AGREEMENT
AGREEMENT by and among Xxxxxx Xxxxx Company, a Colorado corporation ("ACC"),
Coors Brewing Company, a Colorado corporation ("CBC") (ACC and CBC are
hereinafter referred to as the "Company"), and _________________ (the
"Executive"), dated as of February 20, 2001.
The Executive is employed by the Company. The Board of Directors of the
Company (the "Board") has determined that it is in the best interests of the
Company and its stockholders to assure that the Company will have the
continued dedication of the Executive, in the event of the threat or
occurrence of a Change of Control (as defined below) of the Company. The
Board believes that it is important to diminish the distraction of the
Executive from Company business because of personal uncertainties and risks
created by a pending or threatened Change of Control and to encourage the
Executive's full attention and dedication to the Company currently and in the
event of any threatened or pending Change of Control.
The parties agree as follows:
1. Certain Definitions.
(a) The "Effective Date" shall mean the first date on which a
Change of Control (as defined in Section 2) becomes effective during the
Term (as defined in Section 1(b)). If a Change of Control occurs and if the
Executive's employment with the Company is terminated prior to the date on
which the Change of Control becomes effective, and if it is reasonably
demonstrated by the Executive that such termination of employment (i) was at
the request of a third party who has taken steps reasonably calculated to
effect a Change of Control or (ii) otherwise arose in connection with or
anticipation of a Change of Control, then for all purposes of this Agreement
the "Effective Date" shall mean the date immediately prior to the date of
such termination of employment.
(b) The "Term" shall mean the period commencing on the date
hereof and ending on the second anniversary of the date hereof; provided,
however, that commencing on the date one year after the date hereof, and on
each annual anniversary of such date (such date and each annual anniversary
thereof shall be hereinafter referred to as the "Renewal Date"), unless
previously terminated, the Term shall be automatically extended so as to
terminate two years from such Renewal Date, unless at least 60 days prior to
the Renewal Date the Board shall give notice to the Executive that the Term
not be so extended.
2. Change of Control. For the purpose of this Agreement, a "Change of
Control" shall occur if:
(a) a Person other than Existing Shareholders or a Person controlled
by Existing Shareholders becomes the ultimate Beneficial Owner of more than
20% of the total voting power of the Voting Stock of the Company and such
ownership represents a greater percentage of the total voting power of the
Voting Stock of the Company than is Beneficially Owned by Existing
Shareholders on such date; except the following acquisitions are not a
Change of Control: (i) an acquisition of Voting Stock by the Company or one
of its wholly-owned subsidiaries or (ii) an acquisition of Voting Stock that
meets the conditions in clauses (i), (ii) and (iii) of paragraph (b) of this
Section 2 or (iii) an acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or by any corporation
controlled by the Company;
(b) the Company consolidates with, or merges with or into, another
Person or the Company or a subsidiary of the Company sells, assigns,
conveys, transfers, leases or otherwise disposes of all or substantially all
of its assets to any Person in a transaction that would require approval of
the Company's shareholders under Section 0-000-000 and Section 0-000-000 of
the Colorado Business Corporation Act (except a transfer to an entity
wholly-owned by the Company or one of its wholly-owned subsidiaries), or any
Person consolidates with, or merges with or into, the Company, (each a
"Business Combination") unless, immediately following such Business
Combination, (i) all or substantially all of the individuals and entities
who were the Beneficial Owners, respectively, of the Company Common Stock
and Company Voting Stock immediately prior to such Business Combination
Beneficially Own, directly or indirectly, 50% or more of, respectively, the
then-outstanding shares of common stock and the combined voting power of the
then-outstanding Voting Stock of the corporation resulting from such
Business Combination (including, without limitation, a corporation that as a
result of such transaction owns the Company and all or substantially all of
the Company's assets either directly or though one or more subsidiaries) in
substantially the same proportions as their ownership, immediately prior to
such Business Combination of the Company Common Stock and Company Voting
Stock, (ii) no Person (other than (A) Existing Shareholders and any Person
controlled by Existing Shareholders, (B) any corporation resulting from such
Business Combination or (C) any employee benefit plan (or related trust) of
the Company or such corporation resulting from such Business Combination)
Beneficially Owns, directly or indirectly, 20% or more of the then-
outstanding voting power of the Voting Stock of such corporation and
Beneficially Owns a greater percentage of the voting power of such Voting
Stock of such Person than the Existing Shareholders and any Person
controlled by Existing Shareholders and (iii) at least a majority of the
members of the board of directors of the corporation resulting from such
Business Combination were members of the Board at the time of the action of
the Board, if any, providing for such Business Combination or if there was
not such action, at the time of the execution of this Agreement;
(c) individuals who on the date of this Agreement constitute the
Board (together with any thereafter elected directors whose election by the
Board or whose nomination by the Board for election by the Company's
shareholders was approved by a vote of at least a majority of the members of
the Board then in office who either were members of the Board on the date of
this Agreement or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority of the members of
the Board then in office; or
(d) the shareholders of the Company approve a complete liquidation
or dissolution of the Company.
