Exhibit 10.21


 


 


COMMERCIAL AGREEMENT


 


(Packaging Purchasing)


 


 


By and Between


 


 


OWENS-BROCKWAY GLASS CONTAINER INC.


 


 


and


 


 


COORS BREWING COMPANY


 


 


Effective Date: 
August 1, 2003


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE 1.  TERM

  
	
   

  	
   

  
	
  ARTICLE 2.  SUPPLIER PRODUCT OBLIGATIONS

  
	
   

  	
  2.1

  	
  Product
  Specifications.

  
	
   

  	
  2.2

  	
  New Products.

  
	
   

  	
  2.3

  	
  Product
  Delivery and Sourcing.

  
	
   

  	
  2.4

  	
  Alternate Sourcing.

  
	
   

  	
   

  
	
  ARTICLE 3.  COORS PRODUCT OBLIGATIONS

  
	
   

  	
  3.1

  	
  Product Volume.

  
	
   

  	
  3.2

  	
  COORS Volume
  Authorization.

  
	
   

  	
  3.3

  	
  Estimates.

  
	
   

  	
  3.4

  	
  Product Inventory.

  
	
   

  	
  3.5

  	
  [*****].

  
	
   

  	
   

  
	
  ARTICLE 4.  REPRESENTATIONS, WARRANTIES AND COVENANTS

  
	
   

  	
   

  
	
  ARTICLE 5.  QUALITY AND SERVICE

  
	
   

  	
   

  
	
  ARTICLE 6.  CONSIDERATION

  
	
   

  	
  6.1

  	
  Contract Price.

  
	
   

  	
  6.2

  	
  Payment Terms and
  Invoices.

  
	
   

  	
  6.3

  	
  EDI Systems.

  
	
   

  	
   

  
	
  ARTICLE 7.  [*****]

  
	
   

  	
   

  
	
  ARTICLE 8.  STATUS OF PARTIES

  
	
   

  	
  8.1

  	
  Independent
  Contractor.

  
	
   

  	
  8.2

  	
  No
  Direction or Control.

  
	
   

  	
  8.3

  	
  [*****].

  
	
   

  	
  8.4

  	
  Subcontractor
  Approval.

  
	
   

  	
  8.5

  	
  Agreement
  Binding on Subcontractors.

  
	
   

  	
   

  
	
  ARTICLE 9.  COMPLIANCE

  
	
   

  	
  9.1

  	
  Government
  Regulations.

  
	
   

  	
  9.2

  	
  General
  Laws and Permits.

  
	
   

  	
  9.3

  	
  Diverse
  Suppliers (Minority or Women-Owned Business Enterprises).

  
	
   

  	
  9.4

  	
  WHAM Training.

  
	
   

  	
   

  
	
  ARTICLE
  10.  INTELLECTUAL PROPERTY

  
	
   

  	
  10.1

  	
  Product Artwork.

  
	
   

  	
  10.2

  	
  COORS Property.

  
	
   

  	
  10.3

  	
  SUPPLIER Property.

  
	
   

  	
  10.4

  	
  Ownership.

  



 

















 


	
   

  	
  10.5

  	
  Return
  of Documents and Things.

  
	
   

  	
  10.6

  	
  License.

  
	
   

  	
  10.7

  	
  Overruns and
  Second-Quality Goods.

  
	
   

  	
  10.8

  	
  Definitions.

  
	
   

  	
  10.9

  	
  Covenant of
  Confidentiality.

  
	
   

  	
  10.10

  	
  Exclusions.

  
	
   

  	
  10.11

  	
  Breach of
  Confidentiality.

  
	
   

  	
   

  
	
  ARTICLE
  11.  INSURANCE

  
	
   

  	
   

  
	
  ARTICLE
  12.  BREACH, FORCE MAJEURE, REMEDIES
  AND TERMINATION

  
	
   

  	
  12.1

  	
  Breach.

  
	
   

  	
  12.2

  	
  Force Majeure.

  
	
   

  	
  12.3

  	
  Remedies.

  
	
   

  	
  12.4

  	
  [*****].

  
	
   

  	
   

  
	
  ARTICLE
  13.  DISPUTE RESOLUTION PROCEDURES

  
	
   

  	
  13.1

  	
  Negotiation.

  
	
   

  	
  13.2

  	
  Mediation.

  
	
   

  	
  13.3

  	
  Submission to
  Arbitration.

  
	
   

  	
  13.4

  	
  The Federal
  Arbitration Act Applies.

  
	
   

  	
  13.5

  	
  Selection of
  Arbitrator(s).

  
	
   

  	
  13.6

  	
  Discovery in
  Arbitration.

  
	
   

  	
  13.7

  	
  The
  Arbitration Award.

  
	
   

  	
  13.8

  	
  [*****].

  
	
   

  	
  13.9

  	
  Confidentiality.

