AMENDED AND RESTATED STOCK OPTION AGREEMENT
AMENDED AND RESTATED STOCK OPTION AGREEMENT, dated as of December 21,
1999 (the "Agreement"), by and between XXXXX X. XXXXX, and GREEN MOUNTAIN
COFFEE, INC., a Delaware corporation with its principal place of business
located at 00 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000 (the "Corporation").
WHEREAS, the parties hereto are parties to that Stock Option Agreement
effective as of April 15, 1993, as amended on July 21, 1993 and July 26, 1996
(the "Original Agreement"), which granted options to Xxxxx X. Xxxxx (the
"Optionee") to acquire shares of the Corporation's Common Stock, par value $.10
per share ("Common Stock") pursuant to certain terms and conditions contained
therein.
WHEREAS, the parties hereto desire to amend and restate the Original
Agreement as more fully set forth herein such that the terms and conditions
contained in this agreement shall supercede and replace the terms and conditions
set forth in the Original Agreement as if this Agreement had been the Original
Agreement on its effective date.
NOW THEREFORE, in consideration of the mutual covenants and obligations
herein contained, the Corporation and the Optionee do hereby agree as follows:
1. GRANT OF OPTION. The Corporation hereby grants to the Optionee the
right, privilege, and option to purchase (the "Option") from the Corporation
Eleven Thousand Seven Hundred Eighty-Seven (11,787) shares of Common Stock (the
"Optioned Shares"), in the manner and subject to conditions set forth in this
Agreement, at Eight Dollars and Two Cents ($8.02) per share (the "Exercise
Price").
2. TERM OF OPTION. The Option, to the extent not exercised, shall
terminate on the earlier of (a) April 15, 2008, which is the fifteenth (15th)
anniversary of the initial grant date of April 15, 1993 (the "Grant Date") or
(b) the date on which the Optionee's employment with the Corporation is
terminated for Cause. The term "Cause" as used herein shall mean and include any
of the following events: fraud or dishonesty, misappropriation or embezzlement
by the Optionee involving the Corporation or any subsidiary or affiliate
thereof; any violation of civil or criminal law; breach of confidentiality; the
willful engaging by the Optionee in conduct which has or could reasonably be
expected to have a material adverse effect on the Corporation or any of its
subsidiaries or affiliates; or the material breach by the Optionee of any
representations, warranties, agreements or covenants made by the Optionee in
this Agreement or any other agreement between the Corporation and the Optionee.
3. TIME OF EXERCISE OF OPTION. The Option may be exercised by the
Optionee (or, in the event of the Optionee's death, by the Optionee's legal
representative or heirs) as to the Optioned Shares on or after the Grant Date,
prior to the termination date as determined in accordance with Section 2 hereof.
4. METHOD OF EXERCISE OF OPTION. The Option shall be exercised by
written notice (the "Notice of Exercise") from the Optionee (or, in the event of
the Optionee's death, from the Optionee's legal representative or heirs) to the
Corporation designating the number of Optioned Shares to be purchased and the
desired date of purchase, which shall be not less than ten (10) nor more than
thirty (30) days thereafter, accompanied by cash or by check, subject to
collection and payable to the order of the Corporation, in payment of the
Exercise Price for the designated number of Optioned Shares.
5. DELIVERY OF SHARES. Upon receipt by the Corporation from the
Optionee of a Notice of Exercise and payment in full of the Exercise Price for
the designated number of Optioned Shares, the Corporation shall deliver, as soon
as administratively feasible, to the Optionee a certificate for such Optioned
Shares issued in the name of the Optionee (the "Issued Shares"). Any such
certificate shall bear conspicuously on its face the following legend:
"The shares represented by this certificate are "restricted securities"
as defined in and for purposes of Rule 144 promulgated under the
Securities Act of 1933, as amended (the "Act") and in the absence of an
effective registration statement, these shares may not be sold,
transferred, pledged, or hypothecated except in compliance with Rule
144 or another exemption from registration pursuant to the Act. "
6. RIGHTS PRIOR TO EXERCISE OF OPTION. The Option may not be sold,
transferred, assigned, pledged, hypothecated, or otherwise disposed of in any
way except upon the Optionee's death pursuant to the Optionee's will or the laws
of the State of Vermont regarding a testator's estate, a spouse's elective share
or other similar provision (the recipient of any such permitted transfer shall
be know as a "Permitted Transferee"). The Optionee or any Permitted Transferee
shall have no rights as a shareholder with respect to any Optioned Shares until
delivery, in accordance with the provisions of Section 5 of this Agreement, of
such Optioned Shares as Issued Shares. Any Permitted Transferee shall be subject
to the Section 7 of this Agreement as if the Permitted Transferee was the
Optionee.