(e) For purposes of this Section 2, the following definitions shall
apply:
(i) "Beneficial Owner and Beneficially Own" shall mean
beneficial ownership as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that a person shall be deemed to beneficially own all securities
that such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time.
(ii) "Company Common Stock" shall mean the Company's
Class B Common Stock and any other common stock (whether voting or
non-voting) that may be hereafter issued.
(iii) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(iv) "Existing Shareholder" shall mean the Xxxxxx Xxxxx,
Xx. Trust, any individual who or entity which has been, is or in the future
becomes a trustee thereof or any beneficiary thereof, any other trust the
primary beneficiaries of which are descendants of Xxxxxx Xxxxx, Xx. or
spouses or former spouses of such descendants, and/or any individual who or
entity which has been, is or in the future becomes a trustee of any such
trusts or any beneficiary thereof.
(v) "Person" shall mean any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act).
(vi) "Voting Stock" shall mean any and all shares, interests,
participations, rights in or other equivalents of capital stock and warrants
or options exchangeable for or convertible into such capital stock which
ordinarily has the power to vote for the election of directors, managers or
other voting members of the governing body (the "Governing Board") of a
Person. If any members of the Governing Board are elected by classes of
common stock voting as separate classes, Voting Stock shall mean the stock
of the class of common stock entitled to elect the majority of the Governing
Board, provided, if the separate classes are entitled to elect equal numbers
of the Governing Board, then all such shares of common stock shall be deemed
to be Voting Stock, but the voting power of Voting Stock held by a Person
(including the Existing Shareholders) shall be separately calculated for
each class and the result for each class shall be deemed to be Beneficial
Ownership of Voting Stock of the Company.
3. Employment Period. The Company hereby agrees to continue the
Executive in its employ, and the Executive hereby agrees to remain in the
employ of the Company subject to the terms and conditions of this Agreement,
for the period commencing on the Effective Date and ending on the second
anniversary of such date (the "Employment Period").
4. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, (A) the Executive's position
(including status, offices, titles and reporting requirements), authority,
duties and responsibilities shall be commensurate in all material respects
with the most significant of those held, exercised and assigned at any time
during the 120-day period immediately preceding the Effective Date and
(B) the Executive's services shall be performed at the location where the
Executive was employed immediately preceding the Effective Date or any
office or location less than thirty-five miles from such location.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive
agrees to devote reasonable attention and time during normal business hours
to the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder, to use
the Executive's reasonable best efforts to perform faithfully and
efficiently such responsibilities. During the Employment Period Executive
may (A) serve on civic or charitable boards or committees of not for profit
or similar organizations, (B) teach, and (C) manage personal investments, so
long as such activities do not significantly interfere with the performance
of the Executive's responsibilities as an employee of the Company in
accordance with this Agreement. To the extent that any such activities have
been conducted by the Executive and by other executives of the Company prior
to the Effective Date, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto) subsequent to the
Effective Date shall not thereafter be deemed to interfere with the
performance of the Executive's responsibilities to the Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, the Executive
shall receive an annual base salary ("Annual Base Salary"), which shall be
paid at a monthly rate, at least equal to twelve times the highest monthly
base salary paid or payable, including any base salary which has been earned
but deferred, to the Executive by the Company and its affiliated companies
in respect of the twelve-month period immediately preceding the month in
which the Effective Date occurs. During the Employment Period, the Annual
Base Salary shall be reviewed no more than twelve months after the last
salary increase awarded to the Executive prior to the Effective Date and
thereafter at least annually. Any increase in Annual Base Salary shall not
serve to limit or reduce any other obligation to the Executive under this
Agreement. Annual Base Salary shall not be reduced after any such increase
and the term Annual Base Salary as utilized in this Agreement shall refer to
Annual Base Salary as so increased. As used in this Agreement, the term
"affiliated companies" shall include any company controlled by, controlling
or under common control with the Company.