  
	
   

  	
   

  
	
  ARTICLE
  14.  NOTICES

  
	
   

  	
   

  
	
  ARTICLE
  15.  MISCELLANEOUS

  
	
   

  	
  15.1

  	
  Authority.

  
	
   

  	
  15.2

  	
  Survival.

  
	
   

  	
  15.3

  	
  Enforceability.

  
	
   

  	
  15.4

  	
  Amendments.

  
	
   

  	
  15.5

  	
  Assignment.

  
	
   

  	
  15.6

  	
  Severability.

  
	
   

  	
  15.7

  	
  Complete
  Agreement.

  
	
   

  	
  15.8

  	
  Counterparts.

  
	
   

  	
  15.9

  	
  Headings.

  
	
   

  	
  15.10

  	
  Jurisdiction
  And Venue; Choice of Law.

  



 


ii

















 


COMMERCIAL AGREEMENT


This Commercial Agreement (“Agreement”) is made effective as of August
1, 2003, (the “Effective Date”) by and between OWENS-BROCKWAY GLASS CONTAINER
INC., a Delaware corporation (“SUPPLIER”), and COORS BREWING COMPANY, a
Colorado corporation (“COORS”); COORS and SUPPLIER may sometimes be referred to
individually as a “Party” or collectively as the “Parties”.


 


NOW, THEREFORE, in consideration of the premises, the mutual promises,
and the representations, warranties and covenants herein contained, the
sufficiency of which is hereby mutually acknowledged, the Parties agree as
follows:


 


ARTICLE
1.


TERM


 


This Agreement shall be effective as of the Effective Date and, unless
earlier terminated as provided herein, shall remain in effect for a period of [*****] commencing as of the Effective Date
(“Term”).


 


ARTICLE
2.


SUPPLIER
PRODUCT OBLIGATIONS


 


2.1           Product
Specifications.  SUPPLIER agrees to
sell to COORS and COORS agrees to purchase from SUPPLIER, the products
described on Exhibit A attached hereto (the “Products”) conforming to the
specifications described on Exhibit B attached hereto (the
“Specifications”).  Products include
those glass beverage containers that substitute for or replace the Products
described on Exhibit A.  For
Specification changes requested by COORS for Products, COORS and SUPPLIER shall
agree on the implementation of such changes, including [*****], and each Parties’ responsibility [*****] to the Specification change.  Subject to the limitations set forth in
Section 3.5, in the event of a Specification change or modification, COORS
shall purchase and pay for, at the then-effective Contract Price, all the
Products manufactured to the previous Specification.


 


2.2           New Products.  During the Term, SUPPLIER shall supply  [*****].  If the Parties agree to add any New
Products, Exhibits
A, B and C shall be amended in writing accordingly.


 


2.3           Product Delivery
and Sourcing.  SUPPLIER agrees to
deliver the Products to COORS at the designated destinations identified on Exhibit A.  [*****].  SUPPLIER shall [*****]


 


3

















 


it requests Products to be delivered to a destination different than as
designated on Exhibit A.  [*****]


 


2.4           Alternate
Sourcing.  [*****]


 


[*****]


 


[*****]


 


ARTICLE
3.

COORS PRODUCT OBLIGATIONS


 


3.1           Product Volume.   [*****]


 


4

















 


3.2           COORS Volume
Authorization.  COORS authorizes
SUPPLIER to maintain up to a [*****]
inventory of Products to meet COORS’ forecasts (“Authorized Inventory
Levels”).   [*****]


 


3.3           Estimates.  On approximately [*****], COORS shall provide SUPPLIER with COORS’ best
estimate of COORS’ anticipated Volume Requirements for Products during the
immediately [*****].  COORS and SUPPLIER acknowledge that from
time to time considerable variation will occur between the estimated
requirements and final orders (“Substantial Variation”).  [*****]


 


3.4           Product Inventory.  SUPPLIER is expected to maintain a
sufficient inventory of Products to meet COORS’ Volume Requirements [*****] that COORS will provide to SUPPLIER
[*****]


 


3.5           [*****]


 


5

















 


[*****]


 


ARTICLE
4.

REPRESENTATIONS, WARRANTIES AND COVENANTS


 


SUPPLIER hereby agrees, represents and warrants to COORS that:


 


4.1           SUPPLIER
shall furnish Products that:  (a) are
free from defects in workmanship and materials,(b) conform to the
Specifications, (c) conform in quality 
and (d) will be fit for the purpose for which they are intended (i.e.
that they shall be commercially acceptable containers for COORS’ products);


 


4.2           SUPPLIER
shall convey good title to the Products and that the Products shall be
delivered free of any lien or encumbrance;


 


4.3           The
Products delivered hereunder shall be free of any chemical or residues of
chemicals in excess of the permissible tolerance, if any, under any law or
regulation of the Environmental Protection Agency (EPA), the Federal Food &
Drug Administration (FDA), the U.S. Department of Agriculture (USDA), or any
other local, state or federal governmental body having jurisdiction over
packaging materials for foods and beverages for human consumption and that the
Products delivered hereunder shall be free of all materials, substances or
chemicals for which no tolerances have been established or permitted; and


 


4.4           [*****]


 


ARTICLE
5.

