Exhibit 99.6
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
SHAREHOLDERS' AGREEMENT entered into at the City of Montreal, as of the 9th day
of February, 2005.
BY AND BETWEEN: LINCOLNSHIRE HOLDINGS LIMITED, a
corporation duly incorporated under the
laws of Canada, herein represented by
Xxxx X. Xxxxxx
(herein referred to as "Lincolnshire");
AND: NOOYA INVESTMENTS LIMITED, a corporation
duly incorporated under the laws of
Canada, herein represented by Xxxxxxx X.
Xxxxxx
(herein referred to as "Nooya");
AND: PENTLAND SECURITIES (1981) INC., a
corporation duly incorporated under the
laws of Canada, herein represented by
Xxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx
(herein referred to as the
"Corporation");
AND: 4280661 CANADA INC., a corporation duly
incorporated under the laws of Canada,
herein represented by Xxxxxx X. Xxxxxx
(herein referred to as "Subco");
AND HERETO INTERVENED: XXXX X. XXXXXX, an executive residing at
00 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx,
X0X 0X0
(herein referred to as "Xxxx X.
Xxxxxx");
AND: XXXXXXX X. XXXXXX, an executive residing
at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx,
X0X 0X0
(herein referred to as "Xxxxxxx X.
Xxxxxx").
WHEREAS on the date hereof, the Shareholders (as hereinafter defined) are the
registered holders of all the shares in the share capital of the Corporation,
specifically:
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Shareholder Number and Class of Shares
----------- --------------------------
200,000 common shares
Lincolnshire 4,800,000 Class A preferred shares
5,562,548 Class B preferred shares
330,000 Class C preferred shares
48,226,895 Class OPC preferred shares
Nooya 112,500 common shares
2,000,000 Class A preferred shares
5,534,667 Class B preferred shares
843,750 Class C preferred shares
700,000 Class N preferred shares
24,063,770 Class OPC preferred shares
WHEREAS the Lincolnshire Shareholder (as hereinafter defined) is the registered
holder of all the issued and outstanding shares in the share capital of
Lincolnshire;
WHEREAS the Nooya Shareholder (as hereinafter defined) is the registered holder
of all the issued and outstanding shares in the share capital of Nooya;
WHEREAS Subco is a wholly subsidiary of the Corporation;
WHEREAS prior to the date hereof, the Corporation and Subco owned in the
aggregate, 10,018,000 Class "B" common shares in the share capital of Molson
Inc. (the "Former Molson Shares");
WHEREAS pursuant to a Plan of Arrangement (the "Plan") between Xxxxxx Xxxxx
Company ("Coors") and Molson Inc. which became effective on the date hereof with
the name of Coors being changed to Molson Coors Brewing Company ("Molson
Coors"), the Former Molson Shares were exchanged for the following shares now
owned by the Corporation and Subco, namely:
(a) The Corporation owns 126 shares of Class A Common Stock of Molson
Coors and 234 shares of Class B Common Stock of Molson Coors, 928,612
Class A Exchangeable Shares of Molson Coors Canada Inc. ("Exchangeco") and
1,724,566 Class B Exchangeable Shares of Exchangeco; and
(b) Subco owns 333,529 Class A Exchangeable Shares of Exchangeco and
619,411 Class B Exchangeable Shares of Exchangeco;
(the said Class A Common Stock and Class B Common Stock of Molson Coors being
herein sometimes collectively called "Molson Coors US Shares" and the said Class
A Exchangeable Shares and Class B Exchangeable Shares of Exchangeco being herein
sometimes collectively called "Exchangeco Shares");
WHEREAS the Plan was proposed in a Joint Proxy Statement/Management Information
Circular dated December 9, 2004, as amended (collectively, the "Circular");
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WHEREAS the parties and intervenants hereto wish to evidence and confirm their
desire to keep within the Corporation and Subco, subject to the express
provisions of this Agreement, the Molson Coors Shares (as hereinafter defined)
at present owned by the Corporation, directly or indirectly, and any other
Molson Coors Shares hereafter acquired by the Corporation;
WHEREAS this Amended and Restated Shareholders Agreement amends and restates the
Shareholders Agreement between the parties (other than Subco) dated May 7, 2003,
as amended by an Amendment to Shareholders Agreement between the parties hereto
and for 4280679 Canada Inc. ("Newco") dated January 19, 2005 (collectively, the
"Prior Agreement"), the intention of the parties hereto being that this
Agreement shall supersede and replace the Prior Agreement; and
WHEREAS Lincolnshire and Nooya wish to herein set forth their agreement with
respect to certain matters respecting the Corporation and Subco.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
ARTICLE 1 - DEFINITIONS
1.1 As used in this Agreement, the following terms shall have the following
meanings:
"Affiliate" shall have the meaning ascribed thereto in the Income Tax Act
(Canada) in effect as of the date hereof;
"Agreed Ratio" means, as at the date hereof, sixty-four percent (64%) for
Lincolnshire and thirty-six percent (36%) for Nooya (being the ratio
between Lincolnshire and Nooya of the ownership of Common Shares and
Preferred Shares, respectively, the whole subject to adjustment pursuant
to Article 7 or Article 8 hereof;
"Agreement" means this agreement and all amendments made hereto by written
agreement between the Shareholders and the Corporation;
"Articles" means the Articles of Incorporation of the Corporation, as
amended or restated from time to time;
"Arm's Length" has the meaning ascribed to such term by the Income Tax Act