(ii) Annual Bonus. In addition to Annual Base Salary, the Executive
shall be entitled to participate, with respect to each fiscal year ending
during the Employment Period, in the Company's Management Incentive
Compensation Plan, or any comparable successor plans, under terms
(including measures of performance, targets and payout potential) at least
as favorable as the terms under such bonus plan as in effect during the
Company's fiscal year ending immediately prior to the Effective Date (the
"Annual Bonus"). Each such Annual Bonus shall be paid no later than the end
of the third month of the fiscal year next following the end of the fiscal
year for which the Annual Bonus is awarded, unless the Executive shall elect
to defer the receipt of such Annual Bonus.
(iii) Incentive, Savings and Retirement Plans. During the Employment
Period, the Executive shall be entitled to participate in all incentive,
savings and retirement plans, practices, policies and programs applicable
generally to other peer executives of the Company and its affiliated
companies, but in no event shall such plans, practices, policies and
programs provide the Executive with incentive opportunities (measured with
respect to both regular and special incentive opportunities, to the extent,
if any, that such distinction is applicable), savings opportunities or
retirement benefit opportunities, in each case, less favorable, in the
aggregate, than the most favorable of those provided by the Company and its
affiliated companies for the Executive under such plans, practices, policies
and programs as in effect at any time during the 120-day period immediately
preceding the Effective Date or if more favorable to the Executive, those
provided generally during the two year Employment Period following the
Effective Date to other peer executives of the Company and its affiliated
companies.
(iv) Stock Options and Other Equity Grants. During the Employment
Period, the Executive shall receive stock option grants pursuant to the
Company's 1990 Equity Incentive Plan or any successor plan for each fiscal
year ending during the Employment Period on the same basis as those provided
to other peer executives of the Company for each such fiscal year. In
addition, during the Employment Period, the Executive shall receive
restricted stock grants pursuant to the Company's 1990 Equity Incentive Plan
or any successor plan for each fiscal year during the Employment Period on
the same basis as those provided to other peer executives of the Company for
each such fiscal year.
(v) Welfare Benefit Plans. During the Employment Period, the
Executive and/or the Executive's family, as the case may be, shall be
eligible for participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the Company and
its affiliated companies (including, without limitation, medical,
prescription, dental, disability, employee life, group life, accidental
death and travel accident insurance plans and programs) to the extent
applicable generally to other peer executives of the Company and its
affiliated companies, but in no event shall such plans, practices, policies
and programs provide the Executive with benefits which are less favorable,
in the aggregate, than the most favorable of such plans, practices, policies
and programs in effect for the Executive at any time during the 120-day
period immediately preceding the Effective Date or, if more favorable to the
Executive, those provided generally at any time after the Effective Date to
other peer executives of the Company and its affiliated companies.
(vi) Expenses. During the Employment Period, the Executive shall
be entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in accordance with the most favorable policies,
practices and procedures of the Company and its affiliated companies in
effect for the Executive at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other peer executives
of the Company and its affiliated companies.
(vii) Fringe Benefits. During the Employment Period, the Executive
shall be entitled to fringe benefits, or cash payments in lieu of such
fringe benefits, including but not limited to, tax and financial planning
services, payment of club dues, use of an automobile and payment of related
expenses, in accordance with the most favorable plans, practices, programs
and policies of the Company and its affiliated companies in effect for the
Executive at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer executives of
the Company and its affiliated companies.
(viii) Office and Support Staff. During the Employment Period, the
Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to exclusive personal secretarial
and other assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and its affiliated companies at any
time during the 120-day period immediately preceding the Effective Date or,
if more favorable to the Executive, as provided generally at any time
thereafter with respect to other peer executives of the Company and its
affiliated companies.
