Exhibit 10.1


 


 


JOINT VENTURE AGREEMENT


 


 


Dated as of December 20, 2007


 


 


By and Among


 


 


MOLSON COORS BREWING COMPANY,


 


COORS BREWING COMPANY,


 


SABMILLER PLC,


 


MILLER BREWING COMPANY,


 


and


 


MILLERCOORS LLC


 



















TABLE OF
CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 1.01

  	
  DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II THE JOINT VENTURE

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.01

  	
  ORGANIZATION OF THE COMPANY

  	
   

  	
  15

  
	
   

  	
  SECTION 2.02

  	
  OPERATING AGREEMENT

  	
   

  	
  15

  
	
   

  	
  SECTION 2.03

  	
  NAME

  	
   

  	
  15

  
	
   

  	
  SECTION 2.04

  	
  SHAREHOLDERS

  	
   

  	
  15

  
	
   

  	
  SECTION 2.05

  	
  BOARD OF DIRECTORS AND OFFICERS

  	
   

  	
  15

  
	
   

  	
  SECTION 2.06

  	
  PURPOSE OF THE COMPANY

  	
   

  	
  15

  
	
   

  	
  SECTION 2.07

  	
  TERM

  	
   

  	
  16

  
	
   

  	
  SECTION 2.08

  	
  INITIAL MOLSON COORS CONTRIBUTIONS.

  	
   

  	
  16

  
	
   

  	
  SECTION 2.09

  	
  INITIAL MILLER CONTRIBUTIONS.

  	
   

  	
  21

  
	
   

  	
  SECTION 2.10

  	
  DETERMINATION OF CERTAIN CLOSING PAYMENTS.

  	
   

  	
  26

  
	
   

  	
  SECTION 2.11

  	
  TAX TREATMENT.

  	
   

  	
  31

  
	
   

  	
  SECTION 2.12

  	
  INDEPENDENT OPERATION OF COMPANY

  	
   

  	
  31

  
	
   

  	
  SECTION 2.13

  	
  COMPLIANCE WITH APPLICABLE LAW

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III TRANSACTIONS AND CLOSING

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 3.01

  	
  CLOSING TRANSACTIONS

  	
   

  	
  31

  
	
   

  	
  SECTION 3.02

  	
  CLOSING

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV REPRESENTATIONS AND
  WARRANTIES

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.01

  	
  REPRESENTATIONS AND WARRANTIES OF MCBC AND CBC

  	
   

  	
  32

  
	
   

  	
  SECTION 4.02

  	
  REPRESENTATIONS AND WARRANTIES OF SABMILLER AND MILLER

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V COVENANTS AND AGREEMENTS OF
  THE PARTIES

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.01

  	
  CONFIDENTIALITY.

  	
   

  	
  66

  
	
   

  	
  SECTION 5.02

  	
  CERTAIN INTELLECTUAL PROPERTY MATTERS.

  	
   

  	
  66

  
	
   

  	
  SECTION 5.03

  	
  CONDUCT OF COORS BUSINESS.

  	
   

  	
  66

  
	
   

  	
  SECTION 5.04

  	
  CONDUCT OF MILLER BUSINESS.

  	
   

  	
  69

  
	
   

  	
  SECTION 5.05

  	
  COMPETITIVE BUSINESSES.

  	
   

  	
  72

  
	
   

  	
  SECTION 5.06

  	
  SELECTION OF EXECUTIVE COMMITTEE.

  	
   

  	
  72

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI FURTHER COVENANTS AND
  AGREEMENTS OF THE PARTIES

  	
   

  	
  72

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 6.01

  	
  FURTHER ASSURANCES.

  	
   

  	
  72

  
	
   

  	
  SECTION 6.02

  	
  CERTAIN FILINGS; CONSENTS.

  	
   

  	
  73

  
	
   

  	
  SECTION 6.03

  	
  PUBLIC ANNOUNCEMENTS

  	
   

  	
  74

  
	
   

  	
  SECTION 6.04

  	
  ANTITRUST LAWS

  	
   

  	
  75

  
	
   

  	
  SECTION 6.05

  	
  ACCESS

  	
   

  	
  75

  
	
   

  	
  SECTION 6.06

  	
  EMPLOYEE MATTERS

  	
   

  	
  76

  
	
   

  	
  SECTION 6.07

  	
  LIENS

  	
   

  	
  81

  
	
   

  	
  SECTION 6.08

  	
  LLC CONVERSIONS; REORGANIZATIONS

  	
   

  	
  81

  
							



 


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  SECTION 6.09

  	
  MARKETING PLAN

  	
   

  	
  81

  
	
   

  	
  SECTION 6.10

  	
  FORT WORTH OIL AND GAS PAYMENTS

  	
   

  	
  81

  
	
   

  	
  SECTION 6.11

  	
  IP CONTRIBUTIONS.

  	
   

  	
  81

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII TRANSACTION DOCUMENTS

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 7.01

  	
  TRANSACTION DOCUMENTS

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII CONDITIONS TO CLOSING

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 8.01

  	
  CONDITIONS TO OBLIGATIONS OF EACH SHAREHOLDER

  	
   

  	
  82

  
	
   

  	
  SECTION 8.02

  	
  CONDITIONS TO OBLIGATIONS OF MCBC AND CBC

  	
   

  	
  83

  
	
   

  	
  SECTION 8.03

  	
  CONDITIONS TO OBLIGATIONS OF SABMILLER AND MILLER

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX SURVIVAL AND INDEMNIFICATION

  	
   

  	
  86

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.01

  	
  SURVIVAL

  	
   

  	
  86

  
	
   

  	
  SECTION 9.02

  	
  INDEMNIFICATION BY MCBC AND CBC

  	
   

  	
  86

  
	
   

  	
  SECTION 9.03

  	
  INDEMNIFICATION BY SABMILLER AND MILLER

  	
   

  	
  87

  
	
   

  	
  SECTION 9.04

  	
  SPECIAL TAX INDEMNIFICATION

  	
   

  	
  88

  
	
   

  	
  SECTION 9.05

  	
  NOTICE, ETC

  	
   

  	
  88

  
	
   

  	
  SECTION 9.06

  	
  MITIGATION.

  	
   

  	
  89

  
	
   

  	
  SECTION 9.07

  	
  LIMITATIONS

  	
   

  	
  90

  
	
   

  	
  SECTION 9.08

  	
  EXCLUSIVE REMEDY

  	
   

  	
  91

  
	
   

  	
  SECTION 9.09

  	
  MANNER OF PAYMENT

  	
   

  	
  91

  
	
   

  	
  SECTION 9.10

  	
  NO DOUBLE RECOVERY

  	
   

  	
  91

  
	
   

  	
  SECTION 9.11

  	
  TREATMENT OF INDEMNITY PAYMENTS

  	
   

  	
  91

  
	
   

  	
  SECTION 9.12

  	
  CORPORATE HEADQUARTER SERVICES

  	
   

  	
  92

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X TERMINATION

  	
   

  	
  92

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 10.01

  	
  TERMINATION

  	
   

  	
  92

  
	
   

  	
  SECTION 10.02

  	
  EFFECT OF TERMINATION

  	
   

  	
  93

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI TAX MATTERS

  	
   

  	
  94

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 11.01

  	
  ALLOCATION OF CERTAIN TAXES AND TAX ITEMS.

  	
   

  	
  94

  
	
   

  	
  SECTION 11.02

  	
  COOPERATION AND EXCHANGE OF INFORMATION.

  	
   

  	
  94

  
	
   

  	
  SECTION 11.03

  	
  TAX RETURN FILING RESPONSIBILITIES.

  	
   

  	
  95

  
	
   

  	
  SECTION 11.04

  	
  TAX REFUNDS.

  	
   

  	
  97

  
	
   

  	
  SECTION 11.05

  	
  TAX CONTESTS.

  	
   

  	
  97

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII MISCELLANEOUS

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION 12.01

  	
  NOTICES

  	
   

  	
  98

  
	
   

  	
  SECTION 12.02

  	
  AMENDMENTS; WAIVERS

  	
   

  	
  99

  
	
   

  	
  SECTION 12.03

  	
  EXPENSES

  	
   

  	
  99

  
	
   

  	
  SECTION 12.04

  	
  SUCCESSORS AND ASSIGNS

  	
   

  	
  99

  
	
   

  	
  SECTION 12.05

  	
  DISCLOSURE

  	
   

  	
  100

  
	
   

  	
  SECTION 12.06

  	
  CONSTRUCTION

  	
   

  	
  101

  
	
   

  	
  SECTION 12.07

  	
  ENTIRE AGREEMENT

  	
   

  	
  101

  
	
   

  	
  SECTION 12.08

  	
  GOVERNING LAW

  	
   

  	
  102

  



 


-ii-

















 


 


	
   

  	
  SECTION 12.09

  	
  COUNTERPARTS; EFFECTIVENESS

  	
   

  	
  102

  
	
   

  	
  SECTION 12.10

  	
  SEVERABILITY

  	
   

  	
  102

  
	
   

  	
  SECTION 12.11

  	
  CAPTIONS

  	
   

  	
  102

  
	
   

  	
  SECTION 12.12

  	
  DISCLAIMER OF AGENCY

  	
   

  	
  102

  
	
   

  	
  SECTION 12.13

  	
  DISPUTE RESOLUTION; ARBITRATION

  	
   

  	
  102

  
	
   

  	
  SECTION 12.14

  	
  CONSEQUENTIAL DAMAGES

  	
   

  	
  104

  
	
   

  	
  SECTION 12.15

  	
  MCBC AND SABMILLER GUARANTEES

  	
   

  	
  105

  
	
   

  	
  SECTION 12.16

  	
  SEALED INSTRUMENT

  	
   

  	
  105

  



 


LIST OF ATTACHMENTS


 


	
  Attachment
  I

  	
   

  	
  Form of
  Operating Agreement

  
	
  Attachment
  II

  	
   

  	
  Brand
  Cooperation Agreement

  
	
  Attachment
  III

  	
   

  	
  Form of
  Water Supply Lease

  



 


LIST OF
SCHEDULES


 


MCBC and CBC Disclosure Schedules


 


	
  Schedule
  1.01(c)

  	
   

  	
  Molson
  Coors Contributed Brands

  
	
  Schedule
  2.08(b)(vii)

  	
   

  	
  Molson
  Coors Intellectual Property Registrations and Applications

  
	
  Schedule
  2.08(b)(xii)

  	
   

  	
  Molson
  Coors Excluded Guarantees

  
	
  Schedule
  2.08(b)(xv)

  	
   

  	
  Molson
  Coors Contributed Indebtednes

  
	
  Schedule
  2.08(c)(vi)

  	
   

  	
  Molson
  Coors Excluded Assets - Excluded Claims

  
	
  Schedule
  2.08(c)(viii)

  	
   

  	
  Molson
  Coors Excluded Assets

  
	
  Schedule
  2.08(d)(iii)

  	
   

  	
  Molson
  Coors Excluded Liabilities - Excluded Claims

  
	
  Schedule
  2.08(d)(ix)

  	
   

  	
  Transferring
  CBC Employees in MCBC CIC Program

  
	
  Schedule
  2.08(d)(xi)

  	
   

  	
  Molson
  Coors Excluded Liabilities

  
	
  Schedule
  2.10(b)(i)

  	
   

  	
  Retiree
  Liability Methodologies and Assumptions

  
	
  Schedule
  4.01(c)

  	
   

  	
  Governmental
  Authorization

  
	
  Schedule
  4.01(d)

  	
   

  	
  Non-Contravention

  
	
  Schedule
  4.01(e)

  	
   

  	
  Litigation

  
	
  Schedule
  4.01(f)

  	
   

  	
  Compliance
  with Laws

  
	
  Schedule
  4.01(h)

  	
   

  	
  Absence
  of Changes

  
	
  Schedule
  4.01(i)

  	
   

  	
  Coors
  Financial Information

  
	
  Schedule
  4.01(m)

  	
   

  	
  CBC
  Material Contracts

  
	
  Schedule
  4.01(n)

  	
   

  	
  Affiliate
  Transactions

  
	
  Schedule
  4.01(o)

  	
   

  	
  Real
  Property

  
	
  Schedule
  4.01(p)

  	
   

  	
  Environmental

  
	
  Schedule
  4.01(q)

  	
   

  	
  Intellectual
  Property

  
	
  Schedule
  4.01(r)

  	
   

  	
  Taxes

  
	
  Schedule
  4.01(s)

  	
   

  	
  Employee
  Benefit Plans

  



 


-iii-

















 


	
  Schedule
  4.01(t)

  	
   

  	
  Labor
  Matters

  
	
  Schedule
  4.01(u)

  	
   

  	
  Finders
  Fees

  
	
  Schedule
  4.01(w)

  	
   

  	
  Water
  Usage and Storage Rights

  
	
  Schedule
  5.03

  	
   

  	
  Conduct
  of Coors Business

  
	
  Schedule
  5.03(b)(xvi)

  	
   

  	
  Top
  10 CBC Suppliers

  
	
  Schedule
  6.06(a)

  	
   

  	
  Transferring
  and Excluded CBC Employees

  
	
  Schedule
  6.06(g)

  	
   

  	
  Assumed
  Benefit Plans

  
	
  Schedule
  9.12(a)

  	
   

  	
  Molson
  Coors Equivalent Services Multiplier

  



 


SABMiller and Miller Disclosure
Schedules


 


	
  Schedule
  1.01(a)

  	
   

  	
  Miller
  Assumed Contract Adjustment

  
	
  Schedule
  1.01(b)

  	
   

  	
  Miller
  Contributed Brands

  
	
  Schedule
  2.09(b)(vi)

  	
   

  	
  Miller
  Intellectual Property Registrations and Applications

  
	
