Exhibit 99.4
CLASS A EXCHANGEABLE SHARES
MOLSON COORS CANADA INC.
VOTING TRUST AGREEMENT
This VOTING TRUST AGREEMENT (this "Agreement") is made and entered into as
of this 9th day of February, 2005, by and among The Royal Trust Company, as
trustee (hereinafter in such trustee capacity, with any successors, referred to
as the "Trustee"), Pentland Securities (1981) Inc., a corporation incorporated
under the Canada Business Corporations Act (for itself, "Pentland", and as the
"Molson Beneficiary Representative"), 4280661 Canada Inc., a corporation
incorporated under the Canada Business Corporations Act and a wholly owned
subsidiary of Pentland ("Subco"), Xxxxxx Xxxxx, Xx. Trust dated September 12,
1969 (for itself, the "Coors Trust", and as the "Coors Beneficiary
Representative"), and each other holder of Class A Exchangeable Shares (as
defined below) or Voting Securities who hereafter executes a separate agreement
to be bound by the terms hereof as a "Beneficiary".
W I T N E S S E T H:
WHEREAS, it is a condition precedent to the consummation of the
transactions contemplated by the Combination Agreement, dated as of July 21,
2004 (as amended, modified or supplemented from time to time, the "Combination
Agreement"), by and among Xxxxxx Xxxxx Company, a Delaware corporation (to be
renamed Molson Coors Brewing Company, the "Company"), Molson Coors Canada Inc.,
a corporation organized and existing under the laws of Canada ("Exchangeco") and
Molson Inc., a corporation organized and existing under the laws of Canada
("Molson"), that the parties hereto execute and deliver this Agreement
(capitalized terms used herein and not otherwise defined herein have the
meanings given to them in the Combination Agreement);
WHEREAS, pursuant to the Arrangement, all of the Class "B" common shares
of Molson held by Pentland and Subco were exchanged into a combination of Class
A Exchangeable Shares and Class B Exchangeable Shares;
WHEREAS, the Class A Exchangeable Shares are exchangeable, subject to
certain terms and conditions, for shares of the Company's Class A Common Stock
(as used herein, the "Company Shares");
WHEREAS, each of Pentland and the Coors Trust is depositing, on the date
hereof, all of the Company Shares held by it into a voting trust pursuant to a
voting trust agreement (the "Delaware Voting Trust Agreement") dated the date
hereof among Wilmington Trust Company, Pentland and the Coors Trust, governed by
the laws of the State of Delaware and having substantially similar terms to the
terms hereof with respect to the Shares;
WHEREAS, this Agreement is the Canadian Voting Trust Agreement
contemplated by the Delaware Voting Trust Agreement;
WHEREAS, Pentland, Subco and the Coors Trust believe that it is advisable
and in the best interests of the Company, Exchangeco and the Beneficiaries
hereunder to enter into this Agreement for the purpose of uniting the voting
power of the Beneficiaries hereunder and of the
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Coors Family Group Beneficiaries (as defined below) and the Molson Family Group
Beneficiaries (as defined below) in order to secure, so far as is practicable,
continuity, consistency and efficiency of governance of the Company;
WHEREAS, each of Pentland and Subco is depositing, on the date hereof, all
of the Class A Exchangeable Shares held by it into a voting trust pursuant to
this Agreement; and
WHEREAS, the parties hereto intend the voting trust created hereby to be a
voting trust under the laws of the Province of Ontario.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the several parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01. Definitions. For the purposes of the present Agreement, the
following terms shall have the following respective meanings:
(a) "Aggregate Shares" means, without duplication, the aggregate number
of the Company Shares, shares of the Company's Class B Common Stock,
the Class A Exchangeable Shares and Class B Exchangeable Shares and
the number of shares of the foregoing into which any other
outstanding shares of any class of stock convertible or exchangeable
into any of the foregoing may be converted or exchanged, including
pursuant to a stock split, consolidation, reorganization, merger,
amalgamation, reclassification or recapitalization;
(b) "Ancillary Rights" means the right to vote or cause the exercise of
the Voting Rights and any ancillary rights accompanying or attached
to the Trust Shares;
(c) "Beneficiaries" means Pentland and the Coors Trust, whether or not
they have a Beneficiary Account, Subco and any subsequent Molson
Family Group Beneficiaries and Coors Family Group Beneficiaries
which beneficially own Trust Shares, have a Beneficiary Account and
become a party hereto; "Beneficiary" means any one of the
Beneficiaries;
(d) "Beneficiary Account" means the segregated account maintained by the
Trustee for each Beneficiary that has deposited Trust Shares under
this Agreement, as contemplated by Section 2.01(f);
(e) "Beneficiary Representatives" means the Molson Beneficiary
Representative and the Coors Beneficiary Representative and
"Beneficiary Representative" means either the Molson Beneficiary
Representative or the Coors Beneficiary Representative;
(f) Business Day" means any day on which commercial banks are generally
open for business in Wilmington, Delaware, Montreal, Quebec,
Toronto, Ontario and
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Denver, Colorado, other than a Saturday, a Sunday or a statutory
holiday in Wilmington, Delaware, Montreal, Quebec, Toronto, Ontario
or Denver, Colorado;
(g) "CBCA" means the Canada Business Corporations Act, as now in effect
and as it may be amended from time to time;
(h) "Certificate" has the meaning assigned such term in Section 2.02;
(i) "Company" has the meaning assigned such term in the Recitals;
(j) "Company Shares" has the meaning assigned such term in the Recitals;
(k) "Control" means, in the case of a company, partnership, corporation
or similar entity, the ability to direct the management of such
company, partnership, corporation or similar entity, it being
understood that a Person shall not have "control" of a company,
partnership or corporation if such Person does not beneficially own
voting interests carrying at least 90% of the economic value and 90%
of the voting power to elect a majority of the board of directors
(or similar governing body or, with respect to a partnership, 90% of
the general partners) of such company, partnership, corporation or
similar entity;
(l) "Coors Change in Status Notice" shall mean either:
(i) a written notice to the Trustee from the Molson Beneficiary
Representative, executed by an authorized Person of the Molson Beneficiary
Representative and certifying that the Coors Family Group Beneficiaries
and the other members of the Coors Family Group shall have failed to
beneficially own at all times subsequent to the date hereof at least
2,534,664 Aggregate Shares without duplication, as adjusted by any stock
split, consolidation, reorganization, merger, amalgamation,
reclassification or recapitalization or similar transactions), including
825,000 Company Shares and/or Class A Exchangeable Shares in the aggregate
subject to the Control Voting Trust Agreements (without duplication, as
adjusted by any stock split, consolidation, reorganization, merger,
amalgamation, reclassification, recapitalization or similar transactions);
provided that no such notice shall be effective unless:
(A) the notice shall contain evidence of delivery of a copy
of the notice to the Coors Beneficiary Representative in
the form of a registered receipt from a recognized
delivery courier, messenger or postal service; and
(B) 10 Business Days shall have elapsed from the delivery of
such notice to the Trustee and, during such period, the
Coors Beneficiary Representative shall not have
delivered notice to the Trustee, executed by an
authorized Person of the Coors Beneficiary
Representative and certifying that the ownership
requirements described in clause (i) above have been
satisfied at all times since the date of this Agreement;
or
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(ii) there shall have been obtained any final order or judgment from
a court of competent jurisdiction that finds or concludes that the
ownership requirements described in clause (i) above have not been
satisfied at all times since the date of this Agreement (it being
understood that the parties agree that any party hereto may seek such an
order from any court of competent jurisdiction and the parties shall be
bound by such order or judgment);
(m) "Coors Change in Status Notice Effective Date" means the earliest of
(i) the eleventh Business Day following the delivery of the notice
by the Molson Beneficiary Representative contemplated in Section
1.01(l)(i) in the event that the Coors Beneficiary Representative
shall not have delivered the notice contemplated in Section
1.01(l)(i)(B) (ii) the Business Day next following the final order
or judgment contemplated in Section 1.01(l)(ii); and (iii) the
Business Day on which the Coors Beneficiary Representative delivers
the notice described in the last sentence of Section 3.02.
(n) "Coors Family Group" means:
(i) individuals who are descendents of the late Xxxxxx Xxxxx,
including adopted issue of any such individuals and issue born out
of wedlock of any such individuals, as well as spouses and former
spouses (including widows and widowers), whether or not lawfully
married, of any of such individuals and spouses, former spouses
(including widows and widowers) and descendents of such spouses or
former spouses (including widows and widowers) (the "Coors Family
Members");
(ii) estates of any Coors Family Members;
(iii) trusts for which the principal beneficiaries are one or more
of the Coors Family Members;
(iv) any corporation, limited liability company, or partnership or
similar entity directly or indirectly under the Control of one or
more of the foregoing;
(v) any entity described in Section 501(c) of the United States
Internal Revenue Code of 1986, as amended, with respect to which the
Coors Family Members comprise not less than 40% of the directors,
trustees or persons carrying out a similar function, as applicable;
and
(vi) any foundation or charitable organization, not less than 40% of
the trustees, governors or persons carrying out a similar function
of which are Coors Family Members;
(o) "Coors Family Group Beneficiaries" means the Coors Trust and any
other members of the Coors Family Group who become Beneficiaries
hereunder;
(p) "Current Market Value" means, with respect to any security, the
average of the daily closing prices on the principal exchange or
broker quotation system on which such security may be listed or may
trade for such security for the 20 consecutive
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trading days commencing on the 22nd trading day prior to the date
with respect to which the Current Market Value is being determined.