(ix) Vacation. During the Employment Period, the Executive shall
be entitled to paid vacation in accordance with the most favorable plans,
policies, programs and practices of the Company and its affiliated companies
as in effect for the Executive at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to the
Executive, as in effect generally at any time thereafter with respect to
other peer executives of the Company and its affiliated companies.
5. Termination of Employment.
(a) Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period. If
the Company determines in good faith that the Disability of the Executive
has occurred during the Employment Period (pursuant to the definition of
Disability set forth below), it may give to the Executive written notice in
accordance with Section 12(b) of this Agreement of its intention to
terminate the Executive's employment. In such event, the Executive's
employment with the Company shall terminate effective on the 30th day after
receipt of such notice by the Executive (the "Disability Effective Date"),
provided that, within the thirty days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties.
For purposes of this Agreement, "Disability" shall mean the absence of the
Executive from the Executive's duties with the Company on a full-time basis
for 180 consecutive business days as a result of incapacity due to mental or
physical illness which is determined to be a disability pursuant to the
Company's then existing Long Term Disability Plan or, in the absence of such
a plan, a disability determined to be total and permanent by a physician
selected by the Company and acceptable to the Executive or the Executive's
legal representative.
(b) Cause. The Company may terminate the Executive's employment
during the Employment Period for Cause. For purposes of this Agreement,
"Cause" shall mean:
(i) the willful and continued failure of the Executive to perform
substantially the Executive's duties with the Company or one of its
affiliates (other than any such failure resulting from incapacity due to
physical or mental illness), after a written demand for substantial
performance is delivered to the Executive by the Board or the Chief
Executive Officer of the Company which specifically identifies the manner in
which the Board or Chief Executive Officer believes that the Executive has
not substantially performed the Executive's duties, or
(ii) the willful engaging by the Executive in illegal conduct or
gross misconduct which is a violation of fiduciary duties or is materially
and demonstrably injurious to the Company.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution
duly adopted by the Board or upon the instructions of the Chief Executive
Officer or a senior officer of the Company or based upon the advice of
counsel for the Company shall be conclusively presumed to be done, or
omitted to be done, by the Executive in good faith and in the best interests
of the Company. The cessation of employment of the Executive shall not be
deemed to be for Cause unless and until there shall have been delivered to
the Executive a copy of a resolution duly adopted by the affirmative vote of
not less than three quarters of the entire membership of the Board at a
meeting of the Board called and held for such purpose (after reasonable
notice is provided to the Executive and the Executive is given an
opportunity, together with counsel, to be heard before the Board), finding
that, in the good faith opinion of the Board, the Executive is guilty of the
conduct described in subparagraph (i) or (ii) above, and specifying the
particulars thereof in detail.
(c) Good Reason. The Executive's employment may be terminated
by the Executive for Good Reason. For purposes of this Agreement, "Good
Reason" shall mean:
(i) a demotion in rank, title, responsibility or authority; the
assignment to the Executive, following the Effective Date, of any duties
inconsistent in any respect with the Executive's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 4(a) of this Agreement, or any
other action by the Company which results in a diminution in such position,
authority, duties or responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Company promptly after receipt of such notice
thereof given by the Executive;
(ii) any failure by the Company to comply with any of the provisions
of Section 4(b) of this Agreement, including but not limited to the failure
by the Company to pay the Executive any portion of his compensation, or to
provide an Annual Bonus under terms (including but not limited to measures,
targets and payout potential) at least as favorable as the terms for such
Bonus as in effect during the Company's fiscal year immediately prior to the
Effective Date or to pay the Executive any portion of an installment of
deferred compensation under any deferred compensation program of the Company
when such compensation is due, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive;
(iii) the Company's requiring the Executive to be based at any
office or location other than as provided in Section 4(a)(i)(B) hereof for
more than 60 days or the Company's requiring the Executive to travel on
Company business to a substantially greater extent than required immediately
prior to the Effective Date;
(iv) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement; or
(v) any failure by the Company to comply with and satisfy
Section 11(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination
of "Good Reason" made by the Executive shall be conclusive. If an event
constituting Good Reason occurs prior to a Change of Control but after there
is knowledge of a potential Change of Control, it shall be deemed to
constitute Good Reason for purposes of this Agreement. Anything in this
Agreement to the contrary notwithstanding, a termination by the Executive
for any reason during the thirty-day period immediately following the first
anniversary of the Effective Date shall be deemed to be a termination for
Good Reason for all purposes of this Agreement.
