Employee Stock Ownership Trust - Green Mountain Coffee Inc.
Green Mountain Coffee, Inc.
EMPLOYEE STOCK OWNERSHIP TRUST
TABLE OF CONTENTS
PAGE
----
ARTICLE 1.................................................................. 2
Name.............................................................. 2
ARTICLE 2.................................................................. 2
Management and Control of Trust Fund Assets....................... 2
2.1 The Trust Fund.................................. 2
2.2 Collective Investment........................... 2
2.3 Allocation and Segregation of Funds Among
Employers....................................... 2
2.4 Withdrawals..................................... 3
2.5 Responsibility of Trustee....................... 3
2.6 General Powers.................................. 4
2.7 Compensation and Expenses....................... 9
2.8 Exercise of Trustee's Duties.................... 9
2.9 Plan Administration............................. 10
2.10 Continuation of Powers Upon Trust Termination... 10
ARTICLE 3.................................................................. 10
Provisions Related to Investment in Company Stock................. 10
3.1 Investment of Cash.............................. 10
3.2 Stock Dividends, Splits and Other Capital
Reorganizations................................. 11
3.3 Voting of Shares and Tender or Exchange Offers.. 11
3.4 Put Option...................................... 11
ARTICLE 4.................................................................. 12
Miscellaneous..................................................... 12
4.1 Disagreement as to Acts......................... 12
4.2 Persons Dealing with Trustee.................... 12
4.3 Benefits May Not Be Assigned or Alienated....... 12
4.4 Evidence........................................ 12
4.5 Waiver of Notice................................ 12
4.6 Counterparts.................................... 13
4.7 Governing Laws and Severability................. 13
4.8 Successors...................................... 13
4.9 Action.......................................... 13
4.10 Conformance with Plan........................... 13
4.11 Indemnification................................. 14
4.12 Gender and Number............................... 14
4.13 Headings........................................ 14
ARTICLE 5.................................................................. 14
No Reversion to Company........................................... 14
ARTICLE 6.................................................................. 15
Change of Trustee................................................. 15
6.1 Resignation..................................... 15
6.2 Removal of the Trustee.......................... 16
6.3 Duties of Resigning or Removed Trustee and
of Successor Trustee........................... 16
6.4 Filling Trustee Vacancy......................... 16
6.5 Successor Trustee............................... 16
ARTICLE 7.................................................................. 17
Additional Employers.............................................. 17
ARTICLE 8.................................................................. 17
Amendment and Termination......................................... 17
8.1 Amendment....................................... 17
8.2 Termination..................................... 18
<PAGE>
GREEN MOUNTAIN COFFEE, Inc.
EMPLOYEE STOCK OWNERSHIP TRUST
THIS AGREEMENT, made effective as of the 1st day of January,
2000, by and between Green Mountain Coffee, Inc., a Delaware corporation (the
"Company"), and Robert D. Britt, and his successor or successors and assigns in
the trust hereby evidenced, as Trustee (the "Trustee").
WITNESSETH THAT:
---------------
WHEREAS, the Company desires to establish the Green Mountain
Coffee, Inc. Employee Stock Ownership Plan (the "Plan") as a tax-qualified
employee stock ownership plan that is intended to satisfy the requirements of
Sections 401(a) and 4975(e)(7) of the Internal Revenue Code of 1986, as amended
(the "Code"); and
WHEREAS, the Company intends to establish the Plan for the
exclusive benefit of eligible employees of the Company and those of any
Controlled Group Member (as defined in Article 7) which adopt the Plan and
become a party to this Trust Agreement as provided in Article 7 (the Company and
the Controlled Group Members that are parties hereto are sometimes referred to
below collectively as the "Employers" and individually as an "Employer"); and
WHEREAS, the Company intends to fund the Plan through a trust
arrangement the provisions of which are contained in this document;
WHEREAS, Robert D. Britt was appointed the sole trustee of the
trust arrangement of the Plan as of January 1, 2000.
NOW THEREFORE, pursuant to the authority delegated to the
undersigned officers of the Company by resolution of its Board of Directors
adopted on September 14, 2000, IT IS AGREED, by and between the parties hereto,
that the trust provisions contained herein shall constitute the Trust, effective
as of January 1, 2000, and the sole agreement between the Company and the
Trustee in connection with the Plan; and
IT IS FURTHER AGREED, that the Trustee hereby accepts his
appointment as such under this Trust Agreement, effective as of January 1, 2000.
IT IS FURTHER AGREED, by and between the parties hereto as
follows:
ARTICLE 1 Name
This Trust Agreement and Trust hereby evidenced shall be known
as the "GREEN MOUNTAIN COFFEE, INC. EMPLOYEE STOCK OWNERSHIP TRUST."
ARTICLE 2 Management and Control of Trust Fund Assets
2.1 The Trust Fund
The "Trust Fund" as at any date means all property of every
kind then held by the Trustee pursuant to this Agreement.
2.2 Collective Investment
Except as is necessary to comply with the requirements of
subsection 2.6, the Trustee may manage, invest and account for all contributions
made by the several Employers under the Plan as one Trust Fund.
2.3 Allocation and Segregation of Funds Among Employers
The Trustee is directed to maintain at all times such records
as will enable it to effect, as of any time, an equitable allocation and
segregation of the assets of the Trust Fund into one or more separate funds held
for the exclusive benefit of each Employer. If the Administrator notifies the
Trustee (in writing) to effect such allocation and segregation, the Trustee
shall do so as soon thereafter as practicable. Thereafter, the Trustee shall
administer such separate fund in accordance with the otherwise-applicable
provisions of this Trust, or, if so directed by the Administrator, shall deliver
the assets of such separate fund to such successor trustee as shall be
designated by the Administrator.
If, for any reason, it becomes necessary to determine the
portion of the Trust Fund allocable to each of the employees and former
employees of any Employer as of any date, the Administrator shall specify such
date as an Accounting Date, and after all adjustments required under the Plan as
of that Accounting Date have been made, the portion of the Trust Fund
attributable to each of the employees and former employees shall be determined
by the Trustee with the assistance and cooperation of the Administrator and
shall consist of an amount equal to the aggregate of the account balances of
each employee and former employee of that Employer plus an amount equal to any
allocable contributions made by that Employer since the close of the immediately
preceding Plan Year.
2.4 Withdrawals
For the purpose of making payment or distribution of benefits
or expenses that become payable or distributable in the ordinary course of
administering the Plan, the Plan may withdraw any part or all of the account
balance in any Fund at any time. Such a withdrawal will be deemed to have been
made whenever the Trustee makes a distribution at the direction of the
Administrator to a person or persons designated to receive such distribution by
the Administrator. The Trustee may distribute the Plan's entire account balances
in the Trust Fund as of any Accounting Date if directed to do so by the
Administrator and shall do so if it is notified that:
(a) The Plan is no longer a qualified plan; or
(b) The Plan either no longer contains provisions
permitting deposits to be made to this Trust or no
longer incorporates the provisions of this agreement
by reference.
Any distribution may be made in cash or in property, or partly in each, as
determined by the Administrator, except that any property included in any
distribution shall be valued at its fair market value as of the date of
distribution, as determined by the Trustee. Whenever a distribution is made as
of a date other than the Accounting Date, the Plan's account balance will be
charged no later than the Accounting Date next following the date the withdrawal
is made by the dollar amount of the withdrawal.
2.5 Responsibility of Trustee
The Trustee shall not be responsible in any way for the
adequacy of the Trust Fund to meet and discharge any or all liabilities under
the Plan or for the proper application of distributions made or other action
taken upon the written direction of the Administrator. The powers, duties and
responsibilities of the Trustee shall be limited to those set forth in this
Trust Agreement, and nothing contained in the Plan, either expressly or by
implication, shall be deemed to impose any additional powers, duties or
responsibilities on the Trustee.
2.6 General Powers
Subject to the provisions of paragraphs 2.8 and 2.9 and
Article 3, with respect to the Trust Fund, the Trustee shall have the following
powers, rights and duties in addition to those provided elsewhere in this Trust
Agreement or by law:
(a) to receive and to hold all contributions paid to it
under the Plan; provided, however, that the Trustee
shall have no duty to require any contributions to be
made to it, to determine that the contributions
received by it comply with the provisions of the Plan
or with any resolution of the Board providing
therefor;
(b) as directed by the Administrator, to retain in cash
(pending investment, reinvestment or the distribution
of dividends) such reasonable amount as may be
required for the proper administration of the Trust
and to invest such cash as provided in paragraph 3.1;
(c) as directed by the Administrator, to make
distributions from the Trust Fund to such persons, in
such manner, at such times and in such forms (stock
of the Company ("Company Stock"), cash or a
combination of both) as directed without inquiring as
to whether a payee is entitled to the payment, or as
to whether a payment is proper, and without liability
for a payment made in good faith without actual
notice or knowledge of the changed condition or
status of the payee. If any payment of benefits
directed to be made from the Trust Fund by the
Trustee is not claimed, the Trustee shall notify the
Administrator of that fact promptly. The
Administrator shall make a diligent effort to
ascertain the whereabouts of the payee or distributee
of benefits returned unclaimed. The Trustee shall
dispose of such payments as the Administrator shall
direct. The Trustee shall have no obligation to
search for or ascertain the whereabouts of any payee
or distributee of benefits from the Trust Fund;
(d) to vote any stocks (including Company Stock, which
shall be voted as provided in Section 13(b) of the
Plan, as that Section may be amended from time to
time), bonds or other securities held in the Trust,
or otherwise consent to or request any action on the
part of the issuer in person, by proxy or power of
attorney;
(e) to contract or otherwise enter into transactions
between itself, as Trustee, and the Company or any
Company shareholder, for the purpose of acquiring or
selling Company Stock and, subject to the provisions
of paragraph 2.8, to retain such Company Stock;
(f) to compromise, contest, arbitrate, settle or abandon
claims and demands by or against the Trust Fund;
(g) to begin, maintain or defend any litigation necessary
in connection with the investment, reinvestment and
administration of the Trust, and, to the extent not
paid from the Trust Fund, the Company shall indemnify
the Trustee against all expenses and liabilities
reasonably sustained or anticipated by it by reason
thereof (including reasonable attorneys' fees);
(h) to retain any funds or property subject to any
dispute without liability for the payment of
interest, or to decline to make payment or delivery
thereof until final adjudication is made by a court
of competent jurisdiction;
(i) to report to the Company as of the last day of each
Plan Year of the Plan (which shall be the same as the
Trust's fiscal year), as of any Accounting Date (or
as soon thereafter as practicable), or at such other
times as may be required under the Plan, the then
"Net Worth" of the Trust Fund, that is, the fair
market value of all property held in the Trust Fund,
reduced by any liabilities other than liabilities to
Participants in the Plan and their Beneficiaries, as
determined by the Trustee;
(j) to furnish to the Company an annual written account
and accounts for such other periods as may be
required under the Plan, showing the Net Worth of the
Trust Fund at the end of the period, all investments,
receipts, disbursements and other transactions made
by the Trustee during the accounting period, and such
other information as the Trustee may possess which
the Company requires in order to comply with Section
103 of ERISA. The Trustee shall keep accurate
accounts of all investments, earnings thereon, and
all accounts, books and records related to such
investments shall be open to inspection by any person
designated by the Company or the Administrator. All
accounts of the Trustee shall be kept on an accrual
basis. If, during the term of this Trust Agreement,
the Department of Labor issues regulations under
ERISA regarding the valuation of securities or other
assets for purposes of the reports required by ERISA,
the Trustee shall use such valuation methods for
purposes of the accounts described by this
subparagraph. If shares of Company Stock are not
traded with sufficient volume or frequency, as
determined by the Administrator, to be considered as
being readily tradable on a national securities
market or exchange, all valuations of shares of
Company Stock shall originally be made by an
independent appraiser (as described in Section 401(a)
(28)(C) of the Code) retained by the Trustee, and
reviewed and finalized by the Trustee in accordance
with Section 3(18)(B) of ERISA. The Company may
may approve such accounting by written notice of
approval delivered to the Trustee or by failure to
express objection to such accounting in writing
delivered to the Trustee within thirty (30) days from
the date upon which the accounting was delivered to
the Company. Upon the receipt of a written approval
of the accounting, or upon the passage of the period
of time within which objection may be filed without
written objections having been delivered to the
Trustee, such accounting shall be deemed to be
approved, and the Trustee shall be released and
discharged as to all items, matters and things set
forth in such account, as fully as if such accounting
had been settled and allowed by decree of a court of
competent jurisdiction in an action or proceeding in
which the Trustee, the Company and all persons having
or claiming to have any interest in the Trust Fund or
under the Plan were parties.
(k) to pay any estate, inheritance, income or other tax,
charge or assessment attributable to any benefit
which, it shall or may be required to pay out of such
benefit; and to require before making any payment
such release or other document from any taxing
authority and such indemnity from the intended payee
as the Trustee shall deem necessary for its
protection;
(l) to employ and to reasonably rely upon information and
advice furnished by agents, attorneys, Independent
Appraisers, accountants or other persons of its
choice for such purposes as the Trustee considers
desirable;
(m) to assume, until advised to the contrary, that the
Trust evidenced by this Agreement is qualified under
Section 401(a) of the Code and is entitled to tax
exemption under Section 501(a) thereof;
(n) as directed by the Administrator, to invest and
reinvest the assets of the Trust Fund in personal
property of any kind, including, but not limited to
bonds, notes, debentures, mortgages, equipment trust
certificates, investment trust certificates,
guaranteed investment contracts, preferred or common
stock (including stock of the Company or an
affiliate), registered investment companies;
provided, however, that all investments in Company
Stock or stock of an affiliate shall be undertaken
pursuant to the provisions of paragraph 3.1. The
Trustee shall follow the directions of the
Administrator and shall have no duty or obligation to
review the assets from time to time so acquired, nor
to make any recommendations with respect to the
investment, reinvestment or retention thereof;
(o) to exercise any options, subscription rights and
other privileges with respect to Trust assets,
subject to the provisions of Article 3;
(p) to register ownership of any securities or other
property held by it in its own name or in the name of
a nominee, with or without the addition of words
indicating that such securities are held in a
fiduciary capacity, and may hold any securities in
bearer form, but the books and records of the Trustee
shall at all times reflect that all such investments
are part of the Trust;
(q) to borrow such sum or sums from time to time as the
Trustee considers necessary or desirable and in the
best interest of the Trust Fund, including to
purchase Company Stock, and to enter into such
agreements as the Trustee determines necessary or
appropriate to accomplish such actions, and for that
purpose to mortgage or pledge any part of the Trust
Fund (subject to the provisions of Code Section
4795(c) and the regulations issued thereunder);
(r) to deposit securities with a clearing corporation as
defined in Article 8 of the Delaware Uniform
Commercial Code. The certificates representing
securities, including those in bearer form, may be
held in bulk form with, and may be merged into,
certificates of the same class of the same issuer
which constitute assets of other accounts or owners,
without certification as to the ownership attached.
Utilization of a book-entry system may be made for
the transfer or pledge of securities held by the
Trustee or by a clearing corporation. The Trustee
shall at all times, however, maintain a separate and
distinct record of the securities owned by the Trust;
(s) to participate in and use the Federal Book-Entry
Account System, a service provided by the Federal
Reserve Bank for its member banks for deposit of
Treasury securities;
(t) as directed by the Administrator, to invest a portion
of the assets of the Trust Fund in any collective
trust fund, including a collective trust fund of the
Trustee or its affiliate, which is maintained as a
medium for the collective investment of funds of
pension, profit sharing or other employee benefit
plans, and which is qualified under Section 401(a) of
the Code and is exempt from taxation under Section
501(a) of the Code, and any assets invested in such
collective trust fund shall be held and invested
pursuant to the terms and conditions of the trust
agreement or declaration establishing such trust,
which are hereby incorporated by reference and shall
prevail over any contrary provisions of this Trust
Agreement.
(u) to appoint a bank, trust company, or broker or dealer
registered under the Securities Exchange Act of 1934
to act as custodian with respect to any portion of
the trust fund; and a custodian so appointed shall
have custody of such assets as are deposited with it
and, as custodian, such rights, power and duties with
respect thereto as shall be agreed upon from time to
time by the Trustee and such custodian; and
(v) to perform any and all other acts which are necessary
or appropriate for the proper management, investment
and distribution of the Trust Fund.
2.7 Compensation and Expenses
The Trustee shall be entitled to reasonable compensation for
its services, as agreed to between the Company and the Trustee from time to time
in writing and to reimbursement of all reasonable expenses incurred by the
Trustee in the administration of the Trust, provided, however, if the Trustee is
an employee at the Company, the Trustee shall not receive compensation for its
services as trustee but may have his expenses reimbursed. The Trustee is
authorized to pay from the Trust Fund all expenses of administering the Plans
and Trust, including its compensation and any accounting and legal expenses, to
the extent they are not paid directly by the Employers. The Trustee shall be
fully protected in making payments of administrative expenses pursuant to the
written directions of the Administrator.
2.8 Exercise of Trustee's Duties
The Trustee shall discharge its duties hereunder solely in the
interest of the Plan's Participants and other persons entitled to benefits under
the Plan, and:
(a) for the exclusive purpose of:
(i) providing benefits to Participants and other
persons entitled to benefits under the Plan;
and
(ii) defraying reasonable expenses of
administering the Plan;
(b) with the care, skill, prudence, and diligence under
the circumstances then prevailing that a prudent
person acting in a like capacity and familiar with
such matters would use in the conduct of an
enterprise of a like character and with like aims;
and
(c) in accordance with the documents and instruments
governing the Plan unless, in the good faith judgment
of the Trustee, the documents and instruments are not
consistent with the provisions of ERISA or this Trust
Agreement.
2.9 Plan Administration
The Plan shall be administered by the Administrator. Except as
provided in paragraph 2.6, the Trustee shall have no authority to administer the
Plan unless directed by the Administrator. The Administrator may authorize one
or more individuals to sign all communications between the Administrator and
Trustee and shall at all times keep the Trustee advised of the names of the
members of the Administrator and individuals authorized to sign on behalf of the
Administrator, and provide specimen signatures thereof. With the Trustee's prior
written consent, the Administrator may authorize the Trustee to act without
specific directions or other directions or instructions from the Administrator
on any matter or class of matters with respect to which directions or
instructions from the Administrator are called for hereunder. The Trustee shall
be fully protected in relying on any communication sent by any authorized person
and shall not be required to verify the accuracy or validity of any signature
unless the Trustee has reasonable grounds to doubt the authenticity of any
signature. If the Trustee requests any directions hereunder and does not receive
them, the Trustee shall act or refrain from acting, as it may determine, with no
liability for such action or inaction.
2.10 Continuation of Powers Upon Trust Termination
Notwithstanding anything to the contrary in this Agreement,
upon termination of the Trust, the powers, rights and duties of the Trustee
hereunder shall continue until all Trust Fund assets have been liquidated.
ARTICLE 3 Provisions Related to Investment in Company Stock
3.1 Investment of Cash
If an Employer's contribution made pursuant to the terms of
the Plan for any plan year for the purpose of amortizing an acquisition loan is
in cash, such cash shall be used by the Trustee first to make any scheduled
amortization payment on an acquisition loan and, if any amounts remain
thereafter, shall be used as the Trustee determines in his discretion. Subject
to the provisions of paragraph 2.8, any cash dividends received by the Trustee
on Company Stock held in the Trust Fund shall be applied, after the receipt of
such cash dividends, as provided by the Plan. The Trustee has the discretion to
purchase Company Stock with the assets contained in the Participants' ESOP Cash
Accounts, unless prohibited by ERISA. The Trustee may purchase Company Stock
from the Company or from any shareholder, and such stock may be outstanding,
newly issued or treasury stock. All such purchases must be at a price not in
excess of fair market value, as determined by an Independent Appraiser where
such stock is not publicly traded. Pending investment of cash in Company Stock,
such cash may be invested in savings accounts, certificates of deposit,
high-grade short-term securities, common or preferred stocks, bonds, or other
investments, or may be held in cash. Such investments may include any common or
collective funds or mutual funds (including a common, collective, or mutual fund
for which the Trustee or one of the affiliates of the Trustee serves as
investment advisor) or other types of short-term investments.
3.2 Stock Dividends, Splits and Other Capital Reorganizations
Any Company Stock received by the Trustee as a stock split,
dividend distributions with regard to stock or as a result of a reorganization
or other recapitalization of the Company shall be allocated as of each
Accounting Date under the Plan in proportion to the Company Stock to which it is
attributable.
3.3 Voting of Shares and Tender or Exchange Offers
Company Stock held in the Trust Fund shall be voted by the
Trustee in the manner set forth in the Plan. If any tender or exchange or
similar offer to purchase all or any portion of outstanding Company Stock is
made by any person, the Trustee shall tender the shares as provided in the Plan.
3.4 Put Option
If the distribution of a Participant's Account is to be made
in cash, if a Participant exercises his put option rights under the Plan, or the
Trustee expects to incur substantial Trust expenses which will not be paid
directly by the Employers, and the Trustee determines that the Trust Fund has
insufficient cash to make anticipated distributions or pay Trust expenses, the
Trust shall have a "Put Option" on Company Stock it holds to the Company for the
purpose of making such anticipated distributions and paying such expenses. The
purchase price for the sale of stock by the Trustee to the Company shall be the
fair market value of the stock as of the date of the sale, as determined under
the provisions of the Plan.
ARTICLE 4 Miscellaneous
4.1 Disagreement as to Acts
If there is a disagreement between the Trustee and anyone as
to any act or transaction reported in any accounting, the Trustee shall have the
right to have its account settled by a court of competent jurisdiction.
4.2 Persons Dealing with Trustee
No person dealing with the Trustee shall be required to see to
the application of any money paid or property delivered to the Trustee, or to
determine whether or not the Trustee is acting pursuant to any authority granted
to it under this Agreement or the Plan.
4.3 Benefits May Not Be Assigned or Alienated
The interests under the Plan and this Agreement of
Participants and other persons entitled to benefits under the Plan are not
subject to the claims of their creditors and may not be voluntarily or
involuntarily assigned, alienated or encumbered, except to the extent that the
Administrator directs the Trustee that any such interests are subject to a
qualified domestic relations order, as defined in Section 414(p) of the Code.
4.4 Evidence
Evidence required of anyone under this Agreement may be by
certificate, affidavit, document or other instrument that the person acting in
reliance thereon considers pertinent and reliable, and signed, made or presented
by the proper party.
4.5 Waiver of Notice
Any notice required under this Agreement may be waived in
writing by the person entitled thereto.
4.6 Counterparts
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and no other counterparts need be
produced.
4.7 Governing Laws and Severability
This Agreement shall be construed and administered according
to the laws of the State of Delaware to the extent that such laws are not
preempted by the laws of the United States of America. If any provision of this
Agreement is held illegal or invalid, the illegality or invalidity shall not
affect the remaining provisions of the Agreement, but shall be severable, and
the Agreement shall be construed and enforced as if the illegal or invalid
provision had never been inserted herein.
4.8 Successors
This Agreement shall be binding on the Employers, and any
successor thereto by virtue of any merger, sale, dissolution, consolidation or
reorganization, on the Trustee and its successor, and on all persons entitled to
benefits under the Plan and their respective heirs and legal representatives.
4.9 Action
Any action required or permitted to be taken by the Company
under this Agreement shall be by resolution of its Board of Directors or by a
person or persons authorized by resolution of its Board of Directors. The
Trustee shall not recognize or take notice of any appointment of any
representative of the Company or Administrator unless and until the Company or
the Administrator shall have notified the Trustee in writing of such appointment
and the extent of such representative's authority. The Trustee may assume that
such appointment and authority will continue in effect until it receives written
notice to the contrary from the Company or Administrator. Any action taken or
omitted to be taken by the Trustee by authority of any representative of the
Company or Administrator within the scope of his authority shall be as effective
for all purposes hereof as if such action or nonaction had been authorized by
the Company or Administrator.
4.10 Conformance with Plan
Unless otherwise indicated in this Trust Agreement, all
capitalized terms shall have the meaning as stated in the Plan. To the extent
the provisions of the Plan and this Agreement conflict, the provisions of the
Plan shall govern; provided however, that the Trustee's duties and obligations
shall be determined solely under this Trust Agreement.
4.11 Indemnification
In addition to any indemnification provided in a separate
agreement between the Company and the Trustee, the Company shall indemnify and
save harmless the Trustee from and against any and all liability, including all
expenses reasonably incurred in his defense, for actions taken by the Trustee
taken in good faith under the terms of this Trust Agreement.
4.12 Gender and Number
Where the context admits, words in the masculine gender
include the feminine and neuter genders, the plural includes the singular, and
the singular includes the plural.
4.13 Headings
The headings of Sections of this Agreement are for convenience
of reference only and shall have no substantive effect on the provisions of this
Agreement.
ARTICLE 5 No Reversion to Company
No part of the corpus or income of the Trust Fund shall revert
to any Employer or be used for, or diverted to, purposes other than for the
exclusive benefit of Participants and other persons entitled to benefits under
the Plan, provided, however, that:
(a) Each Employer's contribution under the Plan is
conditioned on the initial qualification of the Plan
as applied to that Employer under Section 401(a) of
the Code and if the Plan does not so initially
qualify, the Trustee shall, upon written direction of
the Administrator, return to that Employer the amount
of such contribution and any increment thereon within
one calendar year after the date that qualification
of the Plan, as applied to that Employer, is denied,
but only if the application for qualification is
submitted within the time prescribed by law.
(b) If, upon termination of the Plan with respect to any
Employer, any amounts are held in a 415 Suspense
Account which are attributable to the contributions
of such Employer and such amounts may not be credited
to the Accounts of Participants, such amounts, upon
the written direction of the Administrator, will be
returned to that Employer as soon as practicable
after the termination of the Plan with respect to
that Employer.
(c) Employer contributions under the Plan are conditioned
upon the deductibility thereof under Section 404 of
the Code, and, to the extent any such deduction of an
Employer is disallowed, the Trustee shall, upon the
written direction of the Administrator, return the
amount of the contribution (to the extent
disallowed), reduced by the amount of any losses
thereon, to the Employer within one year after the
date the deduction is disallowed.
(d) If a contribution or any portion thereof is made by
an Employer by a mistake of fact, the Trustee shall,
upon written direction of the Administrator, return
the amount of the contribution or such portion,
reduced by the amount of any losses thereon, to the
Employer within one year after the date of payment to
the Trustee.
Notwithstanding the foregoing, the Trustee has no responsibility as to the
sufficiency of the Trust Fund to provide any distribution to an Employer under
this Article V.
ARTICLE 6 Change of Trustee
6.1 Resignation
The Trustee may resign at any time by giving thirty (30) days
advance written notice to the Board of Directors of the Company.
6.2 Removal of the Trustee
The Company, acting through its Board of Directors may remove
the Trustee by giving thirty (30) days advance written notice to the Trustee,
subject to providing the removed Trustee with satisfactory written evidence of
the appointment of a successor Trustee and of the successor Trustee's acceptance
of the trusteeship.
6.3 Duties of Resigning or Removed Trustee and of Successor Trustee
If the Trustee resigns or is removed, it shall promptly
transfer and deliver the assets of the Trust Fund to the successor Trustee, and
may reserve such amount to provide for the payment of all fees, expenses and
taxes then or thereafter chargeable against the Trust Fund, to the extent not
previously paid by the Company. The Company shall be obligated to reimburse the
Trust for any amount reserved by the Trustee. Within 120 days, the resigned or
removed Trustee shall furnish to the Company and the successor Trustee an
account of its administration of the Trust from the date of its last account.
Each successor Trustee shall succeed to the title to the Trust Fund vested in
his predecessor without the signing or filing of any further instrument, but any
resigning or removed Trustee shall execute all documents and do all acts
necessary to vest such title or record in any successor Trustee. Each successor
shall have all the powers, rights and duties conferred by this Trust Agreement
as if it were the originally named Trustee. No successor Trustee shall be
personally liable for any act or failure to act of a predecessor Trustee and no
predecessor trustee shall be liable for any act of a successor trustee. With the
approval of the Administrator, a successor Trustee may accept the account
rendered and the property delivered to it by its predecessor Trustee as a full
and complete discharge to the predecessor Trustee without incurring any
liability or responsibility for so doing.
6.4 Filling Trustee Vacancy
The Board of Directors of the Company shall fill a vacancy in
the office of Trustee as soon as practicable by a writing filed with the person
or entity appointed to fill the vacancy.
6.5 Successor Trustee
In the event of the resignation of the Trustee pursuant to
Section 6.1, or the removal of the Trustee pursuant to Section 6.2, the
successor Trustee appointed by the Administrator with the consent of the Company
pursuant to Section 6.4 shall be a corporation experienced in the fiduciary
aspects of leveraged employee stock ownership plans and in the business of
providing trust and fiduciary services to such plans.
ARTICLE 7 Additional Employers
Any Controlled Group Member (as defined below) may become a
party to this Trust Agreement by:
(a) filing with the Company and the Trustee a certified
copy of a resolution of its Board of Directors to
that effect; and
(b) filing with the Trustee a certified copy of a
resolution of the Board of Directors of the Company
consenting to such action.
A "Controlled Group Member" is any corporation, trade or business during any
period in which it is, along with the Company, a member of a controlled group of
corporations, a group of trades or businesses under common control or an
affiliated service group, as described in section 414(b), 414(c) and 414(m),
respectively, of the Code or as described in regulations issued by the Secretary
of the Treasury or his delegate pursuant to section 414(o) of the Code.
ARTICLE 8 Amendment and Termination
8.1 Amendment
While the Employers expect and intend to continue the Trust,
the Company reserves the right to amend the Trust at any time pursuant to an
action of the Company's Board of Directors, except that no amendment shall
change the rights, duties and liabilities of the Trustee under this Trust
Agreement without its prior written agreement, nor reduce a Participant's
benefits to less than the amount such Participant would be entitled to receive
if such Participant had resigned from the employ of the Employers on the date of
the amendment. Amendments to the Trust shall be effective upon execution of such
amendments by the Board of Directors of the Company.
8.2 Termination
The Trust may be terminated as to all Employees on any date
specified by the Board of Directors of the Company. The Trust will terminate as
to any Employer on the first to occur of the following:
(a) the date it is terminated by that Employer;
(b) the date such Employer's contributions to the Trust
are completely discontinued;
(c) the date such Employer is judicially declared
bankrupt under Chapter 7 of the U.S. Bankruptcy Code;
or
(d) the dissolution, merger, consolidation, or
reorganization of that Employer, or the sale by that
Employer of all or substantially all of its assets,
except that, with the consent of the Company, such
arrangements may be made whereby the Trust will be
continued by any successor to that Employer or any
purchaser of all or substantially all of that
Employer's assets, in which case the successor or
purchaser will be substituted for that Employer under
the Trust.
The Trustee's powers upon termination as described above will continue until
liquidation of the Trust Fund, or the portion thereof attributable to an
Employer, as the case may be. Upon termination of this Trust, the Trustee shall
first reserve such reasonable amounts as it may deem necessary to provide for
the payment of any expenses, fees or taxes then or thereafter chargeable to the
Trust Fund. Subject to such reserve, the balance of the Trust Fund shall be
liquidated and distributed by the Trustee to or for the benefit of the
Participants or their beneficiaries, as directed by the Administrator after
compliance with applicable requirements of ERISA, as amended from time to time,
or other applicable law, accompanied by a certification that the disposition is
in accordance with the terms of the Plans and the Trustee need not question the
propriety of such certification. The Company shall have full responsibility to
see that such distribution is
<PAGE>
proper and within the terms of the Plans and this Trust.
IN WITNESS WHEREOF, the Company and Trustee have caused this
Trust Agreement to be executed as of the day and year first above written.
GREEN MOUNTAIN COFFEE, INC.
By: Robert D. Britt
------------------------
Its: Secretary/Treasurer
------------------------
/s/ Robert D. Britt
------------------------------------
Robert D. Britt