The closing price for each day shall be the closing price, if
reported, or, if the closing price is not reported, the average of
the closing bid and asked prices as reported by such principal
exchange or broker quotation system. In the event such closing
prices or bid and asked prices, as applicable, are unavailable, the
Current Market Value of the security shall be the cash price at
which a willing seller would sell and a willing buyer would buy such
security in an arm's-length negotiated transaction (as determined by
an investment dealer or investment bank mutually agreed upon by the
Beneficiary Representatives (or, if the Beneficiary Representatives
are unable to agree within three Business Days after commencing
mutual efforts to determine the Current Market Value, JPMorgan
Securities Inc. (or its successor));
(q) "Encumbrance" means a pledge, mortgage, hypothecation or other
encumbrance;
(r) "Molson Change in Status Notice" shall mean either:
(i) a written notice to the Trustee from the Coors Beneficiary
Representative, executed by an authorized Person of the Coors Beneficiary
Representative and certifying that the Molson Family Group Beneficiaries
and the other members of the Molson Family Group have failed to
beneficially own at all times subsequent to the date hereof at least
1,689,776 Aggregate Shares (without duplication, as adjusted by any stock
split, consolidation, reorganization, merger, amalgamation,
reclassification or recapitalization or similar transactions), including
825,000 Class A Exchangeable Shares and/or Company Shares in the aggregate
subject to the Control Voting Trust Agreements (without duplication, as
adjusted by any stock split, consolidation, reorganization, merger,
amalgamation, reclassification, recapitalization or similar transactions);
provided that no such notice shall be effective unless:
(A) the notice shall contain evidence of delivery of a copy
of the notice to the Molson Beneficiary Representative
in the form of a registered receipt from a recognized
delivery courier, messenger or postal service, and
(B) 10 Business Days shall have elapsed from the delivery of
such notice to the Trustee and, during such period, the
Molson Beneficiary Representative shall not have
delivered notice to the Trustee, executed by an
authorized Person of the Molson Beneficiary
Representative and certifying that the ownership
requirements described in clause (i) above have been
satisfied at all times since the date of this Agreement;
or
(ii) there shall have been obtained any final order or judgment from
a court of competent jurisdiction that finds or concludes that the
ownership requirements described in clause (i) above have not been
satisfied at all times since the date of this Agreement (it being
understood that the parties agree that any party hereto may seek such an
order from
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any court of competent jurisdiction and the parties shall be bound by such
order or judgment);
(s) "Molson Change in Status Notice Effective Date" means the earliest
of (i) the eleventh Business Day following the delivery of the
notice by the Coors Beneficiary Representative contemplated in
Section 1.01(r)(i) in the event that the Coors Beneficiary
Representative shall not have delivered the notice contemplated in
Section 1.01(r)(i) (ii) the Business Day next following the final
order or judgment contemplated in Section 1.01(r)(ii) and (iii) the
Business Day on which the Molson Beneficiary Representative delivers
the notice described in the last sentence of Section 3.03;
(t) "Molson Family Group" means:
(i) individuals who are descendents of the late Xxxxxx H.P. Molson
("Xxxxxx Xxxxxx") of Montreal, who passed away on or about April 4, 1978,
including adopted issue of any such individuals and issue born out of
wedlock of any such individuals, as well as spouses and former spouses
(including widows and widowers), whether or not lawfully married, of any
of such individuals and spouses, former spouses (including widows and
widowers) and descendents of such spouses or former spouses (including
widows and widowers) (the "Molson Family Members");
(ii) the estate of Xxxxxx Xxxxxx and the estates of any Molson
Family Members;
(iii) trusts for which the principal beneficiaries are one or more
of the Molson Family Members;
(iv) any corporation, limited liability company, or partnership or
similar entity directly or indirectly under the Control of one or more of
the foregoing;
(v) any entity described in Section 50l(c) of the United States
Internal Revenue Code of 1986, as amended, with respect to which the
Molson Family Members comprise not less than 40% of the directors,
trustees or persons carrying out a similar function, as applicable; and
(vi) any foundation or charitable organization, not less than 40% of
the trustees, governors or persons carrying out a similar function of
which are Molson Family Members, including The Molson Foundation and The
Molson Companies Donation Fund;
(u) "Molson Family Group Beneficiaries" means Pentland, Subco and any
other members of the Molson Family Group who become Beneficiaries
hereunder;
(v) "Permitted Encumbrance" means an Encumbrance over Trust Shares
created by a Beneficiary for which each of the following conditions
are satisfied:
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(i) the recourse available to the creditors of the obligation
thereby secured is not limited to the realization upon such Encumbrance
and/or retention of the Trust Shares;
(ii) the Current Market Value of such Trust Shares on the date of
creation of the Encumbrance is at least 200% of the principal amount of
all obligations secured thereby;
(iii) the secured creditor shall have irrevocably agreed that any
realization of its Encumbrance must be in full compliance with Section
8.02, including, for the avoidance of doubt, that (A) the Trust Shares
shall be converted into Class B Exchangeable Shares (or otherwise into
shares or other securities which do not constitute Voting Securities)
prior to the Transfer and (B) no Transfer or conversion of Trust Shares
may occur if the condition set forth in the penultimate sentence of
Section 8.02, if applicable, is not satisfied at the time of the
realization; and
(iv) the Beneficiary creating such Encumbrance shall have delivered
to the Trustee and each Continuing Representative such information as is
necessary to evidence compliance with the foregoing conditions (including
but not limited to a legal opinion which confirms compliance with the
foregoing conditions and a certificate of the Current Market Value of such
Trust Shares);
(w) "Permitted Family Transferee" means (i) a member of the Molson
Family Group; with respect to Transfers by a member of the Molson
Family Group, or (ii) a member of the Coors Family Group with
respect to Transfers by a member of the Coors Family Group;
(x) "Permitted Hedge" shall mean a transaction entered into or
maintained by a Beneficiary for the purpose of mitigating any or all
of the economic risk of owning either the Trust Shares or any
security the value of which is principally related to the Trust
Shares, so long as the following conditions are satisfied:
(i) pursuant to such transaction, such Beneficiary may not Transfer
or, without the right to settle such obligation on a monetary basis, be
required to Transfer, directly or indirectly, any Trust Shares (or, in the
event the restrictions in Section 3.08(c) remain applicable, shares or
other securities with respect to which the Beneficiary would be required
to exercise conversion or exchange rights pertaining to Trust Shares);
(ii) pursuant to such transaction, no Third Party Transferee (as
defined hereafter) may have the right to acquire, directly or indirectly,
or cause the Transfer of any Trust Shares (or, in the event the
restrictions in Section 3.08(c) remain applicable, shares or other
securities with respect to which the Beneficiary would be required to
exercise conversion or exchange rights pertaining to Trust Shares), except
a Transfer that constitutes a Permitted Encumbrance; and
(iii) the Beneficiary creating such Encumbrance shall have delivered
to the Trustee and each Continuing Representative such information as is
necessary to evidence
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compliance with the foregoing conditions (including but not limited to a
legal opinion which confirms compliance with the foregoing conditions);
(y) "Person" includes any individual, firm, partnership, joint venture,
venture capital fund, limited liability company, unlimited liability
company, association, trust, trustee, executor, administrator, legal
personal representative, estate, group, body corporate, corporation,
unincorporated association or organization, government body,
syndicate or other entity, whether or not having legal status;
(z) "Transfer" means, with respect to any security, directly or
indirectly (including indirectly through (i) the transfer, sale or
issuance of securities in any entity which, directly or indirectly,
beneficially owns such securities or (ii) the establishment of any
derivatives transactions with respect to such security), to sell,
assign, transfer, exchange, pledge (including in margin
transactions), convey, distribute, mortgage, encumber, hypothecate
or otherwise dispose, whether by gift, for consideration or for no
consideration, and shall include any disposition of the economic or
other risks of ownership of such security, including short sales of
such security, option transactions (whether physical or cash
settled) with respect to such security, use of equity or other
derivative financial instruments relating to such security and other
hedging arrangements with respect to such security; any such
security or any beneficial ownership interest therein, capitalized
terms "Transferred", "Transferee", etc. shall have correlative
meanings;
(aa) "Trust Shares" means (i) all Class A Exchangeable Shares originally
delivered to the Trustee on behalf of Pentland or Subco pursuant to
Section 2.01(a), (ii) any additional Class A Exchangeable Shares or
other Voting Securities hereafter purchased or otherwise acquired by
the Beneficiaries and made subject to the provisions of this
Agreement by Section 2.01(b), and (iii) any other Class A
Exchangeable Shares or other Voting Securities that are or become
subject to this Agreement from time to time pursuant to Section
2.01(d), Section 4.03, Section 4.04 or Section 4.06;
(bb) "Voting and Exchange Trust Agreement" means the agreement between
Molson Coors Canada Inc., Molson Coors Canada Inc. and CIBC Mellon
Trust Company as trustee dated February 9, 2005, as amended from
time to time;
(cc) "Voting Rights" has the meaning ascribed thereto in the Voting and
Exchange Trust Agreement; and
(dd) "Voting Securities" means the following:
(i) shares or other securities of Exchangeco or any successor
carrying or accompanied by the right to cast votes, whether directly or
through a voting trustee, with respect to a majority of the directors of
the Company or any successor; and
(ii) securities convertible or exchangeable into, or permitting the
holders thereof to acquire, Class A Exchangeable Shares or securities
described in clause (i)
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above (other than, in each case, for the avoidance of doubt, the Class B
Exchangeable Shares or the Class B Common Stock).
Section 1.02. Other Definitional Provisions. When a reference is made in
this Agreement to Exhibits, such reference shall be to an Exhibit to this
Agreement unless otherwise indicated. When a reference is made in this Agreement
to Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. Unless otherwise indicated, the words "include," "includes"
and "including" when used herein shall be deemed in each case to be followed by
the words "without limitation." The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. When reference is made herein to "the business
of" a Person, such reference shall be deemed to include the business of such
Person and all direct and indirect Subsidiaries of such Person. Reference to the
Subsidiaries of a Person shall be deemed to include all direct and indirect
Subsidiaries of such Person.
ARTICLE II.
DEPOSIT OF SHARES AND ISSUANCE
OF VOTING TRUST CERTIFICATES
Section 2.01. Deposit of Shares.
(a) Concurrently with the execution of this Agreement, each of Pentland
and Subco has delivered to the Trustee certificates for all Class A Exchangeable
Shares (together with the Ancillary Rights relating thereto) owned by it.
Exhibit A hereto sets forth, as of the date hereof the name and address of, and
the number of Class A Exchangeable Shares held by Pentland and Subco. All such
Class A Exchangeable Shares are duly endorsed for transfer or accompanied by
duly executed instruments of transfer.
(b) If, at any time prior to the expiration or termination of this
Agreement, (i) any Beneficiary purchases or otherwise obtains any additional
Class A Exchangeable Shares or Voting Securities, such additional Class A
Exchangeable Shares or Voting Securities (together with the Ancillary Rights
relating thereto) shall automatically immediately become subject to this
Agreement and all provisions hereof or (ii) any "Beneficiary" under the Delaware
Voting Trust Agreement purchases or otherwise obtains any Class A Exchangeable
Shares or Voting Securities, the Trustee shall accept the deposit of such Class
A Exchangeable Shares or Voting Securities and take such actions as are
necessary to permit the "Beneficiary" to become a party to this Agreement as a
Beneficiary hereunder. Each Beneficiary agrees to immediately transfer and
deliver certificates for any such additional Class A Exchangeable Shares or
Voting Securities referred to in clause (i) to the Trustee in the manner
specified in Section 2.01(a).