(d) Notice of Termination. Any termination by the Company for Cause,
or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 13(b)
of this Agreement. For purposes of this Agreement, a "Notice of Termination"
means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated and (iii) if the Date of Termination (as defined below) is other
than the date of receipt of such notice, specifies the termination date
(which date shall be not more than thirty days after the giving of such
notice). The failure by the Executive or the Company to set forth in the
Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of the Executive
or the Company, respectively, hereunder or preclude the Executive or the
Company, respectively, from asserting such fact or circumstance in enforcing
the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason (other than a termination by the Executive during
the 30-day window period described in the last sentence of Section 5(c)
above), the date of receipt of the Notice of Termination or any later date
up to six months thereafter specified therein, as the case may be, (ii) if the
Executive's employment is terminated by the Executive during the 30-day
window period described in the last sentence of Section 5(c) above, the date
that is six months following the date of receipt of the Notice of
Termination or such earlier date as may be agreed in writing by the
Executive and the Company, (iii) if the Executive's employment is terminated
by the Company other than for Cause or Disability, the Date of Termination
shall be the date on which the Company notifies the Executive of such
termination and (iv) if the Executive's employment is terminated by reason
of death or Disability, the Date of Termination shall be the date of death
of the Executive or the Disability Effective Date, as the case may be.
6. Obligations of the Company upon Termination.
(a) Good Reason; Other Than for Cause, Death or Disability. If,
during the Employment Period, the Company shall terminate the Executive's
employment other than for Cause or Disability or the Executive shall
terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in
cash within thirty days after the Date of Termination the aggregate of the
following amounts:
(A) the sum of (1) the Executive's Annual Base Salary (which
for this purpose shall include any allowance for perquisites that is paid
directly to the Executive) through the Date of Termination to the extent not
theretofore paid, (2) the product of (x) the target bonus for the Executive
under the Company's Management Incentive Compensation Plan, or any
comparable successor plans, for the fiscal year of the Company which
contains the Date of Termination (the "Target Bonus"), and (y) a fraction,
the numerator of which is the number of days in the current fiscal year
through the Date of Termination, and the denominator of which is 365 and (3)
any compensation previously deferred by the Executive (together with any
accrued interest or earnings thereon) pursuant to the Company's Deferred
Compensation Plan or any successor plan (with such amounts paid in
accordance with the provisions of such plan) and any accrued vacation pay,
in each case to the extent not theretofore paid (the sum of the amounts
described in clauses (1), (2), and (3) shall be hereinafter referred to as
the "Accrued Obligations"); and
(B) the amount equal to the product of (1) [two] [three] and (2) the
sum of (x) the Executive's Annual Base Salary (which for this purpose
shall include any allowance for perquisites that is paid directly to the
Executive) and (y) the Target Bonus, with the product of (1) and (2) reduced
by the amounts paid, if any, to the Executive under the Company's Severance
Pay Plan or pursuant to any other contractual arrangement with the Executive
or plan providing coverage to the Executive as a result of such termination.
(ii) for [twenty-four] [thirty-six] months after the Executive's
Date of Termination, or such longer period as may be provided by the terms
of the appropriate plan, program, practice or policy, the Company shall
continue benefits to the Executive and/or the Executive's family, including
life insurance, at least equal (on an after-tax basis) to those which would
have been provided to them in accordance with the plans, programs, practices
and policies described in Section 4(b)(v) of this Agreement if the
Executive's employment had not been terminated or, if more favorable to the
Executive, as in effect generally at any time thereafter with respect to
other peer executives of the Company and its affiliated companies and their
families, provided, however, that if the Executive becomes reemployed with
another employer and is eligible to receive medical or other welfare
benefits under another employer-provided plan, the medical and other welfare
benefits described herein shall be secondary to those provided under such
other plan during such applicable period of eligibility.
