$ in thousands, except per share amounts

Contract Categories: Business Finance - Share Agreements
EX-10.32 9 f92061exv10w32.txt EXHIBIT 10.32 Exhibit 10.32 FIRST AMENDMENT TO EMPLOYMENT AGREEMENT This FIRST AMENDMENT TO THE EMPLOYMENT AGREEMENT by and among Dreyer's Grand Ice Cream, Inc., a Delaware corporation (the "Company") and T. Gary Rogers (the "Executive"), dated as of June 16, 2002 (the "Agreement"), is dated as of July 21, 2003. WHEREAS, the Company, Dreyer's Grand Ice Cream Holdings, Inc. (formerly known as New December, Inc.), a Delaware corporation ("New Dreyer's") and wholly owned subsidiary of the Company, December Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of New Dreyer's, Nestle Holdings, Inc., a Delaware corporation ("Nestle") and NICC Holdings, Inc., a Delaware corporation and wholly owned indirect subsidiary of Nestle ("NICC") have entered into an Agreement and Plan of Merger Contribution, dated as of June 16, 2002 (as such agreement may hereafter be amended, the "Merger Agreement"), pursuant to which, among other things, the Company and NICC have become wholly owned subsidiaries of New Dreyer's effective as of June 26, 2003; and WHEREAS, the Company and the Executive have entered into the Agreement to provide for the employment of the Executive by the Company, and the Executive wishes to serve the Company, in the capacities and on the terms and subject to the conditions set forth in the Agreement; and WHEREAS, in view of the fact that the Effective Time of the Merger (as defined in the Merger Agreement) occurred later than originally anticipated, the Company and the Executive agree that it is appropriate to amend the Agreement as set forth in this First Amendment; and WHEREAS, Section 9(c) of the Agreement requires that the Company cause New Dreyer's to become a party to and co-obligor under the Agreement; NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS: 1. Vesting of Deferred Options. Section 1(b) of the Agreement is hereby amended to read as follows: In consideration for the protections afforded to the Executive under this Agreement, the Executive hereby waives the vesting of the Deferred Options (as defined below) that has occurred or may hereafter occur solely as a result of the applicability of the change-of-control provisions of Section 11 of the Company's Stock Option Plan (1993) (the "Option Plan") upon the approval of the Merger Agreement by the Board of Directors of the Company (the "Board") and/or the transactions contemplated by the Merger Agreement, and agrees that the Deferred Options shall vest in accordance with the schedule set forth in Exhibit A hereto, subject to the terms of the Deferred Options, the Option Plan and the provisions of Sections 4(a)(iv), 4(b)(iii) and 4(c)(v) of this Agreement. Notwithstanding the foregoing, if the Merger Agreement is terminated as a result of a Change in Control occurring before the Effective Time of the Merger: (i) such waiver and the preceding sentence shall be void unless expressly reaffirmed as contemplated by Section 1(a) above; and (ii) if such reaffirmation occurs, the Deferred Options shall vest in three equal annual installments on each of the first three anniversaries of the Agreement Effective Date, with each such annual installment including a pro-rata portion of each separate grant of Deferred Options. The "Deferred Options" means those stock options that have been granted to the Executive under the Option Plan that are outstanding on the date of this Agreement that would not be vested on the date of this Agreement, absent the fact that approval of the Merger Agreement by the Board caused them to vest pursuant to Section 11 of the Option Plan. In addition, the Executive consents to the treatment of his options to purchase Company common stock provided for in Section 2.11(e) of the Merger Agreement. Except as provided otherwise in this Agreement or the Merger Agreement, the Deferred Options shall continue to be subject to the Option Plan and the terms of the underlying award agreement, including without limitation the provision that vested Deferred Options will remain exercisable for at least three months following any termination of the Executive's employment for any reason, whether during or after the end of the Employment Period (but not after the expiration of the original option term). 2. New Dreyer's. New Dreyer's acknowledges that, as required by Exection 9(c) of the Agreement: (a) as of the Effective Time of the Merger on June 26, 2003, New Dreyer's has become an additional party to the Agreement and a co-obligor with respect to the obligations of the Company under the Agreement; and (b) from and after the Effective Time of the Merger, the references in Section 3(b) and 3(c) of the Agreement to the "Board" shall be deemed to refer to the Board of Directors of New Dreyer's, and all references in the Agreement to the Company shall be deemed to refer to both the Company and New Dreyer's. 3. Agreement Ratified. The Agreement is ratified and confirmed without amendment, except as specifically provided above. 