7. RESTRICTED SHARES. The Optionee acknowledges that (a) the Issued
Shares shall be "restricted securities" as defined in and for purposes of Rule
144 promulgated under the Securities Act of 1933, as amended (the "Act"), (b) in
the absence of an effective registration statement, the Issued Shares may not be
sold, transferred, pledged, or hypothecated except in compliance with Rule 144
or another exemption from registration pursuant to the Act and (c) the Issued
Shares will be evidenced by a certificate bearing the legend set forth in
Section 5 of this Agreement.
8. NO PREEMPTIVE RIGHTS. The Optionee acknowledges that the acquisition
of any Optioned Shares as Issued Shares under this Agreement does not confer on
the Optionee any preemptive right to purchase, subscribe to, or be first offered
any shares of any class of stock of the Corporation, presently or subsequently
authorized, or any notes, debentures, bonds, or other securities of the
Corporation convertible into, or carrying options or warrants to purchase,
shares of any class of the stock of the Corporation, presently or subsequently
authorized.
9. ADJUSTMENTS. In the event of any combination or division of the
shares of Common Stock of the Corporation, or the payment of any dividend on
such stock in shares of such stock, or any recapitalization in which such stock
is changed into a different security, appropriate adjustments shall be made to
the Optioned Shares as necessary to allow the provisions of this Agreement to
operate as if such event(s) had not occurred.
10. NOTICES. All exercises of options, offers, acceptances, or other
notices pursuant to this Agreement shall be made in writing and delivered
within the applicable time period to the party entitled to such notice under
this Agreement. Any such notice shall be effective either when tendered in
person to the party entitled to such notice; or on the third (3rd) day after
being deposited in the United States mail in a sealed envelope, registered or
certified, with postage and postal charges prepaid, addressed to the address of
such party as set forth above, or at such other address as may be designated by
any of the parties hereto by notice to the other parties and if to the
Corporation, with a copy to H. Xxxxxxx Xxxxxxx, Xx., Esq., Xxxxxxx & Xxxxxxx,
00 Xxxx Xxxxxx, Xxxxx 000, X.X. Xxx 0000, Xxxxxxxxxx, XX 00000.
11. MISCELLANEOUS.
11.1 ASSIGNMENT. Except as otherwise specifically provided
herein, this Agreement may not be assigned by any of the parties hereto.
11.2 BINDING EFFECT. This Agreement shall be binding upon the
parties hereto and their respective heirs, distributees, personal
representatives, successors and assigns.
11.3 AMENDMENTS. No modifications, amendment, addition to or
termination of this Agreement, nor waiver of any of its provisions, shall be
valid or enforceable unless in writing and signed by all of the parties hereto.
11.4 SEVERABILITY. The invalidity or unenforceability of any
provisions hereof shall in no way affect the validity or enforceability of any
other provisions.
11.5 ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties hereto with respect to the subject matter
contained herein and supersedes, nullifies, voids and renders of no further
force or effect all prior agreements between the parties hereto with respect
to the subject matter contained herein.
11.6 WAIVER. Failure to insist upon strict compliance with any
of the terms, covenants, or conditions hereof shall not be deemed a waiver of
such term, covenant or condition nor shall any waiver or relinquishment of any
right or power hereunder at any one time or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
11.7 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
which together shall be deemed one and the same instrument.
11.8 TITLES. The titles of all Sections are for convenience
only and shall not be considered in construing the provisions hereof.
11.9 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Vermont.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement for the purposes contained herein as of the year and day first above
written.
GREEN MOUNTAIN COFFEE, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, President
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