  Schedule
  2.09(b)(xv)

  	
   

  	
  Miller
  Contributed Liabilities

  
	
  Schedule
  2.09(c)(ix)

  	
   

  	
  Miller
  Excluded Assets

  
	
  Schedule
  2.09(d)(xii)

  	
   

  	
  Miller
  Excluded Liabilities

  
	
  Schedule
  2.10(b)(i)

  	
   

  	
  Retiree
  Liability Methodologies and Assumptions

  
	
  Schedule
  4.02(c)

  	
   

  	
  Governmental
  Authorization

  
	
  Schedule
  4.02(d)

  	
   

  	
  Non-Contravention

  
	
  Schedule
  4.02(e)

  	
   

  	
  Litigation

  
	
  Schedule
  4.02(f)

  	
   

  	
  Compliance
  with Laws

  
	
  Schedule
  4.02(h)

  	
   

  	
  Absence
  of Changes

  
	
  Schedule
  4.02(i)

  	
   

  	
  Miller
  Financial Information

  
	
  Schedule
  4.02(m)

  	
   

  	
  Miller
  Material Contracts

  
	
  Schedule
  4.02(n)

  	
   

  	
  Affiliate
  Transactions

  
	
  Schedule
  4.02(o)

  	
   

  	
  Real
  Property

  
	
  Schedule
  4.02(p)

  	
   

  	
  Environmental

  
	
  Schedule
  4.02(q)

  	
   

  	
  Intellectual
  Property

  
	
  Schedule
  4.02(r)

  	
   

  	
  Taxes

  
	
  Schedule
  4.02(s)

  	
   

  	
  Benefit
  Plans

  
	
  Schedule
  4.02(t)

  	
   

  	
  Labor
  Matters

  
	
  Schedule
  5.04

  	
   

  	
  Conduct
  of Miller Business

  
	
  Schedule
  5.04(b)(xvi)

  	
   

  	
  Top
  10 Miller Suppliers

  
	
  Schedule
  6.06(b)

  	
   

  	
  Transferring
  and Excluded Miller Employees

  
	
  Schedule
  6.06(g)

  	
   

  	
  Assumed
  Benefit Plans

  
	
  Schedule
  9.12(b)

  	
   

  	
  SABMiller
  Equivalent Services Multiplier

  
				



 


-iv-





















 


JOINT VENTURE AGREEMENT


 


This Joint Venture Agreement (together with the
Exhibits, Schedules and Attachments hereto, this “Agreement”) is made as
of the 20th day of December 2007, by and among Molson Coors Brewing
Company, a Delaware corporation (“MCBC”), Coors Brewing Company, a
Colorado corporation (“CBC”), SABMiller plc, a company formed under the
laws of England and Wales (“SABMiller”), Miller Brewing Company, a
Wisconsin corporation (“Miller”), and, subject to Section 2.01
hereof, MillerCoors LLC, a Delaware limited liability company to be formed (the
“Company”).  CBC and Miller are
sometimes referred to herein each individually as a “Shareholder” and
collectively as the “Shareholders.” 
The Shareholders, MCBC, SABMiller and the Company are sometimes referred
to herein each individually as a “Party” and collectively as the “Parties.”


 


W  I  T  N  E
S  S  E  T  H:


 


WHEREAS, MCBC and
SABMiller have entered into a letter agreement with the intent of forming a new
joint venture to combine their and their Subsidiaries’ respective beer,
beverage and related operations in the Territory;


 


WHEREAS,
the Parties have determined that the joint venture will be initially formed and
operated through the Company;


 


WHEREAS,
MCBC and SABMiller have determined that the Shareholders shall be the direct
owners of the Company; and


 


WHEREAS,
in furtherance of the objectives set forth above, the Parties desire to enter
into this Agreement and the other Transaction Documents (as defined below);


 


NOW, THEREFORE, in consideration of the mutual
covenants and agreements of the Parties contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:


 


ARTICLE
I

DEFINITIONS


 


Section 1.01           Definitions.


 


(a)           The
following terms have the following meanings:


 


“Affiliate”
means, with respect to any Person, any other Person (or an officer or director
of such Person) that directly or indirectly through one or more intermediaries,
Controls, or is Controlled by, or is under common Control with, such
Person.  For the avoidance of doubt, the Company shall not be
considered an “Affiliate” of MCBC, CBC, SABMiller or Miller or any of their
Subsidiaries for the purposes of this Agreement.


 


“Antitrust Laws” means all United States
federal and state, and any foreign, statutes, rules, regulations, orders,
decrees, administrative and judicial doctrines and other laws that are


 















designed or intended to
prohibit, restrict or regulate actions having the purpose or effect of
monopolization or restraint of trade.


 


“Applicable Law” means, with respect to any
Person, any Law applicable to such Person or any of its respective properties,
assets, officers, directors, employees, consultants or agents (in connection
with such officer’s, director’s, employee’s, consultant’s or agent’s activities
on behalf of such Person).


 


“Applicable Rate” means the rate of interest
quoted in The Wall Street Journal (final Eastern Edition), Money Rates
section as the Prime Rate (currently defined as the base rate on corporate
loans posted by at least seventy-five percent (75%) of the nation’s thirty (30)
largest banks) in effect on the Closing Date.


 


“Board” means the Company’s Board of Directors.


 


“Brand Cooperation Agreement” means that
agreement, attached hereto as Attachment II, among the Parties relating
to the protocols governing the management of certain Intellectual Property.


 


“Business Day” means a day, other than a
Saturday, Sunday or other day on which commercial banks in New York, New York
or London, England are authorized or required by law to close.


 


“Capital Expenditures” means the capital
expenditures incurred by a Shareholder and its Subsidiaries during the two-year
period prior to the Closing Date with respect to property contributed to the
Company, within the meaning of Treasury Regulations Section 1.707-4(d).


 


“CBC Employee Group” means, collectively, all
Excluded CBC Employees and all Transferring CBC Employees.


 


“CBC Group” means CBC and its Subsidiaries, and
“CBC Group Company” means any one of them.


 


“CBC Intellectual Property” means all
Intellectual Property used, held for use or exploited by any Molson Coors Group
Company in connection with the Coors Business.


 


“CBC Owned IP” means the CBC Intellectual
Property that is owned by a Molson Coors Group Company.


 


“CBC Tax Liabilities” means (i) any Income
Taxes with respect to any Pre-Closing Tax Period that relate to revenues
generated by the Coors Business or assets transferred to the Company that
constitute Molson Coors Contributions; (ii) any Non-Income Taxes with
respect to any Pre-Closing Tax Period to the extent that such Non-Income Taxes (A) are
in excess of the amounts reflected in respect of such Non-Income Taxes of the
Coors Business on or before the date of this Agreement in the Coors Financial
Information, (B) are in excess of the amounts incurred in the ordinary
course of the Coors Business, consistent with past practice, after the date of
the Latest CBC Balance Sheet or (C) are additional Non-Income Taxes paid
as a result of an audit or other proceeding by a Tax Authority or the discovery
of any underpayment of


 


2

















 


Tax (other than for such
Non-Income Taxes reflected in the Coors Financial Information); and (iii) any
Taxes that the Company may incur or may otherwise be liable for in relation to
the transfer of the Molson Coors Contributions to the Company.


 


“Class A Share” has the meaning given in
the Operating Agreement.


 


“Class B Share” has the meaning given in
the Operating Agreement.


 


“Closing Date” means the date of the Closing.


 


“Code” means the Internal Revenue Code of 1986,
as amended.


 


“Contemplated Transactions” means the
transactions contemplated by the Transaction Documents.


 


“Contracts” means, with respect to any Person,
all contracts, agreements (including License Agreements), consulting
arrangements, leases and subleases (including leases and subleases of real
property), licenses, commitments, sales and purchase orders, and other
undertakings of any kind, whether written or oral, to which such Person is a
party, under which such Person is otherwise entitled to benefits or by which
such Person is otherwise bound.


 


“Control” in relation to any entity means any
of:


 


(a)           direct
or indirect ownership of more than fifty percent (50%) of the share capital or
other ownership interests in that entity; or


 


(b)           the
right to exercise more than fifty percent (50%) of the votes of equityholders
in that entity; or


 


(c)           the
right to receive more than fifty percent (50%) of the economic results of the
business of that entity (whether in the form of dividends, interest, royalty or
license payments, management fees or otherwise); or


 


(d)           the
contractual right to designate more than half of the members of that entity’s
board of directors or similar executive body; or


 


(e)           the
power to control, directly or indirectly, the direction of the management or
policies of such entity, whether such power is effected through ownership of
shares or other securities, by contract, by proxy or otherwise;


 


provided, however, that for the purposes of this
definition and the definition of other terms referring to “Control,” none of
Miller, SABMiller, CBC or MCBC or any of their respective Subsidiaries shall be
deemed to Control (or to be under common Control with) the Company, and the
Company shall not be deemed to be Controlled by (or under common Control with)
any of them.


 


“Coors Business” means the beer, beverage and
related operations (including packaging and other non-beverage ventures),
assets and liabilities (other than the Molson Coors Excluded


 


3

















 


 


Assets and the Molson
Coors Excluded Liabilities) of the Molson Coors Group in the Territory as at
the date of this Agreement or, as the context may require, as at the Closing
Date.


 


“Coors Joint Ventures” means Rocky Mountain
Metal Container LLC and Rocky Mountain Bottle Company LLC.


 


“Delaware Act” means the Delaware Limited
Liability Company Act, 6 Del. C. Section 18-101 eq seq, as it may be
amended from time to time, and any successor to the Delaware Act.


 


“Disclosure Schedules” or “Schedules”
means, with respect to each Party, the disclosure schedules of such Party dated
the date of this Agreement relating to this Agreement.


 


“Employee Benefit Plan” means each “employee
benefit plan”, as defined in Section 3(3) of ERISA, each employment,
severance or similar contract, plan, program, arrangement or policy and each
other plan, program, policy or arrangement (whether written or oral) providing
for compensation, bonuses, profit-sharing, stock option, stock purchase or
other stock related rights or other forms of incentive or deferred
compensation, vacation benefits, fringe benefits, insurance (including any
self-insured arrangements), health or medical benefits, employee assistance
program, disability or sick leave benefits, workers’ compensation, supplemental
unemployment benefits, severance benefits and post-employment or retirement
benefits (including compensation, pension, health, medical or life insurance
benefits).


 


“Environmental Law(s)” means all Applicable
Laws relating to pollution or protection of the environment, natural resources,
or public or employee health and safety and includes, but is not limited to,
the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”),
42 U.S.C. § 9601 et seq., the Hazardous Materials Transportation Act, 49
U.S.C. § 1801 et seq., the Resource Conservation and Recovery Act 42
U.S.C. § 6901 et seq., the Clean Water Act, 33 U.S.C. § 1251 et seq.,
the Clean Air Act, 42 U.S.C. § 7401 et seq., the Toxic Substance Control
Act, 15 U.S.C. § 2601 et seq., the Oil Pollution Act of 1990, 33 U.S.C.
§ 2701 et seq., and the Occupational Safety and Health Act, 29 U.S.C. §
651 et seq., as such laws have been amended or supplemented, and the
regulations promulgated pursuant thereto, and all analogous state or local
statutes.


 


“Environmental Permits” means all approvals,
authorizations, consents, permits, licenses, registrations and certificates required
by any applicable Environmental Law.


 


“Equity Award” means any outstanding stock
option, stock appreciation right, restricted stock award, restricted stock
unit, or other equity or equity-based award (including any modifications of
such instrument).


 


“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended.


 


“ERISA Affiliate” of any entity means any other
entity that, together with such entity, at the relevant time is or would have
been considered or treated as a single employer under Section 414 of the
Code.


 


“Excluded CBC Employees” means (i) the
active employees of the Molson Coors Group who are, as of the Closing Date,
engaged primarily in the international business of the


 


4

















 


Molson Coors Group,
unless listed on Schedule 6.06(a) as Transferring CBC Employees and
(ii) any other individual who has been designated by MCBC as an Excluded
CBC Employee on Schedule 6.06(a) (as such Schedule 6.06(a) may
be updated from time to time prior to Closing with the consent of SABMiller,
which consent shall not be unreasonably withheld) under the heading “Excluded
CBC Employee.”


 


“Excluded Miller Employees” means (i) the
active employees of the SABMiller Group who are, as of the Closing Date, engaged
primarily in the international business of the SABMiller Group, unless listed
on Schedule 6.06(b) as Transferring Miller Employees and (ii) any
other individual who has been designated by SABMiller as an Excluded Miller
Employee on Schedule 6.06(b) (as such Schedule 6.06(b) may
be updated from time to time prior to Closing with the consent of MCBC, which
consent shall not be unreasonably withheld) under the heading “Excluded Miller
Employee.”


 


“Fort Worth Brewery” means the brewery
currently operated by the Miller Group located at Fort Worth, Texas;


 


“Fundamental Reps” means those representations
and warranties set forth in each of Sections 4.01(a) (Corporate
Existence and Power), 4.01(b) (Corporate Authorization), 4.01(d)(i) (Non-Contravention),
4.01(j) (Title and Sufficiency of Assets), 4.01(q)(ii)(A), (B) and
(C) (Intellectual Property), 4.01(u) (Finders’ Fees), 4.01(w) (Water
Usage and Storage Rights), 4.02(a) (Corporate Existence and Power),
4.02(b) (Corporate Authorization), 4.02(d)(i) (Non-Contravention),
4.02(j) (Title and Sufficiency of Assets), 4.02(q)(ii)(A), (B) and
(C) (Intellectual Property) and 4.02(u) (Finders’
Fees).


 


“Governmental Authority” means any government,
governmental, statutory, regulatory or administrative authority, stock exchange
self regulatory authority, agency, body or commission or any court, tribunal or
judicial or arbitral body, whether federal, state, provincial, local or
foreign.