(Canada) in effect as at the date hereof;
"Assets" means the Molson Coors Shares held by the Corporation and any
other assets of the Corporation from time to time; provided, however, for
purposes of Section 8.2 hereof, Molson Coors Shares held by a subsidiary
of the Corporation shall be deemed to be Molson Coors Shares and not to
constitute Assets other than Molson Coors Shares;
"Beneficial Shareholders" means, collectively, the Lincolnshire
Shareholder and the Nooya Shareholder and "Beneficial Shareholder" means
either one of them;
"Board of Directors" or "Board" means the board of directors of the
Corporation;
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"Bylaws" means the bylaws of the Corporation, as amended from time to
time;
"Circular" has the meaning ascribed thereto in the preamble hereto;
"Common Shares" means the common shares in the share capital of the
Corporation;
"Coors" means Xxxxxx Xxxxx Company;
"Corporation" has the meaning ascribed thereto in the preamble hereto;
"Demand" has the meaning ascribed thereto in Section 7.1 hereof;
"Demanding Shareholder" has the meaning ascribed thereto in Section 7.1
hereof;
"Designated Assets" has the meaning ascribed thereto in Section 8.2
hereof;
"Designating Shareholder" has the meaning ascribed thereto in Section 8.1
hereof;
"Designated Shareholder Interest" has the meaning ascribed thereto in
Section 8.1 hereof;
"Exchangeco" means Molson Coors Canada Inc.;
"Exchangeco Shares" has the meaning ascribed thereto in the preamble
hereto;
"Former Molson Shares" has the meaning ascribed thereto in the preamble
hereto;
"Lincolnshire" has the meaning ascribed thereto in the preamble hereto and
shall include any transferee of Shares owned by Lincolnshire Holdings
Limited or any transferee thereof in accordance with this Agreement;
"Lincolnshire Shareholder" means Xxxx X. Xxxxxx and includes any
successor, assign or transferee thereof who becomes a shareholder of
Lincolnshire;
"Loan" has the meaning ascribed thereto in subsection 6.1.2 hereof;
"Molson" means Molson Inc.;
"Molson Coors" means Molson Coors Brewing Company;
"Molson Coors Shares" means Molson Coors US Shares and Exchangeco Shares
and shall also include any securities of Molson Coors or Exchangeco into
which said shares shall be changed, exchanged or converted or any
securities, whether voting or non-voting, issued by any entity (including
Molson Coors, Exchangeco or any successor thereof), in substitution or
replacement or exchange or consideration therefor or on conversion
thereof, including any such securities issued as a result of any
amalgamation, merger or plan of arrangement, and where the context admits
or requires, Substituted Securities (as defined in the Articles);
"Molson Coors US Shares" has the meaning ascribed thereto in the preamble
hereto;
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"Newco" means 4280679 Canada Inc.;
"Nooya" has the meaning ascribed thereto in the preamble hereto and shall
include any transferee of Shares owned by Nooya Investments Limited or any
transferee thereof in accordance with this Agreement;
"Nooya Shareholder" means Xxxxxxx X. Xxxxxx and includes any successor,
assign or transferee thereof who becomes a shareholder of Nooya;
"Notice" has the meaning ascribed thereto in Section 5.2 hereof;
"Offer" has the meaning ascribed thereto in Section 5.2 hereof;
"Part IV Tax" has the meaning ascribed thereto in subsection 6.1.2 hereof;
"Plan" has the meaning ascribed thereto in the preamble hereto;
"Preferred Shares" means any preferred shares in the share capital of the
Corporation including without limitation, the Class A preferred shares,
Class B preferred shares, Class C preferred shares, Class N preferred
shares and Class OPC preferred shares in the share capital of the
Corporation;
"Prior Agreement" has the meaning ascribed thereto in the preamble hereto;
"Rollover Agreements" means, collectively, (i) the Memorandum of Agreement
dated May 7, 2003 by and between Lincolnshire and the Corporation, (ii)
the Memorandum of Agreement dated May 7, 2003 by and between Nooya and the
Corporation, in each case, with respect to the sale of Former Molson
Shares to the Corporation, and (iii) the Sale Agreement dated May 7, 2003
by and between Nooya and the Corporation with respect to the sale to the
Corporation of Class OPC preferred shares and payment therefore by the
Corporation by the issuance to Nooya of 700,000 Class N preferred shares
of the Corporation;
"Safe Income on Hand" means, in respect of particular Molson Coors Shares
at a particular time, the portion of the unrealized gain inherent in the
Molson Coors Shares at that time that cannot reasonably be considered to
be attributable to anything other than income earned or realized (as
defined in paragraph 55(5)(b), (c), or (d) of the Income Tax Act (Canada)
depending on the circumstances) by Molson Coors and its subsidiaries or
any successor thereto after 1971 and before the safe-income determination
time as defined in subsection 55(1) of the Income Tax Act (Canada) for the
series of transactions that includes the dividends;
"Share" means any Common Share or Preferred Share as well as any other
share of the share capital of the Corporation;
"Shareholders" means Lincolnshire and Nooya, and "Shareholder" shall mean
any one of the Shareholders;
"Subco" means 4280661 Canada Inc.; and
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"Tax Liability" has the meaning ascribed thereto in Section 8.1 hereof.
