unilever")
and Section 15 ("Certain Legal Matters") of the Offer to Purchase is
incorporated herein by reference.
Information regarding the names, business addresses, present principal
occupation or employment, and material occupations, positions, offices or
employments during the last five years as well as the other information required
by Item 3 with respect to directors and executive officers of the Purchaser,
Conopco and Unilever is set forth in Schedule I to the Offer to Purchase and is
incorporated herein by reference. During the last five years, none of the
Purchaser, Conopco or Unilever, or any of their respective executive officers or
directors or UNUS has been convicted in a criminal proceeding (excluding traffic
violations or
5
<PAGE>
similar misdemeanors), nor has any of them been a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment decree or final order enjoining
future violations of, or prohibiting activities subject to, federal or state
securities laws or finding of any violation of such laws.
ITEM 4. TERMS OF THE TRANSACTION.
(1) (i)-(ii) The information set forth in "Introduction" of the Offer to
Purchase is incorporated herein by reference.
(1)(iii)-(v) The information set forth in Section 1 ("Terms of the Offer")
of the Offer to Purchase is incorporated herein by reference.
(1)(vi) The information set forth in Section 3 ("Withdrawal Rights") of the
Offer to Purchase is incorporated herein by reference.
(1)(vii) The information set forth in Section 2 ("Procedures for Tendering
Shares") and Section 3 ("Withdrawal Rights") of the Offer to Purchase is
incorporated herein by reference.
(1)(viii) The information set forth in Section 4 ("Acceptance for Payment
and Payment") of the Offer to Purchase is incorporated herein by reference.
(1)(ix) Not applicable.
(1)(x) The information set forth in Section 7 ("Effect of the Offer on the
Market for the Class A Shares; Class A Share Quotation; Exchange Act
Registration; Margin Regulations") of the Offer to Purchase is incorporated
herein by reference.
(1)(xi) Purchases of Class A Shares and Class B Shares by the Purchaser in
the Offer will be treated as purchases of assets for accounting purposes.
(1)(xii) The information set forth in Section 5 ("Certain U.S. Federal
Income Tax Consequences") of the Offer to Purchase is incorporated herein by
reference.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(a) The information set forth in Section 11 ("Contacts and Transactions with
the Company; Background of the Offer") and Section 12 ("Purpose of the Offer;
the Merger Agreement; Other Agreements") of the Offer to Purchase is
incorporated herein by reference.
(b) The information set forth in Section 11 ("Contacts and Transactions with
the Company; Background of the Offer") and Section 12 ("Purpose of the Offer;
the Merger Agreement; Other Agreements") of the Offer to Purchase is
incorporated herein by reference.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
(a) & (c)(1)-(5) The information set forth in Section 12 ("Purpose of the
Offer; the Merger Agreement; Other Agreements") of the Offer to Purchase is
incorporated herein by reference.
(c)(6)-(7) The information set forth in Section 7 ("Effect of the Offer on
the Market for the Class A Shares; Class A Share Quotation; Exchange Act
Registration; Margin Regulations") of the Offer to Purchase is incorporated
herein by reference.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) The information set forth in Section 10 ("Source and Amount of Funds")
of the Offer to Purchase is incorporated herein by reference.
6
<PAGE>
(b) & (d) Not applicable.
ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) and (b) The information set forth in "Introduction", Section 11
("Contacts and Transactions with the Company; Background of the Offer") and
Section 12 ("Purpose of the Offer; the Merger Agreement; Other Agreements") of
the Offer to Purchase is incorporated herein by reference.
ITEM 9. PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED.
The information set forth in "Introduction" and in Section 16 ("Fees and
Expenses") of the Offer to Purchase is incorporated herein by reference.
ITEM 10. FINANCIAL STATEMENTS.
Pursuant to Instruction 2 to Item 10 the financial statements of the
Purchaser, Conopco and Unilever are not considered material because (i) the
consideration to be paid in the Offer consists solely of cash, (ii) the Offer is
not subject to any financing condition and (iii) the Offer is for all
outstanding Shares.
ITEM 11. ADDITIONAL INFORMATION.
(a)(1) The information set forth in Section 12 ("Purpose of the Offer; the
Merger Agreement; Other Agreements") of the Offer to Purchase is incorporated
herein by reference.
(a)(2)-(3) The information set forth in Section 15 ("Certain Legal Matters")
of the Offer to Purchase is incorporated herein by reference.
(a)(4) The information set forth in Section 7 ("Effect of the Offer on the
Market for the Class A Shares; Class A Share Quotation; Exchange Act
Registration; Margin Regulations") of the Offer to Purchase is incorporated
herein by reference.
(a)(5) None.
(b) The information set forth in the Offer to Purchase, the Letter of
Transmittal, the Agreement and Plan of Merger dated as of April 11, 2000, among
Conopco, the Purchaser and the Company, the Stock Option Agreement, the Mutual
Non-Disclosure Agreement dated as of September 27, 1999, by and between the
Company and Conopco, and the License Agreement dated as of April 11, 2000, by
and between Ben & Jerry's Homemade Holdings, Inc., a Vermont corporation, and
the Company, on the one hand, and Unilever and Unilever PLC, on the other hand,
copies of which are attached hereto as Exhibits (a)(1), (a)(2), (d)(1), (d)(2),
(d)(3) and (d)(4) respectively, is incorporated herein by reference.
ITEM 12. EXHIBITS.
<TABLE>
<S> <C>
(a)(1) Offer to Purchase (incorporated herein by reference to
Exhibit (2)(a) to the Statement on Schedule 13D filed by the
Purchaser, Conopco and Unilever on April 18, 2000).
(a)(2) Letter of Transmittal.
(a)(3) Notice of Guaranteed Delivery.
(a)(4) Letter to Brokers, Dealers, Banks, Trust Companies and Other
Nominees.
(a)(5) Letter to Clients for Use by Brokers, Dealers, Banks, Trust
Companies and Other Nominees.
(a)(6) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(a)(7) Summary Advertisement dated April 18, 2000.
</TABLE>
7
<PAGE>
<TABLE>
<S> <C>
(a)(8) Text of Press Release dated April 12, 2000, issued by the
Company and Unilever (incorporated herein by reference to
the Tender Offer Statement on Schedule TO filed by the
Purchaser, Conopco and Unilever on April 12, 2000).
(a)(9) Text of Press Release dated April 12, 2000, issued by
Unilever (incorporated herein by reference to the Tender
Offer Statement on Schedule TO filed by the Purchaser,
Conopco and Unilever on April 14, 2000).
(b) None.
(d)(1) Agreement and Plan of Merger dated as of April 11, 2000,
among Conopco, the Purchaser and the Company (incorporated
herein by reference to Exhibit (2)(b) to the Statement on
Schedule 13D filed by the Purchaser, Conopco and Unilever on
April 18, 2000).
(d)(2) Stock Option Agreement dated as of April 11, 2000, between
the Company and Conopco (incorporated herein by reference to
Exhibit (2)(c) to the Statement on Schedule 13D filed by the
Purchaser, Conopco and Unilever on April 18, 2000).
(d)(3) Mutual Non-Disclosure Agreement dated as of September 27,
1999, by and between the Company and Conopco.
(d)(4) License Agreement dated as of April 11, 2000, by and between
Ben & Jerry's Homemade Holdings, Inc. and the Company, on
the one hand, and Unilever and Unilever PLC, on the other
hand.
(g) None.
(h) None.
(99) Power of Attorney by Unilever N.V. dated April 14, 2000
(incorporated herein by reference to the Statement on
Schedule 13D filed by the Purchaser, Conopco and Unilever on
April 18, 2000).
</TABLE>
8
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
Dated: April 18, 2000
<TABLE>
<S> <C> <C>
VERMONT ALL NATURAL EXPANSION COMPANY,
by /s/ MART LAIUS
-----------------------------------------
Name: Mart Laius
Title: Vice President
CONOPCO, INC.,
by /s/ MART LAIUS
-----------------------------------------
Name: Mart Laius
Title: Vice President
UNILEVER N.V.,
by /s/ MART LAIUS*
-----------------------------------------
Name: Mart Laius
* By power of attorney.
</TABLE>
9
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT NAME
------- ------------
<S> <C> <C>
(a)(1) Offer to Purchase (incorporated herein by reference to
Exhibit (2)(a) to the Statement on Schedule 13D filed by the
Purchaser, Conopco and Unilever on April 18, 2000)
(a)(2) Letter of Transmittal
(a)(3) Notice of Guaranteed Delivery
(a)(4) Letter to Brokers, Dealers, Banks, Trust Companies and Other
Nominees
(a)(5) Letter to Clients for Use by Brokers, Dealers, Banks, Trust
Companies and Other Nominees
(a)(6) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9
(a)(7) Summary Advertisement dated April 18, 2000
(a)(8) Text of Press Release dated April 12, 2000, issued by the
Company and Unilever (incorporated herein by reference to
the Tender Offer Statement on Schedule TO filed by the
Purchaser, Conopco and Unilever on April 12, 2000)
(a)(9) Text of Press Release dated April 12, 2000, issued by
Unilever (incorporated herein by reference to the Tender
Offer Statement on Schedule TO filed by the Purchaser,
Conopco and Unilever on April 14, 2000)
(b) None
(d)(1) Agreement and Plan of Merger dated as of April 11, 2000,
among Conopco, the Purchaser and the Company (incorporated
herein by reference to Exhibit (2)(b) to the Statement on
Schedule 13D filed by the Purchaser, Conopco and Unilever on
April 18, 2000)
(d)(2) Stock Option Agreement dated as of April 11, 2000, between
the Company and Conopco (incorporated herein by reference to
Exhibit (2)(c) to the Statement on Schedule 13D filed by the
Purchaser, Conopco and Unilever on April 18, 2000)
(d)(3) Mutual Non-Disclosure Agreement dated as of September 27,
1999, by and between the Company and Conopco
(d)(4) License Agreement dated as of April 11, 2000, by and between
Ben & Jerry's Homemade Holdings, Inc. and the Company, on
the one hand, and Unilever and Unilever PLC, on the other
hand
(g) None
(h) None
(99) Power of Attorney by Unilever N.V. dated April 14, 2000
(incorporated herein by reference to the Statement on
Schedule 13D filed by the Purchaser, Conopco and Unilever on
April 18, 2000).
</TABLE>
10
<PAGE>
LETTER OF TRANSMITTAL
TO TENDER SHARES OF CLASS A COMMON STOCK
(INCLUDING THE ASSOCIATED CLASS A COMMON STOCK PURCHASE RIGHTS)
AND
SHARES OF CLASS B COMMON STOCK
(INCLUDING THE ASSOCIATED CLASS B COMMON STOCK PURCHASE RIGHTS)
OF
BEN & JERRY'S HOMEMADE, INC.
PURSUANT TO THE OFFER TO PURCHASE DATED APRIL 18, 2000
BY
VERMONT ALL NATURAL EXPANSION COMPANY,
A WHOLLY OWNED SUBSIDIARY OF
CONOPCO, INC.,
A SUBSIDIARY OF
UNILEVER N.V.
- -----------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON MONDAY, MAY 15, 2000, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
TO: MORGAN GUARANTY TRUST COMPANY OF NEW YORK, DEPOSITARY
<TABLE>
<S> <C> <C>
BY MAIL: BY OVERNIGHT COURIER: BY HAND:
Morgan Guaranty Trust Company Morgan Guaranty Trust Company Morgan Guaranty Trust Company
of New York of New York of New York
c/o EquiServe Corporate c/o Colbent Management c/o Securities Transfer &
Reorganization Corporate Reorganization Reporting Services, Inc.
P.O. Box 842007 40 Campanelli Drive 100 William Street, Galleria
Boston, MA 02284-2007 Braintree, MA 02184 New York, NY 10038
</TABLE>
<TABLE>
<S> <C>
BY FACSIMILE TRANSMISSION: CONFIRM BY TELEPHONE:
(781) 575-4826 (781) 575-4816
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION VIA A FACSIMILE TRANSMISSION TO A NUMBER OTHER THAN AS SET
FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS SET FORTH IN THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be used either if certificates for Shares
(as defined below) are to be forwarded herewith or, unless an Agent's Message
(as defined in Section 2 of the Offer to Purchase (as defined below)) is
utilized, if delivery of Shares is to be made by book-entry transfer to an
account maintained by the Depositary at the Book-Entry Transfer Facility as
defined in and pursuant to the procedures set forth in Section 2 of the Offer to
Purchase. Shareholders who deliver Shares by book-entry transfer are referred to
herein as "Book-Entry Shareholders" and other shareholders are referred to
herein as "Certificate Shareholders". Shareholders whose certificates for Shares
are not immediately available or who cannot deliver either the certificates for,
or a Book-Entry Confirmation (as defined in Section 2 of the Offer to Purchase)
with respect to, their Shares and all other documents required hereby to the
Depositary prior to the Expiration Date (as defined in Section 1 of the Offer to
Purchase) must tender their Shares in accordance with the guaranteed delivery
procedures set forth in Section 2 of the Offer to Purchase. See Instruction 2.
DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE
DELIVERY TO THE DEPOSITARY.
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
- -------------------------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED OWNER(S) SHARES TENDERED
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) APPEAR(S) ON (ATTACH ADDITIONAL SIGNED LIST IF NECESSARY)
CERTIFICATE(S))
- -------------------------------------------------------------------------------------------------------------------------
TOTAL
NUMBER OF
SHARES NUMBER OF NUMBER OF
REPRESENTED CLASS A CLASS B
CERTIFICATE BY SHARES SHARES
NUMBER(S)(1) CERTIFICATE(S)(1) TENDERED(2) TENDERED(2)
- -------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
TOTAL
SHARES
- -------------------------------------------------------------------------------------------------------------------------
(1) Need not be completed by Book-Entry Shareholders.
(2) Unless otherwise indicated, it will be assumed that all Shares described above are being tendered. See Instruction
4.
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
Holders of Shares will be required to tender one Right (as defined below)
for each Share tendered to effect a valid tender of such Share. Unless and until
the Distribution Date (as defined in the Offer to Purchase) occurs, the Rights
are represented by and transferred with the Shares. Accordingly, if the
Distribution Date does not occur prior to the Expiration Date, a tender of
Shares will constitute a tender of the associated Rights. If, however, pursuant
to the Rights Agreements (as defined below) or otherwise, a Distribution Date
does occur, certificates representing a number of Rights equal to the number of
Shares being tendered must be delivered to the Depositary in order for such
Shares to be validly tendered. If a Distribution Date has occurred, a tender of
Shares without Rights constitutes an agreement by the tendering shareholder to
deliver certificates representing a number of Rights equal to the number of
Shares tendered pursuant to the Offer to the Depositary within three trading
days (as defined below) after the date such certificates are distributed. The
Purchaser (as defined below) reserves the right to require that it receive such
certificates prior to accepting Shares for payment. Payment for Shares tendered
and purchased pursuant to the Offer will be made only after timely receipt by
the Depositary of, among other things, such certificates, if such certificates
have been distributed to holders of Shares. The Purchaser will not pay any
additional consideration for the Rights tendered pursuant to the Offer.
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH THE BOOK-ENTRY TRANSFER
FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY
TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution ______________________________________________
Account Number _____________________________________________________________
Transaction Code Number ____________________________________________________
2
<PAGE>
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE
FOLLOWING:
Name(s) of Registered Owner(s) _____________________________________________
Date of Execution of Notice of Guaranteed Delivery _________________________
Name of Institution that Guaranteed Delivery _______________________________
If delivered by Book-Entry Transfer check box: / /
Account Number __________________________________________________________
Transaction Code Number _________________________________________________
/ / CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING SHARES HAVE BEEN LOST OR
DESTROYED AND SEE INSTRUCTION 11.
Number of Class A Shares represented by the lost or destroyed
certificates: __________________________________________________________________
Number of Class B Shares represented by the lost or destroyed
certificates: __________________________________________________________________
3
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to Vermont All Natural Expansion Company, a
Vermont corporation (the "Purchaser") and a wholly owned subsidiary of
Conopco, Inc., a New York corporation ("Conopco"), which is indirectly owned 75%
by Unilever N.V., a company organized under the laws of The Netherlands, and 25%
by Unilever PLC, an English public limited company, (i) the above-described
shares (the "Class A Shares") of Class A Common Stock, par value $.033 per share
(the "Class A Common Stock"), of Ben & Jerry's Homemade, Inc., a Vermont
corporation (the "Company"), together with the associated rights (the "Class A
Rights") to purchase shares of Class A Common Stock issued pursuant to the
Class A Rights Agreement dated as of July 30, 1998, between the Company and
American Stock Transfer & Trust Company, as amended from time to time (the
"Class A Rights Agreement"), and (ii) the above-described shares (the "Class B
Shares" and, together with Class A Shares, the "Shares") of Class B Common
Stock, par value $.033 per share (the "Class B Common Stock"), of the Company,
together with the associated rights (together with the Class A Rights, the
"Rights") to purchase shares of Class B Common Stock issued pursuant to the
Class B Rights Agreement dated as of July 30, 1998, between the Company and
American Stock Transfer & Trust Company, as amended from time to time (together
with the Class A Rights Agreement, the "Rights Agreements"), upon the terms and
subject to the conditions set forth in the Purchaser's Offer to Purchase dated
April 18, 2000 (the "Offer to Purchase"), and this Letter of Transmittal (which,
together with any amendments or supplements thereto or hereto, collectively
constitute the "Offer"), receipt of which is hereby acknowledged. Unless the
context otherwise requires, all references herein to the Shares shall be deemed
to include the Rights, and all references to the Rights include the benefits
that may inure to holders of the Rights pursuant to the Rights Agreements.
Upon the terms of the Offer, subject to, and effective upon, acceptance for
payment of, and payment for, the Shares tendered herewith in accordance with the
terms of the Offer, the undersigned hereby sells, assigns and transfers to, or
upon the order of, the Purchaser all right, title and interest in and to all the
Shares that are being tendered hereby (and any and all other Shares or other
securities or rights issued in respect thereof on or after April 18, 2000), and
irrevocably constitutes and appoints Morgan Guaranty Trust Company of New York
(the "Depositary"), the true and lawful agent and attorney-in-fact of the
undersigned, with full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest), to the full extent
of the undersigned's rights with respect to such Shares (and any such other
Shares or securities or rights) (a) to deliver certificates for such Shares (and
any such other Shares or securities or rights) or transfer ownership of such
Shares (and any such other Shares or securities or rights) on the account books
maintained by a Book-Entry Transfer Facility together, in any such case, with
all accompanying evidences of transfer and authenticity to, or upon the order
of, the Purchaser, (b) to present such Shares (and any such other Shares or
securities or rights) for transfer on the Company's books and (c) to receive all
benefits and otherwise exercise all rights of beneficial ownership of such
Shares (and any such other Shares or securities or rights), all in accordance
with the terms of the Offer.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the tendered Shares
(and any and all other Shares or other securities or rights issued or issuable
in respect of such Shares on or after April 11, 2000), and, when the same are
accepted for payment by the Purchaser, the Purchaser will acquire good title
thereto, free and clear of all liens, restrictions, claims and encumbrances and
the same will not be subject to any adverse claim. The undersigned will, upon
request, execute any additional documents deemed by the Depositary or the
Purchaser to be necessary or desirable to complete the sale, assignment and
transfer of the tendered Shares (and any such other Shares or other securities
or rights).
All authority conferred or agreed to be conferred pursuant to this Letter of
Transmittal shall be binding upon the successors, assigns, heirs, executors,
administrators and legal representatives of the undersigned and shall not be
affected by, and shall survive, the death or incapacity of the undersigned.
Except as stated in the Offer of Purchase, this tender is irrevocable.
4
<PAGE>
The undersigned hereby irrevocably appoints Mart Laius, Ronald M. Soiefer
and A. Peter Harwich, in their respective capacities as officers of the
Purchaser, and any other designees of the Purchaser, the attorneys-in-fact and
proxies of the undersigned, each with full power of substitution, to vote at any
annual, special or adjourned meeting of the Company's shareholders or otherwise
in such manner as each such attorney-in-fact and proxy or his substitute shall
in his sole discretion deem proper with respect to, to execute any written
consent concerning any matter as each such attorney-in-fact and proxy or his
substitute shall in his sole discretion deem proper with respect to, and to
otherwise act as each such attorney-in-fact and proxy or his substitute shall in
his sole discretion deem proper with respect to, the Shares tendered hereby that
have been accepted for payment by the Purchaser prior to the time any such
action is taken and with respect to which the undersigned is entitled to vote
(and any and all other Shares or other securities or rights issued in respect
thereof on or after April 11, 2000). This appointment is effective when, and
only to the extent that, the Purchaser accepts for payment such Shares as
provided in the Offer to Purchase. This power of attorney and proxy are
irrevocable and are granted in consideration of the acceptance for payment of
such Shares in accordance with the terms of the Offer. Upon such acceptance for
payment, all prior powers of attorney, proxies and consents given by the
undersigned at any time with respect to such Shares (and any such other Shares
or securities or rights) will, without further action, be revoked and no
subsequent powers of attorney, proxies, consents or revocations may be given
(and, if given, will not be deemed effective) by the undersigned.
