Exhibit 99.3
CLASS A COMMON STOCK
MOLSON COORS BREWING COMPANY
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 Wilmington 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"), and ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. Trust dated
September 12, 1969 (for itself, the "Coors Trust", and as the "Coors Beneficiary
Representative"), and each other holder of Company 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 ▇▇▇▇▇▇ ▇▇▇▇▇ 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 4280661 Canada Inc., a corporation incorporated
under the Canada Business Corporations Act and a wholly owned subsidiary of
Pentland ("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 Subco is depositing, on the date hereof, all
of the Class A Exchangeable Shares held by it into a voting trust pursuant to a
voting trust agreement (the "Canadian Voting Trust Agreement") dated the date
hereof among The Royal Trust Company, Pentland, Subco and the Coors Trust,
governed by the laws of the Province of Ontario and having substantially similar
terms to the terms hereof with respect to the Class A Exchangeable Shares;
WHEREAS, this Agreement is the Delaware Voting Trust Agreement
contemplated by the Canadian Voting Trust Agreement;
2
WHEREAS, Pentland 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 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 the Coors Trust is depositing, on the date
hereof, all of the Company 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 within the meaning of Section 218(a) of the General Corporation Law
of the State of Delaware.
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) "Beneficiaries" means Pentland and the Coors Trust, whether or not
they have a Beneficiary Account, 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;
(c) "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);
(d) "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;
(e) "Business Day" means any day on which commercial banks are generally
open for business in Wilmington, Delaware, Montreal, Quebec,
Toronto, Ontario and
3
Denver, Colorado, other than a Saturday, a Sunday or a day observed
as a holiday in Wilmington, Delaware, Montreal, Quebec, Toronto,
Ontario or Denver, Colorado;
(f) "Certificate" has the meaning assigned such term in Section 2.02;
(g) "Company" has the meaning assigned such term in the Recitals;
(h) "Company Shares" has the meaning assigned such term in the Recitals;
(i) "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;
(j) "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
(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
4
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);
(k) "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(j)(i) in the event that the Coors Beneficiary Representative
shall not have delivered the notice contemplated in Section
1.01(j)(i)(B), (ii) the Business Day next following the final order
or judgment contemplated in Section 1.01(j)(ii) and (iii) the
Business Day on which the Coors Beneficiary Representative delivers
the notice described in the last sentence of Section 3.02;
(l) "Coors Family Group" means:
(i) individuals who are descendents of the late ▇▇▇▇▇▇ ▇▇▇▇▇,
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;
(m) "Coors Family Group Beneficiaries" means the Coors Trust and any
other members of the Coors Family Group who become Beneficiaries
hereunder;
(n) "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 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
5
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));
(o) "Encumbrance" means a pledge, mortgage, hypothecation or other
encumbrance;
(p) "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 any court of competent jurisdiction and the parties shall be
bound by such order or judgment);
6
(q) "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(p)(i) in the event that the Molson Beneficiary
Representative shall not have delivered the notice contemplated in
Section 1.01(p)(i)(B), (ii) the Business Day next following the
final order or judgment contemplated in Section 1.01(p)(ii) and
(iii) the Business Day on which the Molson Beneficiary
Representative delivers the notice described in the last sentence of
Section 3.03;
(r) "Molson Family Group" means:
(i) individuals who are descendents of the late ▇▇▇▇▇▇ H.P. Molson
("▇▇▇▇▇▇ ▇▇▇▇▇▇") 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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 501(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;
(s) "Molson Family Group Beneficiaries" means Pentland and any other
members of the Molson Family Group who become Beneficiaries
hereunder;
(t) "Permitted Encumbrance" means an Encumbrance over Trust Shares
created by a Beneficiary for which each of the following conditions
are satisfied:
(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;
7
(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 Common Stock (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);
(u) "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;
(v) "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 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 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 compliance with the foregoing conditions (including
but not limited to a legal opinion which confirms compliance with the
foregoing conditions);
(w) "Person" includes any individual, firm, partnership, joint venture,
venture capital fund, limited liability company, unlimited liability
company, association, trust,
8
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;
(x) "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;
(y) "Trust Shares" means (i) all Company Shares originally delivered to
the Trustee on behalf of Pentland and the Coors Trust pursuant to
Section 2.01(a), (ii) any additional Company 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 Company 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;
(z) "Voting Securities" means the following:
(i) shares or other securities of the Company 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 (excluding, for the avoidance of doubt, the
Class B Common Stock); and
(ii) securities convertible or exchangeable into, or permitting the
holders thereof to acquire, Company Shares or securities described in
clause (i) above (other than, in each case for the avoidance of doubt,
Class A Exchangeable Shares, 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
9
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 Company Shares.