QUALITY AND SERVICE


 


5.1           SUPPLIER
shall comply with the service and quality performance requirements as specified
on Exhibits
F and G attached hereto (“Service Requirements”) for SUPPLIER
performance ratings.    [*****]


 


5.2           If
SUPPLIER identifies Products that do not meet the requirements in Section 4.1
during its manufacturing process, SUPPLIER shall not ship such Products to
COORS,  [*****].


 


5.3           SUPPLIER
shall not deliver any Products that have been previously returned as not being
in conformance with Section 4.1. [*****]  COORS reserves the right to reject Products
if the Products fail to comply with Section 4.1.


 


6

















 


ARTICLE
6.

CONSIDERATION


 


6.1           Contract
Price.  COORS shall pay to SUPPLIER
a sum of money determined in accordance with the schedule attached hereto as Exhibit C
(the “Contract Price”).   [*****]


 


6.2           Payment Terms
and Invoices.  Payment terms shall
be as provided for in this paragraph.  [*****].


 


6.3           EDI Systems.  COORS and SUPPLIER may exchange standard
form documents for administrative and informational purposes through an
electronic data interchange (“EDI Systems”). 
SUPPLIER agrees to assist COORS in testing and implementing such EDI
Systems.   In the event either Party
changes its current EDI system, that Party shall purchase any necessary
interfaces in order to enable continued use of the existing EDI Systems.  Neither the conduct of the Parties nor the
terms of any written document implementing such EDI Systems shall supercede,
replace or amend any of the terms and conditions of this Agreement, except to
the extent any written document signed by both Parties specifically refers to
this Agreement and expressly amends this Agreement in accordance with Section
15.4.


 


6.4           [*****]


 


[*****]


 


[*****]


 


[*****]


 


[*****]


 


7

















 


[*****]


 


[*****]


 


[*****]


 


[*****]


 


[*****]


 


[*****]


 


[*****]


 


[*****]


 


8

















 


[*****]


 


(f)            [*****]


 


(g)           [*****]


 


ARTICLE
7.

[*****]


 


[*****]


 


[*****]


 


[*****]


 


9

















 


[*****]


 


ARTICLE
8.

STATUS OF PARTIES


 


8.1           Independent
Contractor.  The Parties expressly
understand and agree that SUPPLIER is acting as an independent contractor
unrelated to COORS or any of its subsidiaries or affiliated companies with
respect to this Agreement.  Nothing in
this Agreement is intended to create a relationship, express or implied, of
employer-employee, principal-agent or partnership between COORS and SUPPLIER or
between COORS and any individual employed to work under this Agreement by
SUPPLIER.


 


8.2           No Direction
or Control.  Neither Party shall
have direction or control over the other Party or the other Party’s employees
or the manner and method utilized by them in connection with this
Agreement.  SUPPLIER shall determine and
have sole discretion over the manner and methods utilized to provide Products
that comply with this Agreement. 
SUPPLIER shall be solely responsible for the direction, control and
supervision of its acts and the acts of its employees incident to the
performance of this Agreement.  Neither
Party shall have nor shall it represent itself as having any authority to make
contracts in the name of or on behalf of the other Party or to pledge the other
Party’s credit or to extend credit in the other Party’s name, or to obligate
the other Party in any way.


 


8.3           [*****]


 


8.4           Subcontractor
Approval.  COORS represents it has
chosen SUPPLIER to perform the obligations of this Agreement because of the
expertise of SUPPLIER and its employees. 
Any subcontractor or agent utilized by SUPPLIER for its manufacture of
Products under this Agreement must be specifically identified to COORS by
SUPPLIER and approved by COORS in writing prior to the provision of services or
goods by such subcontractor or agent. 
Products purchased by SUPPLIER from a subcontractor shall be included in
the SUPPLIER’s quarterly quality report required on Exhibits F and G.  Subcontractors shall also meet the
Specifications set forth on Exhibit B.


 


8.5           Agreement
Binding on Subcontractors.  Any
subcontractors approved by COORS hereunder shall agree to be bound by all
applicable provisions of this Agreement. 
SUPPLIER shall ensure that any approved agent, representative, assign or
subcontractor has executed an appropriate agreement prior to the commencement
of work.  Without limiting SUPPLIER’s
obligation to obtain an agreement with all approved subcontractors agreeing to
be bound by all applicable provisions of this Agreement, SUPPLIER shall provide
evidence that all subcontractors are carrying and maintaining insurance
policies with coverages, in the same manner and amounts as SUPPLIER is
obligated to obtain and furnish pursuant to Article 11 below.


 


ARTICLE
9.