 


“Hazardous Substance(s)” shall mean any
material, substance or waste as to which liability or standards of conduct may
be imposed pursuant to Environmental Laws.


 


“HSR Act” means the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.


 


“IBA Rules of Evidence” means the
International Bar Association Rules on the Taking of Evidence in
International Commercial Arbitration, published by the International Bar
Association and adopted by a resolution of the IBA Council on June 1,
1999.


 


“IFRS” means International Financial Reporting
Standards as issued by the International Accounting Standards Board and adopted
by the European Union as in effect from time to time.


 


“Improvements” means all buildings, structures,
improvements, fixtures, building systems and equipment, and all components
thereof.


 


“Income Taxes” means any Taxes imposed on or
measured by reference to gross or net income or receipts.  For the avoidance of doubt, Income Taxes
shall not include any sales, use,


 


5

















 


ad valorem, value added,
transfer, payroll, employment, excise, severance, stamp, physical improvements
and infrastructure, occupation or property taxes, any tariffs or customs
duties, or any interest, penalties, additions to tax or additional amounts
imposed with respect thereto.


 


“Intellectual Property” means all intellectual
property and other similar proprietary rights in any jurisdiction, whether
owned or held for use under license, whether registered or unregistered,
including without limitation such rights in and to: (i) issued patents and
all provisional and pending patent applications, any and all divisions,
continuations, continuations-in-part, reissues, continuing patent applications,
reexaminations, and extensions thereof, any counterparts claiming priority
therefrom, utility models, patents of importation/confirmation, certificates of
invention, certificates of registration and like rights (collectively, “Patents”),
and any patent disclosures, invention disclosures, discoveries and
improvements, whether or not patentable; (ii) copyrights and copyrightable
works, including databases (or other collections of information, data, works or
other materials), packaging artwork and design rights (collectively, “Copyrights”),
(iii) technology, know-how, recipes, processes, trade secrets, inventions
(including inventions conceived prior to the Closing Date but not documented as
of the Closing Date), business information, technical information, methods,
marketing information and materials, business plans, proprietary data,
formulae, techniques, specifications, research and development data, non-public
information and confidential information, and rights to limit the use or
disclosure of any of the foregoing by any person (collectively, “Trade
Secrets”), (iv) computer software (including source code and object
code, data files, application programming interfaces, computerized databases
and other software-related specifications (collectively, “Software”)), (v) Trademarks,
(vi) Internet domain names; (vii) rights of publicity and other
rights to use the names and likeness of individuals, and (viii) claims,
causes of action and defenses relating to any of the foregoing; in each case,
including registrations, applications, recordings, and extensions and
common-law rights relating to any of the foregoing.


 


“Intellectual Property Assignments” means (i) assignments
of the registered Trademarks (and applications therefor) and issued Patents
(and applications therefor) that are included on Schedule 2.08(b)(vii) and
Schedule 2.09(b)(vi), in forms suitable for recording in the United
States Patent and Trademark Office, (ii) assignments of the registered
Copyrights (and applications therefor) that are included on Schedule 2.08(b)(vii) and
Schedule 2.09(b)(vi), in forms suitable for recording in the United
States Copyright Office and (iii) assignments of the registered Internet
domain names that are included on Schedule 2.08(b)(vii) and Schedule
2.09(b)(vi), in forms suitable to effectuate transfer within the registrar
of domain names.


 


“Law” means any law (including common law),
statute, treaty, regulation, writ, injunction, ordinance, rule, order, decree,
judgment, consent decree, settlement agreement or governmental requirement
enacted, promulgated, entered into, agreed to or imposed by any Governmental
Authority.


 


“LCIA” means the London Court of International
Arbitration.


 


“LCIA Court” means the Court of the LCIA.


 


“LCIA Rules” means the rules adopted by
the LCIA governing arbitrations commencing on or after January 1, 1998.


 


6

















 


“License Agreement” means any legally binding
agreement, whether written or oral, and any amendments thereto, pursuant to
which any interest in, or any right to use or exploit, any Intellectual
Property has been granted.


 


“Lien” means with respect to any asset, any
lien (statutory or other), claim, pledge, hypothecation, preference, priority,
charge, license, security interest, mortgage, deed of trust, encumbrance,
easement, lis pendens, or other encumbrance or restriction affecting such asset
or any interest therein (including any conditional sale or other title
retention agreement, any sale-leaseback, any financing lease or similar
transaction having substantially the same economic effect as any of the
foregoing, the filing of any financing statement, or similar instrument under
the Uniform Commercial Code of the State of Delaware or comparable law of any
other jurisdiction, domestic or foreign, and mechanics’, materialmen’s and
other similar liens and encumbrances, as well as any option to purchase, right
of first refusal, right of first offer or other right in each case to acquire
such asset).


 


“Material Adverse Effect” means a material
adverse change, effect, circumstance or event that (a) in respect of MCBC
or CBC, is material and adverse to the financial condition or results of
operations of the Coors Business, and (b) in respect of SABMiller or
Miller, is material and adverse to the financial condition or results of
operations of the Miller Business; provided, however, that no
change, whether actual or prospective, arising from or relating to any of the
following shall be deemed to constitute a Material Adverse Effect, or shall be
taken into account in determining whether a Material Adverse Effect has
occurred: (i) any change in business, economic, social, political or legal
conditions generally, (ii) any actual, threatened or rumored adverse
change to any of the credit ratings of any Party, or of any of its respective
securities (but not the underlying cause thereof), (iii) any change or
condition generally affecting the beer and beverage industry in the Territory, (iv) the
engagement by the United States of America in hostilities, whether or not
pursuant to the declaration of a national emergency or war, or the occurrence
of any military or terrorist attack upon the United States of America, or any
of its territories, possessions or diplomatic or consular offices or upon any
military installation, equipment or personnel of the United States of America, (v) any
change in financial, banking or securities markets (including any disruption
thereof and any decline in the price of any security or any market index and
including changes in interest or exchange rates), (vi) changes in US GAAP
or IFRS or in the official interpretations thereof, (vii) changes in laws,
including Applicable Laws or regulations or interpretations thereof by courts
or any other Governmental Authority or (viii) the announcement of, or the
taking of any action contemplated by, this Agreement and the other agreements
contemplated hereby, except, in the case of any change described in (i), (iii),
(iv) and (vii), where such change has a disproportionate adverse effect on
the business, financial condition or results of operations of the CBC Group or
the Miller Group, as the case may be, relative to other Persons carrying on a
similar business in the Territory.


 


“Miller Assumed Contract Adjustment Payment”
means the cash payment determined on the basis set out in Schedule 1.01(a).


 


“Miller Assumed Contracts” means (A) the
Miller Material Contracts that are (i) set forth on Schedule 4.02(m) (other
than those denoted by a pound sign (#)) or (ii) not set forth on Schedule
4.02(m) due solely to the specific dollar thresholds specified
therein, and (B) any


 


7

















 


other Contracts to which
any member of the SABMiller Group is a party and made in the ordinary course
of, or required for the purpose of, operating the Miller Business, but which
are not material or do not fall within any clause of Section 4.02(m).


 


“Miller Business” means the beer, beverage and
related operations (including packaging and other non-beverage ventures),
assets and liabilities (other than the Miller Excluded Assets and the Miller
Excluded Liabilities) of the SABMiller Group in the Territory as at the date of
this Agreement or, as the context may require, as at the Closing Date.


 


“Miller Contributed Brands” means the product
names and the product family names set forth on Schedule 1.01(b).


 


“Miller Employee Group” means, collectively,
all Excluded Miller Employees and all Transferring Miller Employees.


 


“Miller Group” means Miller and its
Subsidiaries, and “Miller Group Company” means any one of them.


 


“Miller Intellectual Property” means all
Intellectual Property used, held for use or exploited by any SABMiller Group
Company in connection with the Miller Business.


 


“Miller IP License Agreement” means that
agreement, in the form to be agreed by MCBC and SABMiller and to be entered
into as of the Closing, between the Company, SABMiller and Miller relating to the
grant from the Company to SABMiller and Miller of a non-exclusive,
non-transferable, royalty-free, perpetual, and irrevocable license (with the
right to sublicense) to use the Miller Contributed IP to brew and have brewed
product within the Territory for export purposes only.


 


“Miller Owned IP” means the Miller Intellectual
Property that is owned by a SABMiller Group Company.


 


“Miller Tax Liabilities” means (i) any
Income Taxes with respect to any Pre-Closing Tax Period that relate to revenues
generated by the Miller Business or assets transferred to the Company that
constitute Miller Contributions; (ii) any Non-Income Taxes with respect to
any Pre-Closing Tax Period to the extent that such Non-Income Taxes (A) are
in excess of the amounts reflected in respect of such Non-Income Taxes of the
Miller Business on or before the date of this Agreement in the Miller Financial
Information, (B) are in excess of the amounts incurred in the ordinary
course of the Miller Business, consistent with past practice, after the date of
the Latest Miller Balance Sheet or (C) are additional Non-Income Taxes
paid as a result of an audit or other proceeding by a Tax Authority or the
discovery of any underpayment of Tax (other than for such Non-Income Taxes
reflected in the Miller Financial Information); and (iii) any Taxes that
the Company may incur or may otherwise be liable for in relation to the
transfer of the Miller Contributions to the Company.


 


“Molson Coors Assumed Contracts” means (A) the
CBC Material Contracts that are (i) set forth on Schedule 4.01(m) (other
than those denoted by a pound sign (#)) or (ii) not set forth on Schedule
4.01(m) due solely to the specific dollar thresholds specified
therein, and (B) any other Contracts to which any member of the Molson
Coors Group is a party and made in the


 


8

















 


ordinary course of, or
required for the purpose of, operating the Coors Business, but which are not
material or do not fall within any clause of Section 4.01(m).


 


“Molson Coors Contributed Brands” means the
product names and the product family names set forth on Schedule 1.01(c).


 


“Molson Coors Equivalent Services” means those
corporate overhead services that are substantially identical to the services
provided by MCBC’s Denver, Colorado headquarter office to the Coors Business as
of the date hereof; provided that the Molson Coors Equivalent Services shall
not include any services or the costs thereof that are being transferred in
accordance with the Contemplated Transactions (including the services of, and
employment and other costs with respect to, any Transferring CBC Employees).


 


“Molson Coors Group” means MCBC and its
Subsidiaries, and “Molson Coors Group Company” means any one of them.


 


“Molson Coors IP License Agreement” means that
agreement, in the form to be agreed by MCBC and SABMiller and to be entered
into as of the Closing, between the Company, MCBC and CBC relating to the grant
from the Company to MCBC and CBC of a non-exclusive, non-transferable,
royalty-free, perpetual, and irrevocable license (with the right to sublicense)
to use the Molson Coors Contributed IP to brew and have brewed product within
the Territory for export purposes only.


 


“Non-Income Taxes” means any Taxes other than
Income Taxes.


 


“Permitted Liens” means (i) Liens for
Taxes not yet due and payable, (ii) inchoate mechanics’ and materialmen’s
Liens for construction in progress which are not yet due and payable, (iii) inchoate
workmen’s, repairmen’s, warehousemen’s, landlord’s and carriers’ liens arising
in the ordinary course of business which are not yet due and payable, (iv) zoning
restrictions, and recorded agreements entered into pursuant to the same,
recorded easements for utility and other municipal services serving the
pertinent Miller Real Property or Coors Real Property (as the case may be),
recorded building and use restrictions, such Liens as would be disclosed by a
current survey or a current physical inspection of the Miller Real Property or
Coors Real Property (as the case may be), rights of way and similar Liens that
are imposed by any Governmental Authority having jurisdiction thereon or
otherwise are typical for the applicable property type and locality (and are
not violated by the current use or occupancy of such real property or the
operation of the business thereon), except to the extent such Liens have or
would be reasonably likely to result in a material and adverse impact on the
use or operation of the property subject thereto, (v) Liens that do not
have and are not reasonably likely to result in a material and adverse impact
on the use or operation of the property subject thereto, (vi) non-exclusive
licenses of Intellectual Property granted in the ordinary course of business, (vii) rights
of existing and future tenants as tenants only pursuant to written leases,
and/or (viii) Liens for amounts due and payable that are being contested
in good faith in the ordinary course of business (provided, however,
such amounts being contested shall be deemed a Molson Coors Excluded Liability
or a Miller Excluded Liability (as applicable)).


 


9

















 


“Person” means any individual, company, limited
liability company, corporation, firm, partnership, joint venture, association,
state, state agency, institution, trust or other entity or organization
(whether or not having a separate legal personality).


 


“Pre-Closing Tax Period” means taxable periods
ending on or before the Closing Date, and with respect to any taxable year or
period that includes but does not end on the Closing Date, the portion of such
taxable year or period ending on and including the Closing Date.


 


“Proceedings” means governmental, judicial or
adversarial proceedings (public or private), litigation, suits, arbitration,
disputes, claims, causes of action or investigations.


 


“Real Property Transfer Documents” means, as
appropriate, (i) a special or limited warranty deed (as customary in the
applicable jurisdiction) with respect to each parcel of CBC Owned Real Property
and Miller Owned Real Property, conveying to the Joint Venture fee simple title
to such CBC Owned Real Property and Miller Owned Real Property, subject only to
Permitted Liens and (ii) for each CBC Leased Real Property and Miller
Leased Real Property, an assignment to and assumption by the Joint Venture of
the applicable lease in a form suitable for recording, if required, with the
county clerk of the applicable jurisdiction and reasonably satisfactory to the
Parties.


 


“Representatives” means, with respect to any
Person, any of its directors, officers, employees, agents, legal counsel,
financial advisors and accountants.