(iii) The Company shall pay to the Executive a cash lump
sum equal to (A) the present value of the increased pension benefit,
determined on an actuarial basis, that would result under the Coors
Retirement Plan (or any successor thereto) if the Executive received credit
for benefit calculation purposes for [two] [three] additional years of
service, minus (B) the present value of the benefit actually accrued under
the Coors Retirement Plan on the Date of Termination. The actuarial factors
then being used under the Coors Retirement Plan (or any successor thereto)
on the Date of Termination shall be used to calculate the lump sum amount
and payment of such lump sum shall be made at the same time as the payment
provided under Section 6(a)(i) above;
(iv) for [twenty-four] [thirty-six] months following the Date of
Termination the Company shall, at its sole expense, reimburse the Executive
for the cost (but not in excess of $25,000 in the aggregate), as incurred,
for outplacement services the scope and provider of which shall be selected
by the Executive in his sole discretion;
(v) for [twenty-four] [thirty-six] months following the Date of
Termination the Company shall, to the extent not otherwise paid or provided,
pay or provide to the Executive, all other fringe benefits and executive
perquisites provided on the date of this Agreement, or on the Date of
Termination to the extent they are more extensive, including, but not
limited to, luncheon club dues, annual physical examination, parking, health
club dues, and financial planning assistance ("Other Benefits"); and
(vi) with respect to any options, restricted stock or other
stock based awards held by the Executive pursuant to the Company's Equity
Incentive Plan, or any successor plan, the Company shall use its best
efforts to negotiate with the successor company, if any, to grant substitute
stock-based awards, including options that shall give the Executive one year
to exercise the substitute options if the Date of Termination occurs before
the Executive is eligible for retirement. If the substitute options do not
provide such extended period for exercise, on the Date of Termination all
restrictions on awards of restricted stock will be canceled, and all
outstanding stock options and stock appreciation rights and other stock
based awards that have not fully vested, shall vest immediately and become
fully exercisable and shall not thereafter be forfeitable; provided,
however, that outstanding stock options and stock appreciation rights and
other stock-based awards shall not become fully vested and become
exercisable and nonforfeitable if the Executive's termination of employment
occurred as a result of notice by the Executive to the Company during the
30-day window period referred to in Section 5(c).
(b) Death. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Period, this Agreement
shall terminate without further obligations to the Executive's legal
representatives under this Agreement, other than for payment of Accrued
Obligations and the timely payment or provision of Other Benefits. Accrued
Obligations shall be paid to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within thirty days of the Date of
Termination. The term Other Benefits as utilized in this Section 6(b) shall
include, without limitation, and the Executive's estate and/or beneficiaries
shall be entitled to receive, benefits at least equal to the most favorable
benefits provided by the Company and affiliated companies to the estates and
beneficiaries of peer executives of the Company and such affiliated
companies under such plans, programs, practices and policies relating to
death benefits, if any, as in effect with respect to other peer executives
and their beneficiaries at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the Executive's estate
and/or the Executive's beneficiaries, as in effect on the date of the
Executive's death with respect to other peer executives of the Company and
its affiliated companies and their beneficiaries.
(c) Disability. If the Executive's employment is terminated by
reason of the Executive's Disability during the Employment Period, this
Agreement shall terminate without further obligations to the Executive,
other than for payment of Accrued Obligations and the timely payment or
provision of Other Benefits. Accrued Obligations shall be paid to the
Executive in a lump sum in cash within thirty days of the Date of
Termination. The term "Other Benefits" as utilized in this Section 6(c)
shall include, and the Executive shall be entitled after the Disability
Effective Date to receive, disability and other benefits at least equal to
the most favorable of those generally provided by the Company and its
affiliated companies to disabled executives and/or their families in
accordance with such plans, programs, practices and policies relating to
disability, if any, as in effect generally with respect to other peer
executives and their families at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to the
Executive and/or the Executive's family, as in effect at any time thereafter
generally with respect to other peer executives of the Company and its
affiliated companies and their families.
(d) Cause; Other than for Good Reason. If the Executive's
employment shall be terminated for Cause during the Employment Period, this
Agreement shall terminate without further obligations to the Executive other
than the obligation to pay to the Executive (i) his Annual Base Salary
through the Date of Termination, (ii) the amount of any compensation
previously deferred by the Executive, and (iii) Other Benefits, in each case
to the extent theretofore earned and accrued but unpaid. If the Executive
voluntarily terminates employment during the Employment Period, excluding a
termination for Good Reason, this Agreement shall terminate without further
obligations to the Executive, other than for Accrued Obligations and the
timely payment or provision of Other Benefits. In such case, all Accrued
Obligations shall be paid to the Executive in a lump sum in cash within
thirty days of the Date of Termination.
7. Nonexclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company or any of its affiliated
companies and for which the Executive may qualify, nor, subject to
Section 13(f), shall anything herein limit or otherwise affect such rights
as the Executive may have under any contract or agreement with the Company
or any of its affiliated companies. Amounts which are vested benefits or
which the Executive is otherwise entitled to receive under any plan, policy,
practice or program of or any contract or agreement with the Company or any
of its affiliated companies at or subsequent to the Date of Termination
shall be payable in accordance with such plan, policy, practice or program or
contract or agreement except as explicitly modified by this Agreement.
8. Full Settlement. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against
the Executive or others. In no event shall the Executive be obligated to
seek other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this
Agreement and such amounts shall not be reduced whether or not the Executive
obtains other employment, except as specifically provided with respect to
medical and other welfare benefits under another employer-provided plan
pursuant to subsection 6(a)(ii). The Company agrees to pay as incurred, to
the full extent permitted by law, all legal fees and expenses which the
Executive may reasonably incur as a result of any contest (regardless of the
outcome thereof) by the Company, the Executive or others of the validity or
enforceability of, or liability under, any provision of this Agreement or
any guarantee of performance thereof (including as a result of any contest
by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the
applicable Federal rate provided for in Section 7872(f)(2)(A) of the
Internal Revenue Code of 1986, as amended (the "Code").
9. Certain Additional Payments by the Company.
(a) Anything in this Agreement or in any other agreement between the
Company and the Executive or in any stock option or other benefit plan to
the contrary notwithstanding and except as set forth below, in the event it
shall be determined that any payment or distribution by the Company to or
for the benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this
Section 9) (a "Payment") would be subject to the excise tax imposed by
Section 4999 of the Code or any interest or penalties are incurred by the
Executive with respect to such excise tax (such excise tax, together with
any such interest and penalties, are hereinafter collectively referred to as
the "Excise Tax"), then the Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after
payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any
income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.
(b) Subject to the provisions of Section 9(c), all determinations
required to be made under this Section 9, including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determination, shall be made
by such nationally recognized certified public accounting firm as may be
designated by the Executive (the "Accounting Firm"), which shall provide
detailed supporting calculations both to the Company and the Executive
within fifteen business days of the receipt of notice from the Executive
that there has been a Payment, or such earlier time as is requested by the
Company. In the event that the Accounting Firm is serving as accountant or
auditor for the Company or the individual, entity or group effecting the
Change of Control, the Executive shall appoint another nationally recognized
accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm hereunder).
All fees and expenses of the Accounting Firm shall be borne solely by the
Company. Any Gross-Up Payment, as determined pursuant to this Section 9,
shall be paid by the Company to the Executive within five business days of
the receipt of the Accounting Firms' determination. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive. As a
result of the uncertainty in the application of Section 4999 of the Code at
the time of the initial determination by the Accounting Firm hereunder, it
is possible that a Gross-Up Payment which will not have been made by the
Company should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that the Company
exhausts its remedies pursuant to Section 9(c) and the Executive thereafter
is required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of
the Executive.
