0000903423-12-000121.txt : 20120224 0000903423-12-000121.hdr.sgml : 20120224 20120224131900 ACCESSION NUMBER: 0000903423-12-000121 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20120224 DATE AS OF CHANGE: 20120224 GROUP MEMBERS: ALBERTO LAVAZZA S.A.P.A. GROUP MEMBERS: EMILIO LAVAZZA S.A.P.A. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GREEN MOUNTAIN COFFEE ROASTERS INC CENTRAL INDEX KEY: 0000909954 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS FOOD PREPARATIONS & KINDRED PRODUCTS [2090] IRS NUMBER: 030339228 STATE OF INCORPORATION: DE FISCAL YEAR END: 0929 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-58801 FILM NUMBER: 12636852 BUSINESS ADDRESS: STREET 1: 33 COFFEE LANE CITY: WATERBURY STATE: VT ZIP: 05676 BUSINESS PHONE: 8022445621 MAIL ADDRESS: STREET 1: 33 COFFEE LANE CITY: WATERBURY STATE: VT ZIP: 05676 FORMER COMPANY: FORMER CONFORMED NAME: GREEN MOUNTAIN COFFEE INC DATE OF NAME CHANGE: 19930729 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Luigi Lavazza S.p.A. CENTRAL INDEX KEY: 0001502883 IRS NUMBER: 980356646 STATE OF INCORPORATION: L6 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: CORSO NOVARA, 59 CITY: TORINO STATE: L6 ZIP: 10154 BUSINESS PHONE: (39) 011 240 8400 MAIL ADDRESS: STREET 1: CORSO NOVARA, 59 CITY: TORINO STATE: L6 ZIP: 10154 SC 13D/A 1 lavazza-13da3_0224.htm Unassociated Document
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
SCHEDULE 13D

UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 3)*

 
Green Mountain Coffee Roasters, Inc.
(Name of Issuer)

Common Stock, $0.10 par value
(Title of Class of Securities)

393122106
(CUSIP Number)

Luigi Lavazza S.p.A.
Corso Novara, 59
10154 Torino, Italy
Fax: +39-011-239-8635
Attention: Simona Musso, General Counsel

With a copy to:

William A. Groll, Esq.
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
(212) 225-2000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
 
February 23, 2012
(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d–1(e), 240.13d–1(f) or 240.13d–1(g), check the following box.  o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d–7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 

 
 
 
 
 
CUSIP No. 393122106
13D
  

1
NAMES OF REPORTING PERSONS
Luigi Lavazza S.p.A.
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o
(b) x
3
SEC USE ONLY
4
SOURCE OF FUNDS
WC
5
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)  o
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
Italy
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH REPORTING
PERSON
WITH
7
SOLE VOTING POWER
0 (See Item 5.)
8
SHARED VOTING POWER
8,513,752 (See Item 5.)
9
SOLE DISPOSITIVE POWER
0 (See Item 5.)
10
SHARED DISPOSITIVE POWER
8,513,752 (See Item 5.)
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,513,752 (See Item 5.)
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5% (See Item 5.)
14
TYPE OF REPORTING PERSON
CO
 
 
2
 
 
CUSIP No. 393122106
13D
  

1
NAMES OF REPORTING PERSONS
Alberto Lavazza S.a.p.A.
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o
(b) x
3
SEC USE ONLY
4
SOURCE OF FUNDS
AF
5
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)   o
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
Italy
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH REPORTING
PERSON
WITH
7
SOLE VOTING POWER
0 (See Item 5.)
8
SHARED VOTING POWER
8,513,752 (See Item 5.)
9
SOLE DISPOSITIVE POWER
0 (See Item 5.)
10
SHARED DISPOSITIVE POWER
8,513,752 (See Item 5.)
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,513,752 (See Item 5.)
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5% (See Item 5.)
14
TYPE OF REPORTING PERSON
OO
 
 
3
 
 
CUSIP No. 393122106
13D
  

1
NAMES OF REPORTING PERSONS
Emilio Lavazza S.a.p.A.
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) o
(b) x
3
SEC USE ONLY
4
SOURCE OF FUNDS
AF
5
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)   o
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
Italy
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH REPORTING
PERSON
WITH
7
SOLE VOTING POWER
0 (See Item 5.)
8
SHARED VOTING POWER
8,513,752 (See Item 5.)
9
SOLE DISPOSITIVE POWER
0 (See Item 5.)
10
SHARED DISPOSITIVE POWER
8,513,752 (See Item 5.)
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,513,752 (See Item 5.)
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES    o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5% (See Item 5.)
14
TYPE OF REPORTING PERSON
OO
 
 
4
 
 
Preamble
 
This Amendment No. 3 (this “Amendment”) amends and supplements the Schedule 13D filed by Luigi Lavazza S.p.A. (“Lavazza”), Alberto Lavazza S.a.p.A. and Emilio Lavazza S.a.p.A. (collectively, the “Reporting Persons”) with the Securities and Exchange Commission on October 8, 2010, as previously amended (the “Schedule 13D”), relating to shares of common stock, $0.10 par value per share (“Common Stock”), of Green Mountain Coffee Roasters, Inc. (the “Issuer”).  Capitalized terms used herein but not defined herein have the meanings ascribed to them in the Schedule 13D.
 
Items 4-7 of the Schedule 13D are hereby amended and supplemented to add the following:
 
Item 4.
Purpose of Transaction
 
In September 2010, Lavazza invested in the Issuer to become a minority stockholder in what the parties anticipated would be a long-term cooperative and strategic relationship between Lavazza and the Issuer.  Subsequently, in January 2011, Lavazza entered into a Development and Distribution Agreement with the Issuer and Keurig, Incorporated, a wholly owned subsidiary of the Issuer, relating to the development, manufacture and distribution of Lavazza products in the United States (a “Distribution Agreement”).  In May 2011, Lavazza further increased, pursuant to its preemptive rights, its investment in the Issuer.
 
Lavazza remains committed to its long-term cooperative and strategic relationship with the Issuer.  In light of global economic conditions, and particularly those in Europe and in Italy, however, Lavazza has reviewed its minority investment in the Issuer and considered ways in which some of the value of such equity investment can be either ensured or monetized.  Under the SPA, Lavazza is precluded from entering into any hedging or similar transaction with the same economic effect as a sale of any shares of Common Stock.  In its consideration of alternatives, Lavazza asked the Issuer if it would consent to Lavazza hedging a portion of its investment.  Following these discussions, Lavazza and the Issuer agreed to amend certain provisions of the SPA with respect to the sale or hedging of shares of Common Stock held by Lavazza pursuant to a Second Amendment to Common Stock Purchase Agreement, dated as of February 23, 2012 (the “Second Amendment”).
 
The Second Amendment is Exhibit 5 to this Amendment and is incorporated herein by reference.  The following description of various terms of the Second Amendment is qualified in its entirety by reference to the full text of the Second Amendment.
 
Under the Second Amendment, if, at any time, Lavazza holds less than five percent of the then total number of shares of Common Stock calculated in accordance with Rule 13d-1 under the Exchange Act, Lavazza is permitted to enter into a hedging transaction with a term of at least three years with respect to up to one-half of its holdings at such time (a “Hedge Transaction”).  If Lavazza enters into a Hedge Transaction, the remaining shares held by Lavazza (other than those purchased pursuant to the Supplemental SPA) shall be subject to an additional lock-up for a period of one year from the initiation of the Hedge Transaction (the “Additional Restricted Period”) during which Lavazza agreed not to sell, pledge or otherwise transfer any of the shares of Common Stock subject to such lock-up.  In addition, in connection with a Hedge Transaction, Lavazza is permitted to pledge, lend or otherwise similarly transfer a number of shares equal to the number of shares hedged in the Hedge Transaction to the counterparty for such Hedge Transaction as a “stock loan.”  Lavazza will obtain the return of, and the ability to vote, any shares subject to such a stock loan (or cause such shares to be voted) in accordance with the SPA, except in certain limited circumstances provided in the Second Amendment.
 
 
 
5
 
 
Under the Amendment, if Lavazza has entered into a Hedge Transaction, Lavazza may not, without the Company’s prior written consent, modify the Hedge Transaction to: (i) increase the number of shares of Common Stock subject to such Hedge Transaction at any time; (ii) increase the maturity of such Hedge Transaction during the first 18 months of such Hedge Transaction; or (iii) change the put option and call option strike prices during the first 12 months of such Hedge Transaction.  Additionally, if, at the time of any proposed modification to the Hedge Transaction, Lavazza holds more than five percent of the then total shares of Common Stock calculated in accordance with Rule 13d-1 under the Exchange Act, Lavazza will not be permitted to modify the Hedge Transaction without the consent of the Company. All such consent requirements are subject to certain limited exceptions described more fully in the Amendment.
 
After the conclusion of the Additional Restricted Period, until the end of the Standstill Period, Lavazza will be limited in its ability to sell, pledge or otherwise transfer shares of Common Stock purchased under the SPA, and any shares Lavazza then holds in excess of 12% of the then outstanding Common Stock on the same terms as the existing SPA.  All other prohibitions on hedging transactions pursuant to the SPA, other than as described above, shall remain in effect.
 
Under the terms of the Second Amendment, in the event that the total number of shares of Common Stock beneficially owned by Lavazza is below five percent, other than as a result of an increase by the Issuer of the number of shares of Common Stock outstanding, Lavazza’s right to propose a nominee to the board of directors of the Issuer, previously described in the Statement, shall terminate.
 
Under the SPA, Lavazza is subject to the Issuer’s trading windows and black-out policies applicable to insiders and, accordingly, may only sell shares or enter into a Hedge Transaction during such window periods. Upon reaching agreement on the Second Amendment, Lavazza determined to sell a number of shares with the intention of reducing its holdings to a level below 5%.  Lavazza sold 661,239 shares of Common Stock in open market transactions yesterday following such determination.  Lavazza expects, depending on market conditions and subject to the terms of the SPA, to sell an additional approximately 790,000 shares of Common Stock, which will result in its holdings being below 5%.  Lavazza has not determined that it will seek to enter into a Hedge Transaction.  Lavazza intends to continue to review its investment and market conditions generally and for shares of Common Stock in particular and may, subject to the Issuer’s trading window policies and the terms of the SPA and the Second Amendment, determine to enter into a Hedge Transaction or, in the future, sell additional shares of Common Stock.  Consistent with its continuing intention to maintain a long-term relationship with the Issuer, if Lavazza does determine to enter into a Hedge Transaction, it currently intends to continue to hold a significant part of its current investment, subject to the terms of the SPA and the Second Amendment, including any lock-up for an Additional Restricted Period as described above.
 
Except as described herein, the Reporting Persons have no present plan or proposal that relates to or would result in any of the events, actions or conditions specified in paragraphs (a) through (j) of Item 4 of Schedule 13D.
 
 
 
 
Item 5.
Interest in Securities of the Issuer
 
 
(a-c)
On February 23, 2012, Lavazza sold an aggregate of 661,239 shares of Common Stock for an aggregate price of $44,870,089.28 in open market transactions on Nasdaq.  Attached as Annex A to this Amendment is a table setting forth certain information with respect to the sale transactions effected yesterday.  Except as set forth herein, no transaction in the shares of Common Stock was effected during the past 60 days by the Reporting Persons.  As a result of such sales, as of the date hereof, Lavazza holds, and has beneficial ownership of, an aggregate of 8,513,752 shares.  As a result of their collective control of Lavazza, the Lavazza Shareholders may be deemed to share beneficial ownership of the shares held by Lavazza.  The 8,513,752 shares of Common Stock so beneficially owned represent approximately 5.5% of the currently outstanding Common Stock (based on the 154,854,811 shares of Common Stock reported by the Issuer to be outstanding as of January 26, 2012 in its Schedule 14A filed with the SEC on February 2, 2012).  Subject to the limitations on voting and disposition described in the Schedule 13D, Lavazza and the Lavazza Shareholders may be deemed to share the power to vote and to dispose the shares of Common Stock reported herein.
 

6
 
 
 
Item 6.                 Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
 
As more fully described in Item 4 above, Lavazza is party to the Second Amendment.
 

 
Item 7.                 Material to Be Filed as Exhibits
 
Exhibit 5
Second Amendment to Common Stock Purchase Agreement, dated as of February 23, 2012, by and between Green Mountain Coffee Roasters, Inc. and Lavazza S.p.A.

 

 
 
 
7
 
                    

 
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
 
Date: February 24, 2012
 

LUIGI LAVAZZA S.P.A.
 
By:   /s/  Alberto Lavazza                                        
Title:  Chariman of the Board



ALBERTO LAVAZZA S.A.P.A.
 
By:   /s/ Alberto Lavazza                                        
Title:  Personally Responsible Partner



EMILIO LAVAZZA S.A.P.A.
 
By:   /s/ Giuseppe Lavazza                                      
Title:  Personally Responsible Partner





 
8 
 

Annex A
 
Sales of Common Stock on February 23, 2012
 
Set forth below is information regarding the sales of Common Stock by Lavazza on February 23, 2012.  These sales were effected as multiple open market sales executed by a broker-dealer on Lavazza’s behalf.  In accordance with SEC guidance, the sale transactions are aggregated within price ranges for purposes of calculating the weighted average sale price for each range.
 
 
Date
 
Number of Shares
Weighted Average
Price per Share
     
2/23/12
  57,512  
$69.3277 1
2/23/12
  129,066     
$68.4729 2
2/23/12
  474,661     
$67.5558 3
     
 
The Reporting Persons will provide to the staff of the SEC, upon request, information regarding the number of shares sold at each separate price on February 23, 2012.

 
 
_________________________________
1 Represents shares sold at prices ranging from $69.01 to $69.87 per share. 
2 Represents shares sold at prices ranging from $68.00 to $68.96 per share. 
3 Represents shares sold at prices ranging from $67.05 to $67.9975 per share.


 
 
9
 EX-5 2 lavazza13daex5_0223.htm Unassociated Document
 Exhibit 5
 
 
 
Second Amendment to Common Stock Purchase Agreement

This Second Amendment to Common Stock Purchase Agreement (the “Second Amendment”) is made and entered into as of February 23, 2012 by and between Green Mountain Coffee Roasters, Inc., a Delaware corporation (the “Company”), and Luigi Lavazza S.p.A., an Italian corporation (“Lavazza”), amending that certain Common Stock Purchase Agreement, dated as of August 10, 2010, as amended and in effect from time to time, between the Company and Lavazza (the “Purchase Agreement”). Capitalized terms used herein without definition shall have the meanings ascribed to them in the Purchase Agreement.

WITNESSETH

WHEREAS, pursuant to the Purchase Agreement, Lavazza has certain rights and restrictions with respect to the sale or hedging of shares of Common Stock held by Lavazza; and

WHEREAS, the parties wish to amend the Purchase Agreement to amend and clarify certain provisions of the Purchase Agreement in respect of such rights and restrictions.

NOW, THEREFORE, for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and Lavazza agree as follows:

1.  Amendment to Section 6.3 of the Purchase Agreement. Section 6.3 of the Purchase Agreement is hereby amended and restated in its entirety as follows:

“6.3  Public Announcements. The Company and Lavazza shall consult with one another before issuing any press release or any public statement with respect to the transactions contemplated by the Transaction Documents or the Second Amendment (including a Hedge Transaction (as defined below)) and matters related thereto. Except as otherwise required or permitted by this Agreement, neither the Company nor Lavazza shall, nor permit any of their respective Subsidiaries or representatives to, make any public disclosure regarding the transactions contemplated by the Transaction Documents or the Second Amendment (including a Hedge Transaction) unless (a) the other party to this Agreement shall have approved such disclosure (which approval shall not be unreasonably withheld, conditioned or delayed) or (b) such disclosure is required by applicable law; provided that the party required by law to make a public disclosure regarding the transactions will, to the extent practicable and permitted by applicable law, provide the other party opportunity to consult in advance of making such disclosure.”

2. Amendment to Section 8(a) of the Purchase Agreement.  Section 8(a) of the Purchase Agreement is hereby amended by inserting the following at the end of such Section:
 
 
 
 
 

 
“Notwithstanding clause (ii) above, if, at any time after the date hereof, the total number of shares of Common Stock beneficially owned by Lavazza is less than five percent (5%) of the then total number of shares of Common Stock calculated in accordance with Rule 13d-1 under the Exchange Act, Lavazza shall be permitted to enter into a share collar transaction (a “Hedge Transaction”) with respect to a number of shares of Common Stock equal to up to one-half of the number of shares of Common Stock then beneficially owned by Lavazza (such shares, the “Hedged Shares”) as long as (i) at the time of initiating such Hedge Transaction the total number of shares of Common Stock beneficially owned by Lavazza remains below such five percent (5%) threshold and (ii) the initial term of such transaction is not less than three years and provided that, if a Hedge Transaction is consummated, during the period from the date of initiation of such Hedge Transaction until the date that is one (1) year after such initiation (the “Additional Restricted Period”), Lavazza shall not sell, pledge or otherwise transfer (or enter into an obligation regarding the future sale, pledge or transfer of) any of the Shares or Restricted Additional Shares (other than the Hedged Shares).  During the period beginning on the initial date of the Hedge Transaction and ending on the eighteen (18) month anniversary of such initial date (the “Initial Hedge Period”), a modification to a Hedge Transaction that increases the number of shares subject to, increases the maturity of, or amends the put option and call option strike prices of, such hedge (excluding customary adjustments for corporate actions or actions listed on Schedule I made by the calculation agent/hedging counterparty in its sole discretion, for which no prior written consent of the Company is required) shall be considered a new hedge and shall be prohibited in accordance with clause (ii) above without the prior written consent of the Company; provided that such limitation with respect to amendments to the put option and call option strike prices shall only continue until the twelve (12) month anniversary of the initial date of the Hedge Transaction (the “Twelve Month Anniversary”). Any amendment to the Hedge Transaction that relates to possible changes to the option payout (including, but not limited to, prepayment, changes in pricing assumptions relating to dividends or stock borrow, and elections as a consequence of a corporate action), or that reduces the maturity (including an early unwind or termination, partial or full) of the Hedge Transaction or that is in response to changes outside of the control of Lavazza in tax, law or accounting or other similar events, or, after the Twelve Month Anniversary, that amends the put option or call option strike prices (each, a “Permitted Amendment”), shall not require the prior written consent of the Company.  Except as set forth in the two immediately preceding sentences of this Section 8(a), any modification to the Hedge Transaction during the Initial Hedge Period, shall require the prior written consent of the Company, which consent shall not be unreasonably withheld. After the Initial Hedge Period, any Permitted Amendment or any other amendment to the Hedge Transaction, other than an amendment that increases the number of shares of Common Stock subject to such hedge (excluding customary adjustments for corporate actions or actions listed on Schedule I made by the calculation agent/hedging counterparty in its sole discretion, for which no prior written consent of the Company is required), shall not require the prior written consent of the Company.  Notwithstanding anything to the contrary in this Section 8(a), if, at the time of any proposed modification to the Hedge Transaction, the total number of shares of Common Stock beneficially owned by Lavazza is above five percent (5%) of the then total number of shares of Common Stock calculated in accordance with Rule 13d-1 under the Exchange Act, other than as a result of a reduction by the Company of the number of shares of Common Stock outstanding, Lavazza will not be permitted to so modify the Hedge Transaction without the consent of the Company (excluding customary adjustments for corporate actions or actions listed on Schedule I made by the calculation agent/hedging counterparty in its sole discretion, for which no prior written consent of the Company is required). With respect to any amendment to the Hedge Transaction for which no prior written consent by the Company is required hereunder, Lavazza shall give the Company prior written notice of such amendment as promptly as practicable, but in any event at least five (5) Business Days prior to the effectiveness of such amendment; provided that in the event of an amendment to the Hedge Transaction made by the calculation agent/hedging counterparty in its sole discretion, Lavazza shall give the Company written notice within five (5) Business Days after receiving notice of such amendment.”

 
 
 
3.   Amendment to Section 8(b) of the Purchase Agreement. Section 8(b) of the Purchase Agreement is hereby amended and restated in its entirety as follows:

 
 
“(b)  Lavazza further agrees that until the end of the Standstill Period (other than during any Additional Restricted Period, as to which the provisions of Section 8(a) shall govern), Lavazza shall not sell, pledge or otherwise transfer (or enter into an obligation regarding the future sale, pledge or transfer of) any of the Shares or any Restricted Additional Shares without the Company’s prior written consent; provided, however, that Lavazza may sell such Shares or Restricted Additional Shares  (i) in the open market (other than by means of a Negotiated Trade) or (ii) to a Person that is an institution of the type described in Rule 13d-1(b)(1)(i) under the Exchange Act, other than a hedge fund or an institution that has, during the twelve months prior to such sale, engaged in a proxy contest or otherwise filed a Schedule 13D with the intent to change or influence control over an issuer (any such Person, an “Eligible Financial Institution”).  For the avoidance of doubt, Lavazza may sell any of the Shares or any Additional Shares pursuant to an effective registration statement filed in accordance with the Registration Rights Agreement so long as, in the case of a demand registration thereunder, such sale is otherwise in accordance with the provisions of this Section 8(b).  In addition, and without limiting the foregoing, in connection with a Hedge Transaction permitted pursuant to Section 8(a), Lavazza may, notwithstanding any other provision of this Agreement, including Section 10.4, pledge, lend or otherwise similarly transfer a number of shares of Common Stock equal to the Hedged Shares to the counterparty for such Hedge Transaction (a “Stock Lend”).  Notwithstanding the foregoing, Lavazza will, upon notice by the Company to Lavazza of a meeting to be held of the stockholders of the Company at which action is proposed to be taken by such stockholders, which notice shall be provided at least five (5) Business Days prior to the record date for such meeting and shall describe in reasonable detail the matters to be voted on at such meeting, during a Hedge Transaction, obtain the return of, and the ability to vote, any shares subject to a Stock Lend (or cause such shares to be voted) in accordance with Section 10.4, but the failure to obtain the ability to vote such shares under the circumstances provided on Schedule II shall not constitute a breach of this Agreement.  As and to the extent necessary, the irrevocable proxy granted in Section 10.4(b) is and shall be deemed released to the extent, but only to the extent, that the shares subject to a Stock Lend cannot be voted by or on behalf of Lavazza at any meeting of the stockholders of the Company during the pendency of the Hedge Transaction.”

4.   Amendment to Section 8(c) of the Purchase Agreement. Section 8(c) of the Purchase Agreement is hereby amended and restated in its entirety as follows:

 
 
 
 
 
“(c)  The Company may impose stop-transfer instructions to effectuate the provisions of this Section 8 and, during any Additional Restricted Period, may stamp each certificate evidencing any of the Shares with the applicable legends set forth in Section 5.12 hereof.”

5.  Amendment to Section 10.2(b) of the Purchase Agreement. Section 10.2(b) of the Purchase Agreement is hereby amended by inserting the following at the end of such Section:

“For the avoidance of doubt, in the event the total number of shares of Common Stock beneficially owned by Lavazza is below five percent (5%) of the then total number of shares of Common Stock calculated in accordance with Rule 13d-1 under the Exchange Act, other than as a result of an increase by the Company of the number of shares of Common Stock outstanding, Lavazza’s right to propose a candidate for the Lavazza Nominee shall terminate.”

6.   Amendment to Section 10.4 of the Purchase Agreement. Section 10.4 of the Purchase Agreement is hereby amended by inserting the following at the beginning of such Section (and applicable to all subsections thereof):

 
“Subject to Section 8(b) of this Agreement:”.

7.   Miscellaneous Provisions.

7.1           Effect of Amendment. In the event of any conflict or inconsistency between the terms of this Second Amendment and the terms of the Purchase Agreement, the terms of this Second Amendment will control. Except to the extent expressly modified herein or in conflict with the terms of this Second Amendment, the terms of the Purchase Agreement shall remain in full force and effect.

7.2           Counterparts.  This Second Amendment may be executed in two counterparts, each of which shall be deemed an original but both of which together shall constitute one and the same instrument.

7.3           No Amendment.  No amendment, alteration or modification of any of the provisions of this Second Amendment will be binding unless made in writing and signed by each of the parties hereto.

7.4           Governing Law.  This Second Amendment shall be governed by, and construed in accordance with, the law of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.

 
 
 
 

 
IN WITNESS WHEREOF, each of the undersigned has executed this Second Amendment as an agreement under seal as of the date first above written.
 

 

 
Luigi Lavazza S.p.A.
  
Green Mountain Coffee Roasters, Inc.
     
By:   /s/ Antonio Baravalle
  
By:   ­­­­/s/ Howard Malovany
Name:  Antonio Baravalle
  
Name:  Howard Malovany
Title:  Chief Executive Officer
  
Title:  Vice President, Corporate
General Counsel & Secretary