As filed with the Securities and Exchange Commission on October 5, 1998
Registration No. 333 - _____________
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
GREEN MOUNTAIN COFFEE, INC.
---------------------------
(Exact name of registrant as specified in its charter)
Delaware 03-0339228
- ---------------------------------- --------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
33 Coffee Lane, Waterbury, Vermont 05676
----------------------------------------
(Address of Principal Executive Offices)
GREEN MOUNTAIN COFFEE, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
---------------------------------
(Full title of the plan)
Robert P. Stiller
Green Mountain Coffee, Inc.
33 Coffee Lane
Waterbury, Vermont 05676
------------------------
(Name and address of agent for service)
(802) 244-5621
--------------
(Telephone number, including area code, of agent for service)
Copy to:
Mark V. D'Amico
Merritt & Merritt
30 Main Street
Suite 330
Burlington Vermont 05402
(802) 658-7830
Calculation of Registration Fee
<TABLE>
<S> <C> <C> <C> <C>
- ----------------- ---------------- ------------ -------------- -----------------
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities to Amount to be Price Per Offering Registration
be Registered Registered (1) Share (2) Price (2) Fee
- ----------------- ---------------- ------------ -------------- -----------------
Common Stock
(par value $0.10
per share) 150,000 $4.50 $675,000 $199.13
</TABLE>
(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminable number of
additional Shares that may become issuable pursuant to terms designed
to prevent dilution resulting from stock splits, stock dividends or
similar events.
(2) Estimated solely for the purposes of calculating the amount of the
registration fee. In accordance with Rule 457(h) of the Securities Act
of 1933, as amended, the price shown is the average of the high and low
selling prices of the Common Stock for October 1, 1998 as reported
on the NASDAQ National Market.
PART I
Information Required in the Section 10(a) Prospectus
The documents containing the information specified in Part I of this
Registration Statement will be supplied to all persons eligible to participate
in the Green Mountain Coffee, Inc. 1998 Employee Stock Purchase Plan.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following documents, or portions thereof, as filed with the
Securities and Exchange Commission by the Registrant are hereby incorporated by
reference:
(A) The Registrant's Annual Report on Form 10-K for the fiscal year
ended September 27, 1997;
(B) The Registrant's Quarterly Reports on From 10-Q for each of the
quarters ended January 17, 1998, April 11, 1998 and July 4, 1998, and its
Current Report on Form 8-K dated June 11, 1998.
(C) The description of the Registrant's Common Stock contained in the
section entitled "Description of Capital Stock" of the Registrant's Registration
Statement on Form SB-2 filed on July 28, 1993 and declared effective on
September 21, 1993 (File No. 33-66646) (which is incorporated by reference to
Item 1 of the Registrant's Registration Statement on Form 8-A (File No.
0-22398), dated September 10, 1993, filed pursuant to Section 12 of the Exchange
Act).
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended,
after the date of this Registration Statement and prior to the filing of a
post-effective amendment to the Registration Statement which indicates that all
securities offered hereby have been sold or which de-registers all such
securities remaining unsold shall be deemed to be incorporated by reference into
this Registration Statement and to be a part hereof from the date of filing of
such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
H. Kenneth Merritt, Jr., Managing Director of Merritt & Merritt, the
Registrant's corporate counsel, serves as Assistant Secretary of the Registrant.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
generally provides that a corporation is authorized to indemnify any person who
is made a party to any threatened, pending or completed action, suit or
proceeding by reason of the fact that he is or was a director, officer, employee
or agent of the corporation or is or was serving, at the request of the
corporation, in any of such capacities of another corporation or other
enterprise, if such director, officer, employee or agent acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. This statute describes
in detail the right of the Registrant to indemnify any such person.
Section 102(b)(7) of the DGCL enables a corporation in its original
certificate of incorporation or an amendment thereto to eliminate or limit the
personal liability of a director for violations of the director's fiduciary
duty, except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit. The Registrant's Certificate of Incorporation limits the liability of
directors to the extent permitted by Section 102(b)(7) of the DGCL.