(c) If, at any time prior to the expiration or termination of the Delaware
Voting Trust Agreement, any Beneficiary purchases or otherwise obtains any
Company Shares or any other securities of the Company or any successor that
would constitute "Voting Securities" (as defined under the Delaware Voting Trust
Agreement), such Beneficiary shall take such actions as are necessary to become
a party to the Delaware Voting Trust Agreement and shall deposit all such shares
and securities in trust pursuant to Section 2.01(b) thereof.
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(d) Promptly upon receipt from time to time of share certificates
representing Trust Shares, the Trustee shall use reasonable efforts to cause the
certificates to be surrendered to Exchangeco and cancelled and new certificates
therefor issued to, and in the name of, the Trustee, and shall use reasonable
efforts to cause the stock ledger of Exchangeco to state that such new
certificates have been issued pursuant to this Agreement. The Trustee shall use
reasonable efforts to cause such new certificates to bear a legend on the face
thereof in the form specified in Section 3.07.
(e) Legal title to the Trust Shares (including any Ancillary Rights) in
any Beneficiary Account, including the Beneficiary Account for each of Pentland
and Subco established on the date hereof, shall be vested at all times in the
Trustee on behalf of the applicable Beneficiary and subject to the terms of this
Agreement. Exclusive economic and beneficial ownership of each Beneficiary's
Trust Shares (and Ancillary Rights) in such Beneficiary's Beneficiary Account
shall remain with such Beneficiary.
(f) The Trustee warrants and undertakes that it will hold the Trust Shares
(and Ancillary Rights relating thereto) delivered by any Beneficiary in a
separate account (each a "Beneficiary Account") from Trust Shares (and Ancillary
Rights relating thereto) held on behalf of any other Beneficiary from time to
time. The Trustee shall maintain and update each Beneficiary Account to reflect
any additions to receipts or transfers from each such account.
Section 2.02. Issuance of Voting Trust Certificates. The Trustee shall
from time to time issue and deliver to each Beneficiary for whom a Beneficiary
Account has been established one or more Voting Trust Certificates (each, a
"Certificate") in respect of the Trust Shares and Ancillary Rights relating
thereto held in such Beneficiary Account in the form set forth in Exhibit B
hereto. Such Certificates shall be signed by the Trustee.
Section 2.03. Duplicate Certificates. If a Certificate shall be lost,
stolen, mutilated or destroyed, the Trustee, at its discretion, may issue a
duplicate of such Certificate upon receipt of (a) satisfactory evidence of such
fact, (b) satisfactory indemnity, (c) the existing Certificate (if mutilated)
and (d) any fees and expenses applicable thereto or to such transfer; provided,
that no bond or insurance shall be required in connection with the issuance of
any duplicate Certificate; and provided further, that a writing executed by a
Beneficiary that states that (i) a Certificate issued to such Beneficiary has
been lost, stolen, mutilated or destroyed and (ii) such Beneficiary shall
indemnify the Trustee for all liabilities resulting from the issuance by the
Trustee of a duplicate Certificate in respect of such lost, stolen, mutilated or
destroyed Certificate shall constitute satisfactory evidence and indemnity for
purposes of this Section 2.03.
Section 2.04. Certificate Book. The Trustee shall maintain complete and
correct records and books of account of all its transactions as Trustee, and
shall maintain a book to be known as the "Certificate Book" setting forth the
Beneficiary Accounts and the Beneficiaries thereof, showing their places of
residence and the number of Trust Shares represented by the Certificates held by
them. Such records and books of account and the Certificate Book shall be
available to the Beneficiaries upon written request.
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Section 2.05. Notice to TSX. Within four days of the date hereof, the
Trustee shall deliver a notice to the Toronto Stock Exchange in the form
attached hereto as Exhibit E, which notice shall specify the number of Class A
Exchangeable Shares held by the Trustee.
ARTICLE III.
TRUSTEE'S RIGHTS AS A SHAREHOLDER OF EXCHANGECO
Section 3.01. Appointment of Beneficiary Representatives.
(a) The Coors Trust has the authority to act for all purposes under this
Agreement in its capacity as the sole Coors Family Group Beneficiary as of the
date hereof and in its capacity as representative of all other Coors Family
Group Beneficiaries that may from time to time become parties to this Agreement
in the future (in either such capacity, the "Coors Beneficiary Representative"),
and each Coors Family Group Beneficiary, by becoming party hereto, hereby agrees
to the appointment of the Coors Trust as its representative. Each Coors Family
Group Beneficiary further agrees that the Trustee shall be entitled to rely on
any instruction given by the Coors Beneficiary Representative pursuant hereto to
the same extent as if such Beneficiary gave such instruction personally. At all
times, any Person serving as the Coors Beneficiary Representative shall be a
member of the Coors Family Group. The Coors Beneficiary Representative shall
have the right to appoint its successor in the capacity of Coors Beneficiary
Representative by written instrument (whether set forth in the will of such
Coors Beneficiary Representative or otherwise) and such provisional designation
may be revoked or superseded at any time or from time to time by the Coors
Beneficiary Representative. In the event of the death, resignation or inability
to serve of the Coors Beneficiary Representative absent any appointment of its
successor in the capacity of Coors Beneficiary Representative, such successor
shall be designated by written notice delivered to the other parties hereto from
time to time executed by holders of a majority of the Trust Shares held by the
Coors Family Group Beneficiaries deposited hereunder (and, in the event that the
Trust Shares constitute more than one class or series of shares or other
securities, a majority in interest based upon the Current Market Value of the
Trust Shares beneficially owned by, and as determined by, the Coors Family Group
Beneficiaries).
(b) Pentland has the authority to act for all purposes under this
Agreement in its capacity as a Molson Family Group Beneficiary as of the date
hereof and in its capacity as representative of Subco and all other Molson
Family Group Beneficiaries that may from time to time become parties to this
Agreement in the future (in either such capacity, the "Molson Beneficiary
Representative"), and each Molson Family Group Beneficiary, by becoming party
hereto, hereby agrees to the appointment of Pentland as its representative. Each
Molson Family Group Beneficiary further agrees that the Trustee shall be
entitled to rely on any instruction given by the Molson Beneficiary
Representative pursuant hereto to the same extent as if such Beneficiary gave
such instruction personally. At all times, any Person serving as the Molson
Beneficiary Representative shall be a member of the Molson Family Group. The
Molson Beneficiary Representative shall have the right to appoint its successor
in the capacity of Molson Beneficiary Representative by written instrument
(whether set forth in the will of such Molson Beneficiary Representative or
otherwise) and such provisional designation may be revoked or superseded at
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any time or from time to time by the Molson Beneficiary Representative. In the
event of the death, resignation or inability to serve of the Molson Beneficiary
Representative absent any appointment of its successor in the capacity of Molson
Beneficiary Representative, such successor shall be designated by written notice
executed by holders of a majority of the Trust Shares held by the Molson Family
Group Beneficiaries deposited hereunder (and, in the event that the Trust Shares
constitute more than one class or series of shares or other securities, a
majority in interest based upon the Current Market Value of the Trust Shares
beneficially owned by, and as determined by, the Molson Family Group
Beneficiaries).
(c) The Coors Beneficiaries and the Molson Beneficiaries agree to make
their appointments of the Coors Beneficiary Representative and the Molson
Beneficiary Representative, respectively, pursuant to Section 3.01 of this
Agreement to ensure that the Coors Beneficiary Representative and the Molson
Beneficiary Representative are the same persons from time to time who are Coors
Beneficiary Representative and Molson Beneficiary Representative, respectively,
under the Delaware Voting Trust Agreement.
(d) Except with respect to matters subject to a stockholder vote which are
governed by Section 3.04 of this Agreement (the Trustee and the other parties
hereto expressly acknowledge that Voting Securities shall be voted with respect
to any matter subject to a shareholder vote in accordance with the provisions of
Section 3.04 exclusively and that the provisions of this Section 3.01(d) do not
apply thereto), in the event the Trustee receives conflicting instructions
hereunder from the Coors Beneficiary Representative and the Molson Beneficiary
Representative, the Trustee shall be fully protected in refraining from acting
until such conflict is resolved to the reasonable satisfaction of the Trustee.
In addition, the Trustee shall have the right to institute a xxxx of
interpleader in any court of competent jurisdiction to determine the rights of
the parties to this Agreement, and each Beneficiary Representative shall pay 50%
of all reasonable costs, expenses and disbursements of the Trustee in connection
therewith, including reasonable attorneys' fees.
(e) The Coors Beneficiary Representative and/or the Molson Beneficiary
Representative shall be entitled to exercise all rights and powers, and be bound
by all obligations, as a Beneficiary Representative(s) whether or not such
Beneficiary Representative(s) are also Continuing Representative(s).
Section 3.02. Change in Status of Coors Beneficiary Representative. The
Coors Beneficiary Representative shall be a "Continuing Representative"
hereunder (the "Coors Continuing Representative") until the Coors Change in
Status Notice Effective Date (after which time there shall be no Coors
Continuing Representative and any reference herein to Continuing
Representative(s) shall be deemed to refer only to the Molson Continuing
Representative, if any). The Coors Beneficiary Representative agrees to promptly
notify each other party to this Agreement in writing if the ownership
requirements of the Coors Family Group Beneficiaries and the other members of
the Coors Family Group set forth in clause (i) of the definition of "Coors
Change in Status Notice" are not satisfied at any time after the date of this
Agreement.
Section 3.03. Change in Status of Molson Beneficiary Representative. The
Molson Beneficiary Representative shall be a "Continuing Representative"
hereunder (the "Molson Continuing Representative") until the Molson Change in
Status Notice Effective Date (after
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which time there shall be no Molson Continuing Representative and any reference
herein to Continuing Representative(s) shall be deemed to refer only to the
Coors Continuing Representative, if any). The Molson Beneficiary Representative
agrees to promptly notify each other party to this Agreement in writing if the
ownership requirements of the Molson Family Group Beneficiaries and the other
members of the Molson Family Group set forth in clause (i) of the definition of
"Molson Change in Status Notice" are not satisfied at any time after the date of
this Agreement.
Section 3.04. Exercise of Voting Rights.