(a) Concurrently with the execution of this Agreement, each of the Coors
Trust and Pentland has delivered to the Trustee certificates for all Company
Shares owned by it. Exhibit A hereto sets forth, as of the date hereof the name
and address of, and the number of Company Shares held by the Coors Trust and
Pentland. All such Company 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
Company Shares or Voting Securities, such additional Company Shares or Voting
Securities shall automatically immediately become subject to this Agreement and
all provisions hereof or (ii) any "Beneficiary" under the Canadian Voting Trust
Agreement purchases or otherwise obtains any Company Shares or Voting Securities
(including as described in Section 3.08 thereof), the Trustee shall accept the
deposit of such Company 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 Company 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 Canadian
Voting Trust Agreement, any Beneficiary purchases or otherwise obtains any Class
A Exchangeable Shares or any other securities of Exchangeco or any successor
that would constitute "Voting Securities" (as defined under the Canadian Voting
Trust Agreement), such Beneficiary shall take such actions as are necessary to
become a party to the Canadian Voting Trust Agreement and shall deposit all such
shares and securities in trust pursuant to Section 2.01(b) thereof.
(d) Promptly upon receipt from time to time of stock certificates
representing Trust Shares, the Trustee shall use reasonable efforts to cause the
certificates to be surrendered to the Company 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 the Company 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 in any Beneficiary Account, including
the Beneficiary Account for the Coors Trust and Pentland 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
10
Agreement. Exclusive economic and beneficial ownership of each Beneficiary's
Trust Shares in such Beneficiary's Beneficiary Account shall remain with such
Beneficiary.
(f) The Trustee warrants and undertakes that it will hold the Trust Shares
delivered by any Beneficiary in a separate account (each a "Beneficiary
Account") from Trust Shares held on behalf of any other Beneficiary from time to
time. Each such separate account shall be held by the Trustee as part of a
single trust. 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 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.
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 Company
Shares held by the Trustee.
ARTICLE III.
TRUSTEE'S RIGHTS AS A STOCKHOLDER OF THE COMPANY
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
11
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 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 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
12
from time to time who are Coors Beneficiary Representative and Molson
Beneficiary Representative, respectively, under the Canadian 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 stockholder 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 ▇▇▇▇ 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 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 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
13
the Trust Shares, including the right to vote the Trust Shares in person or by
its nominee or proxy or by written consent and to take part in and consent to
any corporate or stockholders' 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). The Trustee agrees to
vote the Trust Shares as provided in this Section 3.04 and to fulfill all of its
other covenants, rights and obligations hereunder, notwithstanding that Pentland
or the Coors Trust may not hold, at any future time, any Trust Shares for which
a Beneficiary Account has been established or any economic or beneficial
interest in any Trust Shares.
(b) The Trustee shall vote all Trust Shares and take such other actions as
are necessary in order to exercise the voting rights attached to the Trust
Shares 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
(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
14
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 Company Shares or other Voting
Securities are entitled to exercise their voting rights, whether by proxy,
consent or otherwise (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), 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 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.
(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
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
Canadian 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.
(f) Each of the Continuing Representatives hereby undertakes, with respect
to all matters concerning voting under this Agreement and the Canadian Voting
Trust Agreement, to give similar instructions concerning such voting to the
Trustee hereunder and to the trustee under the Canadian Voting Trust Agreement,
such that there shall be no inconsistency between the instructions given by such
Continuing Representative to such trustees.
15
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 Company 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 stock
certificates for such Company Shares to the Company 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 Article Sixth of the Company's Certificate of Incorporation to
effect (A) the conversion of such Company Shares pursuant to the Company's
Certificate of Incorporation into shares of Class B Common Stock and (B)
delivery of a stock certificate for such shares of Class B Common Stock to
the Persons and places designated in the notice, which shares of Class B
Common Stock 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.
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:
16
"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 Wilmington Trust Company, as Trustee, Pentland Securities (1981)
Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. Trust dated September 12, 1969 and each other
Beneficiary named therein, 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, which agreement is on file at the registered Delaware office of
the Company."
Section 3.08. Conversion of Company Shares. In the event that 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 Company Shares in respect of which such Beneficiary has a
Beneficiary Account be converted into shares of Class B Common Stock of the
Company in accordance with Article Sixth of the Company's Certificate of
Incorporation, the Trustee shall use reasonable efforts to take all actions
reasonably necessary (including, but not limited to those required by the
Company's Certificate of Incorporation), to effect such conversion.