The undersigned understands that the valid tender of Shares pursuant to any
of the procedures described in Section 2 of the Offer to Purchase and in the
Instructions hereto will constitute a binding agreement between the undersigned
and the Purchaser upon the terms and subject to the conditions of the Offer.
Unless otherwise indicated herein under "Special Payment Instructions",
please issue the check for the purchase price and/or return any certificates for
Shares not tendered or accepted for payment in the name(s) of the registered
holder(s) appearing under "Description of Shares Tendered". Similarly, unless
otherwise indicated under "Special Delivery Instructions", please mail the check
for the purchase price and/or return any certificates for Shares not tendered or
accepted for payment (and accompanying documents, as appropriate) to the
address(es) of the registered holder(s) appearing under "Description of Shares
Tendered". In the event that both the Special Delivery Instructions and the
Special Payment Instructions are completed, please issue the check for the
purchase price and/or return any certificates for Shares not accepted for
payment (and any accompanying documents, as appropriate) to, the person or
persons so indicated. Please credit any Shares tendered herewith by book-entry
transfer that are not accepted for payment by crediting the account at the
Book-Entry Transfer Facility. The undersigned recognizes that the Purchaser has
no obligation pursuant to the "Special Payment Instructions" to transfer any
Shares from the name of the registered holder thereof if the Purchaser does not
accept for payment any of the Shares so tendered.
5
<PAGE>
- ------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificates for Shares are not tendered or not
accepted for payment and/or the check for the purchase price of Shares
accepted for payment is to be issued in the name of someone other than the
undersigned.
Issue: / / Check
/ / Certificate(s) to:
Name________________________________________________________________________
(Please Print)
Address_____________________________________________________________________
____________________________________________________________________________
(Include Zip Code)
__________________________________________________________________________
(Employer Identification or Social Security Number)
- ------------------------------------------------------------
- ------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificates for Shares are not tendered or not
accepted for payment and/or the check for the purchase price of Shares
accepted for payment is to be sent to someone other than the undersigned or
to the undersigned at an address other than that above.
Mail: / / Check
/ / Certificate(s) to:
Name________________________________________________________________________
(Please Print)
Address_____________________________________________________________________
____________________________________________________________________________
(Include Zip Code)
__________________________________________________________________________
(Employer Identification or Social Security Number)
- -----------------------------------------------------
6
<PAGE>
SIGN HERE
(ALSO COMPLETE SUBSTITUTE FORM W-9 BELOW)
_________________________________________________________________________
- --)
_________________________________________________________________________
(--
(Signature(s) of Shareholder(s))
- --)
Dated:
--------------------------------------
(--
(Must be signed by registered holder(s) as name(s) appear(s)
on the certificate(s) for the Shares or on a security position
listing or by person(s) authorized to become registered holder(s)
by certificates and documents transmitted herewith. If signature
is by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a
fiduciary or representative capacity, please provide the following
information and see Instruction 5.)
Name(s): _________________________________________________________
(Please Print)
________________________________________________________________
Capacity (full title): ___________________________________________
Address: _________________________________________________________
__________________________________________________________________
(Include Zip Code)
Daytime Area Code and Telephone No.: _____________________________
Employer Identification or
Social Security No.: _____________________________________________
(See Substitute Form W-9)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE INSTRUCTIONS 1 AND 5)
__________________________________________________________________
Authorized Signature
________________________________________________________________
Name (Please Print)
________________________________________________________________
- --)
(--
Name of Firm
________________________________________________________________
Address
________________________________________________________________
(Include Zip Code)
________________________________________________________________
7
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this
Letter of Transmittal (a) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this Instruction, includes any
participant in the Book-Entry Transfer Facility's system whose name appears on a
security position listing as the owner of Shares) of Shares tendered herewith,
unless such holder(s) has completed either the box entitled "Special Delivery
Instructions" or the box entitled "Special Payment Instructions" on the reverse
hereof or (b) if such Shares are tendered for the account of a financial
institution (including most commercial banks, savings and loan associations and
brokerage houses) that is a participant in the Security Transfer Agents
Medallion Program, the New York Stock Exchange Medallion Signature Guarantee
Program or the Stock Exchange Medallion Program (an "Eligible Institution"). In
all other cases, all signatures on this Letter of Transmittal must be guaranteed
by an Eligible Institution. See Instruction 5.
2. REQUIREMENTS OF TENDER. This Letter of Transmittal is to be completed by
shareholders either if certificates are to be forwarded herewith or, unless an
Agent's Message (as defined below) is utilized, if delivery of Shares is to be
made pursuant to the procedures for book-entry transfer set forth in Section 2
of the Offer to Purchase. For a shareholder validly to tender Shares pursuant to
the Offer, either (a) a Letter of Transmittal (or a facsimile thereof), properly
completed and duly executed, together with any required signature guarantees or,
in the case of a book-entry transfer, an Agent's Message and any other required
documents, must be received by the Depositary at one of its addresses set forth
herein prior to the Expiration Date and either certificates for tendered Shares
must be received by the Depositary at one of such addresses prior to the
Expiration Date or Shares must be delivered pursuant to the procedures for
book-entry transfer set forth herein (and a Book-Entry Confirmation must be
received by the Depositary), in each case, prior to the Expiration Date, or
(b) the tendering shareholder must comply with the guaranteed delivery
procedures set forth below and in Section 2 of the Offer to Purchase.
Shareholders whose certificates for Shares are not immediately available or
who cannot deliver their certificates and all other required documents to the
Depositary or complete the procedures for book-entry transfer prior to the
Expiration Date may tender their Shares by properly completing and duly
executing the Notice of Guaranteed Delivery pursuant to the guaranteed delivery
procedures set forth in Section 2 of the Offer to Purchase. Pursuant to such
procedures, (a) such tender must be made by or through an Eligible Institution,
(b) a properly completed and duly executed Notice of Guaranteed Delivery
substantially in the form provided by the Purchaser must be received by the
Depositary prior to the Expiration Date and (c) the certificates for all
tendered Shares in proper form for transfer (or a Book-Entry Confirmation with
respect to all such Shares), together with a Letter of Transmittal (or a
facsimile thereof), properly completed and duly executed, with any required
signature guarantees, or, in the case of a book-entry transfer, an Agent's
Message, and any other required documents, must be received by the Depositary
within three trading days after the date of execution of such Notice of
Guaranteed Delivery as provided in Section 2 of the Offer to Purchase. A
"trading day" is any day on which the Nasdaq National Market is open for
business.
The term "Agent's Message" means a message, transmitted through electronic
or other means by the Book-Entry Transfer Facility to, and received by, the
Depositary and forming a part of a Book-Entry Confirmation, that states that
such Book-Entry Transfer Facility has received an express acknowledgment from
the participant in the Book-Entry Transfer Facility tendering the Shares that
such participant has received and agrees to be bound by the terms of the Letter
of Transmittal and that the Purchaser may enforce such agreement against the
participant. "Agent's Message" shall also include any hard copy print-out
evidencing such message generated by a computer terminal maintained by the
Depositary.
THE METHOD OF DELIVERY OF SHARES, THIS LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY,
IS AT THE ELECTION AND RISK OF THE TENDERING SHAREHOLDER. SHARES WILL BE DEEMED
DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE
OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY MAIL,
REGISTERED MAIL, WITH RETURN RECEIPT REQUESTED AND PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering shareholders, by execution of
this Letter of Transmittal (or facsimile thereof), waive any right to receive
any notice of the acceptance of their Shares for payment.
8
<PAGE>
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares should be listed on a separate
schedule attached hereto.
4. PARTIAL TENDERS (APPLICABLE TO CERTIFICATE SHAREHOLDERS ONLY). If fewer
than all the Shares evidenced by any certificate submitted are to be tendered,
fill in the number of Shares that are to be tendered in the box entitled "Number
of Shares Tendered". In any such case, new certificate(s) for the remainder of
the Shares that were evidenced by the old certificate(s) will be sent to the
registered holder, unless otherwise provided in the appropriate box on this
Letter of Transmittal, as soon as practicable after the acceptance for payment
of, and payment for, the Shares tendered herewith. All Shares represented by
certificates delivered to the Depositary will be deemed to have been tendered
unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder of the Shares
tendered hereby, the signature must correspond with the name as written on the
face of the certificate(s) without any change whatsoever.
If any of the Shares tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal or any certificates or stock powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and proper evidence satisfactory to the
Purchaser of their authority so to act must be submitted.
When this Letter of Transmittal is signed by the registered owner(s) of the
Shares listed and transmitted hereby, no endorsements of certificates or
separate stock powers are required unless payment is to be made to or
certificates for Shares not tendered or accepted for payment are to be issued to
a person other than the registered owner(s). Signatures on such certificates or
stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of certificates listed, the certificates must be endorsed or
accompanied by appropriate stock powers, in either case signed exactly as the
name or names of the registered owner or owners appear on the certificates.
Signatures on such certificates or stock powers must be guaranteed by an
Eligible Institution.
6. STOCK TRANSFER TAXES. The Purchaser will pay any stock transfer taxes
with respect to the transfer and sale of Shares to it or its order pursuant to
the Offer. If, however, payment of the purchase price is to be made to, or if
certificates for Shares not tendered or accepted for payment are to be
registered in the name of, any person(s) other than the registered owner(s), or
if tendered certificates are registered in the name of any person(s) other than
the person(s) signing this Letter of Transmittal, the amount of any stock
transfer taxes (whether imposed on the registered owner(s) or such person(s))
payable on account of the transfer to such person(s) will be deducted from the
purchase price unless satisfactory evidence of the payment of such taxes or
exemption therefrom is submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATES LISTED IN THIS LETTER OF
TRANSMITTAL.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check is to be issued in
the name of, and/or certificates for Shares not accepted for payment are to be
returned to, a person other than the signer of this Letter of Transmittal or if
a check is to be sent and/or such certificates are to be returned to a person
other than the signer of this Letter of Transmittal or to an address other than
that shown above, the appropriate boxes on this Letter of Transmittal should be
completed.
8. WAIVER OF CONDITIONS. The Purchaser reserves the absolute right in its
sole discretion to waive any of the specified conditions of the Offer, in whole
or in part, in the case of any Shares tendered.
9. 31% BACKUP WITHHOLDING. In order to avoid backup withholding of Federal
income tax on payments of cash pursuant to the Offer, a shareholder surrendering
Shares in the Offer must, unless an exemption applies, provide the Depositary
with such shareholder's correct taxpayer identification number ("TIN") on
Substitute Form W-9 below in this Letter of Transmittal and certify under
penalties of perjury that such TIN is correct and that such shareholder is not
subject to backup withholding. If a shareholder does not provide such
shareholder's correct TIN or fails to provide the certifications described
above, the Internal Revenue Service (the "IRS") may impose a $50 penalty on such
9
<PAGE>
shareholder and payment of cash to such shareholder pursuant to the Offer may be
subject to backup withholding of 31%.
Backup withholding is not an additional income tax. Rather, the amount of
the backup withholding can be credited against the Federal income tax liability
of the person subject to the backup withholding, provided that the required
information is given to the IRS. If backup withholding results in an overpayment
of tax, a refund can be obtained by the shareholder upon filing an income tax
return.
The shareholder is required to give the Depositary the TIN (i.e., social
security number or employer identification number) of the record owner of the
Shares. If the Shares are held in more than one name or are not in the name of
the actual owner, consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
number to report.
The box in Part 3 of the Substitute Form W-9 may be checked if the tendering
shareholder has not been issued a TIN and has applied for a TIN or intends to
apply for a TIN in the near future. If the box in Part 3 is checked, the
shareholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Depositary will
withhold 31% on all payments made prior to the time a properly certified TIN is
provided to the Depositary. However, such amounts will be refunded to such
shareholder if a TIN is provided to the Depositary within 60 days.
Certain shareholders (including, among others, all corporations and certain
foreign individuals and entities) are not subject to backup withholding.
Noncorporate foreign shareholders should complete and sign the main signature
form and a Form W-8, Certificate of Foreign Status, a copy of which may be
obtained from the Depositary, in order to avoid backup withholding. See the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for more instructions.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance or additional copies of the Offer to Purchase, this Letter of
Transmittal, the Notice of Guaranteed Delivery and the Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 may be
directed to the Information Agent or the Dealer Manager at their respective
addresses set forth below.
11. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate representing
Shares has been lost, destroyed or stolen, the shareholder should promptly
contact Shareholder Services at the Company's transfer agent, American Stock
Transfer & Trust Company ("American"), and indicate the number of Shares lost.
The shareholder will be provided with information as to the steps that must be
taken in order to replace the certificate. The telephone number of Shareholder
Services at American is (800) 937-5449. This Letter of Transmittal and related
documents cannot be processed until the procedures for replacing lost or
destroyed certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE HEREOF), TOGETHER WITH
ANY REQUIRED SIGNATURE GUARANTEES, OR, IN THE CASE OF A BOOK-ENTRY TRANSFER, AN
AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE
DEPOSITARY PRIOR TO THE EXPIRATION DATE AND EITHER CERTIFICATES FOR TENDERED
SHARES MUST BE RECEIVED BY THE DEPOSITARY OR SHARES MUST BE DELIVERED PURSUANT
TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER, IN EACH CASE PRIOR TO THE EXPIRATION
DATE, OR THE TENDERING SHAREHOLDER MUST COMPLY WITH THE PROCEDURES FOR
GUARANTEED DELIVERY.
10
<PAGE>
<TABLE>
<C> <S> <C>
- ----------------------------------------------------------------------------------------------------------------------
PAYER'S NAME: MORGAN GUARANTY TRUST COMPANY OF NEW YORK
- ----------------------------------------------------------------------------------------------------------------------
------------------------
SUBSTITUTE PART 1--PLEASE PROVIDE YOUR TIN IN THE Social Security Number(s)
FORM W-9 BOX AT RIGHT AND CERTIFY BY SIGNING OR
AND DATING BELOW. ------------------------
Employer Identification Number
- ----------------------------------------------------------------------------------------------------------------------
PART 2--CERTIFICATES--Under penalties
of perjury, I certify that:
(1) the number shown on this form is
my correct Taxpayer Identification
Number (or I am waiting for a
number to be issued for me) and PART 3--
Awaiting TIN
/ /
---------------------------------
(2) I am not subject to backup
withholding because: (a) I am
exempt from backup withholding or
(b) I have not been notified by the
Internal Revenue Service (the
"IRS") that I am subject to backup
withholding as a result of a
failure to report all interest or
dividends, or (c) the IRS has
notified me that I am no longer
subject to backup withholding. PART 4--
Exempt
/ /
------------------------------------------------------------------------------
Department of the Treasury CERTIFICATION INSTRUCTIONS--You must cross out item (2) in Part 2 above if you
Internal Revenue Service have been notified by the IRS that you are subject to backup withholding
Payer's Request For Taxpayer because of under reporting interest or dividends on your tax returns. However,
Identification Number (TIN) if after being notified by the IRS that you are subject to backup withholding,
you received another notification from the IRS stating that you are no longer
subject to backup withholding, do not cross out such item (2). If you are
exempt from backup withholding, check the box in Part 4 above.
- ----------------------------------------------------------------------------------------------------------------------
SIGN
HERE
-->
SIGNATURE -------------------------------------------------------------------- DATE -----------------------------
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF
SUBSTITUTE FORM W-9.
- --------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a Taxpayer Identification Number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or
(b) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a Taxpayer Identification Number to the
Depositary by the time of payment, 31% percent of all reportable payments made
to me will be withheld, but will be refunded to me if I provide a certified
taxpayer identification number within 60 days.
<TABLE>
<C> <S> <C>
Signature -------------------------------------------------------------------- Date -----------------------------
</TABLE>
- --------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM W-9 MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER.
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL INFORMATION.
11
<PAGE>
Questions and requests for assistance or additional copies of the Offer to
Purchase, this Letter of Transmittal and all other tender offer materials may be
directed to the Information Agent or the Dealer Manager, as set forth below, and
copies will be furnished promptly at the Purchaser's expense.
THE INFORMATION AGENT FOR THE OFFER IS:
MORROW & CO., INC.
445 Park Avenue
5th Floor
New York, NY 10022
Call Collect (212) 754-8000
Banks and Brokerage Firms, Please Call: (800) 662-5200
SHAREHOLDERS, PLEASE CALL (800) 566-9061
THE DEALER MANAGER FOR THE OFFER IS:
MORGAN STANLEY DEAN WITTER
MORGAN STANLEY & CO. INCORPORATED
1585 BROADWAY
NEW YORK, NEW YORK 10036
(212) 761-4750
12
<PAGE>
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF CLASS A COMMON STOCK
(INCLUDING THE ASSOCIATED CLASS A COMMON STOCK PURCHASE RIGHTS)
AND
SHARES OF CLASS B COMMON STOCK
(INCLUDING THE ASSOCIATED CLASS B COMMON STOCK PURCHASE RIGHTS)
OF
BEN & JERRY'S HOMEMADE, INC.
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
As set forth in Section 2 of the Offer to Purchase (as defined below), this
form or one substantially equivalent hereto must be used to accept the Offer (as
defined below) if certificates representing (i) shares (the "Class A Shares") of
Class A Common Stock, par value $.033 per share ("Class A Common Stock"), of
Ben & Jerry's Homemade, Inc., a Vermont corporation (the "Company"), together
with the associated rights (the "Class A Rights") to purchase shares of Class A
Common Stock issued pursuant to the Class A Rights Agreement dated as of
July 30, 1998, between the Company and American Stock Transfer Trust Company, as
amended from time to time (the "Class A Rights Agreement"), or (ii) shares (the
"Class B Shares" and, together with the Class A Shares, the "Shares") of
Class B Common Stock, par value $.033 per share (the "Class B Common Stock"),
together with the associated rights (together with the Class A Rights, the
"Rights") to purchase shares of Class B Common Stock issued pursuant to the
Class B Rights Agreement dated as of July 30, 1998, between the Company and
American Stock Transfer Trust Company, as amended from time to time (together
with the Class A Rights Agreement, the "Rights Agreements"), are not immediately
available or if the procedures for book-entry transfer cannot be completed on a
timely basis or time will not permit all required documents to reach the
Depositary prior to the Expiration Date (as defined in the Offer to Purchase).
Unless the context otherwise requires all references herein to the Shares shall
be deemed to include the Rights, and all references to the Rights include the
benefits that may inure to holders of Rights pursuant to the Rights Agreements.
This form may be delivered by hand to the Depositary or transmitted by telegram,
facsimile transmission or mail to the Depositary and must include a guarantee by
an Eligible Institution (as defined in the Offer to Purchase). See Section 2 of
the Offer to Purchase.
THE DEPOSITARY:
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
<TABLE>
<S> <C> <C>
BY MAIL: BY OVERNIGHT COURIER: BY HAND:
Morgan Guaranty Trust Company Morgan Guaranty Trust Company Morgan Guaranty Trust Company
of New York of New York of New York
EquiServe Corporate Reorganization c/o Colbent Management c/o Securities Transfer &
P.O. Box 842007 Corporate Reorganization Reporting Services, Inc.
Boston, MA 02284-2007 40 Campanelli Drive 100 William Street, Galleria
Braintree, MA 02184 New York, NY 10038
BY FACSIMILE TRANSMISSION:
(781) 575-4826
CONFIRM BY TELEPHONE:
(781) 575-4816
</TABLE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS
VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE, DOES NOT CONSTITUTE A
VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on a
Letter of Transmittal is required to be guaranteed by an Eligible Institution
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Vermont All Natural Expansion Company, a
Vermont corporation (the "Purchaser") and a wholly owned subsidiary of
Conopco, Inc. ("Conopco"), a New York corporation indirectly owned 75% by
Unilever N.V., a company organized under the laws of The Netherlands, and 25% by
Unilever PLC, an English public limited company, upon the terms and subject to
the conditions set forth in the Purchaser's Offer to Purchase dated April 18,
2000 (the "Offer to Purchase"), and in the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer"), receipt of which is hereby acknowledged, the number of Shares set
forth below, all pursuant to the guaranteed delivery procedures set forth in
Section 2 of the Offer to Purchase.
- ------------------------------------------------
Number of Class A Shares ___________________________________________________
Number of Class B Shares ___________________________________________________
Class A Share Certificate Nos. (if available) _
____________________________________________________________________________
Class B Share Certificate Nos. (if available) _
____________________________________________________________________________
(Check box if Shares will be tendered by book-entry transfer)
/ / The Depository Trust Company
Account
Number __________________________________________________________________
Transaction Code No. _______________________________________________________
Dated ______________________________________________________________________
- ------------------------------------------------
- ------------------------------------------------
Name(s) of
Record Holder(s) ___________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Please Print
Address(es) ________________________________________________________________
____________________________________________________________________________
(Zip Code)
Daytime Area Code &
Tel. No.