(c) The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than ten business days after the
Executive is informed in writing of such claim and shall apprise the Company
of the nature of such claim and the date on which such claim is requested to
be paid. The Executive shall not pay such claim prior to the expiration of
the thirty-day period following the date on which it gives such notice to
the Company (or such shorter period ending on the date that any payment of
taxes with respect to such claim is due). If the Company notifies the
Executive in writing prior to the expiration of such period that it desires
to contest such claim, the Executive shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect
to such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 9(c), the Company shall control all
proceedings taken in connection with such contest and, at its sole option,
may pursue or forgo any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of such claim
and may, at its sole option, either direct the Executive to pay the tax
claimed and xxx for a refund or to contest the claim in any permissible
manner, and the Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to
pay such claim and xxx for a refund, the Company shall advance the amount of
such payment to the Executive, on an interest-free basis and shall indemnify
and hold the Executive harmless, on an after-tax basis, from any Excise Tax
or income tax (including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed income with
respect to such advance; and further provided that any extension of the
statute of limitations relating to payment of taxes for the taxable year of
the Executive with respect to which such contested amount is claimed to be
due is limited solely to such contested amount. Furthermore, the Company's
control of the contest shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder and the Executive shall be
entitled to settle or contest, as the case may be, any other issue raised by
the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 9(c), the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject
to the Company's complying with the requirements of Section 9(c)) promptly
pay to the Company the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto). If, after the
receipt by the Executive of an amount advanced by the Company pursuant to
Section 9(c), a determination is made that the Executive shall not be
entitled to any refund with respect to such claim and the Company does not
notify the Executive in writing of its intent to contest such denial of
refund prior to the expiration of thirty days after such determination, then
such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount
of Gross-Up Payment required to be paid.
10. Confidential Information. In addition to, and not in lieu of, any
other agreement the Executive may have with the Company with respect to
similar subject matters, including but not limited to the Inventions and
Non-Disclosure Agreement and Covenant Not to Compete, the Executive shall
hold in a fiduciary capacity for the benefit of the Company all secret or
confidential information, knowledge or data relating to the Company or any
of its affiliated companies, and their respective businesses, which shall
have been obtained by the Executive during the Executive's employment by the
Company or any of its affiliated companies and which shall not be or become
public knowledge (other than by acts by the Executive or representatives of
the Executive in violation of this Agreement). After termination of the
Executive's employment with the Company, the Executive shall not, without
the prior written consent of the Company or as may otherwise be required by
law or legal process, communicate or divulge any such information, knowledge
or data to anyone other than the Company and those designated by it. In no
event shall an asserted violation of the provisions of this Section 10
constitute a basis for deferring or withholding any amounts otherwise
payable to the Executive under this Agreement.
11. Arbitration. All claims and controversies that may arise under
this Agreement shall be submitted to, and determined through, binding
arbitration in the Denver, Colorado metropolitan area in accordance with the
employment arbitration procedures of the American Arbitration Association
("AAA") existing at the time the arbitration is conducted, before a single
arbitrator chosen in accordance with AAA procedures. The decision of the
arbitrator shall be enforceable as a court judgment.
12. Successors.
(a) This Agreement is personal to the Executive and without the
prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean
the Company as herein before defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
13. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Colorado, without reference to principles of
conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
If to the Company:
Coors Brewing Company
000 00xx Xx.
X.X. Xxx 0000, XX000
Xxxxxx, XX 00000-0000
Attention: General Counsel
or to such other address as either party shall have furnished to the other
in writing in accordance herewith. Notice and communications shall be
effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Company may withhold from any amounts payable under
this Agreement such Federal, state, local or foreign taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good
Reason pursuant to Section 5(c)(i) through (v) of this Agreement, shall not
be deemed to be a waiver of such provision or right or any other provision
or right of this Agreement.
(f) The Executive and the Company acknowledge that, except as
may otherwise be provided under any other written agreement between the
Executive and the Company, the employment of the Executive by the Company is
"at will" and, subject to Section 1(a) hereof, prior to the Effective Date,
the Executive's employment and/or this Agreement may be terminated by either
the Executive or the Company at any time prior to the Effective Date, in
which case the Executive shall have no further rights under this Agreement.
From and after the Effective Date this Agreement shall supersede any other
agreement between the parties with respect to the subject matter hereof,
except to the extent provided herein.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from its Board of Directors, the Company
has caused these presents to be executed in its name on its behalf, all as
of the day and year first above written.
________________________________________
[Executive]
XXXXXX XXXXX COMPANY
By:_____________________________________
COORS BREWING COMPANY
By:_____________________________________