COMPLIANCE


 


9.1           Government
Regulations.  Unless otherwise
exempt and to the extent applicable:


 


(a)           the
clauses required to be incorporated into government contracts under 41 C.F.R.
Sections 60-1.4, 60-250.5(a), 60-741.5(a), 48 C.F.R. 22.810, 48 C.F.R. 22.1308,
and 48 C.F.R. 22.1408  are
incorporated into this Agreement by reference.


 


10

















 


(b)           SUPPLIER
shall comply with all requirements of (i) Executive Order 11246, as
amended, and the regulations issued thereunder, (ii) the requirements of
Section 503 of the Rehabilitation Act of 1973 as amended, and the regulations
issued thereunder, (iii) the requirements of Section 503 of the Vietnam
Era Veterans’ Readjustment Assistance Act of 1972, as amended, 38 U.S.C. §
4212, Executive Order 11702, and all regulations thereunder, (iv) the
reporting requirements set forth in 61 C.F.R. 61-250.10 of the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12112; and (v) the requirements of 41
C.F.R. Chapter 60.


 


With respect to (v) above, SUPPLIER certifies that if it has fifty (50)
or more employees and if it anticipates sales to COORS in connection with
government contracts of $50,000 or greater, it will develop a written
affirmative action compliance program for each of its establishments consistent
with the rules and regulations by the Department of Labor at 41 C.F.R. Chapter
60.


 


9.2           General Laws
and Permits.  With respect to this
Agreement, SUPPLIER shall (i) comply with any and all applicable federal,
state, local or agency laws, regulations, rules, ordinances or other
directives, and (ii) obtain all releases, licenses, permits or other
authorizations required by any governmental body or authority.


 


9.3           Diverse
Suppliers (Minority or Women-Owned Business Enterprises).  When and if SUPPLIER uses suppliers,
including contractors and subcontractors, to supply goods and services for
COORS’ benefit under this Agreement, SUPPLIER [*****]
if such suppliers are both qualified and competitive.  At any time, COORS may [*****]
consistent with COORS’ diversity goals. 
A diverse supplier is a for-profit enterprise located in the United
States or its trust territories, which is controlled, operated and 51 percent
owned by a minority member or woman. 
Minority members are individuals who are African American, Hispanic
American, Native American, Asian-Pacific American and Asian-Indian American.  SUPPLIER will report [*****] on diverse suppliers on the form
attached hereto as Exhibit E each quarter, and report [*****] at the end of each calendar year.


 


9.4           WHAM Training.  Upon COORS’ request, SUPPLIER shall require
all employees of SUPPLIER and its subcontractors to attend a Workplace Hazard
and Awareness Management training seminar (“WHAM”) at such time and place
designated by COORS prior to working at or on any of COORS’ facilities or
property.


 


ARTICLE
10

INTELLECTUAL PROPERTY


 


10.1         Technology
Agreement.   [*****]  


 


 


10.2         Product Design. 
All drawings, sketches, photography, renderings, artwork, aesthetic
design and trade dress features (referred to collectively as “Product Design”)
disclosed by COORS shall be COORS Property. 
[*****]


 


11

















 


[*****]


 


10.3         COORS Property.  All materials, inventions, know-how,
trademarks, information, data, writings and other property in any form
whatsoever, which are provided to SUPPLIER by or on behalf of COORS or which
are used by SUPPLIER with respect to the performance of its obligations
hereunder, and which were owned by COORS prior to being provided to SUPPLIER
shall remain the property of COORS (“COORS Property”).  SUPPLIER shall have the right to use [*****] any COORS Property supplied to it
to the extent necessary to enable SUPPLIER to perform its obligations
hereunder, but SUPPLIER shall not acquire any other right, title or interest in
the COORS Property.


 


10.4         SUPPLIER
Property.  All materials,
inventions, know-how, trademarks, information, data, writings and other
property, in any form whatsoever, which are provided to COORS by or on behalf
of SUPPLIER, or which were owned by SUPPLIER prior to being provided to COORS,
shall remain the property of SUPPLIER (“SUPPLIER Property”).  Without limiting the generality of the
foregoing, any intellectual property relating to the method, apparatus, or
manufacturing process shall at all times remain SUPPLIER Property.  COORS shall acquire no right, title or
interest in SUPPLIER Property [*****].


 


12

















 


10.5         Return of
Documents and Things. 
All COORS Confidential Information and COORS Property, made available to
SUPPLIER by COORS or created or developed by SUPPLIER for COORS in accordance
with paragraph 10.2 shall be delivered to COORS upon written request by COORS
or upon the expiration or earlier termination of this Agreement.


 


10.6         No Reservation of Rights.  SUPPLIER represents that no rights are
reserved to SUPPLIER which would interfere with (a) COORS’ use of Products
purchased hereunder or (b) the use of Product Designs which are COORS Property
or COORS Confidential Information hereunder.