------------------------------
Signature(s) _______________________________________________________________
____________________________________________________________________________
- --------------------------------------------------------------------------------
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm that is a participant in the Security Transfer
Agents Medallion Program, the New York Stock Exchange Guarantee Program or the
Stock Exchange Medallion Program hereby guarantees to deliver to the Depositary
either the certificates representing the Shares tendered hereby, in proper form
for transfer, or a Book-Entry Confirmation (as defined in the Offer to Purchase)
with respect to such Shares, in any such case together with a properly completed
and duly executed Letter of Transmittal (or a facsimile thereof), with any
required signature guarantees, or an Agent's Message (as defined in the Offer to
Purchase), and any other required documents, within three trading days (as
defined in the Letter of Transmittal) after the date hereof.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal and
certificates for Shares to the Depositary within the time period shown herein.
Failure to do so could result in a financial loss to such Eligible Institution.
- ------------------------------------------------
Name of Firm _______________________________________________________________
Address ____________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Zip Code
Area Code and
Tel. No.
------------------------------
- ------------------------------------------------
- ------------------------------------------------
____________________________________________________________________________
Authorized Signature
Name _______________________________________________________________________
Please Type or Print
__________________________________________________________________________
Please Print
Title ______________________________________________________________________
Dated ______________________________________________________________________
<PAGE>
- --------------------------------------------------------------------------------
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE. CERTIFICATES FOR
SHARES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
2
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF CLASS A COMMON STOCK
(INCLUDING THE ASSOCIATED CLASS A COMMON STOCK PURCHASE RIGHTS)
AND
ALL OUTSTANDING SHARES OF CLASS B COMMON STOCK
(INCLUDING THE ASSOCIATED CLASS B COMMON STOCK PURCHASE RIGHTS)
OF
BEN & JERRY'S HOMEMADE, INC.
AT
$43.60 NET PER SHARE
BY
VERMONT ALL NATURAL EXPANSION COMPANY,
A WHOLLY OWNED SUBSIDIARY OF
CONOPCO, INC.,
A SUBSIDIARY OF
UNILEVER N.V.
- ---------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON MONDAY, MAY 15, 2000, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
April 18, 2000
To Brokers, Dealers, Banks,
Trust Companies and Other Nominees:
We have been engaged by Vermont All Natural Expansion Company, a Vermont
corporation (the "Purchaser") and a wholly owned subsidiary of Conopco, Inc., a
New York corporation ("Conopco"), which is indirectly owned 75% by Unilever
N.V., a company organized under the laws of The Netherlands, and 25% by Unilever
PLC, an English public limited company, to act as Dealer Manager in connection
with the Purchaser's offer to purchase all the outstanding (i) shares of
Class A Common Stock (the "Class A Shares"), par value $.033 per share (the
"Class A Common Stock"), of Ben & Jerry's Homemade, Inc., a Vermont corporation
(the "Company"), together with the associated rights (the "Class A Rights") to
purchase shares of Class A Common Stock issued pursuant to the Class A Rights
Agreement dated as of July 30, 1998, between the Company and American Stock
Transfer & Trust Company, as amended from time to time (the "Class A Rights
Agreement"), and (ii) shares of Class B Common Stock (the "Class B Shares" and,
together with the Class A Shares, the "Shares"), par value $.033 per share (the
"Class B Common Stock" and, together with the Class A Common Stock, the "Company
Common Stock"), of the Company, together with the associated rights (together
with the Class A Rights, the "Rights") to purchase shares of Class B Common
Stock issued pursuant to the Class B Rights Agreement dated as of July 30, 1998,
between the Company and American Stock Transfer & Trust Company, as amended from
time to time (together with the Class A Rights Agreement, the "Rights
Agreements"), at a price of $43.60 per Share, net to the seller in cash, without
interest thereon (the "Offer Price"), upon the terms and subject to the
conditions set forth in the Offer to Purchase and in the related Letter of
Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer"). Unless the context otherwise requires, all
references to Shares shall be deemed to include the associated Rights, and all
references to the Rights include the benefits that may inure to holders of the
Rights pursuant to the Rights Agreements.
Please furnish copies of the enclosed materials to those of your clients for
whom you hold Shares registered in your name or in the name of your nominee.
<PAGE>
Enclosed herewith are copies of the following documents:
1. Offer to Purchase dated April 18, 2000;
2. Letter of Transmittal to be used by shareholders of the Company
accepting the Offer;
3. Letter to Shareholders of the Company from the President and Chief
Executive Officer of the Company accompanied by the Company's
Solicitation/Recommendation Statement on Schedule 14D-9 (the
"Schedule 14D-9");
4. A printed form of letter that may be sent to your clients for whose
account you hold Shares in your name or in the name of a nominee, with space
provided for obtaining such client's instructions with regard to the Offer;
5. Notice of Guaranteed Delivery;
6. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9; and
7. Return envelope addressed to Morgan Guaranty Trust Company of New
York, the Depositary.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (A) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER SUCH NUMBER OF
SHARES THAT, TAKING INTO ACCOUNT THE CONVERSION OF THE CLASS B SHARES INTO CLASS
A SHARES, WOULD CONSTITUTE AT LEAST A MAJORITY OF THE VOTING POWER OF THE
COMPANY COMMON STOCK (DETERMINED ON A FULLY DILUTED BASIS, AFTER GIVING EFFECT
TO THE EXERCISE OR CONVERSION OF ALL OPTIONS, RIGHTS AND SECURITIES EXERCISABLE
OR CONVERTIBLE INTO VOTING SECURITIES) AND (B) THE WAITING PERIOD (AND ANY
EXTENSION THEREOF) UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF
1976, AS AMENDED, APPLICABLE TO THE PURCHASE OF SHARES PURSUANT TO THE OFFER
HAVING EXPIRED OR BEEN TERMINATED.
WE URGE YOU TO CONTACT YOUR CLIENTS PROMPTLY. PLEASE NOTE THAT THE OFFER AND
WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY,
MAY 15, 2000, UNLESS THE OFFER IS EXTENDED.
The Offer is being made pursuant to the Agreement and Plan of Merger dated
as of April 11, 2000 (the "Merger Agreement"), among Conopco, the Purchaser and
the Company pursuant to which, following the consummation of the Offer and the
satisfaction or waiver of certain conditions, the Purchaser will be merged with
and into the Company, with the Company surviving the merger as a wholly owned
subsidiary of Conopco (the "Merger"). In the Merger, each outstanding Share
(other than Shares owned by the Company or any subsidiary of the Company or by
Conopco, the Purchaser or by shareholders, if any, who are entitled to and who
properly exercise dissenters' rights under Vermont law) will be converted into
the right to receive $43.60 per Share in cash, without interest, as set forth in
the Merger Agreement and described in the Offer to Purchase.
The Board of Directors of the Company has adopted the Merger Agreement, the
Offer, the Merger and the other transactions contemplated by the Merger
Agreement, has determined that the terms of the Offer, the Merger and the other
transactions contemplated by the Merger Agreement are fair to, and in the best
interests of, the Company and its shareholders and unanimously recommends that
shareholders of the Company accept the Offer and tender their Shares pursuant to
the Offer. The factors considered by the Board of Directors of the Company in
arriving at its decision to approve the Merger Agreement, the Offer, the Merger
and the other transactions contemplated by the Merger Agreement and to
unanimously recommend that shareholders of the Company accept the offer and
tender their Shares pursuant to the Offer are described in the Schedule 14D-9.
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of (a) the certificates
for such Shares, together with a Letter of
2
<PAGE>
Transmittal (or facsimile thereof), properly completed and duly executed, and
any required signature guarantees or (b) in the case of a transfer effected
pursuant to the book-entry transfer procedures described in Section 2 of the
Offer to Purchase, a Book-Entry Confirmation, as defined therein, and either a
Letter of Transmittal (or a facsimile thereof), properly completed and duly
executed, and any required signature guarantees, or an Agent's Message, and any
other required documents. The per Share consideration paid to any shareholder
pursuant to the Offer will be the highest per Share consideration paid to any
other shareholder pursuant to the Offer. Accordingly, tendering shareholders may
be paid at different times depending upon when certificates for Shares or
Book-Entry Confirmations with respect to Shares are actually received by the
Depositary. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE
OF THE SHARES TO BE PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF THE
OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
Neither the Purchaser nor Conopco will pay any fees or commissions to any
broker or dealer or other person (other than the Dealer Manager and the
Information Agent as described in the Offer to Purchase) in connection with the
solicitation of tenders of Shares pursuant to the Offer. You will be reimbursed
upon request for customary mailing and handling expenses incurred by you in
forwarding the enclosed offering materials to your customers.
Questions and requests for additional copies of the enclosed material may be
directed to the Information Agent or to the Dealer Manager at the respective
addresses and telephone numbers set forth on the back cover of the enclosed
Offer to Purchase.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL RENDER YOU OR
ANY OTHER PERSON THE AGENT OF THE PURCHASER, CONOPCO, THE DEPOSITARY, THE
INFORMATION AGENT OR THE DEALER MANAGER OR AUTHORIZE YOU OR ANY OTHER PERSON TO
GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION ON BEHALF OF ANY OF THEM WITH
RESPECT TO THE OFFER NOT CONTAINED IN THE OFFER TO PURCHASE OR LETTER OF
TRANSMITTAL.
3
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF CLASS A COMMON STOCK
(INCLUDING THE ASSOCIATED CLASS A COMMON STOCK PURCHASE RIGHTS)
AND
ALL OUTSTANDING SHARES OF CLASS B COMMON STOCK
(INCLUDING THE ASSOCIATED CLASS B COMMON STOCK PURCHASE RIGHTS)
OF
BEN & JERRY'S HOMEMADE, INC.
AT
$43.60 NET PER SHARE
BY
VERMONT ALL NATURAL EXPANSION COMPANY,
A WHOLLY OWNED SUBSIDIARY OF
CONOPCO, INC.,
A SUBSIDIARY OF
UNILEVER N.V.
- ---------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON MONDAY, MAY 15, 2000, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
April 18, 2000
To Our Clients:
Enclosed for your consideration is an Offer to Purchase dated April 18, 2000
(the "Offer to Purchase"), and the related Letter of Transmittal (which,
together with amendments or supplements thereto, collectively constitute the
"Offer") relating to the offer by Vermont All Natural Expansion Company, a
Vermont corporation (the "Purchaser") and a wholly owned subsidiary of
Conopco, Inc., a New York corporation ("Conopco"), which is indirectly owned 75%
by Unilever N.V., a company organized under the laws of The Netherlands, and 25%
by Unilever PLC, an English public limited company, to purchase all outstanding
(i) shares (the "Class A Shares") of Class A Common Stock, par value $.033 per
share ("Class A Common Stock"), of Ben & Jerry's Homemade, Inc., a Vermont
corporation (the "Company"), together with the associated rights (the "Class A
Rights") to purchase shares of Class A Common Stock issued pursuant to the
Class A Rights Agreement dated as of July 30, 1998, between the Company and
American Stock Transfer & Trust Company, as amended from time to time (the
"Class A Rights Agreement") or (ii) shares (the "Class B Shares" and, together
with the Class A Shares, the "Shares") of Class B Common Stock, par value $.033
per share (the "Class B Common Stock"), together with the associated rights
(together with the Class A Rights, the "Rights") to purchase shares of Class B
Common Stock issued pursuant to the Class B Rights Agreement dated as of
July 30, 1998, between the Company and American Stock Transfer & Trust Company,
as amended from time to time (together with the Class A Rights Agreement, the
"Rights Agreements"), at a price of $43.60 per Share, net to the seller in cash,
without interest thereon (the "Offer Price"), upon the terms and subject to the
conditions set forth in the Offer to Purchase and in the related Letter of
Transmittal. Also enclosed is the Letter to Shareholders of the Company from the
President and Chief Executive Officer of the Company accompanied by the
Company's Solicitation/Recommendation Statement on Schedule 14D-9. Unless the
context otherwise requires all references herein to the Shares shall include the
Rights, and all references to the Rights include the benefits that may inure to
holders of the Rights pursuant to the Rights Agreements.
We (or our nominees) are the holder of record of shares held by us for your
account. A tender of such shares can be made only by us as the holder of record
and pursuant to your instructions. The Letter of
<PAGE>
Transmittal is furnished to you for your information only and cannot be used to
tender shares held by us for your account.
We request instructions as to whether you wish to tender any of or all the
Shares held by us for your account pursuant to the terms and conditions set
forth in the Offer.
Your attention is directed to the following:
1. The Offer Price is $43.60 per Share, net to the seller in cash,
without interest thereon, upon the terms and subject to the conditions of
the Offer.
2. The Offer is being made for all outstanding Shares.
3. The Offer is being made pursuant to the Agreement and Plan of Merger
dated as of April 11, 2000 (the "Merger Agreement"), among Conopco, the
Purchaser and the Company pursuant to which, as soon as practicable
following the consummation of the Offer and the satisfaction or waiver of
certain conditions, the Purchaser will be merged with and into the Company
(the "Merger"), with the Company surviving the Merger as a wholly owned
subsidiary of Conopco. At the effective time of the Merger, each outstanding
Share (other than Shares held by shareholders who perfect their dissenters'
rights under Vermont law, Shares owned by the Company as treasury stock, and
Shares owned by Conopco or the Purchaser) will be converted into the right
to receive $43.60 per Share in cash, or any higher price per share paid
pursuant to the Offer, without interest thereon, as set forth in the Merger
Agreement and described in the Offer to Purchase.
4. The Board of Directors of the Company has adopted the Offer and the
Merger, determined that the terms of the Offer and the Merger are fair to,
and in the best interests of, the Company's shareholders and unanimously
recommends that the holders of the Shares accept the Offer and tender their
Shares pursuant to the Offer.
5. THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON MONDAY, MAY 15, 2000 (THE "EXPIRATION DATE"), UNLESS THE OFFER
IS EXTENDED BY THE PURCHASER, IN WHICH EVENT THE TERM "EXPIRATION DATE"
SHALL MEAN THE LATEST TIME AT WHICH THE OFFER, AS SO EXTENDED BY THE
PURCHASER, WILL EXPIRE.
6. THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (A) THERE BEING
VALIDLY TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER SUCH
NUMBER OF SHARES THAT, TAKING INTO ACCOUNT THE CONVERSION OF THE CLASS B
SHARES INTO CLASS A SHARES, WOULD CONSTITUTE AT LEAST A MAJORITY OF THE
VOTING POWER OF THE COMPANY COMMON STOCK (DETERMINED ON A FULLY DILUTED
BASIS, AFTER GIVING EFFECT TO THE EXERCISE OR CONVERSION OF ALL OPTIONS,
RIGHTS AND SECURITIES EXERCISABLE OR CONVERTIBLE INTO VOTING SECURITIES) AND
(B) THE WAITING PERIOD (AND ANY EXTENSION THEREOF) UNDER THE
HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED, APPLICABLE
TO THE PURCHASE OF SHARES PURSUANT TO THE OFFER HAVING EXPIRED OR BEEN
TERMINATED.
7. Any stock transfer taxes applicable to a sale of Shares to the
Purchaser will be borne by the Purchaser, except as otherwise provided in
Instruction 6 of the Letter of Transmittal.
8. Tendering shareholders will not be obligated to pay brokerage fees or
commissions to the Dealer Manager, the Depositary or the Information Agent
or, except as set forth in Instruction 6 of the Letter of Transmittal,
transfer taxes on the purchase of Shares by Purchaser pursuant to the Offer.
However, Federal income tax backup withholding at a rate of 31% may be
required, unless an
2
<PAGE>
exemption is provided or unless the required taxpayer identification
information is provided. See Instruction 9 of the Letter of Transmittal.
If you wish to have us tender any of or all the Shares held by us for your
account, please so instruct us by completing, executing, detaching and returning
to us the instruction form on the detachable part hereof. An envelope to return
your instructions to us is enclosed. If you authorize the tender of your Shares,
all such Shares will be tendered unless otherwise specified on the detachable
part hereof. YOUR INSTRUCTIONS SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT
US TO SUBMIT A TENDER ON YOUR BEHALF PRIOR TO THE EXPIRATION DATE.
Payment for Shares accepted for payment pursuant to the Offer will in all
cases be made only after timely receipt by Morgan Guaranty Trust Company of New
York (the "Depositary") of (a) certificates for (or a timely Book-Entry
Confirmation (as defined in the Offer to Purchase) with respect to) such shares,
(b) a Letter of Transmittal (or a facsimile thereof), properly completed and
duly executed with any required signature guarantees, or, in the case of a
book-entry transfer effected pursuant to the procedure set forth in Section 2 of
the Offer to Purchase, an Agent's Message (as defined in the Offer to Purchase),
and (c) any other documents required by the Letter of Transmittal. Accordingly,
tendering shareholders may be paid at different times depending upon when
certificates for Shares or Book-Entry Confirmations with respect to Shares are
actually received by the Depositary. UNDER NO CIRCUMSTANCES WILL INTEREST BE
PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE PURCHASER, REGARDLESS
OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. To the extent the Purchaser, Conopco or Unilever N.V. becomes
aware of any state law that would limit the class of offerees in the Offer, the
Purchaser reserves the right to amend the Offer and, depending on the timing of
such amendment, if any, will extend the Offer to provide adequate dissemination
of such information to holders of Shares prior to the expiration of the Offer.
In any jurisdiction where the securities, blue sky or other laws require the
Offer to be made by a licensed broker or dealer, the Offer is being made on
behalf of the Purchaser by Morgan Stanley & Co. Incorporated, the Dealer Manager
for the Offer, or one or more registered brokers or dealers that are licensed
under the laws of such jurisdiction.
3
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE
FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK
OF BEN & JERRY'S HOMEMADE, INC.
The undersigned acknowledge(s) receipt of your letter, the Offer to Purchase
of Vermont All Natural Expansion Company dated April 18, 2000 (the "Offer to
Purchase"), and the related Letter of Transmittal relating to (i) shares of
Class A Common Stock (the "Class A Shares"), par value $.033 per share (the
"Class A Common Stock"), of Ben & Jerry's Homemade, Inc., a Vermont corporation
(the "Company"), together with the associated rights to purchase shares of
Class A Common Stock issued pursuant to the Class A Rights Agreement dated as of
July 30, 1998, as amended from time to time, and (ii) shares of Class B Common
Stock (the "Class B Shares" and, together with the Class A Shares, the
"Shares"), par value $.033 per share (the "Class B Common Stock"), of the
Company, together with the associated rights to purchase shares of Class B
Common Stock issued pursuant to the Class B Rights Agreement dated as of
July 30, 1998, as amended from time to time.
This will instruct you to tender the number of shares indicated below held
by you for the account of the undersigned, on the terms and subject to the
conditions set forth in the Offer to Purchase and related Letter of Transmittal.
Number of Class A Shares to be Tendered:*
Number of Class B Shares to be Tendered:*
SIGN HERE
______________________________________
Signature(s)
______________________________________
Please Type or Print Name(s)
______________________________________
______________________________________
Please Type or Print Address(es)
______________________________________
Area Code and Telephone Number
______________________________________
Taxpayer Identification or Social
Security Number
Dated:
------------------------------------------------------------------
- ------------------------
* Unless otherwise indicated, it will be assumed that all your Shares and
Rights are to be tendered.
4
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER.--Social Security numbers have nine digits separated by two hyphens: i.e.
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e. 00-0000000. The table below will help determine the number to
give the payer.
<TABLE>
<C> <S> <C>
- -------------------------------------------------
GIVE THE
SOCIAL SECURITY
FOR THIS TYPE OF ACCOUNT: NUMBER OF--
- -------------------------------------------------
1. An individual's The individual
account
2. Two or more The actual owner of
individuals (joint the account or, if
account) combined funds, any
one of the
individuals(1)
3. Husband and wife The actual owner of
(joint account) the account or, if
joint funds, either
person(l)
4. Custodian account of The minor(2)
a minor (Uniform Gift
to Minors Act)
5. Adult and minor The adult or, if the
(joint account) minor is the only
contributor, the
minor(l)
6. Account in the name The ward, minor, or
of guardian or incompetent person(3)
committee for a
designated ward,
minor, or incompetent
person
7. a. The usual The
revocable savings grantor-trustee(l)
trust account
(grantor is also
trustee)
b. So-called trust The actual owner
account that is
not a legal or
(1) valid trust
under State law
8. Sole proprietorship The owner(4)
account
9. A valid trust, The legal entity (Do
estate, or pension not furnish the
trust identifying number of
the personal
representative or
trustee unless the
legal entity itself
is not designated in
the account
title.)(5)
- -------------------------------------------------
GIVE THE
SOCIAL SECURITY
FOR THIS TYPE OF ACCOUNT: NUMBER OF--
- -------------------------------------------------
10. Corporate account The corporation
11. Religious, The organization
charitable, or
educational
organization account
12. Partnership account The partnership
held in the name of
the business
13. Association, club, or The organization
other tax-exempt
organization
14. A broker or The broker or nominee
registered nominee
15. Account with the The public entity
Department of
Agriculture in the
name of a public
entity (such as a
State or local
government, school
district, or prison)
that receives
agricultural program
payments
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension trust.
Note: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include
the following:
- - A corporation.
- - A financial institution.
- - An organization exempt from tax under section 501(a), or an individual
retirement plan.