The Registrant's Certificate of Incorporation and Bylaws state that the
Registrant shall indemnify its officers, directors, and employees, and may
indemnify its agents, to the full extent permitted by the laws of the State of
Delaware. The Registrant currently maintains an officers' and directors'
liability insurance policy which covers, subject to the exclusions and
limitations of the policy, officers and directors of the Registrant against
certain liabilities which may be incurred by them solely in such capacities.
For information regarding the Registrant's undertaking to submit to
adjudication the issue of indemnification for violation of the securities laws,
see Item 9 hereof. The Registrant believes that it is the position of the
Securities and Exchange Commission that insofar as the foregoing provisions may
be invoked to disclaim liability for damages arising under the Securities Act,
such provisions are against public policy as expressed in the Securities Act and
are therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
----------- -----------
4 Certificate of Incorporation and Bylaws (incorporated
by reference to Exhibits 3.1 and 3.2 in the
Registrant's Registration Statement on Form SB-2
(Registration No.33-66646) filed with the SEC on July
28, 1993)
5 Opinion of Merritt & Merritt
23.1 Consent of Merritt & Merritt (contained in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Powers of Attorney (included on the signature page of
this Registration Statement)
99.1 Green Mountain Coffee, Inc. 1998 Employee Stock
Purchase Plan
99.2 Employee Stock Purchase Plan Election Form
Item 9. Undertakings.
(A) The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "1933 Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act
that are incorporated by reference in the Registration Statement.
2. That, for the purpose of determining any liability under the 1933 Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
3. To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(B) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(C) Insofar as indemnification for liabilities arising under the 1933 Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the 1933 Act and is,
therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the 1933 Act and will be governed by the final adjudication of such
issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Waterbury, State of Vermont, on October 1, 1998.
GREEN MOUNTAIN COFFEE, INC.
By: /s/ Robert P. Stiller
----------------------
Robert P. Stiller
Chairman of the Board of Directors,
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Robert P. Stiller and Robert D. Britt his
true and lawful attorney-in-fact and agent, each acting alone, with full powers
of substitution and resubstitution, for him and his name, place and stead, in
any and all capacities with full power and authority to do any and all acts and
things and to execute any and all instruments which said attorneys and agents,
and any of them, determine may be necessary, advisable or required to enable the
Registrant to comply with the federal and state securities laws in connection
with the matters covered by this Registration Statement. Without limiting the
generality of the foregoing power and authority, the powers granted include the
power and authority to sign the names of the undersigned in the capacities
indicated to this Registration Statement, to any and all amendments and
supplements, and to all instruments or documents filed as a part of or in
connection with this Registration Statement or amendments or supplements
thereof, and each of the undersigned hereby ratifies and confirms all that said
attorneys and agents, or any of them, shall do or cause to be done by virtue
hereof.
This Power of Attorney may be signed in several counterparts.
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
/s/ Robert P. Stiller Chairman of the Board of October 1, 1998
- ------------------------- Directors, President and Chief
Robert P. Stiller Executive Officer
(Principal Executive Officer)
/s/ Robert D. Britt Chief Financial Officer, October 1, 1998
- ------------------------- Vice President,Treasurer,
Robert D. Britt Secretary and Director
(Principal Financial and Accounting Officer)
/s/ Stephen J. Sabol Vice President and Director October 1, 1998
- -------------------------
Stephen J. Sabol
/s/ Jonathan C. Wettstein Vice President and Director October 1, 1998
- -------------------------
Jonathan C. Wettstein
/s/ William D. Davis Director October 1, 1998
- -------------------------
William D. Davis
/s/ Jules A. del Vecchio Director October 1, 1998
- -------------------------
Jules A. del Vecchio
/s/ David E. Moran Director October 1, 1998
- -------------------------
David E. Moran
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
4 Certificate of Incorporation and Bylaws (incorporated
by reference to Exhibits 3.1 and 3.2 in the
Registrant's Registration Statement on Form SB-2
(Registration No.33-66646) filed with the SEC on July
28, 1993)
5 Opinion of Merritt & Merritt
23.1 Consent of Merritt & Merritt (contained in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Powers of Attorney (included on the signature page of
this Registration Statement)
99.1 Green Mountain Coffee, Inc. 1998 Employee Stock
Purchase Plan
99.2 Employee Stock Purchase Plan Election Form
September 29, 1998
Board of Directors
Green Mountain Coffee, Inc.