 


“SABMiller Equivalent Services” means those
corporate overhead services that are substantially identical to the services
provided by SABMiller’s London, England headquarter office to the Miller
Business as of the date hereof; provided that the SABMiller Equivalent Services
shall not include any services or the costs thereof that are being transferred
in accordance with the Contemplated Transactions (including the services of,
and employment and other costs with respect to, any Transferring Miller
Employees).


 


“SABMiller Group” means SABMiller and its
Subsidiaries, and “SABMiller Group Company” means any one of them.


 


“SABMiller Holdings” means SABMiller Holdings Inc.,
a Delaware corporation.


 


“Services Agreement” means one or more services
agreements which shall be negotiated in good faith by the Parties following the
date hereof and executed and delivered at Closing by the Company and the
Shareholders (or members of their respective Groups) under which (i) certain
transitional services will be provided by the Shareholders (or members of their
respective Groups) to the Company and/or by the Company to the Shareholders (or
members of their respective Groups); (ii) the Company will provide to each
of the Shareholders (and members of their respective Groups) on an ongoing
basis certain of those services which are provided at the date hereof using
assets which form part of the Miller Contributions and the Molson Coors Contributions,
as the case may be, or using Transferring Miller Employees or Transferring CBC
Employees as the case may be; and (iii) the Shareholders (or members of
their respective Groups) will provide certain services to the Company on an
ongoing basis.


 


“Share” has the meaning given to it in the
Operating Agreement.


 


10

















 


“Straddle Period” means any taxable period
beginning prior to and ending after the Closing Date.


 


“Subsidiary” as it relates to any Person, means
with respect to such Person, any other Person of which the specified Person,
either directly or through or together with any other of its Subsidiaries, owns
more than fifty percent (50%) of the voting power in the election of directors
or their equivalents, other than as affected by events of default.  For the avoidance of doubt, the Company shall
not be considered a “Subsidiary” of MCBC, CBC, SABMiller or Miller or any of
their Affiliates for the purposes of this Agreement.


 


“Tax Authority” means a Governmental Authority
having jurisdiction over the assessment, determination, collection or
imposition of any Tax.


 


“Tax Refund” means a refund of Tax, credit
against Tax, return of a deposit relating to Tax, or other similar payment,
together with any interest thereon and additions thereto.


 


“Tax Returns” means all returns (including
information returns), declarations, reports, estimates and statements regarding
Taxes required to be filed with any Tax Authority.


 


“Taxes” means all taxes and assessments (general
or special), and any charges, fees, imposts or other demands with respect
thereto, including all gross receipts, net income, sales, use, ad valorem,
value added, transfer, franchise, license, withholding, payroll, employment,
excise, estimated, severance, stamp, physical improvements and infrastructure,
occupation and property taxes, tariffs and customs duties, together with any
interest and any penalties, additions to tax or additional amounts imposed by
any Tax Authority.


 


“Territory” means the United States and Puerto
Rico, including all military bases of the United States of America that are
located in the United States and Puerto Rico.


 


“TMA” has the meaning given in the Operating
Agreement.


 


“Trademarks” means registered and unregistered
trademarks, trade names, service marks and service names, brand names, trade
dress, logos and certification marks, in each case including all registrations,
applications, recordings, renewals and extensions and common law rights
relating to any of the foregoing and the goodwill associated with any of the
foregoing (it being understood that the term “Trademarks” shall not include any
Internet domain names).


 


“Transaction Documents” means this Agreement,
the Operating Agreement, the Services Agreement, the Miller IP License
Agreement, the Molson Coors IP License Agreement, the Brand Cooperation
Agreement, the Water Supply Lease, the Intellectual Property Assignments, the
Real Property Transfer Documents and any other written agreement signed by the
Parties that is expressly identified as a “Transaction Document”
hereunder and any exhibits or attachments to any of the foregoing, as the same
may be amended from time to time.


 


“Transferring CBC Employee” means, other than
an Excluded CBC Employee, any individual who, as of the Closing Date, either
(a)(i) is then a current or former employee of (including any full time,
part-time, temporary employee or an individual in any other


 


11

















 


employment relationship
with), or then on a leave of absence (including, without limitation, paid or
unpaid leave, disability, medical, personal or any other form of leave) from a
Molson Coors Group Company and (ii) who is, or at the time of termination
of employment was, primarily engaged in the Coors Business, or (b) has
been designated by MCBC as a Transferring CBC Employee on Schedule 6.06(a) (as
such Schedule 6.06(a) may be updated from time to time prior to the
Closing with the consent of SABMiller, which consent shall not be unreasonably
withheld) under the heading “Transferring CBC Employee.”


 


“Transferring Miller Employee” means, other
than an Excluded Miller Employee, any individual who, as of the Closing Date,
either (a)(i) is then a current or former employee of (including any full
time, part-time, temporary employee or an individual in any other employment
relationship with), or then on a leave of absence (including, without
limitation, paid or unpaid leave, disability, medical, personal or any other
form of leave) from a SABMiller Group Company and (ii) who is, or at the
time of termination of employment was, primarily engaged in the Miller
Business, or (b) has been designated by SABMiller as a Transferring Miller
Employee on Schedule 6.06(b) (as such Schedule 6.06(b) may
be updated from time to time prior to the Closing with the consent of MCBC,
which consent shall not be unreasonably withheld) under the heading “Transferring
Miller Employee.”


 


“United States” means the 50 states of the
United States of America and the District of Columbia, and “the US” shall be
construed accordingly.


 


“US GAAP” means the accounting principles
generally accepted in the United States as in effect from time to time.


 


“Water Supply Lease” means the Water Supply
Lease that the Company, Miller, MCBC and CBC shall execute and deliver at
Closing providing for the lease and provision of water to the Company by MCBC,
CBC and their Affiliates substantially  in the form
attached hereto as Attachment III.


 


(b)           Each of the following terms used in
this Agreement is defined in the Section set forth opposite such term:


 


	
  Term

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  Actuary

  	
   

  	
  2.10(f)

  
	
  Adjustment
  Amount

  	
   

  	
  2.10(a)

  
	
  Agreement

  	
   

  	
  Preamble

  
	
  Assumed
  Benefit Plans

  	
   

  	
  6.06(g)

  
	
  Assumed
  CBAs

  	
   

  	
  6.06(i)

  
	
  Assumed
  Claim

  	
   

  	
  9.05(b)

  
	
  Ball

  	
   

  	
  2.09(c)(vi)

  
	
  Ball
  Payment

  	
   

  	
  2.09(c)(vi)

  
	
  CBA

  	
   

  	
  4.01(m)(i)(A)

  
	
  CBC

  	
   

  	
  Preamble

  
	
  CBC
  Benefit Plans

  	
   

  	
  4.01(s)(i)

  
	
  CBC
  Cash Contribution

  	
   

  	
  2.08(b)(viii)

  



 


12

















 


	
  CBC
  Interests

  	
   

  	
  2.04

  
	
  CBC
  Leased Real Property

  	
   

  	
  4.01(o)(ii)

  
	
  CBC
  Material Contracts

  	
   

  	
  4.01(m)

  
	
  CBC
  Objection Notice

  	
   

  	
  2.10(c)(ii)

  
	
  CBC
  Owned Real Property

  	
   

  	
  4.01(o)(i)

  
	
  CBC
  Policies

  	
   

  	
  4.01(k)(ii)

  
	
  CBC
  Real Properties

  	
   

  	
  4.01(o)(ii)

  
	
  CBC
  Retiree Liabilities

  	
   

  	
  2.08(b)(ix)

  
	
  CBC
  Retiree Liability Notice

  	
   

  	
  2.10(b)(i)

  
	
  CBC
  Surveys

  	
   

  	
  8.03(f)

  
	
  CBC
  Title Commitments

  	
   

  	
  8.03(e)

  
	
  CBC
  Title Company

  	
   

  	
  8.03(e)

  
	
  CBC
  Title Policies

  	
   

  	
  8.03(e)

  
	
  CERCLA

  	
   

  	
  1.01 (Environmental Law(s))

  
	
  CIC
  Payment

  	
   

  	
  2.08(d)(ix)

  
	
  Claims

  	
   

  	
  9.05(a)

  
	
  Closing

  	
   

  	
  3.02

  
	
  Closing
  Amount

  	
   

  	
  2.10(f)

  
	
  Closing
  CBC Retiree Amount

  	
   

  	
  2.10(b)(i)

  
	
  Closing
  Miller Retiree Amount

  	
   

  	
  2.10(c)(i)

  
	
  Company

  	
   

  	
  Preamble

  
	
  Company
  Employees

  	
   

  	
  6.06(a)

  
	
  Copyright

  	
   

  	
  1.01 (Intellectual Property)

  
	
  Confidentiality
  Agreement

  	
   

  	
  5.01

  
	
  Controlling
  Party

  	
   

  	
  11.05(b)

  
	
  Coors
  Financial Information

  	
   

  	
  4.01(i)(i)

  
	
  Dispute

  	
   

  	
  12.13(a)

  
	
  First
  Tribunal

  	
   

  	
  12.13(i)

  
	
  Income
  Tax Returns

  	
   

  	
  11.01(a)

  
	
  Indemnitees

  	
   

  	
  9.02

  
	
  Interim
  Relief Application

  	
   

  	
  12.13(j)

  
	
  Joinder

  	
   

  	
  2.01

  
	
  Latest
  CBC Balance Sheet

  	
   

  	
  4.01(i)(ii)

  
	
  Latest
  Miller Balance Sheet

  	
   

  	
  4.02(i)(ii)

  
	
  LLC

  	
   

  	
  6.08(a)

  
	
  Losses

  	
   

  	
  9.02

  
	
  Miller

  	
   

  	
  Preamble

  
	
  MCBC

  	
   

  	
  Preamble

  
	
  MCBC Basket

  	
   

  	
  9.07(b)

  
	
  MCBC Cap

  	
   

  	
  9.07(b)

  
	
  Miller Basket

  	
   

  	
  9.07(b)

  
	
  Miller
  Benefit Plans

  	
   

  	
  4.02(s)(i)

  
	
  Miller Cap

  	
   

  	
  9.07(b)

  
	
  Miller Contributed IP

  	
   

  	
  2.09(b)(vi)

  
	
  Miller Contributions

  	
   

  	
  2.09(b)

  



 


13

















 


	
  Miller
  Excluded Assets

  	
   

  	
  2.09(c)

  
	
  Miller
  Excluded Liabilities

  	
   

  	
  2.09(d)

  
	
  Miller
  Financial Information

  	
   

  	
  4.02(i)(i)

  
	
  Miller
  Interests

  	
   

  	
  2.04

  
	
  Miller
  Leased Real Property

  	
   

  	
  4.02(o)(ii)

  
	
  Miller
  Material Contracts

  	
   

  	
  4.02(m)

  
	
  Miller
  Objection Notice

  	
   

  	
  2.10(b)(ii)

  
	
  Miller
  Owned Real Property

  	
   

  	
  4.02(o)(i)

  
	
  Miller
  Policies

  	
   

  	
  4.02(k)(ii)

  
	
  Miller
  Real Property

  	
   

  	
  4.02(o)(ii)

  
	
  Miller
  Retiree Liabilities

  	
   

  	
  2.09(b)(vii)

  
	
  Miller
  Retiree Liability Notice

  	
   

  	
  2.10(c)(i)

  
	
  Miller
  Surveys

  	
   

  	
  8.02(f)

  
	
  Miller
  Title Commitments

  	
   

  	
  8.02(e)

  
	
  Miller
  Title Company

  	
   

  	
  8.02(e)

  
	
  Miller
  Title Policies

  	
   

  	
  8.02(e)

  
	
  Minimum
  Claim Threshold

  	
   

  	
  9.07(b)

  
	
  Molson
  Coors Contributed IP

  	
   

  	
  2.08(b)(vii)

  
	
  Molson
  Coors Contributions

  	
   

  	
  2.08(b)

  
	
  Molson
  Coors Excluded Assets

  	
   

  	
  2.08(c)

  
	
  Molson
  Coors Excluded Liabilities

  	
   

  	
  2.08(d)

  
	
  Multiemployer
  Plan

  	
   

  	
  6.06(i)(i)

  
	
  Non-Controlling
  Party

  	
   

  	
  11.05(b)

  
	
  Operating
  Agreement

  	
   

  	
  2.02

  
	
  Parent
  401(k) Plan

  	
   

  	
  6.06(b)

  
	
  Parties

  	
   

  	
  Preamble

  
	
  Party

  	
   

  	
  Preamble

  
	
  Patents

  	
   

  	
  1.01 (Intellectual Property)

  
	
  Regulation

  	
   

  	
  8.01(b)

  
	
  Report

  	
   

  	
  4.01(i)(iii)

  
	
  Revised
  Amount

  	
   

  	
  2.10(f)

  
	
  Revised
  CBC Retiree Amount

  	
   

  	
  2.10(b)(ii)

  
	
  Revised
  Miller Retiree Amount

  	
   

  	
  2.10(c)(ii)

  
	
  SABMiller

  	
   

  	
  Preamble

  
	
  SEC

  	
   

  	
  4.01(i)(iii)

  
	
  Shareholder

  	
   

  	
  Preamble

  
	
  Shareholders

  	
   

  	
  Preamble

  
	
  Software

  	
   

  	
  1.01 (Intellectual Property)

  
	
  Straddle
  Period Taxes

  	
   

  	
  11.03(b)

  
	
  Stub
  Bonus

  	
   

  	
  6.06(f)

  
	
  Stub
  Period

  	
   

  	
  6.06(f)

  
	
  Trade
  Secrets

  	
   

  	
  1.01 (Intellectual Property)

  
	
  Transfer
  Taxes

  	
   

  	
  12.03

  
	
  Unassigned
  CBC Asset

  	
   

  	
  6.02(b)

  
	
  Unassigned
  Miller Asset

  	
   

  	
  6.02(c)

  
	
  WARN
  Act

  	
   

  	
  4.01(t)(iv)

  



 


 


14
















ARTICLE II

THE JOINT VENTURE


 


Section 2.01           Organization
of the Company.  On the Closing Date,
the Shareholders shall cause the Company to be formed as a Delaware limited
liability company by filing a certificate of formation with the Secretary of
State of the State of Delaware in the form agreed by the Shareholders and by
their execution of the Operating Agreement. 
On the Closing Date, the Shareholders shall cause the Company to execute
a joinder to this Agreement as a Party hereto in the form agreed by the
Shareholders (the “Joinder”).


 


Section 2.02           Operating
Agreement.  On the Closing Date, the
Shareholders shall execute and deliver the limited liability company operating
agreement governing the affairs of the Company and the conduct of the Company’s
business substantially  in the form
attached hereto as Attachment I (the “Operating Agreement”).


 


Section 2.03           Name.  The name of the Company shall be MillerCoors
LLC.


 


Section 2.04           Shareholders.  Upon the formation of the Company, the
Company shall have authorized capital consisting of 1,000,000 Shares,
consisting of 840,000 Class A Shares and 160,000 Class B Shares, and
no preferred shares.  Of those 1,000,000
Shares, immediately after the Closing, Miller will own all 160,000 Class B
Shares, while Miller and CBC will each own 420,000 Class A Shares.  Miller’s 160,000 Class B Shares and
420,000 Class A Shares are collectively referred to herein as the “Miller
Interests,” and CBC’s 420,000 Class A Shares are referred to herein as
the “CBC Interests.”  As set forth
more fully in the Operating Agreement, the Class B Shares and the Class A
Shares will have the same rights and preferences in all respects except that
the Class B Shares shall not have voting rights or privileges.


 


Section 2.05           Board
of Directors and Officers.  From and
after the Closing, the Company shall be managed by the Board and by officers as
provided in the Operating Agreement.


 


Section 2.06           Purpose
of the Company.  Each of the Parties
hereby acknowledges and agrees that the exclusive purposes for which the
Company will be formed shall be:


 


(a)           to serve as the vehicle for the joint
venture between Miller and CBC relating to the combination of their respective
operations in the Territory;


 


(b)           to enter into and perform its
obligations under the Transaction Documents to which it is a party; and


 


(c)           to have all the powers permitted by
the Delaware Act.


 


Subject to the terms of this Agreement and the
Operating Agreement, the Company may engage in any activity and perform any and
all acts necessary, appropriate, proper, advisable, incidental or convenient to
or in furtherance of the foregoing purposes.


 


15

















 


Section 2.07           Term.  The term of the Company shall be perpetual
unless earlier terminated in accordance with the provisions of the Operating
Agreement.


 


Section 2.08           Initial
Molson Coors Contributions.


 


(a)           Upon the terms and subject to the
conditions set forth in this Agreement, MCBC and CBC shall, and shall cause
each of their respective Subsidiaries to, assign, transfer and convey at the
Closing to the Company, and the Company shall assume and receive from MCBC, CBC
and each of their respective Subsidiaries, all right, title and interest of
every kind and nature in and to the Molson Coors Contributions, whether
tangible or intangible, and wherever located and by whomever possessed, free
and clear of any Lien, other than Permitted Liens.  The transfer of the Molson Coors
Contributions to the Company is intended to constitute a tax-free contribution
to a partnership under Section 721 of the Code.


 


(b)           The term “Molson Coors
Contributions” shall include, except as otherwise specifically provided
herein, all right, title and interest in and to all of the assets and
liabilities of MCBC, CBC and their respective Subsidiaries used in, intended to
be used in or related to the conduct of the Coors Business (other than the
Molson Coors Excluded Assets and Molson Coors Excluded Liabilities) including
all of MCBC’s, CBC’s and their respective Subsidiaries’ right, title and
interest in and to and liabilities and obligations under:


 


(i)            all current assets of the Coors
Business (excluding cash (other than the CBC Cash Contribution and cash
representing container deposits)), including accounts receivables, inventory,
investments held for sale, pension assets and prepaid expenses;


 


(ii)           all current liabilities of the Coors
Business, including accounts payable and liabilities in respect of Non-Income
Taxes, but excluding liabilities in respect of Income Taxes;


 


(iii)          all machinery, equipment, vehicles,
furniture, fixtures, printing plates, spare and replacement parts and other
tangible personal property of the Coors Business;


 


(iv)          the CBC Real Properties;


 


(v)           all of (A) CBC’s equity
interests in each of Rocky Mountain Metal Container LLC and Rocky Mountain
Bottle Company LLC, (each of which shall be treated as a partnership for U.S.
federal income tax purposes) and (B) the equity of AC Golden Brewing
Company LLC, CBC Puerto Rico, LLC and Coors Distribution Company; provided,
however, that (1) with respect to each of the Subsidiaries set
forth in clauses (A) and (B) any Molson Coors Excluded Assets held by
such entities or their Subsidiaries may be transferred out of such entities
prior to Closing without violating any other provision of this Agreement, and (2) with
respect to each of the Subsidiaries set forth in clause (B), no Molson Coors
Excluded Liabilities of such entities or their Subsidiaries shall be assumed by
the Company (but rather shall be fully assumed by or otherwise be the sole
obligation and responsibility of the Molson Coors Group);


 


(vi)          subject to Section 6.02(b),
all Molson Coors Assumed Contracts;


 


16

















 


(vii)         subject to the terms of the Brand
Cooperation Agreement and the Molson Coors IP License Agreement, (A) the
Intellectual Property registrations and applications that are set forth on Schedule
2.08(b)(vii), (B) all rights to all other CBC Owned IP that is used,
held for use or exploited as of the Closing Date in the Territory (whether
exclusively or not) in connection with any Molson Coors Contributed Brands (or
any goods or services bearing, or provided under, such Molson Coors Contributed
Brands), but excluding any CBC Owned IP that constitutes Molson Coors Excluded
Assets, (C) all income, royalties, damages and payments due or payable at
the Closing or thereafter relating to such Intellectual Property included in (A) or
(B) above (including damages and payments for past or future infringements
or misappropriations thereof, the right to sue and recover damages for past
infringements or misappropriations thereof and to fully and entirely stand in
the place of MCBC, CBC or their respective Subsidiaries, as applicable, in all
matters related thereto, any and all corresponding rights that, now or
hereafter, may be secured throughout the Territory, and all copies and tangible
embodiments of any such Intellectual Property), (D) all past and present
goodwill (including the right to represent to third parties that the Company is
the successor to the Coors Business) and related intangible property associated
with or symbolized by any of the foregoing, including relationships with
suppliers, customers and employees, (E) all registrations that have been
or may be granted thereon, all applications for registrations thereof, and all
records and files related thereto in the Territory, and (F) all rights
thereunder, remedies against infringements thereof, and rights to protection of
interests therein under the Laws of all jurisdictions in the Territory (the “Molson
Coors Contributed IP”);


 


(viii)        $51,000,000 plus the Miller Assumed
Contract Adjustment Payment in cash (the “CBC Cash Contribution”), and
all cash representing container deposits;


 


(ix)           all liabilities and related assets in
respect of (A) tax-qualified defined benefit pension obligations relating
to the Transferring CBC Employees, (B) tax-qualified defined benefit
pension obligations accrued as of the Closing Date relating to the Excluded CBC
Employees and (C) retiree medical obligations relating to the Transferring
CBC Employees (collectively, the “CBC Retiree Liabilities”), subject to
the provisions of Section 2.10(b);


 


(x)            except as otherwise specifically set
forth in this Agreement, (A) all liabilities relating to Transferring CBC
Employees under all CBC Benefit Plans and (B) those assets held in trust
to fund, and all insurance policies funding, any such liabilities;


 


(xi)           except as otherwise specifically set
forth in this Agreement, all liabilities with respect to the employment or
termination of employment of all Transferring CBC Employees (and their
dependents and beneficiaries);


 


(xii)          except as set forth on Schedule
2.08(b)(xii), all guaranties, warranties, indemnities and similar rights in
favor of MCBC, CBC or any of their respective Subsidiaries with respect to any
Molson Coors Contribution;


 


(xiii)         all books of account, ledgers, general,
financial, accounting and personnel records, files, invoices, customers’ and
suppliers’ lists, documents, agreements (other than the Transaction Documents),
mailing lists, catalogues, brochures, sales data and 


 


17

















 


information, advertising material, other distribution
lists, billing records, sale and promotional literature, manuals, material
client and supplier correspondence (in all cases, in any form or medium,
including computerized media), of MCBC, CBC or any of their respective
Subsidiaries to the extent that they are used in, or arise out of, the conduct
or operation of the Coors Business (including, without limitation, any records
or files necessary to the administration of any CBC Benefit Plan assumed by the
Company pursuant to this Agreement);


 


(xiv)        all rights, claims and credits arising
under any insurance policies maintained by MCBC, CBC or any of their respective
Subsidiaries to the extent arising from or applicable to the Coors Business
whenever arising;


 


(xv)         the liabilities set forth on Schedule
2.08(b)(xv); and


 


(xvi)        subject to Section 2.08(c)(vi),
all of MCBC’s, CBC’s and their respective Subsidiaries’ rights, claims,
credits, causes of action, rights to indemnification and contribution or rights
of set off against third parties to the extent arising from or applicable to
the Coors Business whenever arising.


 


The contribution of any asset or liability in respect
of the Molson Coors Contributions may be structured either as a direct
contribution of the asset or liability or as a contribution of all of the
equity of a limited liability company that owns such asset or bears such
liability and is treated as a disregarded entity for U.S. federal income tax
purposes; provided, however, that, except as expressly provided
otherwise herein, no Molson Coors Excluded Liabilities of any such limited
liability company shall be assumed by the Company, but rather any Molson Coors
Excluded Liabilities shall be the sole responsibility and obligation of, or
shall be fully assumed by, the Molson Coors Group Companies.


 


(c)           The term “Molson Coors Excluded
Assets” shall mean:


 


(i)            all cash, other than the CBC Cash
Contribution and all cash representing container deposits;


 


(ii)           capital stock and other equity
interests in MCBC, CBC or any of their respective Subsidiaries other than as
described in Section 2.08(b)(v);


 


(iii)          all rights of MCBC and CBC under the
Transaction Documents;


 


(iv)          water usage and storage rights of
MCBC, CBC and their respective Affiliates in Colorado, provided that
water usage and storage rights relating to the real property owned by any
Molson Coors Group Company in south central Colorado shall not be Molson Coors
Excluded Assets;


 


(v)           (A) all Intellectual Property
registrations and applications other than those that are set forth on Schedule
2.08(b)(vii), (B) all rights to all other CBC Owned IP used, held for
use or exploited as of the Closing Date in the Territory by a Molson Coors
Group Company exclusively in connection with a brand other than a Molson Coors
Contributed Brand (or exclusively in connection with any goods or services
bearing, or provided under, a brand other than a Molson Coors Contributed
Brand) and (C) all rights to use or exploit outside the


 


18

















 


Territory any Intellectual Property (other than the
Internet domain names that are set forth on Schedule 2.08(b)(vii)).  Without limiting the foregoing, the Parties
agree that Molson Coors Excluded Assets shall include all of the following held
by any Molson Coors Group Company: (X) all issued Patents and Trademark
and Copyright registrations, and applications for any of the foregoing, that
are registered or applied for outside the Territory, (Y) all rights,
including common law rights, to use or exploit Trademarks outside the Territory
and (Z) all rights to use, exploit, or limit the use or disclosure of, Trade
Secrets outside the Territory;


 


(vi)          all rights of recovery pursuant to,
and all interests in, any claim by MCBC or any of its Affiliates described on Schedule
2.08(c)(vi);


 


(vii)         the Coors family home situated on the
grounds of the CBC brewery in Colorado, and access thereto (including roadway,
utility and other necessary rights-of-way and easements);


 


(viii)        all of the assets and interests set
forth on Schedule 2.08(c)(viii), including retention by MCBC, CBC and
their respective Subsidiaries of (A) the golf courses listed thereon and (B) CBC’s
limited partner ownership interest in the Colorado Rockies major league
baseball franchise;


 


(ix)           those assets held in trust to fund,
and all insurance policies funding, any of the liabilities set forth in Section 2.08(d)(vii) below;


 


(x)            except as otherwise specifically set
forth in this Agreement, all tangible assets located at MCBC’s headquarter
office in Denver, Colorado;


 


(xi)           all computer Software and hardware
necessary for the operation of the business of the Molson Coors Group Companies
(other than software and hardware used exclusively in connection with the Coors
Business), and all Contracts with third parties to the extent relating thereto;


 


(xii)          any incidental asset used outside the
Coors Business that is not material to the Coors Business;


 


(xiii)         hops inventory in excess of that amount
required to supply all of the Coors Business’s hops demands for two years after
the Closing Date based on current production levels; and


 


(xiv)        any assets inside the Territory which
are owned by a Molson Coors Group Company other than a CBC Group Company and
used in connection with its business of exporting Beer into the Territory.


 


(d)           The term “Molson Coors Excluded
Liabilities” shall mean:


 


(i)            all indebtedness for borrowed money
(including any guarantees, credit support agreements, letters of credit or
other similar instruments with respect to any indebtedness for borrowed money
other than those liabilities described on Schedule 


 


19

















 


2.08(b)(xv)), and all currency and interest rate derivatives, of
the Molson Coors Group Companies;


 


(ii)           any liability to pay fees or
commissions to any broker, finder or agent retained by any Molson Coors Group
Company or any of their stockholders or other representatives with respect to
the Contemplated Transactions;


 


(iii)          any liability, obligation or
commitment of any Molson Coors Group Company, whether express or implied,
liquidated, absolute, accrued, contingent or otherwise, whether known or
unknown, to the extent arising out of or relating to the operation or conduct
by any Molson Coors Group Company of any Molson Coors Excluded Asset or any
business other than the Coors Business, including any liability, obligation or
commitment on Schedule 2.08(d)(iii);


 


(iv)          any liability for Income Taxes arising
from the operation of the Coors Business for a taxable period, or the portion
thereof, ending on or before the Closing Date attributable to the Molson Coors
Contributions;


 


(v)           any liability for which MCBC or CBC
is responsible pursuant to any Transaction Document;


 


(vi)          any liability arising out of a
pre-Closing breach by any Person of any Molson Coors Assumed Contract;


 


(vii)         except as otherwise specifically set
forth in this Agreement, all liabilities relating to Excluded CBC Employees,
including, without limitation, any liability relating to Excluded CBC Employees
under any CBC Benefit Plan;


 


(viii)        all liabilities (including, without
limitation, the settlement of) relating to any Equity Award held by a
Transferring CBC Employee and granted pursuant to a CBC Benefit Plan;


 


(ix)           all liabilities, obligations
and commitments with respect to (i) any transaction bonus, stay bonus,
retention bonus or similar bonus and (ii) any change in control payment or
any similar payment, benefit or obligation (a “CIC Payment”), in respect of the
CBC Employee Group, payable pursuant to any plan, agreement or arrangement in
effect as of the Closing Date (including, without limitation, any such bonus or
CIC Payment set forth on Schedule 4.01(s) in response to Section 4.01(s)(viii)),
regardless of when such bonus or such CIC Payment is payable, unless such bonus
or such CIC Payment has been agreed in writing by the Parties to be contributed
to the Company; provided that, with respect to any CIC Payment to be paid to a
Transferring CBC Employee set forth on Schedule
2.08(d)(ix) as a result of a termination of such employee, if
any, only that portion of such CIC Payment that exceeds the severance benefit,
if any, to which such Transferring CBC Employee would have otherwise been
entitled in the event such Transferring CBC Employee’s employment had been
terminated in the same termination of employment circumstances which gave rise
to such CIC Payment (but assuming, for these purposes, that such Transferring
CBC Employee was not entitled to any enhanced severance pursuant to any change
of control agreement or arrangement) shall be considered a CBC Excluded
Liability;


 


20

















 


(x)            all liabilities, obligations
and commitments, whether presently in existence or arising hereafter, including
all those arising under or relating to any Environmental Laws, which are
attributable or caused by or which relate to or result from any property or
facility formerly owned, leased or operated by MCBC, CBC or any of their
respective Subsidiaries (or any of their respective predecessors or Affiliates)
or any other property or facility formerly used in the Coors Business,
including without limitation all liabilities, obligations and commitments
arising from or relating to Hazardous Substances generated, disposed of,
stored, recycled, transported, discharged, or released, in connection with the
use, ownership, operation or maintenance of such properties or facilities, at
any off-site location; and


 


(xi)           all of the liabilities set forth on Schedule
2.08(d)(xi).


 


(e)           The Parties contemplate that,
consistent with the preamble to this Agreement, CBC will be the sole
contributor of the Molson Coors Contributions and one of two initial
Shareholders of the Company.


 


Section 2.09           Initial
Miller Contributions.


 


(a)           Upon the terms and subject to the
conditions set forth in this Agreement, Miller shall, and SABMiller and Miller
shall cause the Miller Group Companies to, assign, transfer and convey at the
Closing to the Company, and the Company shall assume and receive from Miller
and each of its Subsidiaries, all right, title and interest of every kind and
nature, in and to the Miller Contributions, whether tangible or intangible, and
wherever located and by whomever possessed, free and clear of any Lien, other
than Permitted Liens (it being understood that, notwithstanding any other
provision of this Agreement but without any prejudice to the indemnity for any
breach of Section 4.02(j)(iii), no SABMiller Group Company other
than a Miller Group Company shall, directly or indirectly, be required to
assign, transfer or convey any Miller Contributions).  The transfer of the Miller Contributions to
the Company is intended to constitute a tax-free contribution to a partnership
under Section 721 of the Code.


 


(b)           The term “Miller Contributions”
shall include, except as otherwise specifically provided herein, all right,
title and interest in and to all of the assets and liabilities of Miller and
its Subsidiaries used in, intended to be used in or related to the conduct of
the Miller Business (other than the Miller Excluded Assets and Miller Excluded
Liabilities), including all of Miller’s and its Subsidiaries’ right, title and
interest in and to, and liabilities and obligations under:


 


(i)            all current assets of the Miller
Business (excluding cash (other than cash representing container deposits)),
including accounts receivables, inventory, investments held for sale, pension assets
and prepaid expenses;


 


(ii)           all current liabilities of the Miller
Business, including accounts payable and liabilities in respect of Non-Income
Taxes, but excluding liabilities in respect of Income Taxes;


 


(iii)          all machinery, equipment, vehicles, furniture,
fixtures, printing plates, spare and replacement parts and other tangible
personal property of the Miller Business;


 


21

















 


(iv)          the Miller Real Properties;


 


(v)           subject to Section 6.02(c),
all Miller Assumed Contracts;


 


(vi)          subject to the terms of the Brand
Cooperation Agreement and the Miller IP License Agreement, (A) the
Intellectual Property registrations and applications that are set forth on Schedule
2.09(b)(vi), (B) all rights to all other Miller Owned IP that is used,
held for use or exploited as of the Closing Date in the Territory (whether
exclusively or not) in connection with any Miller Contributed Brands (or any
goods or services bearing, or provided under, such Miller Contributed Brands),
but excluding any Miller Owned IP that constitutes Miller Excluded Assets, (C) all
income, royalties, damages and payments due or payable at the Closing or
thereafter relating to such Intellectual Property included in (A) or (B) above
(including damages and payments for past or future infringements or
misappropriations thereof, the right to sue and recover damages for past
infringements or misappropriations thereof and to fully and entirely stand in
the place of SABMiller, Miller or their respective Subsidiaries, as applicable,
in all matters related thereto, any and all corresponding rights that, now or
hereafter, may be secured throughout the Territory, and all copies and tangible
embodiments of any such Intellectual Property), (D) all past and present
goodwill (including the right to represent to third parties that the Company is
the successor to the Miller Business) and related intangible property
associated with or symbolized by any of the foregoing, including relationships
with suppliers, customers and employees, (E) all registrations that have
been or may be granted thereon, all applications for registrations thereof, and
all records and files related thereto in the Territory, and (F) all rights
thereunder, remedies against infringements thereof, and rights to protection of
interests therein under the Laws of all jurisdictions in the Territory (the “Miller
Contributed IP”);


 


(vii)         all liabilities and related assets in
respect of (A) tax-qualified defined benefit pension obligations relating
to the Transferring Miller Employees, (B) tax-qualified defined benefit
pension obligations accrued as of the Closing Date relating to the Excluded
Miller Employees and (C) retiree medical obligations relating to the
Transferring Miller Employees (collectively, the “Miller Retiree Liabilities”),
subject to the provisions of Section 2.10(c);


 


(viii)        except as otherwise specifically set
forth in this Agreement, (A) all liabilities relating to Transferring
Miller Employees under all Miller Benefit Plans and (B) those assets held
in trust to fund, and all insurance policies funding, any such liabilities;


 


(ix)           except as otherwise specifically set
forth in this Agreement, all liabilities with respect to the employment or
termination of employment of all Transferring Miller Employees (and their
dependents and beneficiaries);


 


(x)            all of (A) the equity interests
in each of JLB Co. Inc., Martlet, Inc., and MBC Acquisition Corp. (each of
which shall have been converted to a limited liability company prior to the
Closing and be treated as a disregarded entity for U.S. federal income tax
purposes), (B) the equity interests currently held by Miller and Martlet, Inc.
in Foster’s USA, LLC (which shall be treated as a partnership for U.S. federal income tax
purposes) and (C) the equity interests currently held by MBC Acquisition
Corp. in Miller Brands - Milwaukee LLC 


 


22

















 


and Windmill Distributing Company, L.P. (each of which
shall be treated as a partnership for U.S. federal income tax purposes); provided,
however, that the equity interests held by Martlet Inc. in Foster’s USA
LLC and the equity interests held by MBC Acquisition Corp. in Miller Brands -
Milwaukee LLC and Windmill Distributing Company, L.P. will be contributed
indirectly through the contribution of the equity interests in Martlet Inc. and
MBC Acquisition Corp., respectively, and shall continue to be held by Martlet
Inc. and MBC Acquisition Corp., respectively; provided further, however,
that (1) with respect to each of the Subsidiaries and entities set forth
in clauses (A), (B) and (C), any Miller Excluded Assets held by such
entities or their Subsidiaries may be transferred out of such entities prior to
Closing without violating any other provision of this Agreement, and (2) with
respect to each of the Subsidiaries and entities set forth in clauses (A) and
(B), no Miller Excluded Liabilities of such entities or their Subsidiaries
shall be assumed by the Company (but rather shall be fully assumed by or
otherwise be the sole obligation and responsibility of the SABMiller Group
Companies);


 


(xi)           all guaranties, warranties,
indemnities and similar rights in favor of SABMiller, Miller or any of their
respective Subsidiaries with respect to any Miller Contribution;


 


(xii)          all books of account, ledgers,
general, financial, accounting and personnel records, files, invoices,
customers’ and suppliers’ lists, documents, agreements (other than the
Transaction Documents), mailing lists, catalogues, brochures, sales data and information,
advertising material, other distribution lists, billing records, sale and
promotional literature, manuals, material client and supplier correspondence
(in all cases, in any form or medium, including computerized media), of
SABMiller, Miller or any of their respective Subsidiaries to the extent that
they are used in, or arise out of, the conduct or operation of the Miller
Business (including, without limitation, any records or files necessary to the
administration of any Miller Benefit Plan assumed by the Company pursuant to
this Agreement);


 


(xiii)         all rights, claims and credits arising
under any insurance policies maintained by SABMiller, Miller or any of their
respective Subsidiaries to the extent arising from or applicable to the Miller
Business, and any rights that Miller may have in relation to insurance policies
of Altria Group, Inc. under the terms of the May 30, 2002 Agreement
between SABMiller and Altria Group, Inc., in each case whenever arising;


 


(xiv)        subject to Section 2.09(c)(vi),
all of SABMiller’s, Miller’s and their respective Subsidiaries’ rights, claims,
credits, causes of action, rights to indemnification and contribution or rights
of set-off against third parties to the extent arising from or applicable to
the Miller Business whenever arising; and


 


(xv)         the liabilities set forth on Schedule
2.09(b)(xv).


 


The contribution of any asset or liability in respect
of the Miller Contributions may be structured either as a direct contribution
of the asset or liability or as a contribution of all of the equity of a
limited liability company that owns such asset or bears such liability and is
treated as a disregarded entity for U.S. federal income tax purposes; provided,
however, that, except as expressly provided otherwise herein, no Miller
Excluded Liabilities of any such limited liability 


 


23

















 


company shall be assumed
by the Company, but rather any Miller Excluded Liabilities shall be the sole
responsibility and obligation of, or shall be fully assumed by, the SABMiller
Group Companies.


 


(c)           The term “Miller Excluded Assets”
shall mean:


 


(i)            all cash other than cash
representing container deposits;


 


(ii)           capital stock and other equity
interests in Miller or any of its respective Subsidiaries other than as described
in Section 2.09(b)(x);


 


(iii)          all rights of SABMiller and Miller
under the Transaction Documents;


 


(iv)          (A) all Intellectual Property
registrations and applications other than those that are set forth on Schedule 2.09(b)(vi),
(B) all rights to all other Miller Owned IP that is used, held for use or
exploited as of the Closing Date in the Territory by a SABMiller Group Company
exclusively in connection with a brand other than a Miller Contributed Brand
(or exclusively in connection with any goods or services bearing, or provided
under, a brand other than a Miller Contributed Brand) and (C) all rights
to use or exploit outside the Territory any Intellectual Property (other than
the Internet domain names that are set forth on Schedule 2.09(b)(vi)).  Without limiting the foregoing, the Parties
agree that Miller Excluded Assets shall include all of the following held by
any SABMiller Group Company: (X) all issued Patents and Trademark  and Copyright registrations, and applications
for any of the foregoing, that are registered or applied for outside the
Territory, (Y) all rights, including common law rights, to use or exploit
Trademarks outside the Territory and (Z) all rights to use, exploit, or
limit the use or disclosure of, Trade Secrets outside the Territory;


 


(v)           all of the interests in and the
assets of and comprising the Miller Group’s International Division;


 


(vi)          all rights of recovery pursuant to,
and all interests in, the cash payment of approximately $70 million due
pursuant to the settlement of the claim by Miller against Ball Metal Beverage
Container Corp. (“Ball”) as announced by Ball on October 9, 2007
(the “Ball Payment”);


 


(vii)         receivables due to any Miller Group
Company from SABMiller or any of its Subsidiaries in respect of money borrowed
(other than trade receivables) and not arising out of the operations of the
Miller Business;


 


(viii)        dividends due to any Miller Group
Company from any Affiliate of SABMiller (other than another Miller Group
Company);


 


(ix)           all of the assets and interests set
forth on Schedule 2.09(c)(ix);


 


(x)            those assets held in trust to fund,
and all insurance policies funding, any of the liabilities set forth in Section 2.09(d)(viii) below;


 


24

















 


(xi)           all royalty or equivalent rights in
respect of oil and gas deposits at the Fort Worth Brewery;


 


(xii)          the Puerto Rico branch office of MBI, Inc.,
except to the extent required to operate the Miller Business in the Territory
(if any);


 


(xiii)         hops inventory in excess of that amount
required to supply all of the Miller Business’s hops demands for two years
after the Closing Date based on current production levels;


 


(xiv)        any assets inside the Territory which
are owned by a SABMiller Group Company other than a Miller Group Company and
used in connection with its business  of
exporting Beer into the Territory; and


 


(xv)         office equipment of de minimis value
owned by SABMiller Holdings and used in connection with the Miller Business at
Miller’s Puerto Rico office.