- - The United States or any agency or instrumentality thereof.
- - A State, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
- - A foreign government, a political subdivision of a foreign government, or any
agency or instrumentality thereof.
- - An international organization or any agency, or instrumentality thereof.
- - A registered dealer in securities or commodities registered in the United
States or a possession of the United States.
- - A real estate investment trust.
- - A common trust fund operated by a bank under section 584(a).
- - An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1).
- - An entity registered at all times under the investment Company Act of 1940.
- - A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to
backup withholding include the following:
- - Payments to nonresident aliens subject to withholding under section 1441.
- - Payments to partnerships not engaged in a trade or business in the United
States and which have at least one nonresident partner.
- - Payments of patronage dividends where the amount received is not paid in
money.
- - Payments made by certain foreign organizations.
- - Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
- - Payments of interest on obligations issued by individuals. Note: You may be
subject to backup withholding if this interest is $600 or more and is paid in
the course of the payer's trade or business and you have not provided your
correct taxpayer identification number to the payer.
- - Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
- - Payments described in section 6049(b)(5) to nonresident aliens.
- - Payments on tax-free covenant bonds under section 1451.
- - Payments made by certain foreign organizations.
- - Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible
erroneous backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR
TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND
RETURN IT TO THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE
DIVIDENDS, ALSO SIGN AND DATE THE FORM.
Certain payments other than interest dividends, and patronage dividends,
that are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
Privacy Act Notice.--Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to IRS. IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Beginning January 1, 1984, payers must generally
withhold 31% of taxable interest, dividend, and certain other payments to a
payee who does not furnish a taxpayer identification number to a payer. Certain
penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail
to furnish your taxpayer identification number to a payer, you are subject
to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS.--If you fail to
include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income, such failure will be treated as being
due to negligence and will be subject to a penalty of 5% on any portion of
an underpayment attributable to that failure unless there is clear and
convincing evidence to the contrary.
(3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no
imposition of backup withholding, you are subject to a penalty of $500.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL
REVENUE SERVICE.
<PAGE>
Exhibit (a)(7)
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares. The Offer is made solely by the Offer to Purchase dated April
18, 2000, and the related Letter of Transmittal and is not being made to (nor
will tenders be accepted from or on behalf of) holders of Shares in any
jurisdiction in which the making of the Offer or the acceptance thereof would
not be in compliance with the laws of such jurisdiction. In any jurisdiction the
securities, blue sky or other laws of which require the Offer to be made by a
licensed broker or dealer, the Offer shall be deemed made on behalf of the
Purchaser by the Dealer Manager or one or more registered brokers or dealers
licensed under the laws of such jurisdiction.
Notice of Offer to Purchase for Cash
All Outstanding Shares of Class A Common Stock
(including the associated Class A Common Stock Purchase Rights)
and
All Outstanding Shares of Class B Common Stock
(including the associated Class B Common Stock Purchase Rights)
of
Ben & Jerry's Homemade, Inc.
at
$43.60 Net Per Share
by
Vermont All Natural Expansion Company,
a wholly owned subsidiary of
Conopco, Inc.,
a subsidiary of
Unilever N.V.
Vermont All Natural Expansion Company, a Vermont corporation (the "Purchaser")
and a wholly owned subsidiary of Conopco, Inc., a NewYork corporation
("Conopco"), which is a subsidiary of Unilever N.V., a company organized under
the laws of The Netherlands ("Unilever"), is offering to purchase all
outstanding (i) shares (the "Class A Shares") of Class A Common Stock, par value
$.033 per share ("Class A Common Stock"), of Ben& Jerry's Homemade, Inc., a
Vermont corporation (the "Company"), together with the associated rights (the
"Class A Rights") to purchase shares of Class A Common Stock issued pursuant to
the Class A Rights Agreement dated as of July 30, 1998, between the Company and
American Stock Transfer & Trust Company ("American"), as amended from time to
time (the "Class A Rights Agreement"), and (ii) shares (the "Class B Shares"
and, together with the Class A Shares, the "Shares") of Class B Common Stock,
par value $.033 per share ("Class B Common Stock" and, together with Class A
Common Stock, the "Company Common Stock"), of the Company, together with the
associated rights (the "Class B Rights" and, together with the Class A Rights,
the "Rights") to purchase shares of Class B Common Stock issued pursuant to the
Class B Rights Agreement dated as of July 30, 1998, between the Company and
American, as amended from time to time (together with the Class A Rights
Agreement, the "Rights Agreements"), of the Company, at $43.60 per Share (the
"Offer Price"), net to the seller in cash, without interest thereon, upon the
terms and subject to the conditions set forth in the Offer to Purchase dated
April 18, 2000 (the "Offer to Purchase") and in the related Letter of
Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer"). Unless the context otherwise requires, all
references to the Shares herein include the associated Rights, and all
references to the Rights include the benefits that may inure to the holders of
the Rights from time to time pursuant to the Rights Agreements.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, MAY 15, 2000, UNLESS THE OFFER IS EXTENDED.
<PAGE>
The Offer is conditioned upon, among other things, (a)there being validly
tendered and not withdrawn prior to the expiration of the Offer such number of
Shares that, taking into account the conversion of the Class B Shares into Class
A Shares, would together constitute at least a majority of the voting power of
the Company Common Stock (determined on a fully diluted basis, after giving
effect to the exercise or conversion of all options, rights and securities
exercisable or convertible into voting securities), (b)the waiting period (and
any extension thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, applicable to the purchase of Shares pursuant to the Offer
having expired or been terminated and (c)the Company having mailed, upon receipt
of a written notice that (i) is delivered by Conopco to the Company not earlier
than the business day immediately prior to the then-scheduled expiration date of
the Offer and not later than 2 p.m. Eastern Time on the then-scheduled
expiration date of the Offer and (ii)states that, as of the time of such notice,
Conopco has no reason to believe that any condition to the Offer will not be
satisfied at the then-scheduled expiration date of the Offer (assuming
compliance by the Company with this clause (c)), a notice of conversion, which
notice shall specify that all Class B Shares shall be automatically converted
into Class A Shares effective ten days from the date of such mailing.
The Offer is being made pursuant to the Agreement and Plan of Merger
dated as of April 11, 2000 (the "Merger Agreement"), among Conopco, the
Purchaser and the Company pursuant to which, as soon as practicable following
the consummation of the Offer and the satisfaction or waiver of certain
conditions, the Purchaser will be merged with and into the Company (the
"Merger"), with the Company surviving the Merger as a wholly owned subsidiary of
Conopco. At the effective time of the Merger, each outstanding Share (other than
Shares held by shareholders who perfect their dissenters' rights under the
Vermont Business Corporation Act, Shares owned by the Company as treasury stock,
and Shares owned by Conopco or the Purchaser) will be converted into the right
to receive $43.60 in cash, without interest thereon, as set forth in the Merger
Agreement and described in the Offer to Purchase.
The Board of Directors of the Company has adopted the Merger Agreement
and approved the Offer, the Merger and the other transactions contemplated by
the Merger Agreement, determined that the terms of the Offer and the Merger are
fair to, and in the best interests of, the Company's shareholders and
unanimously recommends that the holders of Shares accept the Offer and tender
their Shares pursuant to the Offer.
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment, and thereby purchased, Shares properly tendered to the Purchaser
and not withdrawn as, if and when the Purchaser gives oral or written notice to
the Depositary of the Purchaser's acceptance for payment of such Shares. Upon
the terms and subject to the conditions of the Offer, payment for Shares
accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary for the Offer, which will act as
agent for tendering shareholders for the purpose of receiving payment from the
Purchaser and transmitting payment to tendering shareholders. In all cases,
payment for Shares accepted for payment pursuant to the Offer will be made only
after timely receipt by the Depositary of (a) certificates for such Shares or
timely confirmation of book-entry transfer of such Shares into the Depositary's
account at the Book-Entry Transfer Facility (as defined in the Offer to
Purchase), (b)a Letter of Transmittal (or a facsimile thereof), properly
completed and duly executed, with any required signature guarantees, or, in the
case of a book-entry transfer, an Agent's Message (as defined in the Offer to
Purchase), and (c)any other documents required by the Letter of Transmittal.
Under no circumstances will interest be paid on the purchase price of any Shares
to be paid by the Purchaser, regardless of any extension of the Offer or any
delay in making such payment.
The term "Expiration Date" means 12:00 Midnight, New York City time, on
Monday, May15, 2000, unless and until the Purchaser, in its sole discretion (but
subject to the terms of the Merger Agreement), shall have extended the period of
time during which the Offer is open, in which event the term "Expiration Date"
shall mean the latest time and date at which the Offer, as so extended by the
Purchaser, will expire. Subject to the terms of the Merger Agreement and
applicable rules and regulations of the Securities and Exchange Commission, the
Purchaser reserves the right, in its sole discretion, at any time and from time
to time, and regardless of whether or not any of the events or facts set forth
in Section 14 of the Offer to Purchase shall have occurred, to extend the period
of time during which the Offer is open and thereby
<PAGE>
delay acceptance for payment of, and the payment for, any Shares, by giving oral
or written notice of such extension to the Depositary. Under no circumstances
will interest be paid on the purchase price for tendered Shares, whether or not
the Purchaser exercises its right to extend the Offer. There can be no assurance
that the Purchaser will exercise its right to extend the Offer. Any such
extension will be followed by a public announcement thereof no later than
9:00a.m., New York City time, on the next business day after the previously
scheduled Expiration Date. During any such extension, all Shares previously
tendered and not withdrawn will remain subject to the Offer, subject to the
right of a tendering shareholder to withdraw such shareholder's Shares. The
Purchaser has no intention to make available a "subsequent offering period"
(within the meaning of Rule 14d-11 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), but has the right but not the obligation to do so
under Rule 14d-11 and the Merger Agreement.
Except as otherwise provided below, tenders of Shares are irrevocable.
Shares tendered pursuant to the Offer may be withdrawn at any time prior to the
Expiration Date and, unless theretofore accepted for payment and paid for by the
Purchaser pursuant to the Offer, may also be withdrawn at any time after Friday,
June 16, 2000. For a withdrawal to be effective, a written or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of the Offer to Purchase and
must specify the name of the person having tendered the Shares to be withdrawn,
the number of Shares to be withdrawn and the name of the registered holder of
the Shares to be withdrawn, if different from the name of the person who
tendered the Shares. If certificates for Shares have been delivered or otherwise
identified to the Depositary, then, prior to the physical release of such
certificates, the serial numbers shown on such certificates must be submitted to
the Depositary and, unless such Shares have been tendered by an Eligible
Institution (as defined in the Offer to Purchase), the signatures on the notice
of withdrawal must be guaranteed by an Eligible Institution. If Shares have been
delivered pursuant to the procedure for book-entry transfer as set forth in
Section2 of the Offer to Purchase, any notice of withdrawal must also specify
the name and number of the account at the Book-Entry Transfer Facility to be
credited with the withdrawn Shares and otherwise comply with the Book-Entry
Transfer Facility's procedures. Withdrawals of tenders of Shares may not be
rescinded, and any Shares properly withdrawn will thereafter be deemed not
validly tendered for purposes of the Offer. However, withdrawn Shares may be
retendered by again following one of the procedures described in Section 2 of
the Offer to Purchase at any time prior to the Expiration Date. All questions as
to the form and validity (including time of receipt) of notices of withdrawal
will be determined by the Purchaser in its sole discretion, which determination
will be final and binding.
The Offer to Purchase and the related Letter of Transmittal and other
relevant materials will be mailed to record holders of Shares and furnished to
brokers, dealers, banks, trust companies and similar persons whose names, or the
names of whose nominees, appear on the Company's shareholder lists, or, if
applicable, who are listed as participants in a clearing agency's security
position listing, for subsequent transmittal to beneficial owners of Shares.
The information required to be disclosed by Rule14d-6(d)(1) under the
Exchange Act is contained in the Offer to Purchase and is incorporated herein by
reference.
The Offer to Purchase and the Letter of Transmittal contain important
information that should be read before any decision is made with respect to the
Offer.
Requests for copies of the Offer to Purchase, the Letter of Transmittal
and all other tender offer materials may be directed to the Information Agent or
the Dealer Manager as set forth below, and copies will be furnished promptly at
the Purchaser's expense. No fees or commissions will be payable to brokers,
dealers or other persons (other than the Dealer Manager and the Information
Agent) for soliciting tenders of Shares pursuant to the Offer.
The Information Agent for the Offer is:
MORROW & CO., INC.
445 Park Avenue 5th Floor
New York, NY 10022
Call Collect (212) 754-8000
<PAGE>
Banks and Brokerage Firms, please call: (800) 622-5200
Shareholders, please call: (800) 566-9061
The Dealer Manager for the Offer is:
Morgan Stanley Dean Witter-logo
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
(212) 761-4750
April 18, 2000
<PAGE>
Exhibit (d)(3)
EXECUTION COPY
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement, made as of this 27th day of September, 1999 (the
"Effective Date") by and between Ben & Jerry's Homemade, Inc., a Vermont
corporation headquartered at 30 Community Drive, South Burlington, Vermont 05403
("Ben & Jerry's") and Conopco, Inc., with an address at 390 Park Avenue, New
York, NY 10022 (collectively, the "Company"), sets forth the terms and
conditions of the confidential disclosure of certain information between the
parties. The party from time to time disclosing Confidential Information, as
herein defined, shall be referred to as the "Discloser" with respect to such
Confidential Information and the party from time to time receiving such
Confidential Information shall be referred to as the "Recipient" with respect to
such Confidential Information. The terms "Ben & Jerry's Confidential
Information" and the "Company's Confidential Information" shall refer to the
Confidential Information disclosed by Ben & Jerry's and the Company as
Disclosers, respectively.
In consideration of the premises set forth below and other valuable
consideration, the receipt of which in hereby acknowledged by each party, Ben &
Jerry's and the Company agree as follows:
1. "Confidential Information" shall mean all information disclosed to
Recipient by Discloser or its agents or employees in any manner, whether orally,
visually or in tangible form (including, without limitation, documents, devices
and computer readable media) and all copies thereof, whether created by
Discloser or Recipient. Tangible materials that disclose or embody Confidential
Information shall be marked, to the extent practicable, by Discloser as
"Confidential," "Proprietary" or the substantial equivalent thereof.
2. Except as expressly permitted herein, Recipient shall not disclose
Confidential Information and shall prevent the disclosure of such information by
Recipient or its affiliates and their respective employees, directors, counsel,
advisors, agents and independent contractors (all of which collectively
"Representatives") by using the same degree of care to keep confidential the
Confidential Information as it uses to keep confidential its own confidential
information. In addition, except as permitted herein, Recipient shall not
disclose the fact that the parties are exchanging Confidential Information and
having discussions. In connection therewith, it is agreed that no public release
or disclosure of any
<PAGE>
2
contemplated transaction shall be made except by a mutually agreed disclosure
except that each party may make such disclosure if advised by its outside
securities counsel in writing that such disclosure is required; PROVIDED,
HOWEVER, that in such event such party will notify the other party that it
intends, as a preliminary matter, to take such action and the outside securities
counsel of such party shall first discuss the mater with the outside securities
counsel of the other party before any definitive decision is made on the
disclosure.
3. Recipients shall use Confidential Information solely for the purpose
(the "Permitted Purpose") specified at the end of this Agreement.
4. Recipient shall disclose Confidential Information only to those of
its Representatives who have a need to know such information for the Permitted
Purpose.
5. Confidential Information shall not include any information that:
(a) was in Recipient's or its Representative's
possession prior to disclosure by Discloser
hereunder;
(b) was generally known, in the trade or business in
which it is practiced by Recipient or its
Representatives at the time of disclosure to
Recipient or its Representatives hereunder, or
becomes so generally known after such disclosure,
through no act of Recipient or its employees,
agents or independent contractors in violation of
this Agreement;
(c) has come into the possession of Recipient or its
Representatives from a third party who is not, to Recipient's
knowledge, under any obligation to Discloser to maintain the
confidentiality of such information;
(d) was developed by Recipient or its Representatives
independently of and without reference to
Confidential Information.
If a particular portion or aspect of Confidential Information becomes
subject to any of the foregoing exceptions, all other portions or aspects of
such information shall remain subject to all of the provisions of this
Agreement.
<PAGE>
3
6. Recipient agrees not to reproduce or copy by any means Confidential
Information, except as reasonably required to accomplish such Recipient's
Permitted Purpose. Upon written demand by Discloser at any time, Recipient shall
return promptly to Discloser or destroy, at Recipient's option, all tangible
materials that disclose or embody Confidential Information except that
Recipient's counsel may, upon written notice to Disclosure's counsel, retain a
single copy of Confidential Information in its records solely for use in dispute
resolution or as otherwise required by law. Recipient shall not remove any
proprietary rights legend from, and shall, upon Discloser's reasonable written
request, add an appropriate proprietary legend to, materials disclosing or
embodying Confidential Information.
7. In the event that Recipient is ordered to disclose Discloser's
Confidential Information pursuant to a judicial or governmental request,
requirement or order, Recipient shall promptly notify Discloser and take
reasonable steps at Discloser's expense to assist Discloser in contesting such
request, requirement or order or otherwise protecting Discloser's rights.
8. Discloser understands that Recipient is an ice cream manufacturer
and engaged in distribution (and with arrangements with distributors or
subdistributors) and that planned activities in all such areas that are
independently developed, pursued or acquired by the Recipient may contain ideas
and concepts similar or identical to those contained in Discloser's Confidential
Information. Discloser agrees that entering into this Agreement shall not
preclude Recipient from developing, pursuing or acquiring projects similar to
Discloser's, without obligation to Discloser, provided Recipient does not breach
its obligations to Discloser under this Agreement or use the Confidential
Information to develop or pursue such projects. The parties agree that unless
and until a definitive written agreement between the Company and Ben & Jerry's
has been executed and delivered relating to a specific transaction (which
agreement contains customary conditions, representations, warranties and
covenants for an agreement of that kind), neither party shall be under any
obligation whatsoever with respect to such a transaction by virtue of this or
any written or oral communication with respect to such a transaction by it or
any of its respective Representatives.
<PAGE>
4
9. The rights and obligations herein shall bind the parties and their
successors and assigns. This Agreement expresses the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes al prior oral or written agreements, commitments and understandings
pertaining to the subject matter hereof. Any modifications of or changes in this
Agreement shall be in writing and signed by both parties. This Agreement shall
remain in full force and effect for two years. Any causes of action accrued on
or before the expiration of such period shall survive the expiration of the
applicable statute of limitations.
10. This Agreement and any controversies, disputes or claims arising
out of or relating to the subject matter of this Agreement shall be governed by
and construed in accordance with the laws of the State of New York and the
parties agree to submit any and all such controversies, disputes, or claims to
the exclusive jurisdiction of the federal courts located in New York, New York.
PERMITTED PURPOSES
A. The "Permitted Purpose" with respect to Confidential Information
disclosed to the Company shall be, to evaluate whether or not to enter
into an agreement with Ben & Jerry's relating to a joint venture, other
cooperative venture or the like between Ben & Jerry's and the Company.
B. The "Permitted Purpose" with respect to Confidential Information
disclosed to Ben & Jerry's shall be: to evaluate whether or not to
enter into an agreement with the Company relating to a joint venture,
other cooperative venture or the like between Ben & Jerry's and the
Company.
[Rest of Page Intentionally left blank]
<PAGE>
5
IN WITNESS WHEREOF, each party has caused this Agreement to be executed
and delivered by its authorized officer.
CONOPCO, INC., BEN & JERRY'S HOMEMADE, INC.,
By: /S/MART LAIUS By: /S/ PERRY D. ODAK
--------------------------- -----------------------------------
Title: VICE PRESIDENT Title: Chief Executive Officer
Date: September 27, 1999 Date: September 27, 1999
<PAGE>
Exhibit (d)(4)
EXECUTION COPY
- -------------------------------------------------------------------------------
LICENSE AGREEMENT
Dated as of April 11, 2000,
By and between
BEN & JERRY'S HOMEMADE HOLDINGS, INC.
and
BEN & JERRY'S HOMEMADE, INC., on the one hand,
And
UNILEVER N.V.
and
UNILEVER PLC, on the other hand.
- -------------------------------------------------------------------------------
<PAGE>
LICENSE AGREEMENT
THIS AGREEMENT, made as of April 11, 2000 by and between (i)
BEN & JERRY'S HOMEMADE HOLDINGS, INC., a Vermont corporation, and BEN & JERRY'S
HOMEMADE, INC., a Vermont corporation (together, "LICENSOR"), on the one hand,
and (ii) UNILEVER N.V., a corporation formed under the laws of The Netherlands,
and UNILEVER PLC, an English public limited company (together, "LICENSEE"), on
the other hand.