ARTICLE 2 - IMPLEMENTATION OF AGREEMENT
2.1 Shareholder Covenants. Each of the Shareholders covenants and agrees that it
shall vote or cause to be voted the Shares of the Corporation held by it and
cause the Corporation to vote the shares of Subco, to accomplish and give effect
to the terms and conditions of this Agreement and that it shall otherwise act in
accordance with the provisions and intent of this Agreement.
2.2 Conflict. The parties hereto acknowledge and agree that as of the date
hereof conflicts may exist between this Agreement and the Articles and By-laws
of the Corporation. Each of the Shareholders agrees to vote or cause to be voted
the Shares held by it so as to cause the Articles or By-laws of the Corporation
to be amended to resolve each such conflict and any other conflicts in favour of
the provisions of this Agreement.
2.3 Covenants by the Corporation and Subco. Each of the Corporation and Subco
consents to the terms of this Agreement and hereby covenants with each of the
other parties hereto that it will at all times during the term of this Agreement
be governed by the terms and provisions hereof in carrying on its affairs, and
each of the Shareholders shall vote or cause to be voted its respective Shares
to cause each of the Corporation and Subco to fulfill its foregoing covenants.
2.4 Payment of Promissory Notes. The parties hereto acknowledge that on May 7,
2003 the Corporation delivered to each of Lincolnshire and Nooya a promissory
note of the Corporation in the principal amount of $2,467,333, payable on
demand, without interest (each a "Promissory Note" and collectively the
"Promissory Notes"). Each of the parties agrees that it will not demand payment
of its Promissory Note unless, simultaneously therewith, demand for payment of
the other Promissory Note is made by the other party and, in each case, such
demands result in full payment of the Promissory Notes to the parties hereto.
The Corporation hereby agrees that it will repay both of the Promissory Notes
out of the proceeds received from tax refunds of Part IV Tax as and when
received and that, after complete repayment of the Bank Loan, if the Promissory
Notes have not theretofore been paid, they will be so paid by the Corporation as
soon as feasible, subject to prior payment of cumulative dividends on the Class
A preferred shares and the Class N preferred shares of the Corporation.
2.5 Remain a Subsidiary. Each of the parties hereto hereby agrees that as long
as Subco owns any Molson Coors Shares, Subco shall remain a wholly owned
subsidiary of the Corporation.
2.6 Cause Subco. The Corporation hereby agrees to cause Subco to comply with all
of its obligations hereunder, such that the intent hereof will not be impaired
as a result of Subco owning Molson Coors Shares.
2.7 No Conflict with Agreements. No right accorded hereunder shall, without the
unanimous written consent of Lincolnshire and Nooya be exercisable by any party
or intervenant hereto if the exercise of such right would result in the
Corporation or Subco, as the case may be, losing any rights which it would
otherwise have pursuant to the
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agreements which the Corporation or Subco, as the case may be, are required to
enter into pursuant to the Plan or as described in the Circular, including,
without limitation, any voting trust or similar agreements to which the
Corporation or Subco, as the case may be, is a party, nor shall any such right
be exercised if such exercise would result in a breach of the Corporation's or
Subco's obligations under any such agreements.
ARTICLE 3 - CORPORATION'S PURPOSE
3.1 Purpose. The principal purpose of the Corporation shall be to own directly,
or indirectly through one or more wholly owned subsidiaries, Molson Coors Shares
and, if determined by the Board from time to time, other securities of an entity
which has issued Molson Coors Shares.
ARTICLE 4 - BOARD OF DIRECTORS
4.1 Number of Directors. The Corporation shall have three (3) directors who
shall be nominated and elected as provided for in Section 4.2 hereof.
4.2 Nomination and Election of Directors. The Board of Directors shall consist
of two (2) directors who shall be nominees of Lincolnshire and who may be
nominated by Lincolnshire at any time, and one (1) director who shall be a
nominee of Nooya and who may be nominated by Nooya at any time. The Shareholders
agree that during the term of this Agreement, they shall vote their Shares at
each meeting of shareholders of the Corporation so as to cause the nominees from
time to time of each Shareholder to be elected to (and, if appropriate, removed
from) the Board of Directors of the Corporation.
4.3 Removal of Directors. Any Shareholder that nominated a particular director
shall be entitled to remove that director forthwith by notice to such director,
the other Shareholder and the Corporation and to call a meeting of the
shareholders of the Corporation upon not less than 72 hours notice. Each
Shareholder shall vote to confirm the removal of that director and for the
replacement of that director by an individual nominated by the removing
Shareholder.
4.4 Quorum for Directors' Meetings. The quorum required for the transaction of
business at any meeting of the Board will be two (2) nominees of Lincolnshire
and one (1) nominee of Nooya. If a quorum is not obtained for a properly called
meeting of the Board, then the meeting will be postponed until a second meeting
is properly called. Those directors who attend the second meeting will
constitute a quorum and may transact any business which may have been transacted
at the meeting as originally called, provided that at least two (2) directors
attend the second meeting.
4.5 Decisions of Directors. Subject to the additional approval requirements of
Section 4.6 hereof, all matters proposed for consideration by the Board at a
meeting of the Board will be effective if approved by a simple majority of the
directors present at the meeting. Alternatively, the Board may approve any
matter by written resolution signed by all directors.