4. Counterparts. This First Amendment may be executed simultaneously in two counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and, pursuant to the authorization from their respective boards of directors, the Company and New Dreyer's each has caused these presents to be executed in its name on its behalf, all as of the day and year first above written. /s/ T. Gary Rogers --------------------------------------------- T. GARY ROGERS DREYER'S GRAND ICE CREAM, INC. By: /s/ T. Gary Rogers --------------------------------------- Name: T. Gary Rogers Title: Chairman of the Board and Chief Executive Officer DREYER'S GRAND ICE CREAM HOLDINGS, INC. By: /s/ T. Gary Rogers --------------------------------------- Name: T. Gary Rogers Title: Chairman of the Board and Chief Executive Officer Exhibit A VESTING SCHEDULE FOR DEFERRED OPTIONS Page: 1 OPTIONS AND AWARDS SUMMARY DREYER'S GRAND ICE CREAM, INC. File: Optsum [ ] ID ###-###-#### Date: 8/4/2003 [ ] 5929 College Avenue Time: 3:39:36PM [ ] As of: 6/27/2003Oakland, California 94618 Current Market Value: $79.000000 T. GARY ROGERS ID: ###-##-#### 6301 BULLARD DRIVE OAKLAND, CA 94611
OPTION NO.: 000560 OPTION DATE: 3/4/1997 SHARES: 120,000 PRICE: $15.191400 PLAN: NQ93 TYPE: NQ
V E S T I N G S C H E D U L E T R A N S A C T I O N S C A N C E L L A T I O N S Granted Full Vest Exercisable Total Price Expires Date Type Shares Value Date Reason Shares 48,000 3/4/1999 48,000 $ 729,187.20 3/4/2007 24,000 3/4/2000 24,000 $ 364,593.60 3/4/2007 24,000 3/4/2001 24,000 $ 364,593.60 3/4/2007 24,000 3/4/2002 24,000 $ 364,593.60 3/4/2007 120,000 120,000 $ 1,822,968.00
OPTION NO.: 000861 OPTION DATE: 3/3/1998 SHARES: 85,300 PRICE: $22.875000 PLAN: NQ93 TYPE: NQ
V E S T I N G S C H E D U L E T R A N S A C T I O N S C A N C E L L A T I O N S Granted Full Vest Exercisable Total Price Expires Date Type Shares Value Date Reason Shares 34,120 3/3/2000 34,120 $ 780,495.00 3/3/2008 17,060 3/3/2001 17,060 $ 390,247.50 3/3/2008 17,060 3/3/2002 17,060 $ 390,247.50 3/3/2008 5,687 6/26/2004 0 $ 0.00 3/3/2008 5,687 6/26/2005 0 $ 0.00 3/3/2008 5,686 4/3/2006 0 $ 0.00 3/3/2008 85,300 68,240 $1,560,990.00
OPTION NO.: 000880 OPTION DATE: 2/23/1999 SHARES: 37,000 PRICE: $12.375000 PLAN: NQ93 TYPE: NQ
V E S T I N G S C H E D U L E T R A N S A C T I O N S C A N C E L L A T I O N S Granted Full Vest Exercisable Total Price Expires Date Type Shares Value Date Reason Shares 14,800 2/23/2001 14,800 $183,150.00 2/23/2009 7,400 2/23/2002 7,400 $ 91,575.00 2/23/2009 4,933 6/26/2004 0 $ 0.00 2/23/2009 4,933 6/26/2005 0 $ 0.00 2/23/2009 4,934 4/3/2006 0 $ 0.00 2/23/2009 37,000 22,200 $274,725.00
OPTION NO.: 001059 OPTION DATE: 2/23/1999 SHARES: 130,300 PRICE: $12.375000 PLAN: NQ93 TYPE: NQ
V E S T I N G S C H E D U L E T R A N S A C T I O N S C A N C E L L A T I O N S Granted Full Vest Exercisable Total Price Expires Date Type Shares Value Date Reason Shares 52,120 2/23/2001 52,120 $644,985.00 2/23/2009 26,060 2/23/2002 26,060 $322,492.50 2/23/2009 17,373 6/26/2004 0 $0.00 2/23/2009 17,373 6/26/2005 0 $ 0.00 2/23/2009 17,374 4/3/2006 0 $ 0.00 2/23/2009 130,300 78,180 $967,477.50
OPTION NO.: 001130 OPTION DATE: 2/23/2000 SHARES: 119,350 PRICE: $17.343750 PLAN: NQ93 TYPE: NQ
V E S T I N G S C H E D U L E T R A N S A C T I O N S C AN C E L L A T I O N S Granted Full Vest Exercisable Total Price Expires Date Type Shares Value Date Reason Shares 47,740 2/23/2002 47,740 $827,990.63 2/23/2010 23,870 6/26/2004 0 $ 0.00 2/23/2010 23,870 6/26/2005 0 $ 0.00 2/23/2010 23,870 4/3/2006 0 $ 0.00 2/23/2010 119,350 47,740 $827,990.63
OPTION NO.: 001556 OPTION DATE: 2/14/2001 SHARES: 83,210 PRICE: $31.125000 PLAN: NQ93 TYPE: NQ
V E S T I N G S C H E D U L E T R A N S A C T I O N S C A N C E L L A T I O N S Granted Full Vest Exercisable Total Price Expires Date Type Shares Value Date Reason Shares 0 6/14/2002 0 $0.00 2/14/2011 27,737 6/26/2004 0 $0.00 2/14/2011 27,737 6/26/2005 0 $0.00 2/14/2011 27,736 4/3/2006 0 $0.00 2/14/2011 83,210 0 $0.00
OPTION NO.: 001835 OPTION DATE: 2/7/2002 SHARES: 69,740 PRICE: $39.395000 PLAN: NQ93 TYPE: NQ
V E S T I N G S C H E D U L E T R A N S A C T I N S C A N C E L L A T I O N S Granted Full Vest Exercisable Total Price Expires Date Type Shares Value Date Reason Shares 0 6/14/2002 0 $0.00 2/7/2012 23,247 6/26/2004 0 $0.00 2/7/2012 23,247 6/26/2005 0 $0.00 2/7/2012 23,246 4/3/2006 0 $0.00 2/7/2012 69,740 0 $0.00
Total Options Exercisable: 336,360 Total Price: $ 5,454,151.13 Total Potential Gain: $21,118,288.88