 


10.7         Overruns and
Second-Quality Goods.  Production
overruns, second-quality goods, and any Products rejected or returned by COORS
and bearing any of COORS trademarks, trade names, COORS Confidential
Information or COORS Property shall not be sold, distributed or used in any
manner by SUPPLIER without the prior written consent of COORS.


 


10.8         Definitions.  For purposes of this Article 10:


 


“COORS  Confidential
Information” includes trade secrets and other confidential and proprietary
information of COORS, including without limitation, COORS’ formulas,
techniques, and methods of manufacture and/or operation; product designs,
drawings, specifications, prototypes and samples and results of research and
development, including abandoned projects; intellectual property rights and
Product Design, (as set forth in this Article 10); computer programs in source
code or object code; costs of products; the prices it obtains or has obtained
or at which it sells or has sold its products or services, including discounts;
customer lists, including name, address, telephone number, customer contact,
sales history and product mix; compensation paid to employees and other terms
of employment; specialized equipment used in its processes; any other
information which SUPPLIER may become privy to by reason of its relationship
with COORS; any oral or written information from COORS involving the foregoing
or other written information marked “confidential”; the terms and conditions of
this Agreement, the cost of the Products, all information and work product
supplied by COORS to SUPPLIER, and the Contract Price.


 


“SUPPLIER Confidential Information” includes trade secrets and other
confidential and proprietary information of SUPPLIER, including without
limitation, SUPPLIER’s formulas, techniques, and methods of manufacture and/or
operation; products designs, drawings, specifications, prototypes and samples
and results of research and development, including abandoned projects;
intellectual property rights and Product Design, (except as set forth in this
Article 10);
computer programs in source code or object code; costs of products; the prices
it obtains or has obtained or at which it sells or has sold its products or
services, including discounts; customer lists, including name, address,
telephone number, customer contact, sales history and product mix; compensation
paid to employees and other terms of employment; specialized equipment used in
its processes; any other information which COORS may become privy to by reason
of its relationship with SUPPLIER; any oral or written information from
SUPPLIER involving the foregoing or other written information marked
“confidential”; the terms and conditions of this Agreement, the cost of the
Products, all information and work product supplied by SUPPLIER to COORS, all
information provided to SUPPLIER by COORS, and the Contract Price.


 


13

















 


(c)           “COORS”
in this Article 10 means COORS and its parents, subsidiaries, divisions,
affiliates, subcontractors and each of their employees, officers and agents.


 


(d)           “SUPPLIER”
in this Article 10 means SUPPLIER and its parents, subsidiaries, divisions,
affiliates, subcontractors and each of their employees, officers and agents.


 


10.9         Covenant of
Confidentiality.   Each Party, and
their respective employees, officers, directors, representatives, subsidiaries,
affiliates, assignees, subcontractors and any and all persons or business
entities acting under one or any of them (the “Disclosees”): (a) shall keep
confidential the terms of this Agreement, and (b) shall treat in confidence and
not disclose to others any COORS Confidential Information or SUPPLIER
Confidential Information (as defined here) of the other, which such Disclosees
may have furnished to them by the other Party hereto or by any third party, or
which such Disclosees may have accessed in the performance of this
Agreement.  The foregoing
confidentiality obligation shall not apply to the extent that any such
information is: (i) generally available to the public; (ii) acquired from a
third party rightfully having such information and under no obligation to not
disclose it to the Disclosees, (iii) already lawfully in the Disclosee’s
possession from a source other than the Disclosing Party; (iv) approved by
written authorization by the Disclosing Party for release by the Disclosee; or
(v) developed by a Disclosee independently of any Confidential Information disclosed
to such Party.  [*****].


 


10.10       Exclusions.  “Confidential Information” shall not include
(i) information that is in the public domain through no act, omission or fault
of SUPPLIER, (ii) Confidential Information that SUPPLIER is required to
disclose pursuant to a court order, provided that SUPPLIER informs COORS of the
court order and assists COORS in taking reasonable steps to seek a protective
order or other appropriate action, and (iii) Confidential Information that
SUPPLIER in good faith believes that SUPPLIER is required by law to disclose;
provided, SUPPLIER shall first notify COORS of such good faith belief in
writing and shall not make any such disclosure if COORS provides SUPPLIER with
an opinion prepared by independent counsel for COORS that disclosure is not
required by law and [*****].


 


14

















 


10.11       Breach of
Confidentiality.  SUPPLIER
acknowledges and agrees that its breach, or alleged breach, of this Article 10
relating to COORS Confidential Information may result in irreparable harm to
COORS.   [*****]  Therefore, in
the event of a breach, or alleged breach, of the provisions of this Article 10
by SUPPLIER, [*****]


 


ARTICLE
11.