4.6 Matters Requiring Approval of Shareholders.
4.6.1 Any resolution of the Board of Directors relating to any of the
following matters shall not be effective unless approved by all the
Shareholders in writing:
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4.6.1.1 subject to subsection 4.6.3 and Article 8 hereof, the sale
or other disposition by the Corporation of any Molson Coors Shares
owned, directly or indirectly, by it. For greater certainty, the
exchange by the Corporation or by Subco of any Exchangeco Shares for
Molson Coors US Shares shall be deemed to be a disposition for the
purposes of the foregoing sentence. Notwithstanding the foregoing
provisions of this Section 4.6.1.1 but subject to Section 2.7
hereof, the President of the Corporation may, at his discretion,
cause the sale for cash or cash equivalents of any Class B
Exchangeco Shares owned by the Corporation or any subsidiary thereof
or the exchange of such shares into shares of Molson Coors Class B
Common Stock and the sale thereof for cash or cash equivalents,
provided that the net proceeds thereof, after the establishment of
reasonable reserves for taxes, expenses of sale and other
appropriate reserves and after repayment of any then outstanding
debt of the Corporation (including, without limitation, the Loan)
are declared as dividends to the Shareholders in the then current
proportions of the Agreed Ratio;
4.6.1.2 the issuance by the Corporation of any Shares, except as
required pursuant to any of the Rollover Agreements;
4.6.1.3 the purchase, redemption or reduction by the Corporation of
any of its issued Shares, other than as set out in Article 7 or
Article 8 hereof;
4.6.1.4 the amendment or repeal of the Articles or Bylaws;
4.6.1.5 the voluntary liquidation or dissolution of the Corporation;
4.6.1.6 the incurrence of indebtedness for borrowed funds, other
than with respect to the Loan or in the ordinary course of carrying
out its principal purpose;
4.6.1.7 the making of any substantial change in the Corporation's
principal purpose as set out in Article 3 hereof; and
4.6.1.8 any reduction of capital of the Corporation.
4.6.2 The provisions of subsection 4.6.1 above shall terminate and be of
no further force and effect upon the death of Xxxxxxx X. Xxxxxx, save and
except with respect to subsection 4.6.1.4 above which shall survive such
event but only with respect to any amendments or the repeal of the
Articles or Bylaws which affect any rights attaching to the Class A
preferred shares or the Class N preferred shares in the share capital of
the Corporation.
4.6.3 If the Corporation receives an offer for the sale or other
disposition of all (but not part of) the Molson Coors Shares owned by it
made by a third party dealing at Arm's Length with all of the Shareholders
and the Corporation which the Lincolnshire Shareholder wishes the
Corporation to accept, the Lincolnshire Shareholder shall forthwith
provide a notice to the Corporation and the Nooya Shareholder that it
wishes the Corporation to accept the said offer and wishes to invoke the
provisions of this subsection 4.6.3, in which case the Corporation shall
be authorized to accept the said
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offer and sell or otherwise dispose of all (but not part of) the Molson
Coors Shares held, directly or indirectly, by it in accordance with the
terms and conditions of the said offer. The words "offer for the sale or
other disposition" shall also include any proposed acquisition by such
third party by way of amalgamation or merger, whether by plan of
arrangement or otherwise, and the rights of Lincolnshire pursuant to this
Section shall include the right to vote the Molson Coors Shares owned,
directly or indirectly, by the Corporation in favour thereof. The
transactions contemplated by this Section may, subject to Section 8.5
hereof, involve the transfer of Molson Coors Shares to a separate holding
corporation and thereafter the sale of the shares of such holding
corporation in order to allow the Corporation or a subsidiary thereof, if
applicable, to access any Safe Income on Hand attributable to the Molson
Coors Shares.
ARTICLE 5 - SHARE ISSUE AND SALE RESTRICTIONS
5.1 Sale and Issue Restrictions.
5.1.1 Except as otherwise set forth in this Agreement, none of the
Shareholders may sell, grant an option to sell, encumber, hypothecate,
pledge or create a security interest in or otherwise deal with any of its
Shares; provided however that Shares may be hypothecated or pledged by a
Shareholder from time to time to a financial institution approved by the
Board, acting reasonably, as security for indebtedness of such Shareholder
owed to such financial institution, provided that such financial
institution agrees in writing to be bound by the terms of this Agreement
pursuant to an agreement in form and substance approved by the Board,
acting reasonably.
5.1.2 No proposed dealing with any Shares (including the issuance thereof)
in violation of this Agreement shall be valid, and the Corporation shall
not record or transfer any of the Shares dealt with in violation of this
Agreement in the records of the Corporation nor shall any voting rights
attached to such Shares be exercised during the period of such violation.
Such disqualification shall be in addition to and not in lieu of any other
remedies to enforce the provisions of this Agreement.
5.1.3 Notwithstanding anything else herein contained, every transfer of
all or a portion of the Shares held by a Shareholder and any issue of
Shares by the Corporation, in addition to the requirements of the Articles
and of this Agreement, shall be subject to the condition that the proposed
transferee or subscriber, if not already bound by this Agreement, shall
first enter into, execute and deliver such documents and instruments
necessary or desirable to evidence such agreement of such transferee or
issuee to be bound hereby, the whole subject to the approval of such
documents and instruments by the Board, acting reasonably. For greater
certainty, but without limiting the foregoing, each of the Shareholders
shall be bound by the provisions of this Agreement in respect of any
Shares which may be acquired directly by such Shareholder after the date
hereof in accordance with the provisions of this Agreement.