 


(d)           The term “Miller Excluded
Liabilities” shall mean:


 


(i)            all indebtedness for borrowed money
(including any guarantees, credit support agreements, letters of credit or
other similar instruments with respect to any indebtedness for borrowed money
other than those liabilities described on Schedule 2.09(b)(xv)) and all
currency and interest rate derivatives, of the SABMiller Group Companies;


 


(ii)           all of the liabilities of and
comprising the Miller Group’s International Division;


 


(iii)          any liability to pay fees or commissions
to any broker, finder or agent retained by any SABMiller Group Company or any
of their stockholders or other representatives with respect to the Contemplated
Transactions;


 


(iv)          any liability, obligation or
commitment of any SABMiller Group Company, whether express or implied,
liquidated, absolute, accrued, contingent or otherwise, whether known or
unknown, to the extent arising out of or relating to the operation or conduct
by any SABMiller Group Company of any Miller Excluded Asset or any business other
than the Miller Business, including any liability, obligation or commitment
arising out of the Ball Payment;


 


(v)           any liability for Income Taxes
arising from the operation of the Miller Business for a taxable period, or the
portion thereof, ending on or before the Closing Date attributable to the
Miller Contributions;


 


(vi)          any liability for which SABMiller or
Miller is responsible pursuant to any Transaction Document;


 


(vii)         any liability arising out of a
pre-Closing breach by any Person of any Miller Assumed Contract;


 


25

















 


(viii)        except as otherwise specifically set
forth in this Agreement, all liabilities relating to Excluded Miller Employees
including, without limitation, any liability relating to Excluded Miller
Employees under any Miller Benefit Plan;


 


(ix)           all liabilities (including, without
limitation, the settlement of) relating to any Equity Award held by a
Transferring Miller Employee and granted pursuant to a Miller Benefit Plan or
otherwise (including, without limitation, any Equity Award relating to the
stock of Altria Group, Inc. or its successors and any Equity Award
previously relating to the stock of Altria Group, Inc. that was
subsequently converted into an Equity Award on the stock of another corporate
entity);


 


(x)            all liabilities, obligations
and commitments with respect to (i) any transaction bonus, stay bonus,
retention bonus or similar bonus and (ii) any CIC Payment, in
respect of the Miller Employee Group, payable pursuant to any plan, agreement
or arrangement in effect as of the Closing Date (including, without limitation,
any such bonus or CIC Payment set forth as item 4 on Schedule 4.02(s)(viii),
but excluding for purposes of this Section 2.09(d)(x) any
other bonus or CIC Payment set forth as items 1, 2, 3, 5 and 6 on Schedule
4.02(s)(viii)), regardless of when such bonus or such CIC Payment is
payable, unless such bonus or CIC Payment has been agreed in writing by the
Parties to be contributed to the Company;


 


(xi)           all liabilities, obligations
and commitments, whether presently in existence or arising hereafter, including
all those arising under or relating to any Environmental Laws, which are
attributable or caused by or which relate to or result from any property or
facility formerly owned, leased or operated by SABMiller, Miller or any of their respective
Subsidiaries (or any of their respective predecessors or Affiliates) or any
other property or facility formerly used in the Miller Business, including
without limitation all liabilities, obligations and commitments arising from or
relating to Hazardous Substances generated, disposed of, stored, recycled,
transported, discharged, or released, in connection with the use, ownership,
operation or maintenance of such properties or facilities, at any off-site
location; and


 


(xii)          all of the liabilities set forth on Schedule
2.09(d)(xii).


 


(e)           The Parties contemplate that,
consistent with the preamble to this Agreement, Miller will be the sole
contributor of the Miller Contributions and one of two initial Shareholders of
the Company.


 


Section 2.10           Determination
of Certain Closing Payments.


 


(a)           The Company shall pay to each
Shareholder, as applicable, within ten (10) Business Days after the
determination of the Shareholders’ Adjustment Amounts as an adjustment to, and
repayment of, such Shareholder’s capital contributions to the Company, an
amount equal to the lesser of (i) such Shareholder’s Capital Expenditures;
and (ii) such Shareholder’s Adjustment Amount, if any.  A Shareholder’s “Adjustment Amount”
for purposes of this Section 2.10 means the sum of the amounts
described as included within such Shareholder’s Adjustment Amount in Sections
2.10(b) and 2.10(c), plus, in the case of Miller, 


 


26

















 


the sum of the Miller Assumed Contract Adjustment
Payment and $21,000,000.  The Parties
agree to treat and report for U.S. federal income tax purposes all Adjustment
Amounts paid to a Shareholder pursuant to this Section 2.10(a) (plus
any payments pursuant to Section 2.10(e), to the extent permitted
by Applicable Law) as a reimbursement of such Shareholder’s Capital
Expenditures within the meaning of Treasury Regulation Section 1.707-4(d).  Nothing herein shall be understood to relieve
a Shareholder from its obligation to make payments to the Company, if any, as
determined pursuant to Sections 2.10(b) and 2.10(c) hereof.


 


(b)           A post-Closing adjustment in respect
of the CBC Retiree Liabilities shall occur as follows:


 


(i)            As soon as practicable and in any event
within thirty (30) Business Days following the Closing Date, CBC shall deliver
to Miller a statement (the “CBC Retiree Liability Notice”) prepared by
CBC in good faith setting forth the actuarially estimated amount (the “Closing
CBC Retiree Amount”) of the CBC Retiree Liabilities as of the Closing Date
(using the methodologies and assumptions used in determining the $176,000,000
estimate of such liabilities agreed by the Parties prior to the date hereof and
which are set forth on Schedule 2.10(b)(i), but updated for market
values and market discount rates, with the liabilities being rolled forward to
adjust for interest costs, service costs and benefit payments, as of the
Closing) and showing in reasonable detail how such amount was calculated.  If the Closing CBC Retiree Amount is greater
than $176,000,000, then, unless Miller has delivered a Miller Objection Notice
under Section 2.10(b)(ii) below, CBC shall make a cash payment
to the Company, within ten (10) Business Days after the expiration of the
period for delivery of a Miller Objection Notice, equal to the excess of the
Closing CBC Retiree Amount over $176,000,000. 
If the Closing CBC Retiree Amount is less than $176,000,000, then,
unless Miller has delivered a Miller Objection Notice under Section 2.10(b)(ii) below,
CBC’s Adjustment Amount shall include an amount equal to the excess of
$176,000,000 over the Closing CBC Retiree Amount; provided that any overfunding
of pension liabilities shall not offset any retiree medical benefit obligations
for the purposes of calculating whether $176,000,000 exceeds the Closing CBC
Retiree Amount.


 


(ii)           Miller shall have the right to
inspect the books and records of the CBC Group Companies (on reasonable notice
and during usual business hours) during the period ending twenty (20) Business
Days after the date of the CBC Retiree Liability Notice to the extent
reasonably required for the calculation of the Closing CBC Retiree Amount.  Miller shall have the right, only during such
twenty Business Day period, to object to the Closing CBC Retiree Amount by
delivering to CBC and the Company a notice (a “Miller Objection Notice”)
setting out its detailed revised calculation (using the methodologies and
assumptions used in determining the $176,000,000 estimate of such liabilities
agreed by the Parties prior to the date hereof and which are set forth on Schedule
2.10(b)(i), but updated for market values and market discount rates, with
the liabilities being rolled forward to adjust for interest costs, service
costs and benefit payments, as of the Closing) of the Closing CBC Retiree
Amount (the “Revised CBC Retiree Amount”).  If CBC agrees with Miller’s calculation of
the Revised CBC Retiree Amount, CBC shall deliver notice of its agreement to
Miller and the Company, and (A) if the Revised CBC Retiree Amount is
greater than $176,000,000, CBC shall (within ten (10) Business Days of
delivery of CBC’s notice) make a cash payment to the Company equal to such
excess, or (B) if the Revised CBC Retiree Amount is less than
$176,000,000, CBC’s 


 


27

















 


Adjustment Amount shall include an amount equal to the
excess of $176,000,000 over the Revised CBC Retiree Amount.  If CBC does not dispute Miller’s calculation
of the Revised CBC Retiree Amount within ten (10) Business Days of its
receipt of the Miller Objection Notice, CBC will be deemed to have agreed to
Miller’s calculation and notice of CBC’s agreement will be deemed to have been
given to Miller and the Company.


 


(iii)          If CBC disputes all or part of the
Revised CBC Retiree Amount, CBC shall deliver notice (such notice setting forth
the basis for such disagreement in reasonable detail) of such dispute to Miller
and the Company within fifteen (15) Business Days of its receipt of the Miller
Objection Notice and no payment that would otherwise be due pursuant to Section 2.10(b)(ii) shall
become due until such matter is resolved. 
CBC and Miller shall cooperate in good faith to resolve such
dispute.  If CBC and Miller do not
resolve such dispute within fifteen (15) Business Days of the date of the
notice, the matter shall be submitted to the Actuary by either CBC or Miller,
who shall be requested to make a final determination, within twenty (20)
Business Days of such submission, of the CBC Retiree Liabilities as of the
Closing (using the methodologies and assumptions used in determining the
$176,000,000 estimate of such liabilities agreed by the Parties prior to the
date hereof and which are set forth on Schedule 2.10(b)(i), but updated
for market values and market discount rates, with the liabilities being rolled
forward to adjust for interest costs, service costs and benefit payments, as of
the Closing).  Upon CBC and Miller’s
agreement or a final determination by the Actuary, (A) if the finally
determined or agreed-upon CBC Retiree Liabilities are greater than
$176,000,000, CBC shall (within three Business Days of such agreement or final
determination by the Actuary), make a cash payment to the Company equal to such
excess, or (B) if the finally determined or agreed-upon CBC Retiree
Liabilities are less than $176,000,000, CBC’s Adjustment Amount shall include
an amount equal to the excess of $176,000,000 over the finally determined or
agreed-upon CBC Retiree Liabilities.


 


(c)           A post-Closing adjustment in respect
of the Miller Retiree Liabilities shall occur as follows:


 


(i)            As soon as practicable and in any
event within thirty (30) Business Days following the Closing Date, Miller shall
deliver to CBC a statement (the “Miller Retiree Liability Notice”) prepared
by Miller in good faith setting forth the actuarially estimated amount (the “Closing
Miller Retiree Amount”) of the Miller Retiree Liabilities as of the Closing
Date (using the methodologies and assumptions used in determining the
$505,000,000 estimate of such liabilities agreed by the Parties prior to the
date hereof and which are set forth on Schedule 2.10(b)(i), but updated
for market values and market discount rates, with the liabilities being rolled
forward to adjust for interest costs, service costs and benefit payments, as of
the Closing) and showing in reasonable detail how such amount was
calculated.  If the Closing Miller
Retiree Amount is greater than $505,000,000, then, unless CBC has delivered a
CBC Objection Notice under Section 2.10(c)(ii) below, Miller
shall make a cash payment to the Company, within ten (10) Business Days
after the expiration of the period for delivery of a CBC Objection Notice,
equal to the excess of the Closing Miller Retiree Amount over
$505,000,000.  If the Closing Miller
Retiree Amount is less than $505,000,000, then, unless CBC has delivered a CBC
Objection Notice under Section 2.10(c)(ii) below, Miller’s
Adjustment Amount shall include an amount equal to the excess of $505,000,000
over the Closing Miller Retiree Amount; provided that any overfunding of
pension liabilities shall 


 


28

















 


not offset any retiree medical benefit obligations for
the purposes of calculating whether $505,000,000 exceeds the Closing Miller
Retiree Amount.


 


(ii)           CBC shall have the right to inspect
the books and records of the Miller Group Companies (on reasonable notice and
during usual business hours) during the period ending twenty (20) Business Days
after the date of the Miller Retiree Liability Notice to the extent reasonably
required for the calculation of the Closing Miller Retiree Amount.  CBC shall have the right, only during such
twenty Business Day period, to object to the Closing Miller Retiree Amount by
delivering to Miller and the Company a notice (a “CBC Objection Notice”)
setting out its detailed revised calculation (using the methodologies and
assumptions used in determining the $505,000,000 estimate of such liabilities
agreed by the Parties prior to the date hereof and which are set forth on Schedule
2.10(b)(i), but updated for market values and market discount rates, with
the liabilities being rolled forward to adjust for interest costs, service
costs and benefit payments, as of the Closing) of the Closing Miller Retiree
Amount (the “Revised Miller Retiree Amount”).  If Miller agrees with CBC’s calculation of
the Revised Miller Retiree Amount, Miller shall deliver notice of its agreement
to CBC and the Company, and (A) if the Revised Miller Retiree Amount is
greater than $505,000,000, Miller shall (within ten (10) Business Days of
delivery of Miller’s notice), make a cash payment to the Company equal to such
excess, or (B) if the Revised Miller Retiree Amount is less than
$505,000,000, Miller’s Adjustment Amount shall include an amount equal to the
excess of $505,000,000 over the Revised Miller Retiree Amount. If Miller does
not dispute CBC’s calculation of the Revised Miller Retiree Amount within ten (10) Business
Days of its receipt of the CBC Objection Notice, Miller will be deemed to have
agreed to CBC’s calculation and notice of Miller’s agreement will be deemed to
have been given to CBC and the Company.