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 Company Shares into shares of Class B Common Stock
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 Company Shares
remaining subject to this Agreement, together with any Class A Exchangeable
Shares (and associated rights) subject to the Canadian Voting Trust Agreement,
would constitute in the aggregate at least 50.1% of the aggregate voting power
of all then-outstanding Company Shares and Class A Exchangeable Shares (and
associated rights) or (b) at any time prior to such conversion, the aggregate
number of Company Shares and Class A Exchangeable Shares of the Coors Family
Group Beneficiaries deposited under this Agreement and/or the Canadian 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 Common Stock or Class
B Exchangeable Shares, as applicable) of Company Shares or Class A Exchangeable
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 its duty
to withhold withholding tax set forth in Section 4.07, shall remit the same to
the Beneficiary with respect to whom such Beneficiary Account has been
established and maintained. The Trustee may arrange with the Company for the
direct payment by the Company, as applicable, to the Beneficiaries of any such
dividends.
Section 4.02. Non-Stock 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 Company Shares or Voting
Securities) upon the Trust Shares, the Trustee
17
shall, within two Business Days, deposit the same in the relevant Beneficiary
Account with respect to such Trust Shares and, subject to its duty to withhold
withholding tax set forth in Section 4.07, shall remit the same to the
Beneficiary with respect to whom such Beneficiary Account has been established
and maintained. The Trustee may arrange with the Company for the direct payment
by the Company, 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 Company 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 Company Shares or other 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. The
Trustee shall record such additional Company Shares or other Voting Securities
in the Beneficiaries' Beneficiary Accounts and issue Certificates in respect of
such Company Shares or other Voting Securities to the applicable Beneficiaries.
Section 4.04. Recapitalization or Reclassification of Stock. In the event
of a recapitalization of the Company 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 the Company. In the event
of the liquidation, dissolution or winding up of the Company or any other
distribution of the assets of the Company among its stockholders 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
distribute or cause to be distributed the same, subject to its duty to withhold
withholding tax set forth in Section 4.07, to the Beneficiary of each respective
Beneficiary Account within two Business Days of receipt thereof.
Section 4.06. Distributions Upon Reorganization of the Company. In the
event the Company 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
18
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, subject to its duty to withhold
withholding tax set forth in Section 4.07, 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,
subject to its duty to withhold withholding tax set forth in Section 4.07, 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. The Beneficiaries also agree to execute any amendments
to this Agreement, if any are necessary, to perpetuate this Trust under the
reorganized corporation.
Section 4.07. Withholding Tax. Notwithstanding anything in this Article IV
to the contrary, upon the execution of this Agreement and thereafter, each
Beneficiary that is entitled to a full or partial exemption from withholding tax
applicable to any distribution received with respect to such Beneficiary's
interest in any of the Trust Shares, Company Shares or other Voting Securities
shall be obligated to provide, and to update upon a change in information
provided or upon request of the Trustee, a fully executed IRS Form ▇-▇▇▇▇,
▇-▇▇▇▇, W-8EXP or W-9 or such other documentation upon which a withholding agent
is entitled to rely under the Code and the Regulations promulgated thereunder to
establish such Beneficiary's exemption from withholding. The parties hereby
acknowledge that the Trustee will withhold and submit to the applicable taxing
authority such withholding tax as may be applicable as a result of a
Beneficiary's providing or failing to provide the documentation described in the
preceding sentence.
ARTICLE V.
RIGHTS TO SUBSCRIBE
Section 5.01. Subscription Procedures. In case any securities of the
Company shall be offered for subscription to the beneficial holders of Trust
Shares 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 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 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.
19
ARTICLE VI.
THE TRUSTEE
Section 6.01. Trustee's Right to Delegate. The Trustee may vote 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 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. Each
Coors Family Group Beneficiary agrees to reimburse its pro rata portion (based
on the number of Trust Shares held by all Coors Family Group Beneficiaries) of
20
any compensation or other amount paid hereunder or under the Canadian Voting
Trust Agreement by the Coors Beneficiary Representative.
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 or any
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 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 the law firm of Morris, James, Hitchens &
▇▇▇▇▇▇▇▇ LLP or other 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)
21
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 the Company
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 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,
22
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.
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, (c) the date on which 90 consecutive days have elapsed during which
no Trust Shares were governed by this Agreement and (d) one hundred ten (110)
years following the earliest execution of this Agreement by any party hereto. If
this Agreement has not been terminated one hundred nine (109) years following
the earliest execution of this Agreement by any party hereto, then each
Beneficiary hereunder agrees to use its reasonable best efforts to enter into a
new contract on substantially identical terms to this Agreement with a trustee
reasonably acceptable to each Beneficiary.
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 stock 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 stock
certificates or instruments of transfer. As a further condition to delivery of
such stock certificates or instruments of transfer, the Beneficiaries shall pay
the Trustee any amounts due and payable pursuant to Sections 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.