W I T N E S S E T H
WHEREAS Licensee wishes to obtain a License (the "LICENSE"),
with the right to grant sublicenses to its Affiliates so long as they remain
Affiliates (as hereinafter defined), to use the Licensed Mark and Licensed
Technology (each, as hereinafter defined) in connection with the development,
manufacture, marketing, marketing, distribution, promotion and sale of Products
having Super Premium Status (each, as hereinafter defined) in all countries
throughout the world, subject to Section 9 and with the exception of (i) the
United States (including the territories and commonwealths thereof), (ii) the
Caribbean as outlined on the map attached as Annex A hereto, (iii) countries
designated by Licensee pursuant to Section 2(a)(ii)(C) or otherwise becoming
available exclusively to Licensor pursuant to Section 2 or Section 18 and (iv)
Japan (collectively from time to time, the "TERRITORY");
WHEREAS, in connection with such development, manufacture,
marketing, distribution, promotion and sale of Products under the Licensed Mark,
Licensee views as essential the furtherance of the essential integrity of the
Principal Licensed Mark (as hereinafter defined); and
WHEREAS Licensor is willing to grant such a License on the
terms and conditions hereinafter appearing.
NOW, THEREFORE, in consideration of these recitals, of the
following covenants and other good and valuable consideration, Licensor and
Licensee hereby agree as follows:
1. DEFINITIONS
<PAGE>
2
(a) "AFFILIATE" shall mean any person or entity controlling, controlled
by, or under common control with such party, and in the case of Licensee,
includes, without limitation, any entity a majority of the voting control of
which is owned, directly or indirectly, by Unilever N.V. or Unilever PLC, or
both of them together.
(b) "BANKRUPTCY CODE" shall have the meaning assigned to it in Section
18(b).
(c) "BUSINESS" shall have the meaning assigned to it in Section
2(a)(i).
(d) "CHANGE OF CONTROL" shall have the meaning assigned to it in
Section 18(c)(ii).
(e) "COMMITTEE ON JOINT PLANNING" shall have the meaning assigned to it
in Section 5(b).
(f) "CONFIDENTIAL INFORMATION" shall have the meaning assigned to it in
Section 17.
(g) "CONTRACT YEAR" shall mean a calendar year (January 1-December 31),
except that the first Contract Year shall commence on the date hereof and end on
and include December 31, 2000.
(h) "CURE" shall have the meaning assigned to it in Section 18(a)(iii).
(i) "DESIGNATE" shall have the meaning assigned to it in Section
2(a)(ii)(C).
(j) "ESSENTIAL INTEGRITY OF THE PRINCIPAL LICENSED MARK" shall mean the
essential integrity of the Principal Licensed Mark that has been used by
Licensor, including the essential "social mission" of Licensor, to market
Products throughout the Territory, including the essential "social mission" of
Licensor (certain objectives of which are set forth in the "Statement of Leading
with Progressive Values Across our Business", attached as Exhibit A hereto) that
is one of three parts of Licensor's corporate mission.
(k) "INITIAL TERM" shall have the meaning assigned to it in Section 3.
(l) "LICENSED MARK" shall mean the trademarks, logos, slogans and names
owned by Licensor, including, without limitation, those listed in Schedule 10,
including all registrations therefor for marks covering
<PAGE>
3
Products including, without limitation, those listed on Schedule 10 (but subject
to limitations thereon, including disclosures on Schedule 10) and all variations
or derivatives thereof, designs associated therewith, whether or not registered
as trademarks, and such other names, symbols, initials or marks as may be added
to the coverage of the License pursuant to the provisions of Sections 11 and 13,
whether contained on Schedule 10, but, in every case, including only items
pertaining to Licensor's conduct of the Business in the Territory.
(m) "LICENSED TECHNOLOGY" shall mean the patents (if any), inventions,
discoveries, trade secrets, improvements, formulae, practices, processes,
methods, technology, know-how, including, without limitation, any of the
foregoing in the process of development, and similar proprietary rights owned by
Licensor, including, without limitation, those material items which will be
listed on Schedule 10, which Licensee shall provide within 60 days after the
date hereof, and such other technology as may be added to the coverage of the
License by agreement of the parties, but, in every case, (i) including only
items pertaining to Licensee's conduct of the Business in the Territory and (ii)
excluding any of the foregoing that Licensee has independently developed and any
of the foregoing that are in the public domain other than by a breach of this
Agreement by Licensee.
(n) "LICENSOR'S GROUP" shall have the meaning assigned to it in Section
15(a).
(o) "LOSSES" shall have the meaning assigned to it in Section 15(a).
(p) "MANUFACTURED PRODUCTS" shall have the meaning assigned to it in
Section 5(d).
(q) "MATERIAL DEFAULT" shall have the meaning assigned to it in Section
18(a)(ii).
(r) "MATERIAL LICENSED TECHNOLOGY" shall have the meaning assigned to
it in Section 22(a).
(s) "NET SALES" shall mean the gross invoiced amount for Products
bearing the Licensed Mark shipped and invoiced by Licensee or any of its
Affiliates to third party customers (including sales through Licensee-owned
retail stores and to franchisees) less: (i) actual or accrued discounts; (ii)
temporary price reductions, including off-invoice price reductions, trade
expenses,
<PAGE>
4
rebates and customer allowances; (iii) returns; (iv) freight charges paid by
customers for delivery of such Products; (v) sales taxes, excise taxes and
duties which are billed to customers and collected by Licensee or its Affiliates
for submission to a taxing authority; and (vi) value added, excise or sales
taxes incorporated into the sales price pursuant to governmental requirement
(I.E., the net invoice price to customers). For the purposes of this Agreement,
a sale shall not be deemed to have occurred when Products bearing the Licensed
Mark are transferred or "sold" by Licensee or its permitted sublicensees to
their respective Affiliates for resale, but only upon the resale by Licensee or
any Affiliate to a third party. Licensee represents that this Section 1(s) is
the definition of "Net Sales" used by Licensee in its business.
(t) "PARTNER SHOP" shall have the meaning assigned to it in Section
7(e)(ii).
(u) "PERCENTAGE ROYALTY" shall have the meaning assigned to it in
Section 6(a).
(v) "PERSON" shall mean any individual, firm, corporation, partnership,
limited liability company, trust, joint venture, governmental entity or other
entity.
(w) "PRINCIPAL LICENSED MARK" shall mean the "BEN & JERRY'S" trade
name.
(x) "PRODUCTS" shall mean ice cream, frozen yogurt, sorbet, novelties,
flavored ice products and any frozen dessert (including low-fat frozen desserts)
of similar type.
(y) "REGION" shall mean each of Unilever's business regions, namely,
each of Europe, North America, Africa, Central Asia and Middle East, Central and
Eastern Europe, East Asia Pacific (including China) and Latin America.
(z) "SOCIAL MISSION DEFAULT" shall have the meaning assigned to it in
Section 7(e)(x)(A).
(aa) "SOCIAL MISSION MATERIAL DEFAULT" shall have the meaning assigned
to it in Section 7(e)(x)(B).
(bb) "SECTION 7 DEFAULT" shall have the meaning
assigned to it in Section 7(e)(x)(B).
<PAGE>
5
(cc) "SUPER PREMIUM PRODUCTS" shall mean the following Products (other
than novelty Products and cake Products): (i) full-fat ice cream that (A) does
not exceed 40% overrun, (B) is produced with a mix base that exceeds 14.0%
butterfat, is sweetened only with sucrose, and uses only cream as a source of
butterfat, and skim milk or condensed milk solids as a source of non-fat milk
solids and (C) to the extent applicable, contains inclusions and/or variegates
that displace more than 20% of the total, saleable volume in a product
container; (ii) frozen yogurt that (A) does not exceed 40% overrun and (B) is
produced with a mix base that is flavored with a minimum of 10% cultured yogurt,
made only with cream and fluid milk or condensed milk solids, and is sweetened
with only sucrose and/or corn sweeteners; (iii) low fat ice cream that (A) does
not exceed 40% overrun, (B) is produced with a mix base made only with cream and
fluid milk or condensed milk solids, and is sweetened with only sucrose and/or
corn sweeteners and (C) to the extent applicable, contains inclusions and/or
variegates that displace more than 20% of the total, saleable volume in a
product container; and (iv) sorbet or frozen fruit desserts that (A) do not
exceed 40% overrun, (B) in the case of frozen fruit desserts and sorbet, the
total fruit content (by weight) of which exceeds 20% and (C) produced with a mix
base that is sweetened with only sucrose and/or corn sweeteners.
(dd) "SUPER PREMIUM STATUS" shall mean Super Premium Products that are
sold at a recognized market price premium to premium products in the category.
(ee) "TERRITORY" shall have the meaning assigned to it
in the Preamble.
(ff) "VALUES PARTNERSHIP COMMITTEE" shall have the
meaning assigned to it in Section 7(b).
2. GRANT OF LICENSE
(a) (i) Subject to Section 9 and except as disclosed on Schedule 10,
Licensor hereby grants to Licensee a license throughout the Territory to use
both the Licensed Mark and the Licensed Technology in connection with the
development, manufacture, marketing, promotion, distribution (wholesale and
retail) and sale (including Licensee-owned and franchisee-owned retail store
services in compliance with Section 7(e)(ii)) of Products having Super Premium
Status under the Licensed Mark (collectively, the "BUSINESS").
<PAGE>
6
(ii) During the term of this Agreement, Licensor shall not,
and shall not grant a license to any other Person to, develop, manufacture,
market, distribute (wholesale and retail) or sell Products (including novelties)
in the Territory (including for purposes of this Section 2(a)(ii) Canada and the
Benelux countries), except (A) if Licensee is in Material Default, which
Material Default has not been Cured within 60 days following receipt of written
notice from Licensor that complies with the requirements of Section 18(a), (B)
as to a particular Region, if Licensee is in Regional Default with respect to
such Region, which Regional Default has not been Cured within 60 days following
receipt of written notice from Licensor that complies with the requirements of
Section 18(d) or (C) as to any particular country, if Licensee has provided
written notice to Licensor that Licensee does not intend to conduct the Business
("DESIGNATE") in such country or Region. The foregoing shall not apply to sales
of Products having Super Premium Status bearing the Principal Licensed Mark (x)
in Canada by Delicious Alternative Desserts, Ltd. or (y) in the Benelux
countries by Sfeerbeheer B.V.
(b) Licensee may use the Licensed Mark in connection with the Business
throughout the Territory; PROVIDED, HOWEVER, that Licensee may only use the
Licensed Mark together with Licensee's other trademarks with Licensor's written
approval, which approval may be withheld in Licensor's sole discretion;
PROVIDED, FURTHER, that Licensor's approval shall not unreasonably be withheld
if the requirements of applicable law require such use.
(c) (i) Licensee shall use commercially reasonable efforts to exploit
fully the rights herein granted throughout the Territory and to sell under the
Licensed Mark the maximum quantity in each Contract Year of Products having
Super Premium Status therein, in each case in a manner consistent with Products
having Super Premium Status, good business practice, with the standards
hereinafter provided and with all appropriate long-term brand-building
philosophy.
(ii) As provided in Section 5(c), the Committee on Joint
Planning shall meet on a regular basis to develop collaboratively a plan for the
phased geographic expansion of the Business in the Territory that will maximize
the quantity in each Contract Year of Products having Super Premium Status sold
under the Licensed Mark, consistent with good business practice, the Essential
<PAGE>
7
Integrity of the Principal Licensed Mark and with an appropriate long-term
brand-building philosophy.
(d) The License hereby granted includes the right of Licensee to use
promotional items with the Licensed Mark (except as disclosed on Schedule 10) in
the Territory that are given away or sold solely in an ancillary promotion to
the marketing, promotion, distribution and sales of Products, including
accessories, T-shirts and caps, to the extent they are approved by Licensor,
which approval shall not unreasonably be withheld or delayed. Licensee agrees
that all such promotional items shall be manufactured in accordance with fair
labor standards, as such standards (to the extent such standards are applicable
to international manufacture) are used from time to time by Licensor in the
manufacture of its promotional items.
(e) The License hereby granted includes the right of Licensee to use
the Licensed Mark in connection with Products having Super Premium Status in all
media and shall also include the right to use the Licensed Mark as part of, or
as the name of, any division or business unit, but not as the name of a
corporation or similar entity, which Licensee may organize for the purposes of
manufacturing and distributing for sale Products bearing the Licensed Mark.
(f) Licensor reserves all rights to the Licensed Mark and Licensed
Technology except as specifically granted herein to Licensee. Without limiting
the first sentence of this Section 2(f), Licensor reserves the right to use, and
to grant to any other person the right to use, the Licensed Mark in the
Territory on or in connection with goods and services other than Products (it
being the intent of the parties, however, to avoid any confusion, mistake or
deception in the marketplace as between Products sold by Licensee hereunder and
other Products bearing the Licensed Mark), subject to Section 2(d). Licensor
reserves the right to use, and to grant to any other person, a right to use, the
Licensed Mark outside the Territory on or in connection with goods and services,
including Products.
(g) Licensee agrees to grant to Licensor for use only in connection
with Products, on a non-exclusive basis, a license, which Licensor may not
sublicense (except to its Affiliates), for the use outside the Territory of (i)
names and formulae relating to new flavors of Products developed by Licensee
bearing the Licensed Mark, (ii) enhancements to the Licensed
<PAGE>
8
Technology, other than those enhancements that (A) are derived in significant
part from technology developed by Licensee in connection with Products of
Licensee other than Products bearing the Licensed Mark or (B) have a primary
application to Products of Licensee other than Products bearing the Licensed
Mark and (iii) innovations in marketing and promotional techniques that are
developed by Licensee (or jointly in collaboration with Licensor hereunder) in
its conduct of the Business in the Territory. The license granted pursuant to
this Section 2(g) shall be royalty free, non-exclusive and shall survive the
termination or expiration of this Agreement. Use of information licensed to
Licensor pursuant to this Section 2(g) by suppliers of Licensor in providing
supplies and/or materials for use on Products shall not require a sublicense.
(h) The parties agree that (i) the Licensed Technology may be used only
in connection with Products bearing the Licensed Mark and (ii) Licensee and its
Affiliates will not during the term of this Agreement manufacture, market,
distribute or sell Products having Super Premium Status in any country in the
Territory other than Products bearing the Licensed Mark, except that Licensee
shall not in any way be restricted from further developing, manufacturing,
marketing, distributing or selling Products having Super Premium Status that
Licensee is currently developing, manufacturing, marketing, distributing or
selling and any modifications (including any new flavor variations or any uses
of such Products) thereof. The parties agree that this Section 2(h)(ii) shall be
deemed not to be breached by reason of the acquisition by Licensee or any of its
Affiliates of any business that, in the last full fiscal year prior to execution
of the acquisition agreement derived less than 40% of its consolidated revenues
from any of the development, manufacture, marketing, distribution (wholesale and
retail) or sales of Products having Super Premium Status; PROVIDED, HOWEVER,
that Licensee or its Affiliate, as applicable, will sell or close such business
within 18 months of being requested to do so by Licensor. The parties further
agree that Licensee will not engage in any activity that would otherwise be
prohibited by clause (ii) of this Section 2(h) for (x) one year after the
expiration of this Agreement pursuant to notice given in accordance with Section
3 and (y) three years following termination of this Agreement, in its entirety,
pursuant to Section 18(a) by reason of Licensee's Material Default.
<PAGE>
9
3. TERM.
This Agreement shall commence on the date hereof and end on and include
December 31, 2010 (the "INITIAL TERM"). Thereafter, this Agreement shall be
extended automatically for successive terms, each of which shall be for a
five-year period, unless Licensee shall give notice of termination not less than
one year prior to the end of the Initial Term or any successive term, as the
case may be.
4. STANDARD OF QUALITY.
(a) Licensee shall ensure that Products bearing the Licensed Mark and
their manufacture, distribution and packaging shall be of a high standard and of
such style, appearance and quality as shall be suited to the protection of the
good will pertaining thereto, and shall conform to Licensor's manufacturing and
packaging standards as set forth on Exhibit B hereto (which shall be provided
within 60 days of the date hereof). All such Products shall be manufactured,
sold, labeled, packaged, distributed and marketed in accordance, in all material
respects, with all applicable laws concerning Products in the Territory.
(b) Licensee specifically acknowledges that the product development
process is a collaborative process and that it will actively and timely seek to
obtain Licensor's creative input, including input relating to the social mission
requirements contained in Section 7, with respect to the styles, designs,
containers, packaging contents and quality of all Licensee's Products bearing
the Licensed Mark and creative marketing. Before selling or distributing any
such Product, Licensee shall deliver to Licensor for its approval two samples of
each such Product together with its containers, labels and packaging as well as
proposed marketing materials, which approval shall not unreasonably be withheld
or delayed. The foregoing approval process shall also apply to changes in the
formula for any Product with respect to a given country. Licensee shall bear the
cost of any and all such changes.
(c) Licensor and its authorized representatives shall have the right,
during normal business hours and upon reasonable prior notice, for the duration
of the Agreement, (i) to inspect all facilities utilized by Licensee in
connection with its manufacture of Products pursuant hereto and to examine
Products in process of manufacture, and (ii) to gain reasonable access to the
<PAGE>
10
records of Licensee relating to quality control, in each case so long as
Licensor does not unreasonably disrupt the normal operations of Licensee.
Licensee and its Affiliates shall maintain, at their respective main offices,
books and records regarding customers, permitted co-packers and sublicensees,
product complaints and claims and all other particulars necessary for verifying
compliance with the terms of this Agreement. Licensee and its Affiliates shall
make such books and records available to Licensor and its designated
representatives, from time to time, during normal business hours and upon
reasonable prior notice. Such records shall be maintained by Licensee and its
Affiliates for a period of 24 months after expiration or termination of this
Agreement; PROVIDED, HOWEVER, that such books and records need not be retained
longer than four years following the end of the year to which such books and
records relate. Licensor shall be entitled to make copies, at its expense, of
any such records.
(d) Sections 4(a) and 4(c), the first sentence of each of Section
4(e)(i) and 7(e)(i), and the first sentence of Section 7(e)(iv) and Exhibit B
shall apply equally to any co-packer (or manufacturing sublicensee). Licensee
shall use commercially reasonable efforts to cause any co-packer or
(manufacturing sublicensee) to give reasonable notice of any recall, retrieval
or withdrawal of which it becomes aware and to cease and desist from the
continued manufacture or labeling of Products in violation of the standards
contained in Exhibit B. Licensee shall not use any co-packer (or manufacturing
sublicensee) without the prior written consent of Licensor, which consent shall
not unreasonably be withheld or delayed. In requesting such consent, Licensee
shall concurrently furnish to Licensor an agreement (in English) with such
co-packer (or manufacturing sublicensee) reasonably satisfactory to Licensor
with respect to the applicable requirements contained in this Section 4(d).
(e) (i) Licensee shall, upon written notice to Licensor in accordance
with notification procedures to be mutually agreed upon by the parties, recall,
retrieve or withdraw Licensee's Products bearing the Licensed Mark in the
Territory if required or requested to do so by any governmental agency. In the
event of a recall, retrieval or withdrawal Licensee agrees to spend such monies
as Licensee and Licensor mutually and reasonably deem necessary in advertising
and promotional activities to protect the goodwill associated with the Licensed
Mark.
<PAGE>
11
(ii) If, in the absence of a government request or requirement
of a recall, retrieval or withdrawal, Licensor or Licensee reasonably believes
that a recall, retrieval or withdrawal of Licensee's Products bearing the
Licensed Mark in the Territory is necessary to protect the Essential Integrity
of the Principal Licensed Mark, Licensee and Licensor shall work together to
determine in good faith whether Licensee should, at its own expense, recall,
retrieve or withdraw such Products from any applicable market in the Territory;
PROVIDED, HOWEVER, that in the event that Products bearing the Licensed Mark are
not manufactured in compliance with the standards set forth in Exhibit B or are
otherwise manufactured or labeled in violation of this Agreement and such
manufacturing or labeling of the Products does not have a material effect on the
Principal Licensed Mark or on the Essential Integrity of the Principal Licensed
Mark, then Licensee shall not be obligated to recall, retrieve or withdraw
Licensee's Products bearing the Licensed Mark but shall only be obligated to
cease and desist from the continued manufacturing or labeling of such
non-compliant Products.
(iii) In the event a party becomes aware of any recall,
retrieval or withdrawal, or request for a recall, retrieval or withdrawal, by
any governmental body or regulatory authority, of Products bearing the Licensed
Mark, such party shall give telephonic notice (to be confirmed in writing) to
the other party within 48 hours of becoming aware of the occurrence of such
event. Additionally, in the event of any significant accident involving the
manufacture, distribution or sale of Products bearing the Licensed Mark, each
party shall provide the other party with notice as set in the preceding
sentence.
(iv) Sections 4(e)(i) and 4(e)(ii) shall survive termination
or expiration of this Agreement.
5. BUSINESS OPERATION.
(a) Licensor shall provide, without additional charge, to Licensee all
Licensed Technology owned by Licensor and its Affiliates for use under this
Agreement that relates to the Business. Licensor further agrees to make
available for consulting to Licensee such employees of Licensor or its
Affiliates as Licensee may reasonably request in connection with the foregoing
provision of information.
<PAGE>
12
(b) Licensee agrees regularly to consult with Licensor concerning
Licensee's business plans, and the implementation thereof, for Products having
Super Premium Status in the Territory bearing the Licensed Mark, it being agreed
that there should be joint cooperation and consultation in order for Licensee to
consider Licensor's creative input. Licensee shall present to Licensor a draft
of its Annual Marketing Plan with respect to Products bearing the Licensed Mark
once a year for Licensor's qualitative review and creative input prior to the
implementation of such Annual Marketing Plan.