5.2 Offer. If at any time Lincolnshire desires to sell to a third party with
whom it is dealing at Arm's Length all (but not part) of its Shares,
Lincolnshire shall (a) obtain from the third party a bona fide offer in writing,
which offer shall be irrevocable for a period of thirty (30) days (hereinafter
referred to as the "Offer") and which Lincolnshire is ready and willing to
accept, to purchase the Shares for the amount thereof set forth in the Offer
payable by cash or certified
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cheque and (b) shall give notice in writing to Nooya of the receipt of the Offer
within five (5) days thereof together with a copy thereof (the "Notice").
5.3 Drag-Along Rights. Lincolnshire shall have the right to require that Nooya
sell all of the Shares owned by it to the third party pursuant to the terms of
the Offer for the same price per Share (or if Nooya does not own Shares of the
same class, for an appropriate price per Share based on the relative value of
said other Shares to the Shares to be sold by Lincolnshire, as determined by the
Board, acting reasonably) and otherwise on the same terms received by
Lincolnshire pursuant to the Offer. If Lincolnshire wishes to exercise such
right, the Notice shall specify that Lincolnshire wishes to invoke the
provisions of this Section 5.3. The Corporation is hereby irrevocably appointed
the agent and attorney of all the Shareholders and each of them for the purposes
of effecting registration of the third party as a shareholder in completing the
sale of the Shares of the Shareholders to the third party in accordance with
this Section 5.3.
5.4 Tag-Along and Purchase Rights. Upon receipt of a Notice which does not
require Nooya to sell its Shares as provided in Section 5.3 hereof, Nooya shall
have the right to elect, by notice in writing to Lincolnshire, within ten (10)
days from the date of receipt of a copy of the Offer, as a condition precedent
to any sale of Shares by Lincolnshire pursuant to the Offer, to require the
third party to purchase all the Shares owned by Nooya for a price per Share as
set forth in Section 5.3 hereof, and otherwise upon the same terms and
conditions as contained in the Offer.
5.5 Estate and Tax Planning. Notwithstanding anything contained in Section 5.1
hereof, each Shareholder shall have the right to sell or transfer any or all of
its Shares for estate, tax planning, liability protection or matrimonial reasons
(either for its benefit or for that of its shareholder), subject to the prior
approval of the Board of Directors which approval shall not be unreasonably
withheld; provided, however, (i) that such approval shall be deemed to be
reasonably withheld if such sale or transfer would have a material adverse
effect on the Corporation , in the sole determination of the Board, acting
reasonably, and (ii) that in granting such approval the Board may require the
transferee(s) of such Shares to enter into such additional agreements with the
Corporation and the other Shareholder(s) as may be appropriate to reflect the
intent of this Agreement, as determined by the Board, acting reasonably and to
require that all such transferees of Shares: (a) shall be solidarily liable with
each other for the fulfillment of all of the obligations of the transferor
hereunder; (b) for all purposes of this Agreement, shall be considered as one
person; and (c) shall name and appoint one representative with full power of
administration and of disposition to act on their behalf for all purposes of
this Agreement, and the other parties hereto shall be entitled to deal
exclusively with such representative in all respects.
5.6 Holding Corporation. The transactions contemplated by Sections 5.2, 5.3, 5.4
and 5.5 hereof may, subject to Section 8.5 hereof, involve the transfer of
Molson Coors Shares to a separate holding corporation and thereafter the sale of
the shares of such holding corporation in order to allow the vendors, the
Corporation or a subsidiary thereof, if applicable, to access any Safe Income on
Hand attributable to the Molson Coors Shares.
ARTICLE 6 - MOLSON COORS DIVIDENDS
6.1 Molson Coors Dividends. Subject to applicable law and unless otherwise
agreed to by the Shareholders, the Corporation shall, upon receipt by the
Corporation of any cash
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dividends on Molson Coors Shares, declare and pay cash dividends to the
Shareholders as hereinafter set forth:
6.1.1 the Corporation shall declare and pay, as soon as reasonably
possible after receipt of cash dividends on Molson Coors Shares, cash
dividends on the Class A preferred shares and the Class N preferred shares
in accordance with the Articles provided that, in the case of the Class N
preferred shares, payment of such cash dividends shall be deferred for an
initial period in accordance with the applicable provisions of the
Articles; and
6.1.2 the remaining amount of cash dividends from Molson Coors Shares
received by the Corporation shall, after payment by the Corporation of the
dividends set forth in subsection 6.1.1 hereof, be used, firstly, to pay
any and all tax payable by the Corporation under Part IV of the Income Tax
Act (Canada) as a result of such dividend payment received by the
Corporation on all Molson Coors Shares owned by it ("Part IV Tax") and
secondly, until complete repayment of the principal amount outstanding at
the close of business on May 15, 2003 under the revolving loan in the
maximum amount of $3,000,000 granted by Royal Bank of Canada pursuant to
that certain Loan Agreement dated April 12, 2002 between the Corporation
and Royal Bank of Canada (the said principal amount so outstanding being
herein called the "Loan"), to pay any and all interest owing in respect of
the Loan and to repay the outstanding principal under the Loan.