33 Coffee Lane
Waterbury, Vermont 05676
Re: Green Mountain Coffee, Inc. - General (001)
Gentlemen:
We have acted as counsel to Green Mountain Coffee, Inc. (the "Company")
in connection with the registration on Form S-8 under the Securities Act of
1933, as amended (the "Registration Statement") of 150,000 shares of the Common
Stock, par value $0.10 per share, of the Company authorized for issuance under
the Green Mountain Coffee, Inc. 1998 Employee Stock Purchase Plan (the "Plan").
We are furnishing you this opinion as required by the terms of the Registration
Statement.
We have reviewed the Company's charter documents and the corporate
proceedings taken by the Company in connection with the establishment of the
Plan. Based on this review we are of the opinion that, when such shares have
been issued and sold in accordance with the provisions of the Plan, and in
accordance with the Registration Statement, such shares will be duly authorized,
validly issued, fully-paid and nonassessable shares of the Company's Common
Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
This opinion letter is rendered to you as of the first date set out
above. We disclaim any obligation to advise you of facts, circumstances, events
or developments which hereafter may be brought to our attention and which may
alter, affect or modify the opinion expressed herein.
This opinion is solely for your benefit and may not be relied upon,
used, published, distributed, or quoted in any manner whatsoever by or to any
other person or entity, nor filed with any governmental agency (other than as
consented to above), without the prior written consent of this firm.
Sincerely,
/s/ Merritt & Merritt
---------------------
Merritt & Merritt
To the Board of Directors and
Stockholders of Green Mountain Coffee, Inc.
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 11, 1997, which appears on
page 16 of the 1997 Annual Report to Shareholders of Green Mountain Coffee,
Inc., which is incorporated by reference in Green Mountain Coffee, Inc.'s Annual
Report on Form 10-K for the year ended September 27, 1997. We also consent to
the incorporation by reference of our report on the Financial Statement
Schedules, which appears on page F2 of such Annual Report on Form 10-K.
PricewaterhouseCoopers LLP
Boston, Massachusetts
October 5, 1998
GREEN MOUNTAIN COFFEE, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
Article 1 - Purpose.
This 1998 Employee Stock Purchase Plan (the "Plan") is intended to
encourage stock ownership by all eligible employees of Green Mountain Coffee,
Inc. (the "Company"), a Delaware corporation, and its participating subsidiaries
(as defined in Article 17) so that they may share in the growth of the Company
by acquiring or increasing their proprietary interest in the Company. The Plan
is designed to encourage eligible employees to remain in the employ of the
Company and its participating subsidiaries. The Plan is intended to constitute
an "employee stock purchase plan" within the meaning of Section 423(b) of the
Internal Revenue Code of 1986, as amended (the "Code").
Article 2 - Administration of the Plan.
The Compensation Committee of the Board of Directors (the "Committee")
will administer the Plan. The interpretation and construction by the Committee
of any provisions of the Plan or of any option granted under it shall be final,
unless otherwise determined by the Board of Directors. The Committee may from
time to time adopt such rules and regulations for carrying out the Plan as it
may deem best, provided that any such rules and regulations shall be applied on
a uniform basis to all employees under the Plan. No member of the Board of
Directors or the Committee shall be liable for any action or determination made
in good faith with respect to the Plan or any option granted under it.
Notwithstanding the foregoing, the Board of Directors shall at all
times retain the power to administer this Plan. In such event, the word
"Committee" wherever used herein shall be deemed to mean the Board of Directors.
Article 3 - Eligible Employees.
All employees of the Company or any of its participating subsidiaries
who have completed 30 days of employment and whose customary employment is more
than 20 hours per week shall be eligible to receive options under the Plan to
purchase common stock of the Company, and all eligible employees shall have the
same rights and privileges hereunder. Persons who are eligible employees on the
first business day of any Payment Period (as defined in Article 5) shall receive
their options as of such day. Persons who become eligible employees after any
date on which options are granted under the Plan shall be granted options on the
first day of the next succeeding Payment Period on which options are granted to
eligible employees under the Plan. Directors who are not employees of the
Company shall not be eligible to receive options under this Plan. In no event,
however, may an employee be granted an option if such employee, immediately
after the option was granted, would be treated as owning stock possessing five
percent (5%) or more of the total combined voting power or value of all classes
of stock of the Company or of any parent corporation or subsidiary corporation,
as the terms "parent corporation" and "subsidiary corporation" are defined in
Section 424(e) and (f) of the Code. For purposes of determining stock ownership
under this paragraph, the rules of Section 424(d) of the Code shall apply, and
stock which the employee may purchase under outstanding options shall be treated
as stock owned by the employee.