(c) Licensee and Licensor agree to establish an advisory committee (the
"COMMITTEE FOR JOINT PLANNING") composed of two representatives designated from
time to time by Licensor and two representatives designated from time to time by
Licensee in order to facilitate the cooperation and consultation referred to in
Section 5(b). Among other matters, the Committee for Joint Planning shall also
be responsible for establishing a plan for the phased geographic expansion of
the Business in the Territory, as contemplated by Section 2(c), and shall
oversee the consultation and cooperation required under Sections 5 and 8. The
Committee for Joint Planning shall meet at least once each calendar quarter at
such times and places as it may designate.
(d) Subject to Licensor's capacity to manufacture the quantities
reasonably requested by Licensee within the requested time periods, Licensor
agrees to sell to Licensee quantities of Products bearing the Licensed Mark
("MANUFACTURED PRODUCTS") necessary to meet Licensee's demand in any country in
the Territory to the extent that at such time Licensee is not engaged in the
Business in such country at a level sufficient to manufacture such Products on
commercially reasonable terms. To the extent that Licensor is supplying
quantities of Products to Licensee pursuant to the preceding sentence,
Licensee's obligations with respect to manufacturing standards contained herein,
including, without limitation, the manufacturing standards in Section 4(a) and
Exhibit B, shall have been assumed to have been met. Licensee shall purchase
such Manufactured Products from Licensor at Licensor's ex-factory cost plus 8%,
F.O.B. Licensor's plant, and such purchases shall be subject to Licensor's
standard terms and conditions for sales to distributors and subject to a
mutually satisfactory co-packing agreement.
(e) Notwithstanding any other provision of this Agreement, Licensee
shall reimburse Licensor for out-of-
<PAGE>
13
pocket expenses and a pro rata (based on actual service time) portion of
applicable salaries (including benefits), in each case without mark-up, in
connection with all consulting, assistance and other services provided by
Licensor under this Agreement within 30 days of receipt of an invoice from
Licensor; PROVIDED, HOWEVER, that such expenses are approved in writing in
advance by Licensee and Licensor and, if applicable, its Affiliates, provide
supporting documentation reasonably satisfactory to Licensee. The foregoing
shall not require any reimbursement in connection with (i) the participation by
any Person on the Committee for Joint Planning or the Values Partnership
Committee or (ii) the exercise by Licensor of its rights under Section 4(c),
other than in the case of an inspection or audit by Licensor that uncovers or
confirms a material breach of quality control standards in a production run or a
material breach of this Agreement by Licensee and in such case Licensee shall
reimburse Licensor pursuant to the first sentence of this Section 5(e).
(f) Licensee shall have no obligation to conduct the Business hereunder
in any country in the Territory where the Principal Licensed Mark or Material
Licensed Technology infringes or interferes with the rights of third parties;
PROVIDED, HOWEVER, that Licensee shall cooperate with Licensor to conduct the
Business in the Territory so as not to cause such infringement or interference.
<PAGE>
14
6. PAYMENT OF ROYALTY.
(a) (i) In consideration of the license granted hereunder, Licensee
shall pay to Licensor a royalty (the "PERCENTAGE ROYALTY") computed at the rate
of 5% of Net Sales of Products sold under the Licensed Mark (subject to Section
7(e)(ix)) and 5% of Net Sales of promotional items sold (including sales at
retail where applicable) in accordance with Section 2(d)(subject to Section
7(e)(ix)) and 5% of all up-front franchise fees collected by Licensee from its
subfranchisees.
(ii) Licensee shall receive a credit against amounts payable
as the Percentage Royalty for each quarter in an amount equal to 8% of the
amount paid by Licensee to Licensor for Manufactured Products purchased by
Licensee from Licensor during such quarter. For purposes of determining whether
sales of Products bearing the Licensed Mark are sales of Manufactured Products,
the parties agree that Manufactured Products shall be deemed to be the last
Products bearing the Licensed Mark put into Licensee's inventory and shall be
deemed to be the first Products bearing the Licensed Mark sold by Licensee to
third parties.
(b) All payments of the Percentage Royalty by Licensee shall be made to
Licensor in New York, New York or such other country and city as Licensor shall
reasonably designate from time to time; PROVIDED, HOWEVER, that such designation
must be in accordance with applicable law. The Percentage Royalty shall be paid
in U.S. Dollars. Where sales of Products bearing the Licensed Mark are made in a
currency other than U.S. Dollars, the Percentage Royalty and other amounts shall
be computed on the basis of the conversion rate used by Licensee in its regular
internal accounting mechanisms.
(c) Licensee shall pay any withholding taxes that any governmental
authority may impose with respect to the payment of the Percentage Royalty. The
amount of such taxes shall be appropriately deducted from the amount of
Percentage Royalty otherwise payable to Licensor. Licensee shall furnish
Licensor with a copy of an official receipt promptly after each payment of such
taxes. Licensor may request Licensee not to withhold any specified tax;
PROVIDED, HOWEVER, that (i) such request is reasonable and (ii) in any such
case, Licensor shall indemnify Licensee for all resulting liability attributable
to Licensor's request not to withhold.
<PAGE>
15
(d) The Percentage Royalty payments hereunder shall be accounted for
and paid within 45 days following the close of each calendar quarter and,
subject to Section 6(a)(ii), shall be computed on the basis of Net Sales during
such quarter. The Percentage Royalty payable for each such quarter shall be
computed on the basis of Net Sales made for the Contract Year through the end of
such quarter with a credit for the Percentage Royalty previously paid for such
Contract Year. Licensee shall deliver to Licensor at the time each payment of
the Percentage Royalty is due a written statement, indicating by year-to-date,
the amount of Net Sales. Such statement shall show the total amount of gross
sales of all Products bearing the Licensed Mark shipped during the period
covered by such payment, the Percentage Royalty and the amount of discounts and
credits to arrive at Net Sales. In the event that Licensee has not made its
required payments under this Section 6 within the specified time periods,
Licensee shall pay interest on such past due amounts at the 30-day London
Interbank Offered Rate plus 5%; PROVIDED, HOWEVER, that the foregoing shall not
apply to any amounts withheld by Licensee as a result of a good faith dispute
regarding the amount owed to Licensor.
(e) Licensee shall furnish to Licensor, not later than 60 days
following the close of each Contract Year (or portion thereof in the event of
prior termination in accordance with this Agreement), a statement containing the
information required to be contained in the quarterly statements referred to in
Section 6(d), as well as a computation of the Percentage Royalty earned by
Licensor. Licensor shall be permitted, for a period of two years after the
receipt of each such annual accounting statement, to object to such statement in
writing, describing such objections with specificity. If no such written
objection is made, the said annual statement shall be binding on both parties.
If Licensor timely objects in writing, the dispute shall be resolved in
accordance with the provisions of Section 27. This Section 6(e) shall survive
the termination or expiration of this Agreement.
(f) Licensee shall keep records adequate for verification of all
statements and payments made to Licensor hereunder. A certified public
accountant or other representative of Licensor's selection shall have access
upon reasonable notice and at reasonable business hours to those records to the
extent necessary to certify the statements and payments. Such accountant or
representative shall have the right to audit such records
<PAGE>
16
for two years after the Contract Year to which they relate. Licensor shall bear
the cost of such audit unless such audit discloses a variance of more than 10%
from the amount due, in which event, Licensee shall bear the full cost of such
audit. All such books of account, records and documents shall be kept available
by Licensee for Licensor's inspection for at least three years after the
Contract Year to which they relate. This Section 6(f) shall survive the
termination or expiration of this Agreement.
(g) Licensee acknowledges that Licensor may have certain existing
royalty obligations to third parties relating to the Licensed Mark. Accordingly,
Licensee agrees to provide Licensor, upon Licensor's request and within a
time-period reasonably requested by Licensor, any and all information required
by Licensor in order to calculate such royalty payments (as set forth in Exhibit
C, which shall be provided within 60 days following the date hereof). With
respect to any third-party royalty obligations on the part of Licensor arising
after the date hereof, Licensor agrees to provide promptly after Licensor agrees
to such third-party royalty obligations Licensee with written notice of the
information Licensor may reasonably require to make any such third-party royalty
payments. This Section 6(g) shall survive the termination or expiration of this
Agreement.
(h) If Licensee has either underpaid or overpaid Licensor amounts
payable as the Percentage Royalty under this Agreement, in the former case,
Licensee shall within 10 days of the discovery of such discrepancy pay to
Licensor the amount of such underpayment, and, in the later case, Licensor shall
within 10 days of the discovery of such discrepancy pay to Licensee the amount
of such overpayment, together, in each case, with interest on the amount of the
underpayment or overpayment, as applicable, at a rate equal to the
yield-to-maturity of U.S. treasury securities as published in the Wall Street
Journal with a maturity that most closely equals the period of time beginning on
the date of such underpayment or overpayment, as applicable, and ending on the
date such amount is paid to Licensor or Licensee pursuant to this Section 6(h),
as applicable.
7. SOCIAL MISSION.
(a) Licensee agrees that the following will apply to its conduct of the
Business in the Territory. Products bearing the Licensed Mark shall be
developed,
<PAGE>
17
introduced, promoted and marketed by Licensee in a manner so as to further the
Essential Integrity of the Principal Licensed Mark, as such Essential Integrity
of the Principal Licensed Mark is now embodied in the business conducted by
Licensor in the United States (and certain countries outside the United States),
and as it may evolve hereafter in a manner consistent with its current
embodiment. Accordingly, Licensee shall integrate sufficient aspects of
Licensor's social mission into its conduct of the Business in the Territory to
preserve the Essential Integrity of the Principal Licensed Mark in the Territory
as it may evolve, as noted above.
(b) The parties further agree to establish a committee (the "VALUES
PARTNERSHIP COMMITTEE") composed of (i) senior executives and members of the
board of directors of Licensor and (ii) senior executives of Licensee engaged in
its U.S. and its international ice cream businesses. Licensor and Licensee shall
each from time to time designate an equal number of representatives to the
Values Partnership Committee. The Values Partnership Committee shall meet three
times a year, or such other number of times a year as the Values Partnership
Committee shall determine, at such time and place as may be designated by the
Values Partnership Committee. The Values Partnership Committee shall, in
addition to any other responsibilities conferred on it by any other provision of
this Agreement, (i) find new opportunities to develop and preserve the Essential
Integrity of the Principal Licensed Mark, (ii) monitor and oversee the
performance by Licensee of its obligations in this Section 7 in its conduct of
the Business in the Territory and (iii) monitor and oversee Licensor's provision
of assistance to Licensee in an effort to introduce from time to time other
applications of Licensor's social mission to Licensee's conduct of the Business
in the Territory.
(c) The parties acknowledge that, to the extent appropriate for
particular customs and market conditions, the promotion and marketing of
Products bearing the Licensed Mark will need to be adjusted for particular
countries in which Licensee will sell Products, but shall not be adjusted in a
way that, as a whole in any country, would compromise the Essential Integrity of
the Principal Licensed Mark. Accordingly, and without limiting any other
provision of this Agreement, Section 2(d) provides Licensor with an approval
right with respect to promotional items and Section 8(c) provides Licensor with
an approval right before Licensee may launch Products in any country.
<PAGE>
18
(d) The parties agree that the performance by Licensee of its
obligations in this Section 7 is a material and fundamental element of this
Agreement and is essential to preserve the Essential Integrity of the Principal
Licensed Mark.
(e) In connection with Licensee's commitment to preserve the Essential
Integrity of the Principal Licensed Mark, set forth below in clauses (i) through
(vi), as supplemented by clauses (vii) and (viii), are certain elements of
Licensor's social mission that Licensee has specifically agreed to implement
during the term of this Agreement in its conduct of the Business in the
Territory.
(i) With respect to certain raw materials used in the
manufacture of Products bearing the Licensed Mark (E.G., vanilla, coffee and
cocoa), Licensee agrees to purchase and use "fair trade" products, to the extent
available at commercially reasonable prices, when Licensee commences production
at each production facility in the Territory of Products bearing the Licensed
Mark. The determination as to whether a product purchased and used by Licensee
is a "fair trade" product shall be made by reference to lists certified by The
Max Havelaar Foundation, any member of the Fairtrade Labeling Organizations
International or any other "fair trade" federation of similar reputable standing
selected by Licensor, subject to the reasonable approval of Licensee. As
supplies of other "fair trade" raw materials used in the manufacture of Products
bearing the Licensed Mark become available for purchase in appropriate
quantities and at commercially reasonable prices, Licensee agrees to expand its
purchase of "fair trade" products to include such additional raw materials. The
obligations contained in this Section 7(e)(i) shall be applied on a
country-by-country basis. The parties acknowledge that commercially reasonable
prices with respect to "fair trade" products in general may be somewhat higher,
but not significantly higher, than the price of non-"fair trade" products.
(ii) In connection with the development of a plan for
Licensee's phased geographic expansion of the Business pursuant to Section 2(c),
Licensor and Licensee shall jointly determine in which countries it is
commercially feasible for Licensee to franchise or operate scoop shops. Once
Licensee has established an economically successful scoop shop in a country, it
shall cooperate with Licensor to find an appropriate partner in order to
establish Licensee's next scoop shop in such
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19
country as a Partner Shop; PROVIDED, HOWEVER, that if Licensee opens several
scoop shops in one wave in such country (I.E., it opens several scoop shops
contemporaneously in such country), Licensee shall cooperate with Licensor to
find a partner to open a Partner Shop in the second wave of scoop shops in such
country. After the opening of the first Partner Shop in a country, Licensee
shall open up at least one new Partner Shop during each successive Contract Year
in such country with the objective of having Partner Shops constitute at least
20% of the scoops shops in such country. "PARTNER SHOP" shall mean a franchised
scoop shop that is awarded to a not-for-profit organization that serves as an
employment resource, and potentially a source of revenue, for the not-for-profit
organization, and that is exempted from payment of the normal up-front franchise
fee, and such term shall be modified from time to time to reflect modifications
made by Licensor in its practice of franchising scoop shops to not-for-profit
organizations in the United States, PROVIDED that such modifications are
reasonable, in terms of commercial feasibility, for Licensee to adopt in
countries outside the United States. It being understood that the parties shall
within 12 months of the date hereof negotiate a master franchising agreement.
(iii) Commencing as of the date hereof, Licensee agrees to
explore in good faith, and in cooperation with Licensor, and both parties agree
to commit sufficient resources to, the development of a commercially feasible
organic line of Products bearing the Licensed Mark for sale in the Territory.
Once Licensee has successfully developed an organic line of Products bearing the
Licensed Mark to the mutual satisfaction of the parties, Licensee shall make a
commercially meaningful introduction within 12 months of such organic Products
bearing the Licensed Mark in the Territory.
(iv) Licensee agrees to use unbleached paper in the packaging
for Products bearing the Licensed Mark to the extent available at commercially
reasonable prices. To the extent unbleached paper is not so available, Licensee
shall use commercially reasonable efforts to encourage suppliers to make
unbleached paper available at commercially reasonable prices. The parties
acknowledge that commercially reasonable prices with respect to unbleached paper
in general may be somewhat higher, but not significantly higher, than the prices
of bleached paper. Licensee agrees to continue the efforts of Licensor to make
packaging for Products bearing the
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20
Licensed Mark in the Territory more environmentally friendly. The foregoing
obligation shall be applied on a country-by-country basis.
(v) By the end of the first year of production at any
production facility in the Territory operated by Licensees (or its permitted
co-packers or manufacturing sublicensee), Licensee agrees, if commercially
feasible, to purchase a portion of the raw materials or other ingredients used
by it in Products bearing the Licensed Mark in such production facility produced
from suppliers owned by persons which constitute not-for-profit entities
(understanding that commercial feasibility may require some managerial and other
assistance, including financial assistance, from Licensee to establish such
supplier as a reasonably suitable vendor to Licensee). It is understood by the
parties that use by Licensor of Greyston Bakery as a supplier in the United
States is an illustration of such practice. While the foregoing is primarily an
obligation of Licensee, Licensor shall work together with Licensee to identify
qualified suppliers under this clause (v). Licensee shall increase, to the
extent that it is commercially feasible, the amount of raw materials or other
ingredients purchased by Licensee (or its permitted co-packers or manufacturing
sublicensees) for use in Products bearing the Licensed Mark from such suppliers
each year. The parties acknowledge (A) that in determining commercially
feasibility with respect to increasing the amount of raw materials and other
ingredients purchased pursuant to this Section 7(e)(v), Licensee may consider
its dependence on each such supplier as well as the ability of each such
supplier to provide the raw materials and other ingredients on a dependable
basis and (B) that the prices of raw materials or other ingredients from such
suppliers may be somewhat higher, but not significantly higher, than the prices
from suppliers not owned by not-for-profit entities. The foregoing obligation
shall be applied on a country-by-country basis.
(vi) By the end of the first year of production of Products
bearing the Licensed Mark at any production facility in the Territory operated
by Licensee (or its permitted co-packers or manufacturing sublicensees),
Licensee agrees, if commercially feasible, to purchase a portion of the raw
materials or other ingredients used by it in Products bearing the Licensed Mark
produced in such production facility from suppliers owned by persons which
constitute economically disadvantaged groups (understanding that commercial
feasibility may require some managerial and other assistance, including
financial
<PAGE>
21
assistance, from Licensee to establish such supplier reasonably satisfactory to
Licensee). While the foregoing is primarily an obligation of Licensee, Licensor
shall work together with Licensee to identify qualified suppliers under this
clause (vi). Licensee shall increase, to the extent commercially feasible, the
amount of raw materials or other ingredients purchased by Licensee (or its
permitted co-packers or manufacturing sublicensees) for use in Products bearing
Licensed Mark from such suppliers each year. The parties acknowledge (A) that in
determining commercial feasibility with respect to increasing the amount of raw
materials and other ingredients purchased pursuant to this Section 7(e)(vi),
Licensee may consider its dependence on each such supplier as well as the
ability of each such supplier to provide the raw materials and other ingredients
on a dependable basis and (B) that the prices of raw materials or other
ingredients from such suppliers may be somewhat higher, but not significantly
higher, than the prices from suppliers not owned by economically disadvantaged
groups. The foregoing obligation shall be applied on a country-by-country basis.
(vii) Licensee shall provide Licensor within 45 days following
the close of each calendar quarter (and 60 days following the close of each
calendar year) with a report detailing Licensee's performance of its obligations
under this Section 7 in its conduct of the Business in the Territory. In the
case of quarterly reports, such reports shall be summary reports and, if
applicable, comply substantially with the level of detail provided in and the
form of analogous quarterly reports produced by Licensor as of the date hereof.
In the case of annual reports, such reports shall be formatted in substantially
the same form as the "Social Performance Reports" as it appears in Licensor's
1998 Annual Report.
(viii) Ben Cohen and Jerry Greenfield, individually, shall
have the right (but not the obligation) to participate, in a manner mutually
satisfactory to Licensor and Licensee (including by way of public appearances),
in Licensee's roll-out of Products bearing the Licensed Mark in each country in
the Territory. It is understood that, wherever this Agreement calls for Licensor
to provide consultation, services, promotional activities or assistance, such
requirement does not include consultation, services or assistance from Ben Cohen
or Jerry Greenfield, except at the option of each of them. To the extent they
are not as designees of Licensor on any committee, they shall be
<PAGE>
22
entitled to such compensation/reimbursement as shall be agreed between Licensor
and Licensee.
(ix) (A) If Licensor notifies Licensee in writing with
reasonable specificity that Licensee has materially breached any of its
obligations under Sections 7(e)(i) through (e)(vi) with respect to a country (a
"SOCIAL MISSION DEFAULT"), Licensee shall endeavor to Cure the Social Mission
Default. Subject to Section 7(e)(ix)(C), if after 90 days from the date of
receipt of such notice Licensee has not Cured the Social Mission Default, the
Percentage Royalty with respect to the Region which includes the country in
which such Social Mission Default occurred shall be increased to 8% as provided
in Section 7(e)(ix)(C).
(B) Subject to Section 7(e)(ix)(C), in the event that a breach
of this Section 7 constitutes a Material Default (a "SOCIAL MISSION MATERIAL
DEFAULT" and, together with a Social Mission Default, a "SECTION 7 DEFAULT"),
Licensee shall have one year after receipt by Licensee of written notice from
Licensor specifying the breach in reasonable detail to Cure such Social Mission
Material Default, and the Percentage Royalty shall be increased to 8% and such
increased rate shall continue to be in effect for so long as such Social Mission
Material Default is continuing and is not Cured.
(C) Upon receipt of a notice pursuant to this Section
7(e)(ix), Licensee may within 20 days refer the determination of a Section 7
Default to an arbitrator in accordance with Section 27(b) of this Agreement. In
the event that arbitrator determines that the Section 7 Default is the result of
Licensee's actions, or inaction, the Percentage Royalty shall be increased to 8%
effective as of the date of the Section 7 Default and such increased rate shall
continue to be in effect for so long as such Section 7 Default is continuing and
is not Cured. If the arbitrator determines that the Section 7 Default is not the
result of Licensee's actions, or inaction, no Section 7 Default shall be deemed
to have occurred.
8. LAUNCH.
(a) Licensor acknowledges that the preparation to commence sales of
Products bearing the Principal Licensed Mark in any country where Licensor is
not currently manufacturing, marketing, distributing or selling such Products is
a time-consuming process. Accordingly, Licensee agrees to use commercially
reasonable efforts to commence sales of Products bearing the Principal Licensed
<PAGE>
23
Mark in the Territory in conformity with the schedule to be agreed upon by the
Committee on Joint Planning.
(b) Licensor agrees to provide Licensee with a reasonable level of
technical and other assistance to enable Licensee to commence sales of Products
bearing the Principal Licensed Mark in any country in the Territory as may be
determined by the parties in accordance with Section 5(c).
(c) Licensor shall have the right to assist in the development of and
monitor the progress and implementation of Licensee's plans to commence sales of
Products bearing the Principal Licensed Mark in any country, and Licensee shall
seek Licensor's approval, which approval shall not be unreasonably withheld or
delayed (so long as Licensor cannot grant another license with respect to a
particular country in accordance with Section 2 or Section 18 or Licensee is not
in Social Mission Material Default, which Social Mission Material Default is not
Cured within 60 days following receipt of written notice from Licensor that
complies with the requirements of Section 18(a) in which event such approval may
be withheld in Licensor's sole discretion), prior to launching in any country in
the Territory. For purposes of the foregoing, Licensor reasonably may withhold
its approval under this Section 8(c) of Licensee's launch in any country deemed
by both Amnesty International and Freedom House to be engaged in significant
human rights abuses at such time.
9. STATUS OF LICENSE IN CERTAIN COUNTRIES.
(a) UK. Licensee or one of its Affiliates agree to acquire, and
Licensor agrees to sell, at net book value (without assigning any value to
goodwill or transferable tax losses, if any) Licensor's assets and related trade
liabilities incurred in the ordinary course of business related to the conduct
of the Business in the United Kingdom pursuant to an asset purchase agreement to
be mutually agreed upon by the parties hereto. Thereafter, Licensor shall supply
Products to Licensee for Licensee's conduct of the Business in the United
Kingdom in accordance with Section 5(d).
(b) FRANCE. Licensee or one of its Affiliates agrees to acquire, and
Licensor agrees to sell, at net book value (without assigning any value to
goodwill or transferable tax losses, if any) Licensor's assets and related trade
liabilities incurred in the ordinary course of business related to the conduct
of the Business in the
<PAGE>
24
France pursuant to an asset purchase agreement to be mutually agreed upon by the
parties hereto. Thereafter, Licensor shall supply Products to Licensee for
Licensee's conduct of the Business in the France in accordance with Section
5(d).
(c) BENELUX. Licensor shall, at Licensee's request, assign to Licensee
all Licensor's rights under any and all licenses with respect to the
Netherlands, Luxembourg and Belgium.
(d) ISRAEL. Licensor shall use commercially reasonable efforts to
obtain (at Licensor's expense) for Licensee the right to conduct all facets of
the Business in Israel.
(e) CANADA. The parties acknowledge that Licensor has granted
previously a license for Canada to a third party and that Licensee will not be
able to conduct the Business in Canada on an exclusive basis until such license
expires or is terminated.
10. REPRESENTATIONS AND WARRANTIES.
(a) Licensor represents and warrants that it has full right, power and
authority to enter into this Agreement and to grant the rights, licenses and
privileges hereby granted by Licensor to Licensee in Section 2, including acting
as licensee of any Licensed Mark listed in Schedule 10, and that no consent of
any third party is required or that Licensor has obtained all consents which may
be required to permit Licensor to execute this Agreement and to perform its
obligations hereunder, or to permit Licensee to exercise fully the rights
granted hereunder. Licensor further represents and warrants that (i) it is the
owner, or licensee, of all right, title and interest in and to the Licensed Mark
and the Licensed Technology for use in connection with Products and (ii) it, or
owners of trademarks licensed to Licensee, have in the Territory obtained
registrations for the Licensed Mark that are valid, subsisting and in full force
and effect in the jurisdictions, as listed in Schedule 10; and it, or owners of
trademarks licensed to Licensees, are owners of and have filed trademark
applications for the Licensed Mark in the jurisdictions, as listed in Schedule
10. Licensor further represents and warrants that the Principal Licensed Mark is
in use or that Licensor otherwise has valid rights in the Licensed Mark in the
jurisdictions listed in Schedule 10 (the "EXISTING COUNTRIES"), and together
with the other intellectual property owned by or licensed to Licensee,
<PAGE>
25
constitutes all of the intellectual property necessary to conduct the Business
in the Existing Countries. Licensor represents, to the best of its knowledge,
that Licensee's use of the Principal Licensed Mark and Material Licensed
Technology in the Existing Countries will not infringe on or interfere with the
rights of third parties. With respect to the jurisdictions which are not
identified as the Existing Countries in Schedule 10, Licensor represents and
warrants that it has made no inquiry but it has no actual knowledge or basis to
believe Licensee's use of the Licensed Mark will infringe on or interfere with
the rights of third parties. Except as listed in Schedule 10, Licensor is not
aware of any infringements of the Licensed Mark or Licensed Technology, and
Licensor has no knowledge of any pending conflicts.
(b) Licensee represents and warrants that it has full power, right and
authority to enter into this Agreement and to perform all its obligations
hereunder.
(c) Licensor further represents and warrants that it has not, and
covenants that it shall not, except as permitted by this Agreement, (i) grant to
any person, any right to use the Licensed Mark in the Territory for any Products
or retail store services related to Products, nor shall the Licensed Mark be so
used by Licensor, or (ii) design, develop, manufacture, market, distribute or
sell any Products in the Territory or assist anyone else to become so engaged.
(d) Licensor shall cause members of Licensor's or its Affiliates'
management team to be available to Licensee and its sublicensees at mutually
agreeable times and places for the purpose of consultation and promotional
activity.
(e) All representations and warranties contained in this Section 10 are
qualified by reference to Schedule 10.
11. OWNERSHIP OF TRADEMARKS.
(a) Licensee acknowledges that Licensor (or its third-party Licensor),
and not Licensee, is the owner of all right, title and interest in and to the
Licensed Mark in the Territory under this Agreement and is also the owner of the
good will attached, or which shall become attached, to the Licensed Mark.
Licensee shall not, at any time, do any act or thing which will materially
impair the rights of Licensor (or its third-party licensor) in and to the
Licensed Mark or any
<PAGE>
26
registrations thereof or which will materially depreciate the value of the
Licensed Mark.
(b) Licensee shall cause to appear on all Products and on all materials
on or in connection with which the Licensed Mark is used, such legends, markings
and notices as may reasonably be necessary in order to give appropriate notice
of any trademark, trade name or other rights therein or pertaining thereto, as
instructed by Licensor, and Licensor shall hold Licensee harmless in any action
arising from such legend, markings or notices.
12. REGISTRATION OF TRADEMARKS.
(a) Licensor shall file an application to register, or, if applicable,
shall, where appropriate under the relevant third-party license, request that
the relevant third-party licensor file an application to register and maintain,
at its own cost but subject to Section 12(c), the Licensed Mark covering
Products in the countries of Licensor's choice or in such other countries as
Licensee may reasonably request. Upon receipt of Licensee's request, Licensor
shall file and prosecute, or, if applicable, where appropriate under the
relevant third-party license request that the relevant third-party licensor file
and prosecute, one or more applications for registration of the Licensed Mark in
the name of Licensor or such other name as Licensor, or, where appropriate under
the relevant third-party license, in the name of its third-party licensor, if
applicable, may determine, and Licensor shall maintain, or, if applicable, where
appropriate under the relevant third-party license shall request that the
relevant third-party licensor maintain, such registrations for the term of this
Agreement. In a case where, due to local regulations and, in particular,
restrictions regarding sublicenses or "registered users" status, the
registration may not be owned by Licensor, the registration shall be completed
in the name of Licensee or one of its Affiliates. Licensee expressly agrees
that, in the case of registration in the name of Licensee or its Affiliate for
the aforementioned reason, Licensee shall thereby not acquire proprietary rights
in respect to the Licensed Mark. Upon termination of this Agreement, Licensee
shall be deemed automatically to have assigned, transferred and conveyed to
Licensor for itself, and, if appropriate, for relevant third-party licensors of
Licensor, any and all trademarks, rights, equities, good will and all other
rights associated therewith which may have been obtained by Licensee or which
may have vested in Licensee as a result of Licensee's actions under this
Agreement, and Licensee
<PAGE>
27
shall execute, and hereby irrevocably appoints Licensor its attorney-in-fact to
execute, if Licensee refuses to do so, any instruments requested by Licensor,
or, if applicable, by the relevant third-party licensor, to accomplish or
confirm the foregoing. Any such assignment, transfer or conveyance shall be
without consideration other than the mutual covenants and consideration of this
Agreement.
(b) Licensee shall cooperate with Licensor, or its third-party
licensor, as applicable, reasonably and in good faith in connection with the
filing and prosecution by Licensor, or the relevant third-party licensor, as
applicable, of any such applications, and the maintenance and renewal of any
registration for the Licensed Mark, and will supply Licensor, or the relevant
third-party licensor, as applicable, with such samples of products, packaging
and marketing materials bearing the Licensed Mark and such evidence of other
uses of the Licensed Mark, as may reasonably be requested by Licensor or its
relevant third-party licensor, as applicable, in connection with trademark and
service mark applications or registrations. Licensee shall provide Licensor with
60 days' prior written notice of its plans to begin conducting the Business in
any country in the Territory where no previous registration or application for
registration of the Licensed Mark has been obtained. Licensee shall execute all
documents which Licensor, or the relevant third-party licensor, as applicable,
may reasonably request in order to obtain or maintain a registration or to
establish or to maintain Licensor's or the relevant third-party licensor's, as
applicable, ownership of or rights in and to the Licensed Mark. The first
sentence of this Section 12(b) with respect to the cooperation of Licensee shall
survive the termination or expiration of this Agreement.
(c) Licensee shall reimburse Licensor for all filing, registration and
renewal fees, including reasonable attorneys' fees, for registrations and
renewals requested by Licensee of the Licensed Mark other than the Principal
Licensed Mark.
13. NEW INTELLECTUAL PROPERTY.
(a) In the event that Licensor or its Affiliates should adopt
additional or new trademarks or trade names directly in its own name, or
indirectly through other business interests including, without limitation, by
license from a third party, in connection with Products having Super Premium
Status, Licensor shall promptly so
<PAGE>
28
notify Licensee, and Licensor shall attempt, at Licensee's request, to extend
such License and, regardless of Licensor's success in such attempt, Licensor
shall inform Licensee of the results thereof so as to grant Licensee (on the
same basis that the trademarks or trade names are granted under Section 2 and
subject to any limitations on Licensor's rights to such additional trademarks or
trade names) the right in the Territory to those names in connection with such
Products and such additional names shall be included under the definition of
"Licensed Mark" in Section 1, and if Licensee elects, at its sole option, such
additional names may be used by Licensee and its permitted sublicensees pursuant
to the terms of this Agreement, subject to the payment of the Percentage Royalty
as provided for in Section 6. Licensee shall bear the cost of any such
extension.
(b) Licensee shall grant to Licensor a license as provided in Section
2(g).
14. INFRINGEMENT.
(a) Each of Licensee and Licensor shall promptly notify the other party
in writing of any use by any third party of a trade name or trademark which
might amount to infringement of the Licensed Mark that come to its attention.
(b) Licensor may, in its sole discretion, take proceedings in relation
to any alleged infringement of any Licensed Mark. Each party shall render all
reasonable assistance to the other in connection with any such proceeding.
(c) In the event that Licensee reasonably considers that any
infringement or alleged infringement of the Licensed Mark in the Territory is
causing detriment to its business and Licensor declines after reasonable notice
to promptly take proceedings in relation thereto, Licensee may file actions,
proceedings or suits against any third party in respect of such infringement or
alleged infringement in the Territory after first giving Licensor reasonable
notice of its intention to do so. Licensor shall, at Licensee's request, render
all reasonable assistance to Licensee in connection therewith, and take such
action as may be necessary to enable Licensee to pursue the proceedings,
including, if necessary, the grant of an appropriate power of attorney with full
power of substitution or consenting to join in any such action as a party
plaintiff.
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29
(d) Neither party shall enter into any settlement or consent to any
judgment with respect to an infringement without the consent of the other party,
which consent shall not be unreasonably withheld or delayed. The party
initiating such infringement action and prosecution shall bear all expenses
incurred and shall receive all the proceeds (if any) recovered in connection
with such action, after reimbursement of all out-of-pocket expenses of each
party. If such expenses (including attorneys' fees) exceed the amount of the
proceeds recovered in connection with such action, then such reimbursement shall
be made pro rata (based on the out-of-pocket expenses of each party).
(e) If either Licensee or Licensor becomes aware of any claim by any
third party that the use of any of the Licensed Mark in connection with the sale
of Products hereunder infringes the right of any third party, it shall promptly
notify the other party in writing. The provisions of Sections 14(b), (c) and (d)
shall apply to the conduct of the defense of such claim in the same manner as to
an infringement; PROVIDED, HOWEVER, that each party may, pending the other
party's decision to defend such a claim, act in a manner not prejudicial to the
other party's interest in preserving the validity of ownership of the Licensed
Mark, to protect its individual position.
(f) Licensor and Licensee shall, before taking any action pursuant to
Section 14(b), (c) or (e), consult each other as to the appropriate steps in
proceedings and by which party these should be taken; PROVIDED, HOWEVER, that
this is without prejudice to the rights of the parties under Section 14(b), (c)
or (d).
(g) If any infringement action involving the Licensed Mark or the
Licensed Technology is in existence on the date of the termination or expiration
of this Agreement, each party shall render all reasonable assistance required to
be given pursuant to this Section 14 to the other party in connection therewith.
This Section 14(g) shall survive the termination or expiration of this
Agreement.
15. INDEMNIFICATION.
(a) Licensee shall defend, indemnify and hold harmless Licensor and its
respective officers, directors and employees (collectively, the "LICENSOR'S
GROUP") from and against any and all claims, losses, damages,
<PAGE>
30
liabilities, obligations, costs and expenses, including reasonable attorneys'
fees (collectively, "LOSSES"), arising out of or resulting from the conduct of
the Business by Licensee, its Affiliates, agents, representatives, contractors,
co-packers, sublicensees or distributors, or arising out of or resulting from a
breach by Licensee of any provision of this Agreement except in each case to the
extent (but only to the extent) arising out of or resulting from (A) Licensor's,
or any member of the Licensor Group's, negligence or breach of any provision of
this Agreement, or (B) infringement of trademark, trade dress, copyright and
other intellectual property rights relating to the Licensed Mark.
(b) Licensor shall defend, indemnify and hold harmless Licensee from
and against any and all Losses arising out of or resulting from breach by
Licensor or any member of the Licensor's Group of any provision of this
Agreement or arising out of or resulting from any infringement of trademark,
trade dress, copyright and other intellectual property rights relating to the
Licensed Mark or Licensed Technology, except in each case to the extent (but
only to the extent) arising out of or resulting from Licensee's negligence or
breach of any provision of this Agreement.
(c) If any party (the "INDEMNIFIED PARTY") receives written notice of
the commencement of any action or proceeding, the assertion of any claim by a
third party or the imposition of any penalty or assessment for which
indemnification may be sought pursuant to this Section 15 (a "third party
claim") and such indemnified party intends to seek indemnity pursuant to this
Section 15, such indemnified party shall promptly provide the other party (the
"indemnifying party") with notice of such third party claim, provided that no
failure to do so will limit rights hereunder except to the extent the
indemnifying party is prejudiced thereby. Except in the case of claims seeking
equitable relief from the indemnified party, the indemnifying party shall be
entitled to assume the defense, appeal or settlement of such third party claim
with counsel selected by the indemnifying party and approved by the indemnified
party, which approval shall not be unreasonably withheld or delayed. The
indemnified party shall fully cooperate with the indemnifying party in
connection therewith. In the event that the indemnifying party fails to assume
the defense, appeal or settlement of any third party claim within twenty (20)
days after receipt of notice thereof from the indemnified party, such
indemnified party shall
<PAGE>
31
have the right to undertake the defense, appeal or settlement of such third
party claim at the expense and for the account of the indemnifying party. The
indemnifying party shall not settle any third party claim the defense, appeal or
settlement of which is controlled by it without the indemnified party's prior
written consent, unless the terms of such settlement or compromise release such
indemnified party from any and all liability or obligation with respect to such
third party claim. The provisions of this Section shall survive expiration or
termination of this Agreement.
16. SALES BY LICENSOR'S CUSTOMERS.
Licensor agrees during the term of this Agreement to refrain, and to
cause its Affiliates to refrain, from engaging in any distribution and/or sales
of Licensor's Products having Super Premium Status to any person that the
Licensor knows or has reason to know is engaged in, or intends to engage in, any
manufacture, distribution and/or sale of such Products having Super Premium
Status in the Territory. In the event that Licensor learns that it is selling to
any person that is so engaged, or intends to so engage, Licensor shall
immediately notify Licensee and shall use commercially reasonable efforts,
subject to compliance with applicable law, to prevent such resales from
continuing. The parties acknowledge that Licensor may continue to have its
Products having Super Premium Status distributed and sold to U.S. military post
exchanges in the United States (which may export to the Territory in some cases
to some degree) but shall not distribute or sell directly to U.S. military post
exchanges in the Territory.
17. CONFIDENTIALITY.
Licensor and Licensee agree that all information which is communicated
from time to time by each party to the other pursuant to this Agreement (both at
the commencement of this Agreement and thereafter and whether oral, electronic
or written of any kind or nature), which are confidential and proprietary to the
person disclosing the same shall be deemed secret and confidential
("CONFIDENTIAL INFORMATION"). Licensor and Licensee agree that the Confidential
Information received by them from the other will be maintained in confidence and
that the same will not be disclosed to or used by any person, firm, or
undertaking except their own agents and employees or any permitted sublicensees,
subcontractors or distributors hereunder who need to know and/or use such
Confidential Information for the purposes of this
<PAGE>
32
Agreement. If either party is required by law to disclose any Confidential
Information it has received, it will promptly inform the other party and will
cooperate with the other party, at the other party's expense, in seeking to
maintain the confidentiality of such Confidential Information. The provisions of
this Section shall survive expiration or termination of this Agreement.
18. RIGHT TO TERMINATE.
(a) DEFAULT
(i) Licensor and Licensee may, by giving written notice to the
other, terminate this Agreement and its obligations hereunder in the event of a
Material Default (other than a Social Mission Material Default) by the other
party that is not Cured within 60 days following receipt of written notice from
the non-defaulting party. In the case of a Social Mission Material Default,
Licensor may terminate this Agreement and its obligations hereunder if such
Social Mission Material Default is not Cured within one year after the date of
receipt of written notice from Licensor by Licensee. Such written notice shall
specifically describe the default. Such termination will not be deemed a waiver
of any damages or loss suffered by the non-defaulting party as a result of the
other's default, and the non-defaulting party may bring the damage issue to
arbitration for settlement in accordance with the provisions of Section 27.
(ii) "MATERIAL DEFAULT" shall mean a material breach of (A) a
covenant that relates to the payment by Licensee of money, (B) directly and
substantially affects the Essential Integrity of the Principal Licensed Mark or
(C) any of the first sentence of Section 2(c) or Section 2(h)(ii), 4(a), 8(a) or
21(a).
(iii) "CURE" shall mean (A) in the case of a Social Mission
Material Default or Material Default resulting from an action by a party hereto,
such party ceasing to engage in such action, and (B) in the case of a Social
Mission Material Default or Material Default resulting from an omission by a
party hereto, such party taking such action as required under this Agreement.
<PAGE>
33
(b) BANKRUPTCY
(i) In the event that either Licensor or either Licensee files
a petition in bankruptcy, is adjudicated as bankrupt, goes into liquidation,
becomes insolvent, or makes an arrangement or assignment for the benefit of its
creditors, or any arrangement pursuant to bankruptcy law, or if a custodian,
receiver or trustee is appointed for it or a substantial portion of its business
or assets, then the other party to this Agreement who is not the subject of such
bankruptcy, receivership, liquidation, insolvency or creditor arrangement, shall
have the right to immediately terminate this Agreement by written notice.
(ii) No assignee for the benefit of creditors, custodian,
receiver, trustee in bankruptcy, sheriff or any other officer of the court or
official charged with taking over custody of the bankrupt party's assets or
business, shall have any rights to continue this Agreement or to exploit or in
any way use the Licensed Mark pursuant hereto if this Agreement is terminated by
Licensor or Licensee, as the case may be, pursuant to this Section 18(b).
(iii) Notwithstanding the provisions of this Section 18(b), in
the event that it is determined by any court or bankruptcy trustee that this
Agreement may be assumed or assigned in connection with a case commenced by or
against either party under the Title 11 of the United States, as amended (the
"BANKRUPTCY CODE"), Licensor and Licensee hereby acknowledge that "adequate
assurance" of future performance under this Agreement (within the meaning of the
Bankruptcy Code) shall include, INTER ALIA adequate assurance: (A) that any and
all amounts due from Licensee to Licensor under or pursuant to this Agreement
shall be duly and timely paid and all breaches cured; (B) that the assumption or
assignment of this Agreement will not result in the breach by either party or
its Affiliates of any provision in any other license, contract or agreement
relating to the Licensed Mark or otherwise; (C) that any person or entity that
assumes this Agreement or to which this Agreement is assigned shall fully and
faithfully assume, observe and comply with all the covenants, requirements and
restrictions provided for under this Agreement and that termination rights for
breach of this Agreement shall continue to apply without change; and (D) that
the value of the Licensed Mark to Licensor shall not be reasonably likely to
diminish by reason of the assumption or assignment of this Agreement. Any person
or entity to
<PAGE>
34
which this Agreement is assigned pursuant to the provisions of the Bankruptcy
Code shall be deemed without further act or deed to have assumed all of the
obligations arising under this Agreement on and after the date of such
assignment. Any such assignee shall upon demand execute and deliver to Licensor
or Licensee, as the case may be, an instrument confirming such assumption.
(c) CHANGE OF CONTROL
(i) Upon a Change of Control of Licensor, Licensee's
obligations to obtain the approval of Licensor or the Committee on Joint
Planning, as applicable, under certain provisions of this Agreement, including,
without limitation, Sections 2(b), 4(b), 4(d) and 8(c), shall be deemed to be an
obligation to keep Licensor or the Committee on Joint Planning, as applicable,
informed as to its activities, plans and uses of the Licensed Mark prior to
commencing such activities, plans or uses; PROVIDED, HOWEVER, that Licensor
shall retain the rights under the last sentence of Section 8(c). The parties
acknowledge that following such a Change of Control Licensor shall no longer
have the right to approve or disapprove Licensee's actions but shall have an
obligation to keep Licensor informed as to its activities, plans and uses of the
Licensed Mark prior to commencing such activities, plans or uses pursuant to the
aforementioned sections.
(ii) A "CHANGE OF CONTROL" of a party hereto means the earlier
to occur of (A) the acquisition by any Person or group of Persons acting in
concert of beneficial ownership of such party's securities, or any other trans
action with respect to beneficial ownership of such party or such party's
securities, that involves or results in either (x) the acquisition of beneficial
ownership of securities representing 20% or more of the voting power of such
party's outstanding equity securities or (y) the merger or consolidation of such
party with any Person in which the shareholders of such party would not,
immediately after such merger or consolidation, own securities representing at
least 20% of the voting power of the Person issuing the cash or securities in
such merger or consolidation, and (B) the sale of all or substantially all of
the assets of such party to one or more Persons; PROVIDED, HOWEVER, that a
Change of Control shall not be deemed to occur in the case of clause (A) or (B)
above if (x) a named founder of Licensor is the resulting controlling Person or
a member of the resulting controlling group of Persons and (y) all
<PAGE>
35
other members of such group of Persons, if any, are charitable organizations.
"BENEFICIAL OWNERSHIP" of securities shall be determined in accordance with Rule
13d-3 under the Securities Exchange Act of 1934, as amended, as in effect on the
date of this Agreement, except that any agreement not to transfer securities and
any agreement to vote or not vote in a particular manner shall be deemed to
convey "beneficial ownership" of the securities subject thereto.
(d) REGIONAL DEFAULT. Without limiting the right of the
parties to terminate this Agreement pursuant to Section 18(a), Licensor or
Licensee may, by giving written notice to the other, terminate this Agreement
and its obligations hereunder with respect to a Region in the Territory in the
event of a Material Default or a Social Mission Material Default by the other
party with respect to such defaulting party's obligations hereunder in such
Region that is not Cured within 60 days, in the case of a Material Default, or
one year, in the case of a Social Mission Material Default, as applicable,
following receipt of written notice from the non-defaulting party. Such written
notice shall specifically describe the default in such Region. Such a
termination shall not be deemed a waiver of any damages or loss suffered by the
non-defaulting party as a result of the other's default, and the non-defaulting
party may bring the damages issue to arbitration for settlement in accordance
with the provisions of Section 27(b).
(e) TERMINATION OF THE MERGER AGREEMENT. This Agreement shall
terminate upon the termination by Licensor of the Agreement and Plan of Merger
(the "MERGER AGREEMENT") dated as of April 11, 2000, among Conopco, Inc.
("CONOPCO"), Vermont All Natural Expansion Company ("SUB") and Licensor as a
result of a material breach of the Merger Agreement by Conopco or Sub.
19. RIGHTS UPON TERMINATION.
(a) Except to the extent provided in Sections 19(b) and 19(c), upon
expiration or termination of this Agreement for any reason, neither Licensee nor
its Affiliates, receivers, representatives, agents, successors or assigns shall
have any rights to exploit or in any way use the Licensed Mark and the Licensed
Technology and shall forthwith discontinue all use of the Licensed Mark and
Licensed Technology in whole or, in the event of a termination in part, in
connection with such products, services or territories as to which such
termination pertains. In addition, Licensee shall not
<PAGE>
36
thereafter, except as permitted in Section 19(b) or 19(c), use the Licensed
Technology or the Licensed Mark or any variation or simulation thereof, or any
mark which is or may be confusingly similar thereto, and hereby irrevocably
release and disclaim any right or interest in or to the Licensed Mark and the
Licensed Technology in whole or, in the event of a termination in part, in
connection with such products, services, or territories as to whether such
termination pertains.
(b) Upon any termination of this Agreement by Licensee pursuant to
Section 18, as to any plant in which Licensee or its permitted sublicensees
manufacture Products under the Licensed Mark, Licensor may, purchase all, but
not less than all, the inventories (including finished goods to Products bearing
the Licensed Mark (the "INVENTORIES")), of Licensee or its permitted
sublicensees, as applicable, at such plant that are saleable and in good
condition; PROVIDED, HOWEVER, that, if Licensor purchases the Inventories of any
plant, it shall purchase all the Inventories of all plants in same country as
such initial plant; PROVIDED, FURTHER, that if Licensor purchases the
Inventories at such plant, it shall have the right but not the obligation to
purchase all, but not less than all, of the inventories of raw materials and
packaging exclusive to Products bearing the Licensed Mark ("PROCESS
INVENTORIES") of Licensee or its permitted sublicensees, as applicable, at all
plants in the same country that are saleable and in good condition. To
consummate such a purchase, Licensor shall tender to Licensee within 30 days
following the effective date of termination, a sum equal to the cost to Licensee
of such Inventories (together with a sum equal to Licensee's cost of Process
Inventories, if purchased). In such event, Licensee shall take commercially
reasonable steps to discontinue or cancel all marketing which references the
Licensed Marks as soon as possible. No amounts shall be paid or payable as the
Percentage Royalty with respect to such Inventories sold to Licensor.
(c) To the extent that Licensor does not purchase all the Inventories
and Process Inventories of Licensee and pursuant to Section 19(b), Licensee
shall have the right, on a non-exclusive basis, to continue to sell, market and
promote Products bearing the Licensed Mark for a six-month period following the
effective termination date, or for such shorter period as is necessary to
dispose of all remaining Inventories and Process Inventories. During any such
period, Licensee shall pay the Percentage Royalty pursuant to Section 6.
Licensee's rights under this Section 19(c) shall be subject to
<PAGE>
37
Licensee's continuing to manufacture, market, distribute and sell the
Inventories in a manner consistent with good business practice, Products bearing
the Licensed Mark having Super Premium Status, with all appropriate long-term,
brand-building philosophy, and in accordance with the provisions of this
Agreement, including Section 7.
(d) In the event that Licensee or any of its permitted sublicensees
have utilized any Licensed Mark in the name of a business unit or division
thereof, the name of such business unit or division shall be changed upon any
termination or expiration of this Agreement so that the Licensed Mark shall no
longer form part of the business unit or division name; PROVIDED, HOWEVER, that
if Licensee continues to conduct the Business in the Territory pursuant to
Section 19(c), the Licensed Mark shall no longer form part of the business unit
or division name, as applicable, at the expiration of the six-month period
provided for in Section 19(c).
(e) Upon termination or expiration of this Agreement, Licensee shall,
within 30 days of such termination or expiration (or such longer period as may
be necessary to permit Licensee to exercise its applicable rights under Section
19(c)), return in accordance with Licensor's reasonable instructions all
Licensed Technology provided to Licensee pursuant to this Agreement.
20. NOTICES.
All notices, request, claims, demands and other communications under
this Agreement shall be in writing and shall be deemed given upon receipt by the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If received by Licensee, to:
Unilever PLC
Unilever House
Blackfriars, London, EC4P 4BQ
Attention: Mr. Stephen J. Williams,
Joint Secretary
Facsimile: 011-44-207-822-6108
<PAGE>
38
with a copy to:
Unilever United States
390 Park Avenue, 21st Floor
New York, NY 10022
Facsimile: (212) 688-3411
Attention: Ronald M. Soiefer, Esq.
If received by Licensor, to:
Ben & Jerry's Homemade, Inc.
30 Community Drive
South Burlington, VT 05403
Facsimile: (802) 846-1558
Attention: Chief Executive Officer
with a copy to:
Ropes & Gray
One International Place
Boston, MA 02110
Facsimile: (617) 951-7050
Attention: Howard K. Fuguet, Esq.
21. NON-ASSIGNABILITY.
(a) This Agreement and the rights and obligations hereunder may not be
sold, transferred, assigned, pledged, mortgaged or otherwise disposed of by the
parties hereto except as is specifically herein provided or as may be expressly
consented to in writing; PROVIDED, HOWEVER, that this Agreement and the rights
and obligations hereunder may be assigned in connection with a merger or sale of
all or substantially all the assets of Ben & Jerry's Homemade Holdings, Inc. or
Ben & Jerry's Homemade, Inc. or a merger or sale of all or substantially all the
assets of Licensee; PROVIDED, FURTHER, that the Licensor's right to receive
monies hereunder may be pledged or mortgaged. It is expressly provided that
Licensee may assign or sublicense any or all its rights and obligations under
this Agreement (i) without Licensor's consent, to any Affiliate so long as it
remains an Affiliate; PROVIDED, HOWEVER, that such Affiliate agrees in writing
to be bound by the terms and conditions of this Agreement and Licensee agrees to
cause any and all such Affiliates to comply with such terms and conditions or
(ii) with Licensor's consent, which consent may be withheld in Licensor's sole
discretion, to any third party, including, without limitation, co-packers and
manufacturing sublicensees. Any attempted assignment
<PAGE>
39
or sublicense in violation hereof, whether voluntary or by operation of law,
directly or indirectly, shall be void and of no force and effect.
(b) It is understood that any person who is a distributor of Licensee
(I.E., purchases and resells but does not manufacture Products bearing the
Licensed Mark or have such Products manufactured) whether or not an Affiliate of
Licensee, is not a sublicensee for such purchase and resale and does not require
a sublicense hereunder in order to be able to sell Products under the Licensed
Mark.
22. MATERIAL LICENSED TECHNOLOGY.
(a) Prior to or promptly after the provision of the Licensed Technology
by Licensor to Licensee pursuant to Section 5(a), the parties shall reasonably
agree to a written schedule of items of Licensed Technology ("SCHEDULE 22"),
which may by mutual agreement be supplemented from time to time, that they deem
to be essential to the manufacture of Licensor's Products ("MATERIAL LICENSED
TECHNOLOGY"). Licensee shall within 90 days after the parties agree Schedule 22
provide Licensor with notice of the Material Licensed Technology that Licensee
has independently developed or had knowledge of prior to the provision of the
Licensed Technology by Licensor. To the extent that Licensee does not provide
such notice, Licensee shall be deemed not to have independently developed or had
knowledge of such Material Licensed Technology prior to the expiration of such
90-day period; PROVIDED, HOWEVER, that if a failure by Licensee to provide
notice that such Material Licensed Technology was independently developed or
known by Licensee is the result of a good-faith mistake, and Licensee provides
such notice prior to the time that such Material Licensed Technology is
commercially applied by Licensee, then such notice shall be deemed to have been
given by Licensor during such 90-day period.
(b) Subject to Section 2(h)(ii), after the expiration or termination of
this Agreement, Licensee shall be permitted to use the Licensed Technology to
the extent necessary to enable Licensee to use enhancements to the Licensed
Technology developed by Licensee.
(c) In the event of a dispute as to whether Licensee had knowledge of
or independently developed such Material Licensed Technology, the burden of
proof shall be on Licensee with respect to this Section 22.
<PAGE>
40
23. NO AGENCY OR JOINT VENTURE.
Nothing herein contained shall be construed to constitute the parties
hereto as partners or as joint venturers, or either as agent or employee of the
other, and neither party shall have any power to obligate or bind the other in
any manner whatsoever.
24. FORCE MAJEURE.
If any event beyond the reasonable control of either party, including,
without limitation, an act of God, war or war condition, civil disorder,
government regulation or embargo, should impede the performance by a party of
all or part of its obligations under this Agreement, such nonperformance shall
be excused during and for a reasonable period after the continuance of such
event.
25. GOVERNING LAW.
This Agreement shall be considered as having been entered into in the
State of New York and this Agreement, and any disputes or actions relating
thereto (whether in contract, tort or otherwise), shall be governed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in New York, without regard to conflicts of law. However,
any and all disputes, controversies and claims pertaining to Licensor's
ownership of or the validity of any patent or application therefor or the
Licensed Mark or any registration thereof or any application for registration
thereof shall be construed and interpreted in accordance with the federal patent
or trademark laws, as applicable, and related laws, statutes, rules and
regulations of the United States unless there are no federal laws, statutes,
rules or regulations dispositive of such disputes, controversies and claims, in
which case any and all disputes, controversies and claims shall be construed and
interpreted in accordance with the laws of the State of New York.
26. NO WAIVER; CONSENT.
(a) The failure by any party hereto to enforce, at any period of time,
one or more of the terms and conditions of this Agreement shall not constitute a
waiver of such terms or conditions, or of the party's right thereafter to
enforce each and every term and condition of this Agreement. Neither tender of
payment by Licensee nor acceptance of payment by Licensor shall be deemed a
waiver of any violation of or default in any
<PAGE>
41
of the provisions of this Agreement. No waiver shall be effective unless in
writing and signed by the party intended to be bound thereby.
(b) Whenever this Agreement requires the consent or approval of
Licensor or Licensee, such consent or approval shall be deemed to have been
given upon the expiration of 14 days from the date the written request for such
consent or approval has actually been received by Licensor or Licensee, as the
case may be, unless Licensor or Licensee, as the case may be, delivers notice of
disapproval or non-consent to Licensee or Licensor, as the case may be, within
said 14-day period.
27. ARBITRATION AND CONSENT TO JURISDICTION.
(a) The parties hereto recognize that disputes as to certain matters
may from time to time arise during the term of this Agreement that relate to
either party's rights and/or obligations hereunder. It is the objective of the
parties to establish procedures to facilitate the resolution of disputes arising
under or in connection with this Agreement, including without limitation all
financial disputes (except as set forth in Section 9(f)) and any disputes as to
the validity, construction, performance, default, or breach hereof, in an
expedient manner by mutual cooperation and without resort to litigation. To
accomplish this objective, the parties agree to follow the procedures set forth
in this Section 27 if and when such disputes arise under or in connection with
this Agreement between the parties. If the parties cannot resolve a dispute
within fifteen (15) days of formal request by either party to the other, any
party may, by written notice to the other, have such dispute referred to (i) in
the case of Licensor, the Chief Executive Officer of Licensor and (ii) in the
case of Licensee, the President of Unilever Foods North America, for attempted
resolution by good faith negotiations. If such personnel are unable to resolve
such dispute within fifteen (15) days after such notice is received, then such
dispute shall be finally resolved, but only if written notice is thereafter
served by one party on the other party specifically requesting binding
arbitration pursuant to Section 27(b).
(b) Except as specifically set forth in this Agreement any and all
disputes, controversies and claims arising out of or relating to this Agreement,
or with respect to the construction of this Agreement, or concerning the
respective rights or obligations hereunder of the parties hereto and their
respective successors and
<PAGE>
42
permitted assigns, whether by operation of law or otherwise (except disputes,
controversies and claims relating to or affecting in any way Licensor's
ownership of or the validity of the Licensed Mark or any registration thereof,
or any application for registration thereof, as to which the parties hereto
hereby confer and agree to submit to the exclusive (both subject-matter and
personal) jurisdiction of the federal courts of the State of New York), shall be
settled and determined by arbitration in Boston, Massachusetts, in accordance
with and pursuant to the then existing rules of the American Arbitration
Association. The parties agree that the arbitrators shall have the power to
award specific performance or injunctive relief and reasonable attorneys' fees
and expenses to any party in any such arbitration and that the courts shall have
similar power with regard to that injunctive relief sought by either party
pursuant to this Agreement. The arbitrator shall provide a reasoned, written
decision. The arbitration award shall be final and binding upon the parties and
judgment thereon may be entered in the courts of the State of New York and the
federal courts in said State, the jurisdiction of which courts is hereby
consented to by the parties for such purposes. Any judgment on an award may be
enforced in the State of New York as well as any other appropriate jurisdiction.
The service of any notice, process, motion or other document in connection with
any other action or proceeding, may be effectuated by either personal service
upon a party or designated agent or by certified or registered mail to the party
at its address hereinabove provided. Each of the parties agrees to appoint an
agent to receive service of process on its behalf, such agent to be appointed in
New York within thirty (30) days of the commencement of the Initial Term of this
Agreement. Consistent with the foregoing, the parties hereto irrevocably and
unconditionally consent to the jurisdiction of, and waive any objection to the
laying of venue in the courts and arbitral forums (as set forth above) located
in New York City (both federal and state).
28. PUBLICITY
Any announcements concerning this Agreement or the License shall be in
a form approved by Licensor and Licensee.
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43
29. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute a single
instrument.
30. SEVERABILITY.
In the event that any provision of this Agreement as applied to any
party or to any circumstance, shall be adjudged by a court of competent
jurisdiction to be void, invalid, unenforceable or inoperative as a matter of
law, then the same shall in No way affect any other provision in this Agreement,
the application of such provision in any other circumstance or with respect to
any other party, or the validity or enforceability of the Agreement as a whole
and to the extent permitted by applicable law, any such provision shall be
restricted in applicability or reformed to the minimum extent required for such
to be enforceable. This provision shall be interpreted and enforced to give
effect to the original written intent of the parties hereto prior to the
determination of such invalidity, unenforceability or inoperability.
31. ENTIRE AGREEMENT.
This Agreement contains the complete understanding of the parties with
respect to the subject matter hereof, supersedes all prior oral or written
understandings and agreements relating thereto and may not be modified,
discharged or terminated except by a written instrument signed by both Licensee
and Licensor.
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44
IN WITNESS WHEREOF, the parties hereunto have duly executed this
Agreement as of the day and year first above written.
BEN & JERRY'S HOMEMADE, INC.,
By: /s/ PERRY D. ODAK
--------------------------------
Name: Perry D. Odak
Title: Chief Executive Officer
BEN & JERRY'S HOMEMADE HOLDINGS,
INC.,
By: /s/ PERRY D. ODAK
--------------------------------
Name: Perry D. Odak
Title: Vice President
UNILEVER N.V.,
By: /s/ R. W. CHAMBERLIN
--------------------------------
Name: R. W. Chamberlin
Title: Attorney A
UNILEVER N.V.,
By: /s/ G. DIJKSTRA
--------------------------------
Name: G. Dijkstra
Title: Attorney B
UNILEVER PLC,
By: /s/ STEPHEN J. WILLIAMS
--------------------------------
Name: Stephen J. Williams
<PAGE>
45
Title: Joint Secretary
<PAGE>
EXHIBIT A
LEADING WITH PROGRESSIVE VALUES ACROSS OUR BUSINESS
We have a progressive, nonpartisan social mission that seeks to meet human needs
and eliminate injustices in our local, national and international communities by
integrating these concerns into our day-to-day business activities. Our focus is
on children and families, the environment and sustainable agriculture on family
farms.
- - Capitalism and the wealth it produces do not create opportunity for
everyone equally. We recognize that the gap between the rich and the
poor is wider than at anytime since the 1920s. We strive to create
economic opportunities for those who have been denied them and to
advance new models of economic justice that sustainable and replicable.
- - By definition, the manufacturing of products creates
waste. We strive to minimize our negative impact on
the environment.
- - The growing of food is overly reliant on the use of toxic chemicals and
other methods that are unsustainable. We support sustainable and safe
methods of food production that reduce environmental degradation,
maintain the productivity of the land over time, and support the
economic viability of family farms and rural communities.
- - We seek and support nonviolent ways to achieve peace and justice. We
believe government resources are more productively used in meeting
human needs than in building and maintaining weapons systems.
- - We strive to show a deep respect for human beings inside and outside
our company and for the communities in which they live.