6.1.3 Once all amounts owing by the Corporation under the Loan have been
repaid, and all said deferred but cumulated dividends on said Class N
preferred shares shall have been brought up to date, the amount of any
cash or other dividends received by the Corporation from Molson Coors
Shares may, after payment of the dividends set forth in subsection 6.1.1
hereof and any Part IV Tax, be declared and paid as dividends to the
Shareholders as determined by the Board and in accordance with the terms
and conditions attaching to the Shares owned by each of them provided
however that the Board of Directors may only declare and pay dividends in
such amounts and on such class or classes of Shares such that the
aggregate amount of dividends paid to the Shareholders at any time is
allocated in accordance with the then current proportions of the Agreed
Ratio between the Shareholders.
6.1.4 The parties acknowledge that the dividend policy set forth in this
Section 6.1 is an essential reason for their entering into this Agreement.
Accordingly, if the Molson Coors Shares are affected in a manner not
contemplated by the Articles, or if a sale or other disposition of Molson
Coors Shares by the Corporation results in the Corporation holding,
directly or indirectly, securities of another corporation, trust or other
entity in replacement of or substitution for Molson Coors Shares or if, as
a result of a sale or other disposition of Molson Coors Shares, the
Corporation holds cash or other investments, each of the parties hereto
agrees that the dividend policy of the Corporation shall appropriately
reflect the dividend policy contemplated by this Agreement with respect to
the Class A preferred shares and the Class N preferred shares of the
Corporation, and the parties hereto agree to use their respective best
efforts to achieve same, including, if required, appropriate amendments to
this Agreement and/or to the Articles.
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6.1.5 Any cash dividends received by Subco upon Molson Coors Shares shall
be subject to the provisions of this Article 6, mutatis mutandis (other
than Section 6.1.1) and Subco shall, with respect to such cash dividends
received, be obliged, as regards the Corporation, in the same manner and
to the same extent (excluding provisions with respect to the Loan) as the
Corporation is obliged to the Shareholders pursuant to this Article 6 and
all dividends received by the Corporation from Subco shall be treated by
the Corporation in the same manner as if such dividends had been received
by the Corporation directly in respect of Molson Coors Shares. The
Corporation agrees to cause Subco to comply, mutatis mutandis, with this
Article 6 in order to reflect, to the greatest extent feasible, the
dividend policy set forth in Section 6.1 hereof.
6.2 Other Dividends. Dividends may be declared by the Board from sources other
than dividends from Molson Coors Shares at such times as the Board may
determine, subject to the proviso in subsection 6.1.3 hereof as regards the
required allocation in accordance with the Agreed Ratio.
ARTICLE 7 - PREFERRED SHARES
7.1 Demand by Shareholder. In the event that a Shareholder wishes to demand (the
"Demand") from the Corporation the acceptance for retraction of any Preferred
Shares owned by it, the Corporation shall, forthwith upon receipt of a demand
for retraction by such Shareholder (the "Demanding Shareholder") and prior to
making any payment to the Demanding Shareholder, notify the other Shareholder of
such Demand. Such other Shareholder may, within ten (10) days of receipt of the
aforementioned notice from the Corporation, require that the Corporation also
accept for retraction, in accordance with the then current proportions of the
Agreed Ratio, all (but not part) of the appropriate portion of Preferred Shares
(of the same class as those being retracted by the Demanding Shareholder or, if
the Demanding Shareholder is the only holder of shares of the class for which it
is demanding retraction, of such other class or classes of Preferred Shares as
are designated by such other Shareholder. In every case, (i) such other
Shareholder shall be entitled to retract Preferred Shares of the class to which
the Demand relates or of such other class or classes that have an aggregate
redemption value equal to such other Shareholder's proportion of the then
current Agreed Ratio of the aggregate redemption value of the Preferred Shares
to be retracted by both Shareholders, and (ii) any such other class or classes
of Preferred Shares designated by the other Shareholder shall not rank as to
dividends superior to the Preferred Shares to be retracted by the Demanding
Shareholder). The Corporation shall not make any payment to the Demanding
Shareholder on account of the retraction of any Preferred Shares until the
expiry of the aforementioned ten (10) day notice period. If the other
Shareholder does not exercise the right to obtain retraction of Preferred Shares
as aforesaid, upon payment to the Demanding Shareholder the Agreed Ratio shall
be modified to reflect a decrease in the proportion of the Demanding Shareholder
and an increase in the proportion of the other Shareholder, such modification to
be conclusively determined by the auditors of the Corporation at the request of
any Shareholder.
7.2 Retraction of Preferred Shares. Subject to Article 8 hereof, and
notwithstanding Section 7.1 hereof, from and after the death of the first to die
of Xxxx X. Xxxxxx or Xxxxxxx X. Xxxxxx, a Shareholder may only demand the
retraction of Preferred Shares to the extent of the amount of the available
working capital of the Corporation (excluding from the determination of such
working capital any amount attributable to Molson Coors Shares) at the time of
such
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Demand, as determined by the Board of Directors, acting reasonably and after
taking appropriate reserves for and deducting from the available working capital
such reasonable and prudent amounts to provide for future needs of the
Corporation including, without limitation, reserves for the payment of amounts
set out in subsections 6.1.1 and 6.1.2 hereof. Subject to the foregoing, upon a
Demand by a Demanding Shareholder, the provisions of Section 7.1 hereof shall
apply, save that the Corporation shall allocate the available working capital
determined above for the retraction amongst the Shareholders in accordance with
the then current Agreed Ratio in effect prior to such Demand. Notwithstanding
the foregoing, the Corporation may redeem Preferred Shares in excess of the
amount of the available working capital of the Corporation, as determined above,
if the Board of Directors so approves.