Article 4 - Stock Subject to the Plan.
The stock subject to the options under the Plan shall be shares of the
Company's authorized but unissued common stock, par value $0.10 per share (the
"Common Stock"), or shares of Common Stock reacquired by the Company, including
shares purchased in the open market. The aggregate number of shares which may be
issued pursuant to the Plan is 150,000, subject to adjustment as provided in
Article 12. If any option granted under the Plan shall expire or terminate for
any reason without having been exercised in full or shall cease for any reason
to be exercisable in whole or in part, the unpurchased shares subject thereto
shall again be available under the Plan.
Article 5 - Payment Period and Stock Options.
The Payment Periods shall consist of the first half of the Company's
fiscal year and the second half of the Company's fiscal year. The first Payment
Period will be the first half of the Company's 1999 fiscal year.
Subject to the limitations set forth in the last paragraph of this
Article 5, twice each year, on the first business day of each Payment Period,
the Company will grant to each eligible employee who is then a participant in
the Plan an option to purchase on the last day of such Payment Period, at the
Option Price hereinafter provided for, the number of shares provided in Article
6, on condition that such employee remains eligible to participate in the Plan
throughout the remainder of such Payment Period. The participant shall be
entitled to exercise the option so granted only to the extent of the
participant's accumulated payroll deductions on the last day of such Payment
Period. The Option Price per share for each Payment Period shall be the lesser
of (i) 85% of the average market price of the Common Stock on the first business
day of the Payment Period and (ii) 85% of the average market price of the Common
Stock on the last business day of the Payment Period, in either event rounded up
to avoid fractions of a dollar other than 1/4, 1/2, and 3/4. The Option Price
shall be subject to adjustment as provided in Article 12.
For purposes of the Plan, the term "average market price" on any date
means (i) the average (on that date) of the high and low prices of the Common
Stock on the principal national securities exchange on which the Common Stock is
traded, if the Common Stock is then traded on a national securities exchange; or
(ii) the last reported sale price (on that date) of the Common Stock on the
Nasdaq National Market, if the Common Stock is not then traded on a national
securities exchange; or (iii) the average of the closing bid and asked prices
last quoted (on that date) by an established quotation service for
over-the-counter securities, if the Common Stock is not reported on the Nasdaq
National Market; or (iv) if the Common Stock is not publicly traded, the fair
market value of the Common Stock as determined by the Committee after taking
into consideration all factors which it deems appropriate, including, without
limitation, recent sale and offer prices of the Common Stock in private
transactions negotiated at arm's length.
For purposes of the Plan, the term "business day" means a day on which
there is trading on the Nasdaq National Market or the aforementioned national
securities exchange, whichever is applicable pursuant to the preceding
paragraph, and if neither is applicable, a day that is not a Saturday, Sunday or
legal holiday in Vermont.
No employee shall be granted an option which permits the employee's
right to purchase stock under the Plan, and under all other Section 423(b)
employee stock purchase plans of the Company and any parent or subsidiary
corporations, to accrue at a rate which exceeds $25,000 of fair market value of
such stock (determined on the date or dates that options on such stock were
granted) for each calendar year in which such option is outstanding at any time.
The purpose of the limitation in the preceding sentence is to comply with
Section 423(b)(8) of the Code. If the participant's accumulated payroll
deductions on the last day of the Payment Period would otherwise enable the
participant to purchase Common Stock in excess of the Section 423(b)(8)
limitation described in this paragraph, the excess of the amount of the
accumulated payroll deductions over the aggregate purchase price of the shares
actually purchased shall be promptly refunded to the participant by the Company,
without interest.