23
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 Company Shares to a
Third Party Transferee provided that prior to such Transfer such Company Shares
are converted as permitted pursuant to Article Sixth of the Company's
Certificate of Incorporation so that the Third Party Transferee receives only
shares of Class B Common Stock. 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 the shares of Class B Common
Stock 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 Company Shares to Class B
Common Stock if, giving effect to such Transfer or the requisite
24
conversion, the Company Shares remaining subject to this Agreement, together
with any Class A Exchangeable Shares (and associated rights) subject to the
Canadian 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 Company Shares and Class A
Exchangeable Shares of the Coors Family Group Beneficiaries deposited under this
Agreement and/or the Canadian 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 Common Stock or Class B Exchangeable Shares, as
applicable) of Company Shares or Class A Exchangeable 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.
25
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 Stock Certificates and Other Assets. The stock
certificates received by the Trustee from the Company 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 the City of Wilmington,
Delaware (which may be Wilmington Trust Company). For the avoidance of doubt,
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. Executed counterparts of all amendments shall be
filed at the registered office of the Company in the City of Wilmington,
Delaware.
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 Canadian 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.
26
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.
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 State of Delaware. The validity and
administration of the trust created hereunder shall be governed by the laws of
the State of Delaware.
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
Court of Chancery of the State of Delaware, 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
Court of Chancery of the State of Delaware 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 Court of Chancery of the State of Delaware
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 Corporation Service
Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇, 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
27
every respect effective service of process upon such Beneficiary in any legal
action or proceeding.
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.
Section 9.14. Right of Examination. An executed counterpart of this
Agreement shall be deposited with the Company at its registered office in the
City of Wilmington, Delaware. This Agreement shall be subject to the right of
examination by a stockholder of the Company, in person or by agent or attorney,
as provided by law, and shall be subject to examination by any holder of a
beneficial interest in the voting trust created by this Agreement, either in
person or by agent or attorney, at any reasonable time for any proper purpose.
[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.
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. Trust dated
September 12, 1969
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Trustee
Pentland Securities (1981) Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Wilmington Trust Company, as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
EXHIBIT A
BENEFICIARIES
--------------------------------------------------------------------------------
Name/Address Number of Company Shares
--------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. Trust 1,260,000
dated September 12, ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Pentland Securities (1981) Inc. ▇▇▇
▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: The President
with a copy to:
Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Me ▇▇▇▇ ▇▇▇▇▇▇
Me ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
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 Common
Stock Molson Coors Brewing Company Voting Trust
Agreement dated as of February 9, 2005 between
Wilmington Trust Company, as Trustee, Pentland
Securities (1981) Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. Trust dated
September 12, 1969 and each other Beneficiary named
therein, 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, which
agreement is on file at the registered Delaware office
of the Company.
VOTING TRUST CERTIFICATE
No. __________ __________ Shares
MOLSON COORS BREWING COMPANY
(Incorporated under the laws of the State of Delaware)
VOTING TRUST CERTIFICATE IN RESPECT OF CLASS A COMMON STOCK
THIS CERTIFIES that there have been deposited with the undersigned as
Trustee under the Class A Common Stock Molson Coors Brewing Company 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
Common Stock, par value of $0.01 (voting), of Molson Coors Brewing Company, a
Delaware corporation (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 said shares in
person or by its
2
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, 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), 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__.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Trustee
By: ____________________________________
Name:
Title:
EXHIBIT C
ADDRESS OF THE TRUSTEE
AND THE CANADIAN VOTING TRUST AGREEMENT TRUSTEE
TRUSTEE:
Wilmington Trust Company
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
CANADIAN VOTING TRUST AGREEMENT TRUSTEE:
The Royal Trust Company
▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President,
Private Trust Services
With a copy to:
The Royal Trust Company
1 Place Ville ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇-Private Trust Services
EXHIBIT D
FORM OF VOTING INSTRUCTIONS
Wilmington Trust Company,
as trustee under the voting trust agreement described below
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Ladies and Gentlemen:
Reference is made to the Voting Trust Agreement (the "Agreement") made and
entered into as of February __, 2005, by and among Wilmington 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"), and ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. 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.]
[▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. Trust dated September
12, 1969]
cc: General Counsel, Molson Coors Brewing Company
Canadian Voting Trustee
EXHIBIT E
NOTICE TO TORONTO STOCK EXCHANGE
To: Toronto Stock Exchange
Montreal ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇
Re: Class A Common Stock Molson Coors Brewing Company Voting Trust
Agreement
The undersigned hereby certifies that, pursuant to the Class A Common Stock
Molson Coors Brewing Company Voting Trust Agreement dated February __, 2005
among the undersigned, Pentland Securities (1981) Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Trust dated September 12, 1969 and Wilmington Trust Company (the "Voting Trust
Agreement"), the following shares of Molson Coors Brewing Company Class A common
stock represented by the certificates described below have been deposited on
February __, 2005, in trust with the undersigned, acting as trustee under the
Voting Trust Agreement:
================================================================================
Certificate No Number of Class A Beneficiary
common shares
================================================================================
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
DATED February __, 2005,
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Trustee
By: ____________________________________
Name:
Title: