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Exhibit 10.9
GREEN MOUNTAIN COFFEE ROASTERS, INC.
2002 DEFERRED COMPENSATION PLAN
AS AMENDED ON DECEMBER 13, 2007
1. IN GENERAL . The plan set forth herein is an amendment and
restatement, effective as to all Accounts remaining unpaid as of
December 13, 2007, of the 2002 Deferred Compensation Plan
previously established by Green Mountain Coffee, Inc., now Green
Mountain Coffee Roasters, Inc. (including any successor, the
"Company").
2. DEFINED TERMS . As used in the Plan, the following
terms have the meanings associated with them below:
"Account": a memorandum account, including any subaccounts,
maintained by the Administrator to reflect the Employer’s
unfunded deferred compensation obligation to a Participant
hereunder.
"Administrator": the Board or, if so determined by the Board, a
committee of the Board. The Board or committee of the Board, as the
case may be, may delegate any of its duties and responsibilities
under the Plan to such persons (including employees) as it
determines. In the case of any such delegation, the term
"Administrator" shall include, to the extent of such delegation,
the person or persons to whom such duties and responsibilities were
delegated.
"Board": the Board of Directors of the Company.
"Change in Control": The first to occur of any of the following
events:
(a) a change in the control of the Company of a nature that
would be required to be reported in accordance with Regulation 14A
promulgated under the Securities Exchange Act of 1934 (the
"Exchange Act"), whether or not the Company is then subject to such
reporting requirement;
(b) a public announcement (which, for purposes hereof, shall
include, without limitation, a report filed pursuant to section
13(d) of the Exchange Act) that any individual, corporation,
partnership, association, trust or other entity becomes the
beneficial owner (as defined in Rule 13(d)(3) promulgated under the
Exchange Act), directly or indirectly, of securities of the Company
representing 15% or more of the voting power of the Company then
outstanding;
(c) the individuals who, as of December 12, 2002, are
members of the Board (the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board (provided, however,
that if the election or nomination for election by the
Company’s shareholders of any new director was approved by a
vote of at least a majority of the Incumbent Board, such new
director shall be considered to be a member of the Incumbent
Board);
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(d) the approval of the shareholders of the
Company of (A) any consolidation, merger or statutory share
exchange of the Company with any person in which the surviving
entity would not have as its directors at least 60% of the
Incumbent Board and as a result of which those persons who were
shareholders of the Company immediately prior to such transaction
would not hold, immediately after such transaction, at least 60% of
the voting power of the Company then outstanding or the combined
voting power of the surviving entity’s then outstanding
voting securities; (B) any sale, lease, exchange or other
transfer in one transaction or series of related transactions of
substantially all of the assets of the Company; or (C) the
adoption of any plan or proposal for the complete or partial
liquidation or dissolution of the Company; or
(e) a determination by a majority of the members of the
Incumbent Board, in their sole and absolute discretion, that there
has been a Change in Control.
"Code": the federal Internal Revenue Code of 1986, as
amended.
"Common Stock": the common stock of Green Mountain Coffee
Roasters, Inc.
"Earliest Post-Separation Payment Date": whichever of the
following is relevant in the circumstances: (i) in the case of
a Participant who is not a Specified Employee at the date he
or she Separates from Service of the Employer, the date of such
Separation from Service, and (ii) in the case of a Participant
who is a Specified Employee at the date he or she Separates
from Service, the date that is six (6) months following the
date of such separation.
"Earnings Measure": a measure of notional investment
performance, including without limitation a Stock Unit, that
produces either a "rate of return on a predetermined actual
investment" or a "reasonable rate of interest" as those terms are
defined in the Treasury Regulations at
Section 31.3121(v)(2)-1(d)(2).
"Eligible Person": an individual who is (i) employed by an
Employer, determined by the Administrator to qualify as a
"highly compensated or management" employee for purposes of
Sections 201(2), 301(a)(3) and 401(a)(1) OF ERISA, and designated
by the Administrator as eligible to participate in the Plan,
provided that such designation has not been revoked by the
Administrator, or (ii) a member of the Board. A change in an
individual’s eligibility status shall not affect any deferral
election under Section 3 for which the applicable deferral
election deadline had passed prior to such change in status.
"Eligible Pay": except as otherwise determined by the
Administrator, (i) in the case of an Eligible Person who is an
employee (including an officer) of an Employer, any or all of such
Eligible Person’s salary, commissions, and bonuses, and
(ii) in the case of an Eligible Person who is a member of the
Board and not described in clause (i), any or all of such Eligible
Person’s director fees. The amount of an individual’s
Eligible Pay for purposes of applying any percentage deferral
election shall be determined prior to deferrals under the Plan or
under any other program of the Employer. For the avoidance of
doubt, any change by the Administrator in amounts included or
excluded from an individual’s Eligible Pay shall be effective
only as to deferrals for which the applicable deferral election
deadline had not passed prior to such change.
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"Employer": the Company and its Subsidiaries, or
any of them.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended.
"Participant": an Eligible Person who participates in the
Plan.
"Plan": the amended and restated Green Mountain Coffee Roasters,
Inc. 2002 Deferred Compensation Plan as set forth herein, as the
same may from time to time be amended and in effect.
"Stock Unit": an Earnings Measure consisting of one notional
share of Common Stock.
"Section 409A": Section 409A of the Code, including the
Treasury Regulations thereunder and other applicable Internal
Revenue Service guidance.
"Separation from Service" (and correlative terms): an
individual’s separation from service from the Employer,
determined in accordance with Section 1.409A-1(h) of the
Treasury Regulations. The Administrator may, but need not, elect in
writing, subject to the applicable limitations under
Section 409A, any of the special elective rules prescribed in
Section 1.409A-1(h) of the Treasury Regulations for purposes
of determining whether a "separation from service" has occurred.
Any such written election shall be deemed part of the Plan.
"Specified Employee": an individual who is determined by the
Administrator to be or to have been, as of the relevant time, a
"specified employee" (as that term is defined at
Section 1.409A-1(i) of the Treasury Regulations) of the
Employer. The Administrator may, but need not, elect in writing,
subject to the applicable limitations under Section 409A, any
of the special elective rules prescribed in
Section 1.409A-1(i) of the Treasury Regulations for purposes
of determining "specified employee" status. Any such written
election shall be deemed part of the Plan.
"Subsidiary": any corporation or other trade or business that
together with the Company would be treated as a single "employer"
for purposes of Section 1.409A-1(h)(3) of the Treasury
Regulations (applied without regard to any permissible special
elections thereunder).
"Treasury Regulations": the Department of the Treasury
regulations at 26 CFR (pertaining to the Code).
3. DEFERRAL ELECTION.
3.1. In General . Subject to the other
requirements of this Section 3, each Eligible Person may elect
to defer hereunder a specified portion or percentage of his or her
Eligible Pay, if any, for any calendar year. Each such deferral
shall be made by the Participant’s delivery to the
Administrator of a deferral election on or before the date
specified by the Administrator, which date shall in all events
(except as provided in Section 3.2 below) be, or fall prior
to:
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(a) in the case of any bonus that qualifies as
"performance-based compensation" within the meaning of
Section 1.409A-1(e) of the Treasury Regulations, the date that
is six (6) months before the end of the performance period,
but only if the Eligible Person has been in continuous employment
with the Employer since the later of the beginning of the
performance period or the date the performance criteria are
established and only if, on the date of the deferral election, the
compensation has not become readily ascertainable (as determined in
accordance with Section 1.409A-2(a)(8) of the Treasury
Regulations).
(b) in every other case, the last day of the calendar year
preceding the calendar year in which the services to which the
compensation relates are to be performed.
Each election made under this Section 3.1 shall become
irrevocable in accordance with such rules as the Administrator may
establish but not later than the election deadline specified in
(a) or (b) above, as applicable; provided , that
if the Participant is paid under Section 5.5 on account of an
unforeseeable emergency, or makes a hardship withdrawal from the
Employer’s 401(k) plan pursuant to
Section 1.401(k)-1(d)(3) of the Treasury Regulations, any
deferral election then in effect under this Section 3.1 shall
forthwith be canceled.
3.2. First Year Of Participation .
(a) Notwithstanding Section 3.1 above, an individual who
first becomes eligible to participate in the Plan during the course
of a calendar year may elect to defer a specified portion or
percentage of his or her Eligible Pay in respect of services to be
performed for the remainder of the calendar year or portion thereof
by delivering to the Administrator an irrevocable deferral election
within thirty (30) days of first becoming eligible. In the
case of performance pay for a specified performance period that had
begun but had not ended prior to a mid-year election, unless
Section 3.1(a) applies the election may apply to no more than
the portion of such pay that equals the total amount of such pay
multiplied by a fraction, the numerator of which is the number of
days remaining in the performance period after the election and the
denominator of which is the total number of days in the performance
period.
(b) An individual who already participates or is eligible to
participate in (including, except to the extent otherwise provided
in Section 1.409A-2(a)(7) of the Treasury Regulations, an
individual who has any entitlement, vested or unvested, to payments
under) any other nonqualified deferred compensation plan that would
be required to be aggregated with the Plan for purposes of
Section 1.409A-1(c)(2) of the Treasury Regulation shall not be
treated as eligible for the mid-year election rules of this
Section 3.2 with respect to the Plan, even if he or she had
never previously been el
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