Article 6 - Exercise of Option.
Subject to the limitations in Article 16, each eligible employee who
continues to be a participant in the Plan on the last day of a Payment Period
shall be deemed to have exercised his or her option on such date and shall be
deemed to have purchased from the Company such number of full shares of Common
Stock reserved for the purpose of the Plan as the participant's accumulated
payroll deductions on such date will pay for at the Option Price, subject to the
Section 423(b)(8) limitation described in Article 5. In no event may any option
be exercisable later than 27 months after the date of its grant. If the
individual is not a participant on the last day of a Payment Period, then he or
she shall not be entitled to exercise his or her option. Only full shares of
Common Stock may be purchased under the Plan. Unused payroll deductions
remaining in a participant's account at the end of a Payment Period by reason of
the inability to purchase a fractional share shall be carried forward to the
next Payment Period.
Article 7 - Authorization for Entering the Plan.
An employee may elect to enter the Plan by filling out, signing and
delivering to the Company an authorization:
A. Stating the percentage to be deducted regularly from the
employee's pay;
B. Authorizing the purchase of stock for the employee in each
Payment Period in accordance with the terms of the Plan; and
C. Specifying the exact name or names in which stock purchased
for the employee is to be issued as provided under Article 11
hereof.
Such authorization must be received by the Company at least ten business days
before the first day of the next succeeding Payment Period and shall take effect
only if the employee is an eligible employee on the first business day of such
Payment Period.
Unless a participant files a new authorization or withdraws from the
Plan, the deductions and purchases under the authorization the participant has
on file under the Plan will continue from one Payment Period to succeeding
Payment Periods as long as the Plan remains in effect.
The Company will accumulate and hold for each participant's account the
amounts deducted from his or her pay. No interest will be paid on these amounts.
Article 8 - Maximum Amount of Payroll Deductions.
An employee may authorize payroll deductions in an amount (expressed as
a whole percentage) not less than one percent (1%) but not more than ten percent
(10%) of the employee's total compensation, including base pay or salary and any
overtime, bonuses or commissions.
Article 9 - Change in Payroll Deductions.
Deductions may not be increased or decreased during a Payment Period.
However, a participant may withdraw in full from the Plan.
Article 10 - Withdrawal from the Plan.
An employee may withdraw from the Plan (in whole but not in part) at
any time prior to the last day of a Payment Period by delivering a withdrawal
notice to the Company, in which case the Company will promptly refund the entire
balance of the employee's deductions not previously used to purchase stock under
the Plan.
To re-enter the Plan, an employee who has previously withdrawn must
file a new authorization at least ten business days before the first day of the
next Payment Period in which he or she wishes to participate. The employee's
re-entry into the Plan becomes effective at the beginning of such Payment
Period, provided that he or she is an eligible employee on the first business
day of the Payment Period.
<PAGE>
Article 11 - Issuance of Stock.
Certificates for stock issued to participants shall be delivered as
soon as practicable after each Payment Period by the Company's transfer agent,
except a provided in Section 16.
Stock purchased under the Plan shall be issued only in the name of the
participant, or if the participant's authorization so specifies, in the name of
the participant and another person of legal age as joint tenants with rights of
survivorship.
Article 12 - Adjustments.
Upon the happening of any of the following described events, a
participant's rights under options granted under the Plan shall be adjusted as
hereinafter provided:
A. In the event that the shares of Common Stock shall be subdivided or
combined into a greater or smaller number of shares, or if, upon a
reorganization, split-up, liquidation, recapitalization or the like of the
Company, the shares of Common Stock shall be exchanged for other securities of
the Company, each participant shall be entitled, subject to the conditions
herein stated, to purchase such number of shares of Common Stock or amount of
other securities of the Company as were exchangeable for the number of shares of
Common Stock that such participant would have been entitled to purchase except
for such action, and appropriate adjustments shall be made in the Option Price
per share to reflect such subdivision, combination or exchange; and
B. In the event the Company shall issue any of its shares as a stock
dividend upon or with respect to the shares of stock of the class which shall at
the time be subject to option hereunder, each participant upon exercising such
an option shall be entitled to receive (for the purchase price paid upon such
exercise) the shares as to which the participant is exercising his or her option
and, in addition thereto (at no additional cost), such number of shares of the
class or classes in which such stock dividend or dividends were declared or
paid, and such amount of cash in lieu of fractional shares, as is equal to the
number of shares thereof and the amount of cash in lieu of fractional shares,
respectively, which the participant would have received if the participant had
been the holder of the shares as to which the participant is exercising his or
her option at all times between the date of the granting of such option and the
date of its exercise.
Upon the happening of any of the foregoing events, the class and
aggregate number of shares set forth in Article 4 hereof which are subject to
options which have been or may be granted under the Plan and the Option Price
shall also be appropriately adjusted to reflect the events specified in
paragraphs A. and B. above. Notwithstanding the foregoing, any adjustments made
pursuant to paragraphs A. or B. shall be made only after the Committee, based on
advice of counsel for the Company, determines whether such adjustments would
constitute a "modification" (as that term is defined in Section 424 of the
Code). If the Committee determines that such adjustments would constitute a
modification, it may refrain from making such adjustments.
If the Company is to be consolidated with or acquired by another entity
in a merger, a sale of all or substantially all of the Company's assets or
otherwise (an "Acquisition"), the Committee or the board of directors of any
entity assuming the obligations of the Company hereunder (the "Successor Board")
shall, with respect to options then outstanding under the Plan, either (i) make
appropriate provision for the continuation of such options by arranging for the
substitution on an equitable basis for the shares then subject to such options
either (a) the consideration payable with respect to the outstanding shares of
the Common Stock in connection with the Acquisition, (b) shares of stock of the
successor corporation, or a parent or subsidiary of such corporation, or (c)
such other securities as the Successor Board deems appropriate, the fair market
value of which shall not materially exceed the fair market value of the shares
of Common Stock subject to such options immediately preceding the Acquisition;
or (ii) terminate each participant's options in exchange for a cash payment
equal to the excess of (a) the fair market value on the date of the Acquisition,
of the number of shares of Common Stock that the participant's accumulated
payroll deductions as of the date of the Acquisition could purchase, at an
option price determined with reference only to the first business day of the
applicable Payment Period and subject to the Code Section 423(b)(8) and
fractional-share limitations on the amount of stock a participant would be
entitled to purchase, over (b) the result of multiplying such number of shares
by such option price.
The Committee or Successor Board shall determine the adjustments to be
made under this Article 12, and its determination shall be conclusive.
Article 13 - No Transfer or Assignment of Employee's Rights.
An employee's rights under the Plan are the employee's alone and may
not be transferred or assigned to, or availed of by, any other person other than
by will or the laws of descent and distribution. Any option granted under the
Plan to an employee may be exercised, during the employee's lifetime, only by
the employee.
Article 14 - Termination of Employee's Rights.
Whenever a participant ceases to be an eligible employee because of
retirement, voluntary or involuntary termination, resignation, layoff,
discharge, death or for any other reason, his or her rights under the Plan shall
immediately terminate, and the Company shall promptly refund, without interest,
the entire balance of his or her payroll deduction account under the Plan.
Notwithstanding the foregoing, eligible employment shall be treated as
continuing intact while a participant is on military leave, sick leave or other
bona fide leave of absence, for up to 90 days, or for so long as the
participant's right to re-employment is guaranteed either by statute or by
contract, if longer than 90 days.
If a participant's payroll deductions are interrupted by any legal
process, a withdrawal notice will be considered as having been received from the
participant on the day the interruption occurs.
Article 15 - Termination and Amendments to Plan.
Unless terminated sooner as provided below, the Plan shall terminate on
July 17, 2008. The Plan may be terminated at any time by the Company's Board of
Directors but such termination shall not affect options then outstanding under
the Plan. It will terminate in any case when all or substantially all of the
unissued shares of stock reserved for the purposes of the Plan have been
purchased. If at any time shares of stock reserved for the purpose of the Plan
remain available for purchase but not in sufficient number to satisfy all then
unfilled purchase requirements, the available shares shall be apportioned among
participants in proportion to the amount of payroll deductions accumulated on
behalf of each participant that would otherwise be used to purchase stock, and
the Plan shall terminate. Upon such termination or any other termination of the
Plan, all payroll deductions not used to purchase stock will be refunded,
without interest.
The Committee or the Board of Directors may from time to time adopt
amendments to the Plan provided that, without the approval of the stockholders
of the Company, no amendment may (i) materially increase the number of shares
that may be issued under the Plan; (ii) change the class of employees eligible
to receive options under the Plan, if such action would be treated as the
adoption of a new plan for purposes of Section 423(b) of the Code; or (iii)
cause the provisions of Section 16(b) of the Securities Exchange Act of 1934 to
become inapplicable to the Plan.
Article 16 - Restrictions on the Exercise of Options.
The other provisions of this Plan notwithstanding:
A. This Plan shall terminate if the stockholders of the Company do not
approve it within 12 months after its adoption by the Board of Directors.
Certificates representing shares issuable upon the exercise of options before
stockholder approval will be retained by the Company until the stockholders
approve the Plan. If the stockholders do not approve the Plan the Company will
issue no shares under the Plan, and it will return to the participants their
accumulated payroll deductions.
B. The Committee, in its sole discretion, may require as a condition to
the exercise of options that the underlying shares be registered under the
Securities Act of 1933, as amended, and that all other legal requirements
necessary, or in the Committee's opinion, desirable from the Company's
standpoint, to the exercise of the options be satisfied or waived.
Article 17 - Participating Subsidiaries.
The term "participating subsidiary" shall mean any present or future
subsidiary of the Company, as that term is defined in Section 424(f) of the
Code, which is designated from time to time by the Board of Directors to
participate in the Plan. The Board of Directors shall have the power to make
such designation before or after the Plan is approved by the stockholders.
<PAGE>
Article 18 - Optionees Not Stockholders.
Neither the granting of an option to an employee nor the deductions
from his or her pay shall constitute such employee a stockholder of the shares
covered by an option until such shares have been actually purchased by the
employee.
Article 19 - Application of Funds.
The proceeds received by the Company from the sale of Common Stock
pursuant to options granted under the Plan will be used for general corporate
purposes.
Article 20 - Notice to Company of Disqualifying Disposition.
By electing to participate in the Plan, each participant agrees to
notify the Company in writing immediately after the participant transfers Common
Stock acquired under the Plan, if such transfer occurs within two years after
the first business day of the Payment Period in which such Common Stock was
acquired. Each participant further agrees to provide any information about such
a transfer as may be requested by the Company or any subsidiary corporation in
order to assist it in complying with the tax laws. Such dispositions generally
are treated as "disqualifying dispositions" under Sections 421 and 424 of the
Code, which have certain tax consequences to participants and to the Company and
its participating subsidiaries.
Article 21 - Withholding of Additional Income Taxes.
By electing to participate in the Plan, each participant acknowledges
that the Company and its participating subsidiaries are required to withhold
taxes with respect to the amounts deducted from the participant's compensation
and accumulated for the benefit of the participant under the Plan, and each
participant agrees that the Company and its participating subsidiaries may
deduct additional amounts from the participant's compensation, when amounts are
added to the participant's account, used to purchase Common Stock or refunded,
in order to satisfy such withholding obligations. Each participant further
acknowledges that when Common Stock is purchased under the Plan the Company and
its participating subsidiaries may be required to withhold taxes with respect to
all or a portion of the difference between the fair market value of the Common
Stock purchased and its purchase price, and each participant agrees that such
taxes may be withheld from compensation otherwise payable to such participant.
It is intended that tax withholding will be accomplished in such a manner that
the full amount of payroll deductions elected by the participant under Article 7
will be used to purchase Common Stock. However, if amounts sufficient to satisfy
applicable tax withholding obligations have not been withheld from compensation
otherwise payable to any participant, then, notwithstanding any other provision
of the Plan, the Company may withhold such taxes from the participant's
accumulated payroll deductions and apply the net amount to the purchase of
Common Stock, unless the participant pays to the Company, prior to the exercise
date, an amount sufficient to satisfy such withholding obligations. Each
participant further acknowledges that the Company and its participating
subsidiaries may be required to withhold taxes in connection with the
disposition of stock acquired under the Plan and agrees that the Company or any
participating subsidiary may take whatever action it considers appropriate to
satisfy such withholding requirements, including deducting from compensation
otherwise payable to such participant an amount sufficient to satisfy such
withholding requirements or conditioning any disposition of Common Stock by the
participant upon the payment to the Company or such subsidiary of an amount
sufficient to satisfy such withholding requirements.
Article 22 - Governmental Regulations.
The Company's obligation to sell and deliver shares of Common Stock
under the Plan is subject to the approval of any governmental authority required
in connection with the authorization, issuance or sale of such shares.
Government regulations may impose reporting or other obligations on the
Company with respect to the Plan. For example, the Company may be required to
identify shares of Common Stock issued under the Plan on its stock ownership
records and send tax information statements to employees and former employees
who transfer title to such shares.
Article 23 - No Special Employment Rights.
The Plan does not, directly or indirectly, create in any employee any
right with respect to continuation of employment by the Company, and it shall
not be deemed to interfere in any way with the Company's right to terminate, or
otherwise modify, an employee's employment at any time.
Article 24 - Participant Assumes Investment Risk.
By purchasing stock through participation in this Plan the
participating employees assume the complete risk of an investment in the
Company's common stock, including the risk of price fluctuations in the market
for the common stock. The Company can give no assurance that the participants
will be able to resell shares purchased through this Plan for the price they pay
for them under this Plan, or at all.
Article 25 - Governing Law.
The validity and construction of the Plan shall be governed by the laws
of the State of Delaware, without giving effect to the principles of conflicts
of law thereof.
Article 26 - Approval of Board of Directors and Stockholders of the Company.
The Plan was adopted by the Board of Directors on July 17, 1998 and
will be submitted for approval to the Stockholders of the Company at the next
Annual Meeting of Stockholders.
GREEN MOUNTAIN COFFEE, INC.
EMPLOYEE STOCK PURCHASE PLAN - FY `99
Participation Agreement
I, the undersigned employee of Green Mountain Coffee, Inc. (the "Company"), have
been offered the opportunity to participate in the Green Mountain Coffee, Inc.
1998 Employee Stock Purchase Plan (the "Plan") as of the first Sunday following
the last Saturday in September 1998 (the first day of the first "Payment
Period") I wish to purchase shares equal to _______ % (must be at least 1% and
no more than 10% ) of my gross earnings for the Payment Period indicated. The
purchase price of the shares will be 85% of the market value of a share of the
Company's common stock on the first day of the "Payment Period" or the last day
of the same "Payment Period" whichever is the lower amount.
I understand that (i) I can withdraw from the Plan at any time prior to the last
Saturday in either Payment Period, and receive a refund, without interest, of
any cash in my account under the Plan; (ii) the stock purchase will be effected
automatically on the last day of the "Payment Period"; (iii) the purchase price
for the stock will be the lower of (A) 85% of the closing price of the stock on
the first day of the "Payment Period" or (B) 85% of the closing price of the
stock on the last day of the "Payment Period"; (iv) no interest will be paid on
any deductions meant to purchase shares; (v) no fractional shares of stock will
be issued and any excess cash in my account under the Plan after purchase of the
shares will be rolled into the next "Payment Period", unless I choose not to
participate, then any excess cash will be refunded to me; and (vi) the further
transfer by me of the stock that I will purchase under the Plan may be
restricted by the Company and/or by applicable federal and state law.
I elect ______ to participate in the Plan and to pay the amount set forth above
by means of payroll deductions, per paycheck for 26 pay periods
(13 per "Payment Period" occurring between the first date of the
"Payment Period" and the last date of the "Payment Period". )
There are two "Payment Periods" in each fiscal year. You are
signing up for both Payment Periods. If you wish to not
participate in the 2nd Payment Period you must notify HR in
writing prior to the first day of the 2nd Payment Period.
______ not to participate in the Plan.
The terms of the Plan have been explained to me and I have been afforded the
opportunity to ask questions and to become familiar with the terms of the Plan.
I agree to be bound by the terms of the Plan document, of which I have received
a copy.
Date: __________________ __________________________________
Signature
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Print Name of Employee
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Company Representative
___________Robert D. Britt________
Name of Company Representative
Title: Chief Financial Officer