(a) So long as the Trustee shall hold Trust Shares and Ancillary Rights
deposited pursuant to the provisions of this Agreement, the Trustee, as the
holder of record of the Trust Shares, shall possess and shall be entitled to
exercise all rights and powers of every nature as owner of legal title and
holder of the Trust Shares, including the right to vote or cause the exercise of
the Voting Rights in person or by its nominee or proxy or by written consent and
to take part in and consent to any corporate or shareholders' action of any kind
whatsoever (including approval of or consent to any merger or consolidation to
which the Company may be a party, whether or not the surviving party, or the
dissolution of the Company or the sale of all or any part of its business or
assets). Without limiting the generality of the foregoing, the Trustee shall
have all rights in respect of the Trust Shares and Ancillary Rights as a
beneficiary under the Voting and Exchange Trust Agreement, including the right,
pursuant to Article 4 thereof, to instruct the trustee thereunder (the
"Exchangeable Shares Trustee") with respect to the exercise by the Exchangeable
Shares Trustee of the Voting Rights associated with the Trust Shares as provided
in this Section 3.04. The Trustee agrees to vote or cause the vote of the Trust
Shares as provided in this Section 3.04 and to fulfill all of its other
covenants, rights and obligations hereunder, notwithstanding that the Coors
Trust does not hold any Trust Shares at the date hereof and does not have a
Beneficiary Account or any economic or beneficial interest in any Trust Shares,
or Pentland and Subco may not hold, at any future time, any Trust Shares for
which a Beneficiary Account has been established. For all purposes of this
Agreement, reference to the Trustee voting or causing the vote of the Trust
Shares shall include the right of the Trustee to instruct the Exchangeable
Shares Trustee to exercise the Voting Rights associated with the Trust Shares
and/or to receive a proxy to vote the Trust Shares personally, as set forth in
the Voting and Exchange Trust Agreement.
(b) The Trustee shall vote or cause the vote of all Trust Shares and take
such other actions as are necessary in order to exercise the Voting Rights as
follows with respect to the election and removal of directors:
(i) (A) for any nominee standing for election to the board of
directors of the Company (the "Board of Directors") that has
been nominated by a nominating committee of the Board of
Directors authorized to nominate such nominee pursuant to the
Company's Certificate of Incorporation or Bylaws, and
(B) against any other nominee; and
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(ii) (A) for the removal of any Coors Director (as defined in the
Company's Certificate of Incorporation) if the Coors
Continuing Representative (if any) so instructs the Trustee in
writing using instructions substantially in the form attached
as Exhibit D;
(B) against the removal of any Coors Director if the Coors
Continuing Representative (if any) so instructs the Trustee in
writing using instructions substantially in the form attached
as Exhibit D or fails to make an instruction with respect to
such vote;
(C) for the removal of any Molson Director (as defined in the
Company's Certificate of Incorporation) if the Molson
Continuing Representative (if any) so instructs the Trustee in
writing using instructions substantially in the form attached
as Exhibit D;
(D) against the removal of any Molson Director if the Molson
Continuing Representative (if any) so instructs the Trustee in
writing using instructions substantially in the form attached
as Exhibit D or fails to make an instruction with respect to
such vote;
(E) except as expressly provided in clauses (A) through (D)
above, as unanimously instructed by all Continuing
Representatives in writing using instructions substantially in
the form attached as Exhibit D; and
(F) except as expressly provided in clauses (A) through (E)
above, in accordance with the recommendation of the Board of
Directors with respect to any proposal to remove any director
of the Company (provided that, if no recommendation is made
known to the Trustee, the Trustee shall vote against such
proposal).
(c) With respect to any other corporate action or matter (other than those
addressed in Section 3.04(b)) on which holders of Class A Exchangeable Shares or
other Voting Securities are entitled to exercise their voting rights, whether by
proxy, consent or otherwise, including the exercise of Voting Rights (each, an
"Other Voting Matter"), the Trustee shall vote all Trust Shares (and shall take
such other actions as are necessary in order to exercise the voting rights
attached to the Trust Shares, including the exercise of Voting Rights), against
the approval of such Other Voting Matter unless the Trustee shall have received
from all Continuing Representatives hereunder instructions in writing using
instructions substantially in the form attached as Exhibit D ("Approve
Instructions"), in each case duly executed by such Continuing Representative,
stating that such Continuing Representative wishes the Trustee to vote in favor
of such Other Voting Matter and such Approve Instructions are not revoked by
written instruction from such Continuing Representative delivered to the Trustee
prior to the time specified for taking the specified action. If the Trustee
receives Approve Instructions from each such Continuing Representative prior to
the time specified for taking the specified action, the Trustee shall vote for
approval of such Other Voting Matter. Without limiting the right of either
Continuing Representative to instruct the Trustee (or to revise, revoke or amend
such instruction) at any time prior to the taking of the relevant action by the
Trustee, all Continuing
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Representatives shall, subject to receiving adequate notice, use its reasonable
best efforts to provide instructions to the Trustee at least two Business Days
prior to the deadline for exercising any voting right.
Notwithstanding the foregoing:
(i) and for greater certainty, voting against the approval of such
Other Voting Matter shall include without limiting the
generality thereof (a) voting against any proposal to amend
the articles of Exchangeco (whether pursuant to Section 176 of
the CBCA or otherwise) and whether in favour or against the
resolution in order not to amend the articles and (b) voting
on all other matters in a manner such that in the reasonable
opinion of the Molson Beneficiary Representative (as set forth
in a notice to the Trustee, and the Coors Beneficiary
Representative) the status quo would be maintained and whether
in favour or against the resolution in order to maintain the
status quo and such that no action would be taken by
Exchangeco;
(ii) in the event the Other Voting Matter is a vote of shareholders
of Exchangeco (in their capacity as such and not in their
capacity as holders of Voting Rights with respect to the
Company) with respect to a proposal to (a) redeem the Class A
Exchangeable Shares or the Class B Exchangeable Shares prior
to February 9, 2045, (b) to change the terms of the Class A
Exchangeable Shares or Class B Exchangeable Shares in a manner
that would materially adversely affect the rights and
privileges attached to those shares or (c) modify or terminate
the Voting and Exchange Trust Agreement, the Trustee shall not
vote to approve such Other Voting Matter if the Molson
Beneficiary Representative has sent a notice to the Trustee
and the Coors Beneficiary Representative instructing the
Trustee to vote against such approval.
(d) For the avoidance of doubt, in the event that any matter referred to
in the provisions of Section 3.04(b) or (c) is proposed (whether pursuant to a
request of a Continuing Representative, the Board of Directors or otherwise) to
be acted upon by written consent in lieu of a meeting, the Trustee shall execute
or cause to be executed such written consents in accordance with Section 1.12 of
the By-Laws of the Company as shall be effective to implement the election or
removal of a director or other corporate action or matter to be implemented
pursuant to the foregoing provisions of this Section 3.04.
(e) With respect to any corporate action or matter described in paragraph
(b) or (c) above, the Trustee shall provide notice to the trustee under the
Delaware Voting Trust Agreement as to the vote or action to be taken by the
Trustee with respect to such action or matter at the time the Trustee has
received instructions from the Continuing Representatives or otherwise makes a
determination in accordance with the terms of this Agreement as to the vote or
action to be taken by the Trustee.
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(f) Each of the Continuing Representatives hereby undertakes, with respect
to all matters concerning voting under this Agreement and the Delaware Voting
Trust Agreement, to give similar instructions concerning such voting to the
Trustee hereunder and to the trustee under the Delaware Voting Trust Agreement,
such that there shall be no inconsistency between the instructions given by such
Continuing Representative to such trustees.
Section 3.05. Trustee Has No Authority to Transfer.
(a) Except as set forth in this Section 3.05, and except for purposes of
effecting a Permitted Encumbrance or a Permitted Hedge or a Transfer to a
Permitted Family Transferee in accordance with Section 8.01, the Trustee shall
have no authority to Transfer any of the Trust Shares.
(b) Upon receipt of a notice from a Beneficiary Representative that one or
more Beneficiaries represented by such Beneficiary Representative has agreed to
sell or otherwise Transfer their interests in Trust Shares in such Beneficiary's
Beneficiary Account to one or more Third Party Transferees in compliance with
Section 8.02 (which notice shall set forth the number of Trust Shares to be
sold, the Beneficiary Transferor, the Third Party Transferee(s) (except in the
case of a Transfer into the open market) and the proposed date of Transfer),
then, upon delivery of such notice and the Certificate or Certificates
corresponding to the Trust Shares to be sold, the Trustee shall:
(i) cause each non-transferring Beneficiary to receive a copy of
such notice within five Business Days of the Trustee's receipt thereof;
and
(ii) in the case of Class A Exchangeable Shares, not earlier than 10
Business Days nor later than 20 Business Days following the Trustee's
receipt of such notice, unless precluded by an order, decree or judgment
binding upon the Trustee of any court of competent jurisdiction or unless
the Trustee (after receipt of a legal opinion) determines that such
proposed Transfer does not comply with Section 8.02 and applicable law,
deliver share certificates for such Class A Exchangeable Shares to
Exchangeco or its transfer agent (duly endorsed for transfer or
accompanied by duly executed instruments of transfer with signatures
guaranteed) together with a Notice of Conversion pursuant to Section 18.1
of the Exchangeable Share Provisions (as defined in the Plan of
Arrangement and herein called the "Exchangeable Share Provisions") to
effect (A) the conversion of such Class A Exchangeable Shares pursuant to
Section 18.2 of the Exchangeable Share Provisions into shares of Class B
Exchangeable Shares and (B) delivery of a share certificate for such
shares of Class B Exchangeable Shares to the Persons and places designated
in the notice, which shares of Class B Exchangeable Shares will not be
subject to the terms and provisions of this Agreement; and
(iii) in the event the transferring Beneficiary is not Transferring
all of the Trust Shares represented by the Certificate or Certificates
surrendered with the notice, upon the consummation of such Transfer
specified in such notice, issue to the transferring Beneficiary a new
Certificate in respect of such Trust Shares not Transferred and which are
subject to this Agreement.
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Section 3.06. Trustee's Agreement to Limited Authority to Sell. The
Trustee agrees that, except as otherwise provided in Section 3.05, the Trustee
shall take no action, nor shall it allow any action to be taken, by which any
Trust Shares shall be sold, transferred or otherwise disposed of during the term
of this Agreement. The Trustee agrees that the Trustee will not permit or create
any Encumbrance upon any Trust Shares, except pursuant to a Permitted
Encumbrance or a Permitted Hedge. The exercise of Voting Rights by the Trustee
pursuant to Section 3.04 shall not be deemed to constitute any such Encumbrance.
Section 3.07. Trustee's Agreement to Certificate Legends. The Trustee
agrees that all Certificates shall have endorsed upon them a legend
substantially as follows:
"This certificate is issued pursuant to, and the transfer of this
certificate and the shares represented hereby is restricted by, the
provisions of a Voting Trust Agreement dated as of February 9, 2005
between The Royal Trust Company, as Trustee, and Xxxxxx Xxxxx, Xx. Trust,
Pentland Securities (1981) Inc. and 4280661 Canada Inc. as such agreement
may be amended, supplemented or otherwise modified from time to time. By
accepting this certificate, the holder hereof agrees to be bound by all of
the provisions of such agreement."
Section 3.08. Retraction; Redemption; Conversion of Exchangeable Shares.
(a) In the event that (i) a Beneficiary Representative notifies the
Trustee that a Beneficiary for which the Beneficiary Representative is the
Beneficiary Representative wishes that all or any portion of the Class A
Exchangeable Shares in respect of which such Beneficiary has a Beneficiary
Account be redeemed in accordance with the Article 6 of the Exchangeable Share
Provisions, or that such Beneficiary wishes that all or any portion of the Class
A Exchangeable Shares in respect of which such Beneficiary has a Beneficiary
Account be converted into Class B Exchangeable Shares in accordance with Article
18 of the Exchangeable Share Provisions; (ii) the Exchange Right (as defined in
the Voting and Exchange Trust Agreement) or on liquidation of Exchangeco) is
exercised under Article 5 of the Voting and Exchange Trust Agreement in respect
of any Class A Exchangeable Shares in respect of which such Beneficiary has a
Beneficiary Account; or (iii) in the event that Callco (as defined in the
Exchangeable Share Provisions) or the Company exercises any of their respective
rights in respect of the Class A Exchangeable Shares in respect of which such
Beneficiary has a Beneficiary Account pursuant to the Exchangeable Share
Provisions or the Voting and Exchange Trust Agreement, the Trustee shall use all
reasonable efforts to take all actions necessary (including, but not limited to
those required by the Exchangeable Share Provisions), to effect such redemption,
conversion, exchange or sale (in the case of Callco).
(b) Upon the redemption or exchange of a Beneficiary's Class A
Exchangeable Shares for shares of Class A Common Stock of the Company or any
successor in accordance with the Exchangeable Share Provisions (whether pursuant
to paragraph (a) above or otherwise including upon the exercise of the Exchange
Right, and upon any purchase by Callco of any Class A Exchangeable Shares from a
Beneficiary, such Beneficiary shall take such actions as are necessary to become
a party to the Delaware Voting Trust Agreement and the Trustee shall deposit the
shares of Class A Common Stock of the Company or any successor or any securities
that would constitute Voting Securities (as defined in the Delaware Voting Trust
Agreement) or
18
resulting therefrom in trust pursuant to Section 2.01(b) of the Delaware Voting
Trust Agreement and any money, property or other securities distributed on such
redemption exchange or sale shall be released to the applicable Beneficiary.
(c) Notwithstanding anything to the contrary in this Agreement (including
this Section 3.08), each Molson Family Group Beneficiary agrees that it shall
not be permitted to convert any Class A Exchangeable Shares into Class B
Exchangeable Shares under this Section 3.08 unless it shall provide the Trustee
with a legal opinion to the effect that (a) giving effect to such conversion,
the voting power in the Company associated with (i) the Class A Exchangeable
Shares (and Ancillary Rights) remaining subject to this Agreement, together with
(ii) any Company Shares subject to the Delaware Voting Trust Agreement, would
constitute in the aggregate at least 50.1% of the aggregate voting power in the
Company of all then-outstanding Class A Exchangeable Shares (and Ancillary
Rights) and Company Shares, or (b) at any time prior to such conversion, the
aggregate number of Class A Exchangeable Shares and Company Shares of the Coors
Family Group Beneficiaries deposited under this Agreement and/or the Delaware
Voting Trust Agreement is less than 1,260,000 (without duplication, as adjusted
by any stock split, consolidation, reorganization, merger, amalgamation,
reclassification, recapitalization or similar transactions) as a result of one
or more Transfers (and associated conversion into Class B Exchangeable Shares or
Class B Common Stock, as applicable) of Class A Exchangeable Shares or Company
Shares to a Third Party Transferee.
ARTICLE IV.
DIVIDENDS AND DISTRIBUTIONS
Section 4.01. Cash Dividends. If, during the term of this Agreement the
Trustee shall receive cash dividends with respect to the Trust Shares, the
Trustee shall within two Business Days deposit the same in the relevant
Beneficiary Account with respect to such Trust Shares and, subject to applicable
withholding tax, shall remit the same to the Beneficiary with respect to whom
such Beneficiary Account has been established and maintained. The Trustee may
arrange with Exchangeco for the direct payment by Exchangeco, as applicable, to
the Beneficiaries of any such dividends.
Section 4.02. Non-Share Distributions. If at any time during the term of
this Agreement the Trustee shall receive or collect any moneys (other than in
payment of cash dividends) or any property (other than Class A Exchangeable
Shares or Voting Securities) upon the Trust Shares, the Trustee shall deposit
within 2 Business Days the same in the relevant Beneficiary Account with respect
to such Trust Shares and, subject to applicable withholding tax, shall remit the
same to the Beneficiary with respect to whom such Beneficiary Account has been
established and maintained. The Trustee may arrange with Exchangeco for the
direct payment by Exchangeco, as applicable, to the Beneficiaries of any such
dividends.
Section 4.03. Stock Dividend or Distribution. If the Trustee shall
receive, as a dividend or other distribution upon any Trust Shares, any
additional Class A Exchangeable Shares or other Voting Securities, the Trustee
shall within two Business Days deposit the same in the relevant Beneficiary
Account with respect to such Trust Shares. Such Class A Exchangeable Shares or
other Voting Securities shall be and become subject to all of the terms and
conditions hereof to
19
the same extent as if originally deposited hereunder pursuant to Section 2.01.
The Trustee shall record such additional Class A Exchangeable Shares or other
Voting Securities in the Beneficiaries' Beneficiary Accounts and issue
Certificates in respect of such Class A Exchangeable Shares or other Voting
Securities to the applicable Beneficiaries.
Section 4.04. Recapitalization or Reclassification of Share Capital. In
the event of a recapitalization of Exchangeco or reclassification of any Trust
Shares deposited pursuant to this Agreement, the Trustee shall hold, subject to
the terms of this Agreement, any Voting Securities issued as a result of such
recapitalization or reclassification in respect of such Trust Shares.
Certificates issued and outstanding under this Agreement at the time of such
recapitalization or reclassification shall remain outstanding; provided, that
the Trustee shall, upon the written direction of the Coors Beneficiary
Representative or the Molson Beneficiary Representative, as appropriate,
substitute for such Certificates new voting trust certificates in appropriate
form. Such Voting Securities shall be and become subject to all of the terms and
conditions hereof to the same extent as if originally deposited hereunder
pursuant to Section 2.01.
Section 4.05. Distribution upon Dissolution of Exchangeco. In the event of
the liquidation, dissolution or winding up of Exchangeco or any other
distribution of the assets of Exchangeco among its shareholders for the purpose
of winding up its affairs, whether voluntary or involuntary, the Trustee shall,
within two Business Days of receipt, initially deposit the money, securities,
rights or property to which the Beneficiaries are entitled in respect of the
Trust Shares in the respective Beneficiary Account and shall thereafter deposit
any shares of Class A Voting Stock of the Company or any successor or any
"Voting Securities" (as defined in the Delaware Voting Trust Agreement) received
by the Trustee upon such liquidation, dissolution, winding up or other
distribution in trust pursuant to Section 2.01(b) of the Delaware Voting Trust
Agreement and distribute or cause to be distributed the other money, rights or
property received, less any applicable withholding tax, to the Beneficiary of
each respective Beneficiary Account within two Business Days of receipt thereof.
Section 4.06. Distributions Upon Reorganization of Exchangeco. In the
event Exchangeco is merged, consolidated or amalgamated with or into another
corporation or other business entity, the Trustee shall, as directed in writing
by the Coors Beneficiary Representative or the Molson Beneficiary
Representative, as appropriate, either (a) (i) receive and hold in the
respective Beneficiary Account established for Beneficiaries hereunder any
securities received on account of such merger, consolidation or amalgamation in
respect of the Trust Shares that are Voting Securities of the successor received
on account of such merger, consolidation or amalgamation (in which case
Certificates issued and outstanding under this Agreement at the time of such
merger, consolidation or amalgamation shall remain outstanding unless the Coors
Beneficiary Representative or the Molson Beneficiary Representative, as
appropriate, shall direct the trustee in writing to substitute for such
Certificates new voting trust certificates in appropriate form) and such Voting
Securities of the successor corporation shall be and become subject to all of
the terms and conditions hereof to the same extent as if originally deposited
hereunder pursuant to Section 2.01, and (ii) distribute or cause to be
distributed any money, other securities, rights or property so received, less
any applicable withholding tax, to the Beneficiary for whom such Beneficiary
Accounts have been established and maintained, or (b) distribute or cause to be
distributed such Voting Securities of the successor corporation, together with
any money, any other securities, rights or property so received, less any
applicable withholding tax,
20
to the Beneficiary for whom such Beneficiary Accounts have been established and
maintained, in which case the Beneficiaries hereby agree, pursuant to Section
2.01(b), to deposit such Voting Securities with the Trustee under this Agreement
within two Business Days, provided that if any securities received in such
merger, consolidation or amalgamation are Company Shares or any successor are
"Voting Securities" (as defined in the Delaware Voting Trust Agreement), such
securities shall be deposited by the Trustee under the Delaware Voting Trust
Agreement. The Beneficiaries also agree to execute any amendments to this
Agreement, if any are necessary, to perpetuate this Trust under the reorganized
corporation.
ARTICLE V.
RIGHTS TO SUBSCRIBE
Section 5.01. Subscription Procedures. In case any securities of
Exchangeco or the Company shall be offered for subscription to the beneficial
holders of Class A Exchangeable Shares or other Voting Securities held by the
Trustee as Trust Shares or to the Trustee in respect of such Trust Shares, the
Trustee, promptly upon receipt of notice of such offer, shall use reasonable
efforts to mail a copy thereof to each Beneficiary. Upon receipt by the Trustee,
at least two Business Days prior to the last date fixed by Exchangeco or the
Company, as applicable, for subscription, of a request from any Beneficiary to
subscribe in such Beneficiary's behalf, accompanied by the sum of money required
to be paid for such securities, the Trustee shall make such subscription and
payment on behalf of such Beneficiary, and upon receiving from Exchangeco or the
Company, as applicable, the certificates for the securities subscribed for,
shall issue to such Beneficiary a Certificate in respect thereof if the same
constitute Voting Securities and retain the same in such Beneficiary's
Beneficiary Account and, if the same do not constitute Voting Securities, the
Trustee shall deliver the same to the Beneficiary on whose behalf the
subscription was made.
ARTICLE VI.
THE TRUSTEE
Section 6.01. Trustee's Right to Delegate. The Trustee may vote or
exercise Voting Rights in respect of all Trust Shares in person or by such
person or persons (including any Beneficiary) as the Trustee may from time to
time select as proxy or proxies. The Trustee may employ or use the services of
accountants, attorneys, or any other qualified personnel to assist the Trustee
or its agents to carry out any of the duties undertaken pursuant to this
Agreement.
Section 6.02. Trustee's Right to Call Meetings of the Beneficiaries. The
Trustee may call a meeting of the Beneficiaries for any purpose which the
Trustee desires, including discussions of any past or future exercise of its
rights or powers under this Agreement, or for other informational purposes. Any
vote of the Beneficiaries taken at a meeting called pursuant to this Section
6.02 is not binding on the Trustee.
Section 6.03. Trustee's Right to Incur Expenses. The Trustee is expressly
authorized to incur and pay such reasonable expenses and charges at the expense
of the Beneficiaries, to
21
employ and pay such agents, attorneys and counsel, and to incur and pay such
other charges and expenses at the expense of the Beneficiaries as it may deem
necessary and proper for administering this Agreement.
Section 6.04. Trustee's Right to Reimbursement. Each Beneficiary agrees to
reimburse the Trustee within thirty (30) days of receipt of a written request
for reasonable expenses and charges authorized under Section 6.03 upon demand
therefor pro rata to such Beneficiary's Trust Shares. Notwithstanding the
foregoing, the Trustee shall have no duty to advance its own moneys in
connection with the administration of this Agreement.
Section 6.05. Trustee's Right to Indemnification. The Beneficiaries
severally agree to indemnify and hold harmless the Trustee (in its individual
capacity and in its capacity as trustee hereunder) and each agent or attorney of
the Trustee acting hereunder from and against all liability and claims or
proceedings of any nature arising from or in connection with the acceptance or
administration of the Trust and the performance of its duties and obligations
hereunder (including pursuant to Section 6.08) and the exercise of its rights
and powers except liability and claims based solely upon the Trustee's bad
faith, gross negligence or willful misconduct, and with such exception agree to
be responsible for and to pay (pro rata in accordance with the number of Trust
Shares represented by their respective Certificates) all claims, losses,
damages, costs, penalties, fines, taxes and expenses of or assessed against the
Trustee (in its individual capacity and in its capacity as trustee hereunder) of
any nature, including fees of legal counsel, in connection with any such claim
or proceeding.
Section 6.06. Right of Trustee to Compensation. Each Beneficiary
Representative agrees to pay to the Trustee from time to time 50% of the
reasonable compensation as agreed upon from time to time by the Trustee and the
Beneficiary Representatives for all services rendered by it hereunder. Trustee
shall be entitled to receive and shall be paid, as compensation for its acting
as trustee of and under this Agreement, the fees, reimbursement and other
compensation provided for in the Compensation Agreement between The Royal Trust
Company and the other parties hereto, signed on the 4th day of February, 2005,
prior to the execution of this Agreement and the terms of the said Compensation
Agreement shall be valid and binding in all respects to fix the compensation
payable to The Royal Trust Company as though the Compensation Agreement was
expressly embodied in this Agreement.
Section 6.07. Trustee's Right to Participate.
(a) The Trustee may contract with or be or become pecuniarily interested,
directly or indirectly, in any matter or transaction to which the Company,
Exchangeco or any other subsidiary or controlled or affiliated corporation may
be a party or in which it may be concerned, as fully and freely as though such
Trustee were not a Trustee hereunder.
(b) The Trustee's services to the parties hereto are not exclusive and,
subject to any limitations otherwise provided in this Agreement on the powers
and authorities of the Trustee, the Trustee may, for any purpose, and is hereby
expressly authorized from time-to-time in its discretion to, appoint, employ,
invest in, contract or deal with any individual, firm, partnership, association,
trust or body corporate, including without limitation, itself and any
partnership, trust or body corporate with which it may directly or indirectly be
affiliated or in which it may
22
directly or indirectly interested, whether on its own account or for the account
of another (in a fiduciary capacity or otherwise) without being liable to
account therefor and without being in breach of this Agreement.
Section 6.08. Trustee's Powers; Additional Matters. The Trustee is
authorized and empowered to construe this Agreement, and the Trustee's
reasonable construction made in good faith shall be conclusive and binding upon
the Beneficiaries and upon all parties hereto. Upon the joint written
instruction at any time and from time to time of each Beneficiary
Representative, the Trustee will take any such action as shall be specified in
such instructions; it being understood that without such joint instruction, the
Trustee shall not take any such action unless otherwise provided for in this
Agreement. For the avoidance of doubt, in connection with any action taken, or
inaction, by the Trustee pursuant to this Section 6.08., the Trustee shall be
indemnified as described in Section 6.05.
Section 6.09. Trustee's Liability.
(a) The Trustee shall not be liable for any error of judgment nor for any
act done or omitted, nor for any mistake of fact or law nor for anything which
the Trustee may do or refrain from doing in good faith, nor shall the Trustee
have any accountability hereunder, except for its own bad faith, gross
negligence or willful misconduct. Furthermore, upon any judicial or other
inquiry or investigation of or concerning the Trustee's acts pursuant to its
rights and powers as Trustee, such acts shall be deemed reasonable unless proved
to the contrary by clear and convincing evidence.
(b) The Trustee shall always be protected and free from liability in
acting upon any notice, request, consent, certificate, declaration, telegram,
telex, guarantee, affidavit or other paper or document or signature believed by
it to be genuine and to have been signed by the proper party or parties or by
the party or parties purporting to have signed the same.
(c) The Trustee may consult with legal counsel including legal counsel to
the Company or its subsidiaries (whether pursuant to Section 6.01 hereof, the
provisions hereof referring to legal opinions or otherwise) pursuant to Section
6.01, and any action under this Agreement taken or suffered in good faith by him
in accordance with the opinion of such counsel (or any certificate or notice
contemplated herein including, but not limited to, a certificate of Current
Market Value and a notice from a Beneficiary and/or a Beneficiary
Representative) shall be conclusive upon the parties hereto and the Trustee
shall be fully protected and be subject to no liability in respect thereof.
Section 6.10. Trustee's Resignation or Removal. The Trustee may resign by
giving written notice to each of the Beneficiary Representatives and to the
Company and Exchangeco of its resignation 30 days prior to the effective date of
such resignation (provided (i) that such resignation shall not become effective
until the appointment of a successor trustee and (ii) if the Coors Beneficiary
Representative and the Molson Beneficiary Representative fail to appoint a
successor trustee within 20 days of the receipt of the aforesaid notice, then
the Trustee, the Coors Beneficiary Representative or the Molson Beneficiary
Representative may ask any court of competent jurisdiction to appoint a
successor trustee). The Trustee may be removed at any time and from time to
time, with or without cause, upon the delivery to the Trustee of written notice
to
23
such effect from each Person who is a Continuing Representative hereunder, such
removal to be effective on the date the successor Trustee is appointed by the
Continuing Representatives.
Section 6.11. Appointment of Successor Trustee. The Coors Beneficiary
Representative and the Molson Beneficiary Representative shall jointly be
entitled to appoint a successor to the Trustee upon the resignation, removal,
dissolution, death or incapacity to act of the Trustee.
Section 6.12. Rights of Successor Trustee. Any successor to the Trustee
named herein shall enjoy all the rights, powers, interests and immunities of the
Trustee as originally conferred by this Agreement. All right, title and interest
in Trust Shares of any Trustee who may resign, die, be removed or become
incapacitated to act shall, upon such resignation, removal, death or incapacity,
vest in the successor Trustee.
Section 6.13. Transfer by Successor Trustee. Notwithstanding any change in
the Trustee, the certificates for Trust Shares standing in the name of the
Trustee may be endorsed and transferred by any successor Trustee for the time
being with the same effect as if endorsed and transferred by the Trustee who has
ceased to act. Any successor Trustee is authorized and empowered to cause any
further transfer of said Trust Shares to be made which may be necessary through
the occurrence of a change in the person acting as Trustee hereunder. For the
avoidance of doubt, (a) the transfer to a successor trustee shall not affect the
rights of the previous trustee set forth in Section 6.03, Section 6.04, Section
6.05, Section 6.06 and Section 6.07 and (b) the Beneficiary Representatives
shall remain liable and indemnify for any amounts due and payable in accordance
with Section 6.04, Section 6.05 and Section 6.06, including the payment of any
and all necessary or proper liabilities that occurred and disbursements made by
the previous trustee hereunder and not reimbursed prior to replacement.
Section 6.14. Trustee's Acceptance of Trust.
(a) The Trustee by executing this Agreement, and each successor Trustee,
upon being appointed as such, accepts the trust created hereby and agrees to
carry out the terms and provisions hereof. The Trustee represents that neither
the execution or delivery of this Agreement by the Trustee, nor the performance
or observance by the Trustee of the terms, conditions or provisions hereof, does
or will conflict with or violate any agreement or instrument to which the
Trustee is a party.
(b) The Trustee undertakes to perform, and shall have the requisite power
and authority to perform, such duties and only such duties as are specifically
set forth in this Agreement, and no implied covenants or obligations shall be
read into this Agreement against the Trustee.
Section 6.15. Trustee to be Canadian Resident. Notwithstanding anything
herein contained to the contrary, no Person shall be the Trustee hereunder
unless such Person is resident in Canada for all purposes of Canadian income tax
legislation.
24
ARTICLE VII.
TERMINATION
Section 7.01. Termination. This Agreement shall terminate upon the
earliest to occur of the following: (a) the date on which each Continuing
Representative hereunder agrees in writing to terminate this Agreement, (b) the
date on which each of the Coors Beneficiary Representative and the Molson
Beneficiary Representative shall have ceased to be a Continuing Representative
hereunder and (c) the date on which 90 consecutive days have elapsed during
which no Trust Shares were governed by this Agreement and (d) the twenty-first
(21st) anniversary of the death of the survivor of the descendants of His Late
Majesty King Xxxxxx V living at the date hereof.
Section 7.02. Trustee's Rights and Duties Upon Termination. The
termination of this Agreement shall not affect the rights of the Trustee set
forth in Section 6.03, Section 6.04, Section 6.05 and Section 6.06.
(a) As soon as practicable after the termination of this Agreement the
Trustee shall deliver to the Beneficiaries share certificates or instruments of
transfer representing the number of Trust Shares or other securities to which
such Beneficiary is entitled upon such termination in accordance with such
Beneficiary's Beneficiary Account, such delivery to be contingent upon the
surrender by the Beneficiary of the Certificates issued by the Trustee in
respect of such Trust Shares or other securities, properly endorsed for
transfer, and upon payment by the Beneficiaries of a sum sufficient to cover any
tax or governmental charge in respect of the transfer or delivery of such share
certificates or instruments of transfer. As a further condition to delivery of
such share certificates or instruments of transfer, the Beneficiaries shall pay
the Trustee any amounts due and payable pursuant to Section 6.04, Section 6.05
and Section 6.06 and pay, indemnify and reimburse the Trustee for any and all
necessary or proper liabilities incurred and disbursements made by the Trustee
hereunder and not reimbursed prior thereto.
(b) If any such Beneficiary cannot be located or fails or refuses to
surrender Certificates in exchange for Trust Shares or other securities as
aforesaid, the Trustee shall, unless otherwise directed by the Coors Beneficiary
Representative or the Molson Beneficiary Representative, as appropriate, deliver
such Trust Shares or other securities to the Company for the benefit of the
Person or Persons entitled thereto. Upon any such delivery the Trustee shall be
fully acquitted and discharged with respect to said Trust Shares or other
securities.
25
ARTICLE VIII.
RESTRICTIONS ON TRANSFER OF VOTING
TRUST CERTIFICATES OR OF ANY BENEFICIAL
INTERESTS HEREUNDER
Section 8.01. Nature of Restrictions. No beneficial interests in any Trust
Shares, whether or not represented by Certificates issued pursuant to this
Agreement, may be Transferred, except that (i) a Beneficiary may transfer all or
a portion of its beneficial interest in Trust Shares in such Beneficiary's
Beneficiary Account to (A) the Permitted Family Transferees of such Beneficiary
(in which event, as a condition to such transfer, if the Transferor was a Molson
Family Group Beneficiary, the Transferor shall cause the Transferee thereupon to
become a signatory hereto and the Transferee will thereupon become a Molson
Family Group Beneficiary and if the Transferor was a Coors Family Group
Beneficiary, the Transferor shall cause the Transferee thereupon to become
signatory hereto and the Transferee will thereupon become a Coors Family Group
Beneficiary) or (B) any other Beneficiary hereunder (collectively, the
"Permitted Transferees"), subject to the further condition that the Trust Shares
subject to such Transfer shall remain in trust pursuant to this Agreement and no
such Transfer shall be valid unless the transferee consents in writing to be
bound as a Beneficiary hereunder; (ii) a Beneficiary may make a disposition in
accordance with Section 8.02 hereof; and (iii) a transfer, sale or issuance of
securities in the Beneficiary or any other Person with a direct or indirect
equity interest in such Beneficiary may be effected so long as, after giving
effect thereto, the Beneficiary remains a member of the Molson Family Group or
the Coors Family Group, as the case may be. In determining whether the
conditions described in this Article VIII are satisfied, the Trustee shall be
entitled to rely on a written certificate delivered by the applicable
Beneficiary and the applicable Beneficiary Representative to the effect that
such conditions are satisfied, provided that such certificate is also delivered
to the other Beneficiary Representative hereunder.
Section 8.02. Third Party Transfers. A Beneficiary may Transfer (a) its
beneficial interest in any Trust Shares to one or more third party transferees
other than a Permitted Transferee (each, a "Third Party Transferee") provided
that such Transfer constitutes a Permitted Encumbrance or a Permitted Hedge
and/or (b) its beneficial interest in Trust Shares that are Class A Exchangeable
Shares to a Third Party Transferee provided that prior to such Transfer such
Class A Exchangeable Shares are converted as permitted pursuant to Article 18 of
the Exchangeable Share Provisions so that the Third Party Transferee receives
only Class B Exchangeable Shares. Any such conversion and Transfer described in
clause (b) shall be effected by the transferring Beneficiary's Beneficiary
Representative causing the Trustee, in accordance with Section 3.05, to take
such actions as are required by such section to effect such conversion and
Transfer and to release such Trust Shares (and Class B Exchangeable Shares
issued upon conversion thereof) from the Trust created hereby, whereupon such
shares shall no longer be subject to this Agreement. Following any such
conversion and Transfer described in clause (b), this Agreement shall continue
in full force and effect with respect to all other Trust Shares not subject to
such Transfer. Notwithstanding anything to the contrary in this Agreement
(including this Section 8.02), each Molson Family Group Beneficiary agrees that
it shall not be permitted to make a Transfer of its beneficial interests in
Trust Shares under this Section 8.02 nor convert any Class A Exchangeable Shares
to Class B Exchangeable Shares if, giving effect
26
to such Transfer or the requisite conversion, the Class A Exchangeable Shares
(and associated rights) remaining subject to this Agreement, together with any
Company Shares subject to the Delaware Voting Trust Agreement, would constitute
in the aggregate less than 50.1% of the aggregate voting power of all
then-outstanding Company Shares and Class A Exchangeable Shares (and associated
rights) unless, at any time prior to such Transfer or conversion, the aggregate
number of Class A Exchangeable Shares and Company Shares of the Coors Family
Group Beneficiaries deposited under this Agreement and/or the Delaware Voting
Trust Agreement is less than 1,260,000 (without duplication, as adjusted by any
stock split, consolidation, reorganization, merger, amalgamation,
reclassification, recapitalization or similar transactions) as a result of one
or more Transfers (and associated conversion into Class B Exchangeable Shares or
Class B Common Stock, as applicable of Class A Exchangeable Shares or Company
Shares) to a Third Party Transferee. In determining whether the conditions
described in this Article VIII are satisfied, the Trustee shall be entitled to
rely on a written certificate delivered by the applicable Beneficiary and the
applicable Beneficiary Representative to the effect that such conditions are
satisfied, provided that such certificate is also delivered to the other
Beneficiary Representative hereunder.
Section 8.03. Agreement Not to Cause Conversion Right. The Beneficiaries
agree that, notwithstanding anything herein to the contrary, (i) no Beneficiary
shall be permitted to make any sale, transfer or other disposition of any
beneficial interest in any Trust Shares if, as a result thereof, any shares of
Class B Common Stock of the Company or Class B Exchangeable Shares shall become
convertible into Company Shares or Class A Exchangeable Shares pursuant to the
provisions of Article Fifth of the Company's Restated Certificate of
Incorporation or of Article 16 of the Exchangeable Share Provisions,
respectively, (ii) in no event shall any Transfer be made pursuant to Section
8.02 if such Transfer would constitute or require an "Exclusionary Offer" (as
defined in Article Fifth of the Company's Restated Certificate of Incorporation
or of Article 16.1 of the Exchangeable Share Provisions), (iii) unless otherwise
expressly instructed in writing unanimously by each of the Beneficiary
Representatives in connection with the occurrence of an "Exclusionary Offer" (as
defined in Article Fifth of the Company's Restated Certificate of Incorporation
or in Article 16.1 of the Exchangeable Share Provisions), the Trustee is hereby
specifically empowered and directed to deliver any and all certificates and
other documents pursuant to such Article Fifth or Article 16 as may be necessary
or advisable to prevent the Class B Common Stock or Class B Exchangeable Shares
from becoming convertible into Company Shares or Class A Exchangeable Shares, as
the case may be, pursuant to such Article Fifth or Article 16 and (iv) no
Beneficiary shall be permitted to take any actions contrary to any certificate
that has been delivered to the Company pursuant to paragraph (i) of Article
Fifth of the Company's Restated Certificate of Incorporation (a "Blocking
Certificate") or that would cause any Blocking Certificate to be untrue or
invalid. Without limiting any of the foregoing, the Trustee acknowledges and
advises the Beneficiaries that it is delivering to the Company concurrently with
the execution and delivery of this Agreement the Blocking Certificate to be
provided to the Trustee by either Beneficiary Representative, and the Trustee
further agrees not to rescind or withdraw such Blocking Certificate without the
prior written consent of each Beneficiary Representative. If necessary to
maintain the effectiveness of the Blocking Certificate following a permitted
Transfer hereunder, the Trustee shall deliver to the Company an additional or
replacement Blocking Certificate.
27
Section 8.04. Legend. Each Beneficiary agrees that all Certificates now
held or hereafter obtained by him shall have endorsed upon them a legend
substantially in the form set forth in Section 3.07.
ARTICLE IX.
MISCELLANEOUS
Section 9.01. Relationships Created Hereunder. The trust created by this
Agreement is not intended to be, and shall not be treated as, a general
partnership, limited partnership, joint venture, corporation or joint stock
company or association. The relationship of the Beneficiaries to the Trustee
shall be solely that of Beneficiaries of the trust created by this Agreement and
their rights shall be limited to those conferred upon them by this Agreement.
Section 9.02. Deposit of Share Certificates and Other Assets. The share
certificates received by the Trustee from Exchangeco pursuant to the provisions
of Section 2.01(d) shall be deposited, within a reasonable time after receipt
thereof by the Trustee, either in a safe deposit box rented by the Trustee or
with a depository bank or trust company located in Canada. For greater
certainty, the Trustee may deposit any assets held in respect of this Voting
Trust, in a financial institution in which the Trustee or an agent or advisor to
the Trustee may have an interest, notwithstanding that the Trustee and/or its
agent or advisor may benefit therefrom and the Trustee shall not be required to
account for or to disgorge any such benefit. In particular, it shall not be
improper for the Trustee to deposit any assets held under this Trust in the
Trustee or its affiliated, subsidiary, holding or related companies.
Section 9.03. Amendments. This Agreement may be amended by an instrument
or instruments in writing executed by the Trustee, the Coors Beneficiary
Representative and the Molson Beneficiary Representative; provided that the
Trustee may, without the consent of any Beneficiary, amend this Agreement
(including any exhibit hereto) in order to (i) reflect the admission in
accordance with the terms of this Agreement of additional persons to the
Agreement as Beneficiaries so long as such persons have agreed in writing to be
bound by the terms and provisions of this Agreement or (ii) update any exhibit
hereto to reflect any changes in any Beneficiary's name, address or number of
Trust Shares set forth thereon.
Section 9.04. Notices. Any and all notices, requests, demands, or other
communications provided for hereunder shall be given in writing by personal
service or by registered or certified mail, postage prepaid, addressed to the
intended recipients at the addresses set forth in Exhibit A hereto, in the case
of any Beneficiary, or Exhibit C hereto, in the case of the Trustee or the
Trustee under the Delaware Voting Trust Agreement, or at such other addresses as
the intended recipients may have designated in written notices to the other
parties hereto. A notice shall be deemed to have been received when delivered
personally or four Business Days after being mailed.
Section 9.05. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
legatees, executors, administrators and permitted assigns, including successors
to any Beneficiary by merger, consolidation or otherwise.
28
Section 9.06. Gender and Number. With respect to words used in this
Agreement, the singular form shall include the plural form, the masculine gender
shall include the feminine or neuter gender, and vice versa, as the context
requires.
Section 9.07. Descriptive Headings. The descriptive headings of this
Agreement are for convenience of reference only and shall not define or limit
any of the terms or provisions hereof.
Section 9.08. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute one instrument.
Section 9.09. Severability. If in any judicial proceedings a court shall
refuse to enforce any provision of this Agreement, then such unenforceable
provision shall be deemed eliminated from this Agreement for the purpose of
those proceedings to the extent necessary to permit the remaining provisions to
be enforced. To the full extent, however, that the provisions of any applicable
law may be waived, they are hereby waived to the end that this Agreement be
deemed to be a valid and binding agreement enforceable in accordance with its
terms.
Section 9.10. Governing Law. This Agreement shall be construed under, and
its validity determined by, the laws of the Province of Ontario and the federal
laws of Canada applicable therein. The validity and administration of the trust
created hereunder shall be governed by the laws of the Province of Ontario and
the federal laws of Canada applicable therein. For greater certainty, this
Agreement is not governed by The Royal Trust Corporation of Canada Act, 1978,
S.O. 1978, c. 142, as amended from time to time.
Section 9.11. Enforcement. Each of the parties hereto agrees that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties hereto shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement in the
Superior Court of Justice of the Province of Ontario, this being in addition to
any other remedy to which they are entitled at law or in equity. In addition,
each of the parties hereto (a) consents to submit itself to the personal
jurisdiction of the Superior Court of Justice of the Province of Ontario in the
event any dispute arises out of or under or relates to this Agreement or any of
the transactions contemplated hereby, (b) agrees that it will not attempt to
deny or defeat such personal jurisdiction by motion or other request for leave
from any such court, (c) agrees that it will not bring any action, suit or
proceeding arising out of or under or relating to this Agreement or any of the
transactions contemplated hereby in any court other than the Superior Court of
Justice of the Province of Ontario and (d) hereby further and unconditionally
waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum. By the execution and delivery of this Agreement, each Beneficiary hereto
appoints Davies Xxxx Xxxxxxxx & Xxxxxxxx, 0 Xxxxx Xxxxxxxx Xxxxx, 00xx Xxxxx,
Xxxxxxx, Xxxxxxx, X0X 0X0, Attention: Xx. Xxxx Xxxxxx and Xx. Xxxxxxx Xxxxxxxx,
as its agent upon which process may be served in any such legal action or
proceeding. Service of process upon such agent, together with notice of such
service given to any Beneficiary in the manner specified in Section 9.04 shall
be deemed in every respect effective service of process upon such Beneficiary in
any legal action or proceeding.
29
Section 9.12. Remedies. The parties hereto shall have all remedies for
breach of this Agreement available to them provided by law or equity. Without
limiting the generality of the foregoing, the parties hereto agree that in
addition to all other rights and remedies available at law or in equity, the
parties hereto shall be entitled to obtain specific performance of the
obligations of each party to this Agreement and immediate injunctive relief and
that in the event any action or proceeding is brought in equity to enforce the
same, no party will urge, as a defense, that there is an adequate remedy at law.
Section 9.13. Third Parties. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties hereto and their respective
permitted transferees, successors and assigns, nor is anything in this Agreement
intended to relieve or discharge the obligation or liability of any third person
to any party to this Agreement, nor shall any provision give any third person
any right of subrogation or action over or against any party to this Agreement.
[rest of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have hereunto set their respective
hands as of the day and year first above written.
Xxxxxx Xxxxx, Xx. Trust dated
September 12, 1969
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Trustee
Pentland Securities (1981) Inc.
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: President
4280661 Canada Inc.
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: President
The Royal Trust Company, as Trustee
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
By: /s/ Xxxxx Xxxxxx
---------------------------------
EXHIBIT A
BENEFICIARIES
--------------------------------------------------------------------------------
Name/Address Number of Class A Exchangeable Shares
--------------------------------------------------------------------------------
Pentland Securities (1981) Inc.
000 - 0xx Xxxxxx X.X.
0xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: The President
with a copy to:
Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP
0000 XxXxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx X0X 0X0
Attention: Me Xxxx Xxxxxx
Me Xxxxxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
--------------------------------------------------------------------------------
4280661 Canada Inc.
000 - 0xx Xxxxxx X.X.
0xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: The President
with a copy to:
Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP
0000 XxXxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx X0X 0X0
Attention: Me Xxxx Xxxxxx
Me Xxxxxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
EXHIBIT B
This certificate is issued pursuant to, and the transfer
of this certificate and the shares represented hereby is
restricted by, the provisions of the Class A
Exchangeable Share Molson Coors Canada Inc. Voting Trust
Agreement dated as of February 9, 2005 between The Royal
Trust Company, as Trustee, and Xxxxxx Xxxxx, Xx. Trust,
Pentland Securities (1981) Inc. and 4280661 Canada Inc.,
as such agreement may be amended, supplemented or
otherwise modified from time to time. By accepting this
certificate, the holder hereof agrees to be bound by all
of the provisions of such agreement.
VOTING TRUST CERTIFICATE
No. __________ __________ Shares
MOLSON COORS CANADA INC.
(Incorporated under the laws of Canada)
VOTING TRUST CERTIFICATE IN RESPECT OF CLASS A EXCHANGEABLE SHARES
THIS CERTIFIES that there have been deposited with the undersigned as
Trustee under the Class A Exchangeable Shares Molson Coors Canada Inc. Voting
Trust Agreement dated as of February 9, 2005 and any amendments thereto (the
"Agreement"), certificates or instruments of transfer for shares of Class A
Exchangeable Shares of Molson Coors Canada Inc., a corporation incorporated
under the Canada Business Corporations Act (the "Company"), in the number set
forth above on this Certificate, and that ____________________, or registered
assigns, is entitled to all the benefits specified in the Agreement arising from
said shares deposited with the Trustee, all as provided in and subject to the
terms and conditions of the Agreement to which reference is hereby made. All
capitalized terms shall have the meaning ascribed thereto in the Agreement,
unless otherwise specified herein.
Until the Trustee shall have delivered the shares or instruments of
transfer held by it under the Agreement to the holders of the Voting Trust
Certificates issued pursuant to the Agreement, the Trustee (or its successor in
trust), subject to the terms of the Agreement, shall possess and shall be
entitled to exercise all rights and powers of every nature of owners of legal
title and holders of said shares, including the right to vote or cause the vote
of the Voting Rights in person or by its nominees or proxies or by written
consent and to take part in and consent to any corporate or stockholders' action
of any kind whatsoever (including, without limitation,
2
approval of or consent to any merger or consolidation to which the Molson Coors
Brewing Company may be a party, whether or not the surviving party, or the
dissolution of the Molson Coors Brewing Company or the sale of all or any part
of its business or assets), it being expressly stipulated that no Voting Right
passes to the above-named owner hereof or assigns by or under this Certificate
or by or under any agreement, express or implied. The holder of this
Certificate, by acceptance hereof, consents to all the provisions of the
Agreement and agrees to be bound thereby.
This Certificate is transferable on the books of the Trustee only in
accordance with the provisions of the Agreement and only by the registered
holder hereof in person or by attorney duly authorized, and upon the surrender
hereof.
IN WITNESS WHEREOF, the Trustee has executed this Certificate this __ day
of ___________, 200__.
___________________________________
The Royal Trust Company, not in its
individual capacity, but solely as
Trustee
EXHIBIT C
ADDRESS OF THE TRUSTEE
AND THE DELAWARE VOTING TRUST AGREEMENT TRUSTEE
TRUSTEE:
The Royal Trust Company
00 Xxxx Xx. Xxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxxxx Xxxxxxx, Vice President,
Private Trust Services
With a copy to:
The Royal Trust Company
1 Place Ville Xxxxx
0xx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Attention: Xxxxxxx Xxxxxx-Private Trust Services
DELAWARE VOTING TRUST AGREEMENT TRUSTEE
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Client Services
EXHIBIT D
FORM OF VOTING INSTRUCTIONS
The Royal Trust Company
00 Xxxx Xx. Xxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxxxx Xxxxxxx, Vice President,
Private Trust Services
The Royal Trust Company
1 Place Ville Xxxxx
0xx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Attention: Xxxxxxx Xxxxxx
Private Trust Services
Ladies and Gentlemen:
Reference is made to the Voting Trust Agreement (the "Agreement") made and
entered into as of February 9, 2005, by and among The Royal Trust Company, as
trustee (hereinafter in such trustee capacity, with any successors, referred to
as the "Trustee"), Pentland Securities (1981) Inc., (for itself, "Pentland", and
as the "Molson Beneficiary Representative"), 4280661 Canada Inc. and Xxxxxx
Xxxxx, Xx. Trust dated September 12, 1969 (for itself, the "Coors Trust", and as
the "Coors Beneficiary Representative"), and the other parties thereto from time
to time.
Subject to the provisions of the Agreement (including Section 3.04 thereof),the
undersigned [Coors][Molson] Continuing Representative hereby instructs the
Trustee to vote all Trust Shares held on behalf of the [Coors][Molson] Family
Group Beneficiaries as follows:
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
Sincerely,
[Pentland Securities (1981) Inc.]
[Xxxxxx Xxxxx, Xx. Trust dated September
12, 1969]
cc: General Counsel, Molson Coors Brewing Company
Delaware Voting Trustee
EXHIBIT E
NOTICE TO TORONTO STOCK EXCHANGE
To: Toronto Stock Exchange
Montreal Xxxxxx
0000 Xxxxxxxxxx Xxxxxx Xxxx Xxxxx 0000
Xxxxxxxx, XX
X0X 0X0
Xxxxxx
Re: Class A Exchangeable Shares Molson Coors Canada Inc. Voting Trust
Agreement
The undersigned hereby certifies that, pursuant to the Class A Exchangeable
Shares Voting Trust Agreement dated February 9 2005 among the undersigned,
Pentland Securities (1981) Inc., 4280661 Canada Inc. and Xxxxxx Xxxxx, Xx. Trust
dated September 12, 1969 and The Royal Trust Company (the "Voting Trust
Agreement"), the following Class A Exchangeable Shares represented by the
certificates described below have been deposited on February 9, 2005, in trust
with the undersigned, acting as trustee under the Voting Trust Agreement:
================================================================================
Certificate No Number of Class A Beneficiary
Exchangeable Shares
================================================================================
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
DATED February __, 2005,
The Royal Trust Company,
not in its individual capacity but
solely as Trustee
By: ____________________________________
Name: o
Title: o