INSURANCE


 


Prior to commencing any work in connection with the supply of Products
hereunder, SUPPLIER shall secure and shall maintain during the performance of
its obligations under this Agreement and throughout the Term, at least the
following types of insurance and minimum coverage:  (a) Commercial General Liability Insurance, including Contractual
Liability and Products/Completed Operations coverage with a combined single
limit for bodily injury, death, personal injury and property damage of
$2,000,000 per occurrence and $10,000,000 general aggregate; (b) Automobile Liability
Insurance with combined single limit for bodily injury and property damage of
$2,000,000 per accident; (c) Statutory Workmen’s Compensation and Occupational
Disease Disability Insurance as required by law; and (d) Employer’s Liability
Insurance with limits of $1,000,000 for bodily injury by accident, each
employee, $1,000,000 for bodily injury by disease, each employee, and
$1,000,000 aggregate liability for disease. 
SUPPLIER shall furnish to COORS evidence of such insurance coverage in
the form of Certificates of Insurance. 
COORS shall be named as an additional insured on SUPPLIER’s Commercial
General Liability and Automobile Liability insurance policies.  All Certificates of Insurance shall provide
that COORS shall be provided thirty (30) days written notice prior to any
change, substitution or cancellation of such policies of insurance.  All such insurance policies shall be
“occurrence” policies rather than “claims made” policies and shall be issued by
companies authorized to do business in Colorado and having a rating of A-VIII
or better by A.M. Best Company.  The
foregoing requirements as to the types and limits of insurance coverage to be
maintained by SUPPLIER, and any approval or waiver of said insurance by COORS
is not intended to and shall not in any way or manner limit or qualify the
liabilities and obligations of SUPPLIER pursuant to this Agreement.


 


The coverage provided by SUPPLIER 
hereunder shall be primary and noncontributing with any similar
insurance which may be maintained or provided by COORS and any certificate
furnished by SUPPLIER shall so state.


 


[*****]


 


ARTICLE
12.

BREACH, FORCE MAJEURE, REMEDIES AND TERMINATION


 


12.1         Breach.  The occurrence of any one or more of the
following events shall constitute an event of default of this Agreement and
shall constitute cause for termination by the other Party:


 


(a)           Failure
by SUPPLIER to observe or perform any of the material obligations, covenants,
conditions, representations or warranties required of SUPPLIER


 


15

















 


pursuant to this Agreement,
where such failure is not remedied within [*****]
after written notice thereof from COORS to SUPPLIER; or


 


(b)           Failure
by COORS to observe or perform any of the material obligations, covenants,
conditions, representations or warranties required of COORS pursuant to this
Agreement, where such failure is not remedied within  [*****]  after written notice thereof from SUPPLIER
to COORS; or


 


(c)           If
a Party is insolvent, the Party seeks protection from creditors, the Party
makes a general assignment for the benefit of creditors, or a person or entity
commences a proceeding against a Party under any bankruptcy or insolvency
statute seeking the adjudication of that Party as bankrupt or insolvent or the
appointment of a trustee or receiver for all or substantially all of the
Party’s assets, which proceeding remains undismissed or undischarged for  [*****]



 


12.2         Force Majeure.


 


(a)           The
Events.  Notwithstanding anything
contained in this Agreement to the contrary, each Party shall be relieved of
its obligation to perform any part of this Agreement to the extent its
performance is prevented or rendered impracticable by events beyond its
reasonable control, which events may include, without limitation, fire, storm,
flood, earthquake, and other Acts of God, and explosion, accident, acts of the
public enemy, riots and other civil disturbances, sabotage, court injunctions
(other than any injunction imposed as a result of the Party’s actual or alleged
breach of any agreement), transportation embargoes, shortages of
materials,  [*****]  acts,
regulations or other requirements of domestic or foreign federal, state,
county, municipal, or local governments or branches, subdivisions or agencies
thereof (“Force Majeure”), subject to the various limitations provided in this
Section 12.2.


 


(b)           Notice.  Each Party will promptly notify the other
Party of the occurrence of any Force Majeure which may affect its performance
of this Agreement and the anticipated length of the Force Majeure.   [*****]


 


(c)           Rights.


 


[*****]


 


16

















 


[*****]


 


[*****].


 


(d)           Termination
Because of Force Majeure.  [*****].


 


12.3         Remedies.


 


(a)           In
addition to any remedies available to COORS as provided herein, [*****] 4.1.  However, in the event there are delayed deliveries or Products
delivered not in conformance with Section 4.1, COORS shall be entitled to
exercise the following remedies.  Any
Products not delivered to COORS in accordance with this Agreement or not in
conformance with Section 4.1 may, at COORS’ sole option:  [*****].


 


(b)           Upon
the occurrence of an event of default by SUPPLIER, COORS shall have the
following remedies:


 


[*****]


 


[*****]


 


[*****]


 


17

















 


[*****]


 


(c)           In
addition to all of the remedies available under the Colorado Uniform Commercial
Code Sales, CRS § 4-2-101 et seq., and specifically CRS § 4-2-609, SUPPLIER
agrees to notify COORS if it is reasonably likely that SUPPLIER will be unable
to perform under this Agreement as required by Section 3.3.  [*****].


 


(d)           Upon the occurrence of
an event of default by COORS, SUPPLIER shall have the following remedies:


 


[*****]


 


[*****]


 


[*****]


 


12.4         [*****]


 


ARTICLE
13.

DISPUTE RESOLUTION PROCEDURES


 


13.1         Negotiation.  In the event of any controversy, claim,
question, disagreement or dispute (collectively the “Dispute”) arising out of
or relating to this Agreement, or the relationship between the Parties, the
Parties shall first use their best efforts to resolve the Dispute through
negotiation.  During negotiation, the
Parties shall, without delay, continue to perform their respective obligations
under this Agreement that are not related to the Dispute.  To invoke the dispute resolution procedures
set forth in this Article, the invoking Party shall


 


18

















 


give to the other Party written notice of its decision to
negotiate.  The notice shall include a
detailed description of the issues subject to the Dispute and a proposed
resolution thereof.  Within five (5)
business days after the written notice has been received by the other Party,
both Parties shall designate representatives to settle the Dispute.  The designated representatives shall be the
chief corporate executive officers (“CEO”) of their respective corporations or
other individuals holding comparable executive positions with decision-making
authority to settle the Dispute without further ratification by the
Parties.  The designated representatives
shall consult and negotiate with each other in good faith and attempt to reach
a just and equitable resolution satisfactory to both Parties within fifteen
(15) business days after the deadline for designation of the
representatives.  If those designated
representatives do not timely resolve the Dispute through negotiation, the
Dispute may be submitted to resolution pursuant to Section 13.2.


 


13.2         Mediation.  If the Dispute is submitted to mediation,
the Parties agree that the mediation will be administered by the American
Arbitration Association (“AAA”) under its Commercial Mediation Rules.  Mediation shall take place in Denver,
Colorado, and any fees and expenses shall be allocated and paid by the Parties
equally.  If the Parties do not resolve
the Dispute through mediation within thirty (30) days from the date the demand
is made, the Dispute shall be submitted to arbitration in accordance with
Section 13.3.


 


13.3         Submission to
Arbitration.  If the Parties do not
resolve the Dispute pursuant to Sections 13.1 or 13.2, the Parties hereby agree
to submit the Dispute to binding arbitration in Denver, Colorado, in accordance
with the AAA Commercial Arbitration Rules effective at the time of
submission.  This submission and
agreement to arbitrate shall be specifically enforceable in the U.S. District
Court for the District of Colorado or the District Court, Jefferson County,
State of Colorado.  In the event either
Party seeks relief in any court to enforce this Article, that Party shall be
entitled to its reasonable attorneys’ fees and costs incurred with such
enforcement.  Arbitration may proceed in
the absence of either Party if notice of the proceedings has been given to such
Party.


 


13.4         The Federal
Arbitration Act Applies.  This
Agreement involves interstate commerce and is subject to the Federal
Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16. 
The FAA preempts any inconsistent state or local law, rule or regulation
concerning arbitration.


 


13.5         Selection of
Arbitrator(s).  All Disputes shall
be resolved by a single arbitrator unless the amount in controversy is over
$500,000, in which case the Dispute shall be decided by a panel of three
arbitrators.  The Parties shall exchange
one or more lists of neutral arbitrators that they consider suitable and shall
mutually agree upon the arbitrator(s). 
If the Parties are unable to reach agreement on the selection of the
arbitrator(s) within fifteen (15) days from the date of the arbitration demand,
the AAA shall choose as many arbitrators as necessary.


 


13.6         Discovery in
Arbitration.  Each Party shall have
the same discovery rights as afforded under the Federal Rules of Civil
Procedure during arbitration.


 


13.7         The Arbitration
Award.  The arbitrator(s) shall
provide a binding decision with limited findings of fact, basic conclusions of
law and a break down of damages to the Parties in support of any award or
decision the arbitrator(s) make(s).  The
prevailing Party, as determined by the arbitrator(s), shall be entitled to all
fees and costs associated with the arbitration.  Costs and fees mean all reasonable pre-award expenses of the
arbitration, including any arbitrator fees, administrative fees, out-of-pocket
expenses such as copying, court costs, witness fees, and attorneys’ fees. The
Parties agree to abide by all awards rendered in such proceedings and such
awards shall be final and binding on all Parties.  All awards payable to COORS as a prevailing Party shall be paid
in full within thirty (30) days of the date of the award order.


 


19

















 


13.8         [*****]


 


13.9         Confidentiality.  All proceedings pursuant to this Article
shall be confidential.  Any admission or
statement made pursuant to this Article shall not be admissible or used in any
arbitration or judicial proceeding, except to enforce or vacate the arbitration
award pursuant to Section 13.7.


 


ARTICLE
14.

NOTICES


 


Any notice, demand, consent, election, offer, approval, request,
invoice backup documentation or other communication (collectively, a “notice”)
required under or provided pursuant to this Agreement must be in writing and
either delivered personally, sent by overnight delivery courier, or sent by
certified or registered mail, postage prepaid, return receipt requested to the
person designated below (the “Designated Representative”).  Notice shall be deemed given when received.


 


A notice must be addressed as follows:


 


	
  To SUPPLIER:

  	
   

  	
  Owens-Brockway Glass Container Inc.

  Attention:  General Manager

  North American Glass Container

  One SeaGate Toledo, OH  43666

  Telephone number: 419-247-5000

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Owens-Brockway Glass Container Inc.

  Attention:  Legal Department

  One SeaGate

  Toledo, OH  43666

  Telephone number: 419-247-5000

  
	
   

  	
   

  	
   

  
	
  To COORS:

  	
   

  	
  Coors Brewing Company

  Attention:   [*****]  

  17755 West 32nd Avenue, CE240

  Golden, CO  80401

  Telephone number: 303-277-6181

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Coors Brewing Company

  Attention:  Assistant General Counsel,
  Operations

  311 Tenth Street, NH335

  Golden, CO  80401

  Telephone number: 303-277-3002

  



 


20

















 


ARTICLE
15.

MISCELLANEOUS


 


15.1         Authority.  Each Party warrants that it has the full
authority and power to enter into and perform under this Agreement and to make
all representations, warranties and grants as set forth herein.


 


15.2         Survival.  All covenants, indemnities, guarantees,
representations and warranties by a Party arising prior to or upon the
expiration or termination of this Agreement (whether by completion or earlier
termination) shall survive such expiration.


 


15.3         Enforceability.  Either Party’s failure in any one or more
instances to insist upon strict performance of any of the terms and conditions
of this Agreement or to exercise any right herein conferred shall not be
construed as a waiver or relinquishment of that right or of that Party’s right
to assert or rely upon the terms and conditions of this Agreement.  Any express waiver of a term of this
Agreement shall not be binding and effective unless made in writing and
properly executed by the waiving Party.


 


15.4         Amendments.  This Agreement, including Exhibits, may not
be amended except in writing properly executed by both Parties.  Except as specifically amended, this
Agreement shall remain in full force and effect as written.


 


15.5         Assignment.  SUPPLIER shall not have the right or power
to assign its rights or delegate its obligations hereunder without the express
written consent of COORS.  Any attempt
to do so without such consent shall be null and void and shall permit COORS the
right to cancel and terminate this Agreement. 
In the event this Agreement is properly assigned, the provisions of this
Agreement shall bind and benefit the Parties hereto and their representatives,
successors and assigns.


 


15.6         Severability.  Any invalid or unenforceable provision shall
be deemed severed from this Agreement to the extent of its invalidity or
unenforceability, and the remainder of this Agreement shall remain in full
force and effect.


 


15.7         Complete
Agreement.  With respect to the
subject matter hereof, this Agreement, and all Exhibits thereto, constitute the
complete and exclusive agreement between the Parties.  It supersedes all prior written and oral statements, conditions,
obligations, representations or warranties. 
In the event of any inconsistency between this Agreement and any
Exhibit, the provisions of this Agreement shall take precedence.


 


15.8         Counterparts.  This Agreement may be executed
simultaneously in two or more counterparts which, when taken together, shall be
deemed an original and constitute one and the same document.  The signature of any Party to the
counterpart shall be deemed a signature to this Agreement, and may be appended
to, any other counterpart.  Facsimile
transmission of executed signature pages shall be sufficient to bind the
executing Party.


 


15.9         Headings.  The headings to the various sections and
paragraphs of this Agreement are solely for the convenience of the Parties, are
not part of this Agreement and shall not be used for the interpretation of the
validity of this Agreement or any provision hereof.


 


15.10       Jurisdiction
And Venue; Choice of Law.  This
Agreement shall be governed by the laws of the state of Colorado.  Any arbitration or enforcement of an
arbitration award shall be brought in Jefferson County District Court, State of
Colorado or the U.S. District Court for the District of Colorado, if
appropriate, and each Party submits to the exclusive jurisdiction of said
courts and waives the right to change venue. SUPPLIER further consents to the
exercise of personal jurisdiction by any such court with respect to any such proceeding.


 


21

















 


IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the year and day first
written above.


 


	
  OWENS-BROCKWAY GLASS CONTAINER

  INC., a Delaware corporation

  	
  COORS BREWING COMPANY, a Colorado

  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
  Gerald J. Lemieux

  	
   

  	
    Robert K. Caseria

  
	
  Title:

  	
  Vice President

  	
   

  	
  Title:

  	
    Chief Supply Chain Officer

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  
							



 


 


***** EXHIBITS A THROUGH H REDACTED


 


22