ARTICLE 8 - PURCHASE OF SHARES
8.1 Subject to the provisions of Section 8.2 hereof, Lincolnshire or Nooya (the
"Designating Shareholder") may, in the event income tax, estate tax or other
similar taxes are payable by a succession or heir (the "Tax Liability") as a
result of the death of the Beneficial Shareholder of such Designating
Shareholder or his spouse, and that such Tax Liability has not been fully paid
after application of the provisions of Section 8.6 hereof, request that the
Corporation repay any amounts owing by the Corporation to the Designating
Shareholder, redeem Preferred Shares held by the Designating Shareholder or
repurchase such number of Common Shares held by the Designating Shareholder as
determined between the Corporation and the Designating Shareholder (the
"Designated Shareholder Interest") in such an amount and/or for a purchase
price, as the case may be, to be agreed upon by the Board, on behalf of the
Corporation, and the Designating Shareholder and which shall take into account
the market value of all the assets of the Corporation and the liabilities of the
Corporation, including a reasonable amount for inherent liabilities for taxes on
any disposition of any asset of the Corporation. The value of any amount owing
by the Corporation to the Designating Shareholder and of the Preferred Shares
and Common Shares to be so repaid, redeemed or repurchased shall, in the opinion
of the Board, reasonably exercised, be sufficient to cover the amount of the
outstanding Tax Liability, provided that the net after-tax proceeds to the
Designating Shareholder of the Designated Shareholder Interest so repaid,
redeemed or repurchased shall not exceed the amount of the outstanding Tax
Liability. In the event the Corporation and the Designating Shareholder are
unable to agree as to any indebtedness of the Corporation to the Designating
Shareholder to be repaid by the Corporation or the number of Preferred Shares or
Common Shares to be redeemed or repurchased for the consideration equal to the
net after-tax proceeds (after taking into account RDTOH recoupment), the number
shall be conclusively determined by the unanimous determination of Xxxxxx Xxxxx
of Ernst & Young (to the extent permitted by Ernst & Young LLP and
notwithstanding his retirement from that firm) and Xxxx X. Xxxxxx of Xxxxxx Xxxx
Xxxxxxxx & Xxxxxxxx LLP or, in the event that either such person is unable or
unwilling to serve, by a partner of such firm nominated thereby.
8.2 Subject to Section 8.5 hereof, upon written request from the Designating
Shareholder, the Corporation shall sell such proportion of its Assets (the
"Designated Assets") as is necessary to pay for the repayment, redemption or
repurchase, as the case may be, of the Designated Shareholder Interest as
follows:
8.2.1 firstly, the Corporation shall sell or redeem all or a portion of
any Assets other than the Molson Coors Shares, as required, to the extent
such Assets can be sold or redeemed; and
14
8.2.2 secondly, if necessary, the Corporation shall sell such number of
Molson Coors Shares as is required in order to repurchase the Designated
Shareholder Interest.
8.3 Subject to Section 8.5 hereof, the Corporation may, before selling the
Designated Assets, transfer the Molson Coors Shares to a separate holding
corporation and sell the shares of such holding corporation in order to allow
the Corporation to access the Safe Income on Hand attributable to the Molson
Coors Shares.
8.4 Upon the sale of the Designated Assets as hereinabove provided, the
Corporation shall repay, redeem or repurchase, as the case may be, the
Designated Shareholder Interest in consideration for the net after-tax sales
proceeds (after taking into account RDTOH recoupment, if any) but not in excess
of the agreed upon amount in respect of the repayment, redemption or repurchase.
8.5 The Corporation may only sell, transfer, redeem or otherwise dispose of the
Designated Assets pursuant to this Article 8 if such proposed transaction
complies with applicable corporate and securities legislation and does not
constitute either a takeover bid by the acquiror within the meaning of the
applicable securities legislation or, to the extent such proposed transaction
constitutes a takeover bid, that it is exempt from the provisions of applicable
securities legislation or is otherwise approved by the Board, which approval may
be arbitrarily withheld. In the event the Corporation is unable to meet the
requirements of this Section 8.5 at the time a request is made by the
Designating Shareholder under Section 8.1 hereof, the parties hereto agree that
the Corporation shall not be required to repay, redeem or repurchase, as the
case may be, the Designated Shareholder Interest until such time as the
Corporation can meet the requirements of this Section 8.5.
8.6 Notwithstanding any of the foregoing, the Corporation shall not be required
to repay, redeem or repurchase, as the case may be, the Designated Shareholder
Interest in the event that either the Beneficial Shareholder or the Designating
Shareholder has other current assets (such as, but without limiting the
generality of the foregoing, cash, insurance proceeds or short-term investments)
which could reasonably be converted to cash, in which case such other assets
shall first be used by the Beneficial Shareholder and the Designating
Shareholder to satisfy the Tax Liability and the Corporation shall repurchase
only such proportion of the Designated Shareholder Interest, if any, which is
necessary in order for the Beneficial Shareholder or the Designating Shareholder
to satisfy the balance of the Tax Liability not repaid through the proceeds from
such other assets.
8.7 Upon any such repayment, redemption or repurchase, the Agreed Ratio shall be
modified to reflect the appropriate proportions thereof, by reflecting an
increase in the proportion of the other Shareholder and a decrease in the
proportion of the Designating Shareholder, such modification to be conclusively
determined by the auditors of the Corporation at the request of any Shareholder.
ARTICLE 9 - GOVERNING LAW
9.1 This Agreement shall be governed by and construed in accordance with the
laws of the Province of Quebec and the laws of Canada applicable therein.
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ARTICLE 10 - ENTIRE AGREEMENT
10.1 This Agreement constitutes the entire agreement among the parties hereto
with respect to the subject matter herein provided for and supersedes and
replaces any provision of any other document heretofore entered into by them
with respect to the subject matter hereof. Unless otherwise stipulated in this
Agreement, the singular shall include the plural, the plural shall include the
singular; the words "party" and "person" shall include firms, companies and
corporations; the masculine shall include the feminine and the feminine shall
include the masculine and where applicable the firms, companies or corporations,
the neuter. The parties and intervenants hereto acknowledge and agree that (i)
Newco, as contemplated by the Prior Agreement, has no rights or obligations
pursuant hereto or to the Prior Agreement and is deemed not to be a party hereto
or to the Prior Agreement; and (ii) this Agreement supersedes and replaces the
Prior Agreement, which shall have no further force or effect.
ARTICLE 11 - CAPTIONS
11.1 The captions contained in this Agreement are inserted only as a matter of
convenience and in no way define, limit, extend or describe the scope of this
Agreement or the intent of any provisions hereof.
ARTICLE 12 - FURTHER ASSURANCES
12.1 In connection with this Agreement as well as all transactions contemplated
by this Agreement, each of the parties agree to execute and deliver such
additional documents and instruments and to perform such additional acts as may
be necessary or appropriate to effectuate, carry out and perform all the terms,
provisions and conditions of this Agreement, and all such transactions.
ARTICLE 13 - TERM AND UNANIMOUS SHAREHOLDERS AGREEMENT
13.1 This Agreement shall remain in force until the last to occur of the
following events:
13.1.1 the death of Xxxx X. Xxxxxx;
13.1.2 the termination of any spousal trust established by Xxxx X. Xxxxxx
for his wife, the trust property of which includes, directly or
indirectly, Shares of the Corporation;
13.1.3 the death of Xxxxxxx X. Xxxxxx; and
13.1.4 the termination of any spousal trust established by Xxxxxxx X.
Xxxxxx for his wife, the trust property of which includes, directly or
indirectly, Shares of the Corporation.
13.2 The provisions of subsection 5.1.2, Sections 6.1 and 7.1, and Article 8
hereof are hereby constituted as a unanimous shareholders agreement pursuant to
the Canada Business Corporations Act, and all powers of the directors and the
Board pursuant to said subsection, Sections and Article are hereby restricted,
except as expressly set forth therein.
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ARTICLE 14 - MISCELLANEOUS
14.1 Endorsement of Share Certificates. Any and all certificates representing
Shares now or hereafter beneficially owned by the Shareholders during the term
of this Agreement shall have endorsed thereon, in bold type, a legend in the
following form:
"The securities evidenced by this certificate are subject to the
terms of, and the disposition and transfer of such securities is
restricted in accordance with certain of the provisions of, an
Amended and Restated Shareholders Agreement dated as of February 9,
2005 made between the Corporation, a subsidiary thereof and each and
all of the holders of shares. A copy of the said agreement, together
with all amendments and supplements thereto, is available for
inspection from the Secretary of the Corporation on request and
without charge at its registered office."
14.2 Assignment. Subject to the express provisions hereof, neither this
Agreement nor any rights or obligations hereunder are assignable by the parties
hereto without the prior written consent of the other parties hereto, subject to
the rights of Shareholders to sell their Shares pursuant to the terms of this
Agreement, including, without limitation, the requirement that the purchaser of
such Shares agrees to be bound hereby. This Agreement shall enure to the benefit
of and be binding upon the parties hereto and their respective heirs, executors,
legal personal representatives, successors and permitted assigns.
14.3 Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument. This Agreement may be executed by any party by facsimile signature.
14.4 Consents and Waivers. No consent or waiver, expressed or implied, by any
party to or of any breach or default by any other party in the performance of
any obligations hereunder shall be deemed or construed to be a consent or waiver
to or of any other breach or default in the performance by such other party of
the same or any other obligation of such party hereunder. Failure on the part of
any party to complain of any act or failure to act of any other party or to
declare any other party in default, irrespective of how long such failure
continues, shall not constitute a waiver by such party of its rights hereunder.
14.5 Language. The parties acknowledge that they have requested that this
Agreement and all documents, notices, correspondence and legal proceedings
arising from this Agreement or relating hereto be drawn up in English. Les
parties reconnaissent qu'elles ont exige que cette convention ainsi que tout
document, avis, correspondance et procedure legale decoulant de cette convention
soient rediges en anglais.
[signatures on following page]
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IN WITNESS WHEREOF the parties and intervenants hereto have executed this
Agreement as of the date first above stated.
LINCOLNSHIRE HOLDINGS LIMITED
Per: /s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
NOOYA INVESTMENTS LIMITED
Per: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
PENTLAND SECURITIES (1981) INC.
Per: /s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
Per: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
0000000 XXXXXX INC.
Per: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
INTERVENTIONS
Each of the undersigned hereby acknowledges having taken cognizance of this
agreement and hereby consents and agrees to the terms thereof to the extent
applicable to the undersigned and accepts all stipulations in favour of the
undersigned.
/s/ Xxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx
------------------------------- --------------------------------------
Xxxx X. Xxxxxx Xxxxxxx X. Xxxxxx