 


(iii)          If Miller disputes all or part of the
Revised Miller Retiree Amount, Miller shall deliver notice (such notice setting
forth the basis for such disagreement in reasonable detail) of such dispute to
CBC and the Company within fifteen (15) Business Days of its receipt of the CBC
Objection Notice and no payment that would otherwise be due pursuant to Section 2.10(c)(ii) shall
become due until such matter is resolved. 
CBC and Miller shall cooperate in good faith to resolve such
dispute.  If CBC and Miller do not
resolve such dispute within fifteen (15) Business Days of the date of the
notice, the matter shall be submitted to the Actuary by either CBC or Miller,
who shall be requested to make a final determination, within twenty (20)
Business Days of such submission, of the Miller Retiree Liabilities as of the
Closing (using the methodologies and assumptions used in determining the
$505,000,000 estimate of such liabilities agreed by the Parties prior to the
date hereof and which are set forth on Schedule 2.10(b)(i), but updated
for market values and market discount rates, with the liabilities being rolled
forward to adjust for interest costs, service costs and benefit payments, as of
the Closing).  Upon CBC and Miller’s
agreement or a final determination by the Actuary, (A) if the finally
determined or agreed-upon Miller Retiree Liabilities are greater than
$505,000,000, Miller shall (within three Business Days of such agreement or
final determination by the Actuary) make a cash payment to the Company equal to
such excess, or (B) if the finally determined or agreed-upon Miller
Retiree Liabilities are less than $505,000,000, Miller’s Adjustment Amount
shall include an amount equal to the excess of $505,000,000 over the finally
determined or agreed-upon Miller Retiree Liabilities.


 


29

















 


(d)           To the extent possible, amounts
payable by a Shareholder to the Company pursuant to Sections 2.10(b) and
2.10(c) shall reduce such Shareholder’s Adjustment Amount rather
than be made as separate payments.  In
the event that a Shareholder’s Adjustment Amount exceeds such Shareholder’s
Capital Expenditures, the Company shall pay the amount of such excess to the
Shareholder at the same time as the payment due under Section 2.10(a).  For the avoidance of doubt, any payments due
under this Section 2.10(d) shall not be treated as an
Adjustment Amount payable under Section 2.10(a).


 


(e)           All amounts owed pursuant to this Section 2.10
shall include interest, from the Closing Date to the date of payment, at the
Applicable Rate (compounded semiannually), calculated on the basis of a 365-day
year.


 


(f)            The “Actuary” shall be such Person as may be agreed on by the
Parties. In the event the Parties fail to agree on the Actuary within 10
Business Days of the date of the relevant notice of the dispute, the Actuary
shall be chosen by mutual agreement of the Persons nominated to serve as the
Actuary by each of the Parties.  In any
event, the Actuary shall be an ERISA enrolled actuary with experience in
resolving disputes involving defined benefit pension and retiree liabilities.  The decision of the Actuary shall be
final and binding on the Parties, and shall be enforceable under the Federal
Arbitration Act, Title 9 of the United States Code.  The fees and expenses of the Actuary shall be
paid as follows:


 


(i)            if the amount determined by the
Actuary is nearer to the Closing Amount than the Revised Amount, the fees and
expenses of the Actuary will be paid by the non-disputing Party;


 


(ii)           if the amount determined by the
Actuary is nearer to the Revised Amount than the Closing Amount, the fees and
expenses of the Actuary will be paid by the disputing Party; and


 


(iii)          if the amount determined by the
Actuary is half way between the Closing Amount and the Revised Amount, the fees
and expenses of the Actuary will be borne equally by the disputing Party and
the non-disputing Party.


 


A reference in this Section 2.10(f) to
(A) the “Closing Amount” shall mean the Closing CBC Retiree Amount or the
Closing Miller Retiree Amount (as the context requires), (B) the “Revised
Amount” shall mean the Revised CBC Retiree Amount or the Revised Miller Retiree
Amount (as the context requires), (C) the “disputing Party” shall mean
whichever of Miller or CBC has disputed the Revised Amount, and (D) the
“non-disputing Party” shall mean whichever of Miller or CBC is not the
disputing Party.


 


(g)           With respect to any payment due from
the Company pursuant to this Section 2.10 as a result of Section 2.10(b),
Section 2.10(c) or Section 2.10(e), the
Shareholders shall promptly fund such payment in proportion to their holding of
Shares in the Company as of the Closing Date. 
In determining the Shareholders’ respective holding of Shares for the
purposes of this Section 2.10(g), Class A Shares shall be
treated as identical to Class B Shares.


 


(h)           All payments made from the Company to
CBC or Miller, or vice versa, pursuant to this Section 2.10 (other
than interest as provided in Section 2.10(e)), are in the 


 


30

















 


nature of an adjustment to such Shareholder’s
contribution to the Company, intended to cause the amount of net assets
contributed by CBC and Miller to the Company to equal the amount of net assets
the Parties agreed should be contributed by such Shareholder to the Company
pursuant to this Agreement.


 


(i)            No payment by Miller or CBC to the
Company pursuant to this Section 2.10 shall entitle either Miller
or CBC to any additional interest in the Company by virtue thereof beyond the
Miller Interests and the CBC Interests issued to them, respectively, pursuant
to this Agreement and the Operating Agreement.


 


Section 2.11           Tax
Treatment.


 


(a)           It is the intent of the Shareholders
that the Company shall at all times be classified as a partnership for U.S.
federal income Tax purposes and each Subsidiary (other than Foster’s USA LLC,
which shall be treated as a partnership for U.S. federal income tax purposes)
as a disregarded entity for U.S. federal income Tax purposes.  The Company shall not elect, and shall not
cause any Subsidiary to elect, to be treated as a corporation for U.S. federal
income Tax purposes unless each of the Shareholders shall consent in
writing.  The Parties agree that they
shall cooperate to structure the Contemplated Transactions, to the extent
reasonably possible, in a manner that is tax-free for U.S. federal and state
income Tax purposes.


 


(b)           Each Shareholder acknowledges that
reporting for financial accounting purposes may differ from U.S. federal income
Tax treatment, and that Section 2.11(a) shall not prevent
either Shareholder from appropriately reporting the Contemplated Transactions for financial accounting purposes as
required under US GAAP or IFRS.


 


(c)           The Company and each Shareholder
agree to treat the transfer of the Miller Contributions and the Molson Coors
Contributions to the Company as tax-free contributions to a partnership under Section 721
of the Code.


 


Section 2.12           Independent
Operation of Company.  Subject to the
provisions of the Operating Agreement, the Company shall operate as an
independent entity separate and apart from the Shareholders.


 


Section 2.13           Compliance
with Applicable Law.  The Company
shall, and the Shareholders shall at all times cause the Company to, conduct
all of its activities in full compliance with Applicable Laws and all policies
adopted from time to time by the Company.


 


ARTICLE III

TRANSACTIONS AND CLOSING


 


Section 3.01           Closing
Transactions.  Upon the terms and
conditions set forth in this Agreement and the other Transaction Documents, the
Parties agree that at the Closing, among other things:


 


(a)           MCBC and CBC shall make and shall
cause their respective Subsidiaries to make the Molson Coors Contributions in
exchange for the issue of the CBC Interests to CBC;


 


31

















 


(b)           Miller shall make, and SABMiller and
Miller shall cause the Miller Group Companies to make, the Miller Contributions
in exchange for the issue of the Miller Interests to Miller; and


 


(c)           the Parties shall execute and
deliver, and shall cause their respective Subsidiaries to execute and deliver,
as applicable, each of the Transaction Documents (and each document referred to
in the Transaction Documents) contemplated to be executed and delivered at the
Closing.


 


Section 3.02           Closing. 
The closing (the “Closing”) of the Contemplated Transactions
shall take place at the offices of Kirkland & Ellis LLP, 153 E. 53rd
Street, New York, New York 10022, at 10:00 a.m. on the fifth Business Day
following the satisfaction or waiver (by the Shareholder entitled to waive the
condition) of all conditions to the Closing set forth in Article VIII
(excluding any conditions which, by their terms, cannot be satisfied until
Closing, but subject to such conditions being satisfied at Closing), or at such
other time and place as the Parties may agree. The Closing will become
effective at 12:01 a.m., Eastern time, on the Closing Date.


 


ARTICLE IV

REPRESENTATIONS AND WARRANTIES


 


Section 4.01           Representations and
Warranties of MCBC and CBC.   Each of MCBC  and CBC represents
and warrants, jointly and severally, to the Company, as of the date of this
Agreement and as of the Closing Date, that:


 


(a)           Corporate Existence and Power.  It is a corporation duly incorporated,
validly existing and in good standing under the laws of the state or
jurisdiction of its incorporation and has all corporate power and authority
required to carry on its businesses as now conducted.  Where applicable, it is duly qualified to do
business as a foreign corporation or other entity and is in good standing in
each jurisdiction where the nature of its business, activities or properties
makes such qualification necessary to carry on its business as now conducted,
except where the failure to be so qualified or in good standing has not been,
and would not reasonably be expected to be, material to the Coors Business.


 


(b)           Corporate Authorization.  The execution, delivery and performance by it
of the Transaction Documents to which it is a party and the consummation by it
of the Contemplated Transactions are within its corporate powers and have been
duly authorized by all necessary corporate action on its part.  Without limiting the
foregoing, certain members of the Molson and Coors families and related
entities, who own a majority of the MCBC Class A Stock, have directed the
execution of, and delivered to MCBC, effective consents approving the
Contemplated Transactions (although MCBC currently anticipates that it will not
need to rely on such approval to consummate the Contemplated Transactions and,
in any event, no other shareholder approval is required). 
This Agreement constitutes and each of the other Transaction Documents
to which it is a party constitutes or shall constitute at Closing a legal,
valid and binding agreement of it, enforceable against it in accordance with
its terms (i) except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors’ 


 


32

















 


rights generally, including the effect of statutory
and other laws regarding fraudulent conveyances and preferential transfers, and
(ii) subject to the limitations imposed by general equitable principles
regardless of whether such enforceability is considered in a proceeding at law
or in equity.


 


(c)           Governmental Authorization.  The execution, delivery and performance by it  of the Transaction Documents to which it
is a party require no action by or in respect of, or consent or approval of, or
filing with, any Governmental Authority other than:


 


(i)            compliance with any applicable
requirements of the Antitrust Laws;


 


(ii)           the actions, consents, approvals,
permits or filings set forth in Schedule 4.01(c) or otherwise
expressly referred to in this Agreement; and


 


(iii)          such other consents, approvals,
authorizations, permits and filings, the failure to obtain or make of which
would not, individually or in the aggregate, be material to the Coors Business.


 


(d)           Non-Contravention.  Except as set forth in Schedule 4.01(d),
the execution, delivery and performance by it of the Transaction Documents to
which it is a party  does not and
shall not (i) contravene or conflict with its charter, bylaws or other
organizational documents, (ii) assuming compliance with the matters
referred to in Section 4.01(c), contravene or conflict with, or
constitute a violation of, any provisions of any Applicable Law binding upon
it, or (iii) assuming compliance with the matters referred to in Section 4.01(c),
constitute a default under, or give rise to any right of termination,
cancellation or acceleration of, or to a loss of any benefit to which it  is entitled under, any Contract binding
upon it  or any license, franchise,
permit or similar authorization held by it  except,
in the case of clauses (ii) and (iii), for any such contravention,
conflict, violation, default, termination, cancellation, acceleration or loss
that would not reasonably be expected to be material to the Coors Business.


 


(e)           Litigation.  Except as set forth in Schedule 4.01(e),
there is, as of the date hereof, no Proceeding pending, or to CBC’s knowledge,
threatened against or affecting a Molson Coors Group Company or the Coors Joint
Ventures relating to the Coors Business or to the Contemplated Transactions
before (or that could come before) any Governmental Authority that would
reasonably be expected to result in a Loss to the Coors Business in excess of
$2,500,000 or otherwise be material to the Coors Business or the ability of the
Parties to timely consummate the Contemplated Transactions.


 


(f)            Compliance with Laws.  Except as set forth in Schedule 4.01(f),
since January 1, 2005, the Molson Coors Group Companies and, to CBC’s
knowledge, the Coors Joint Ventures, have complied, and are in compliance, with
all Applicable Laws which affect the Coors Business and to which they may be
subject, and no fines, penalties, or claims have been assessed, filed or
commenced or, to CBC’s knowledge, threatened against any of them alleging any
failure to so comply, except where such failure to comply would not reasonably
be expected to result in a Loss to the Coors Business in excess of $2,500,000
or otherwise be material to the Coors Business.


 


33

















 


(g)           Licenses.  The Molson Coors Group Companies and, to
CBC’s knowledge, the Coors Joint Ventures have obtained and maintained all
material licenses, permits, approvals and authorizations required to enable the
Molson Coors Group to carry on the Coors Business.


 


(h)           Absence of Changes.  Since January 1, 2007, the Molson Coors
Group Companies have conducted the Coors Business in the ordinary and usual
course of such Coors Business and there has not been, except as set forth in Schedule
4.01(h):


 


(i)            any change, effect, circumstance or
event that has had or would reasonably be expected to have a Material Adverse
Effect in respect of MCBC or CBC and there does not exist any effect or
condition that would or would reasonably be expected to  materially impair the ability of MCBC or CBC
to perform their obligations under any Transaction Document or otherwise
materially threaten or materially impede or delay the consummation of the
Contemplated Transactions by MCBC or CBC;


 


(ii)           any material damage, destruction or
other casualty loss with respect to any material asset or property owned,
leased or otherwise used by the Molson Coors Group in the Coors Business,
whether or not covered by insurance;


 


(iii)          any abandonment or lapse of any
material CBC Owned IP, or any sale, assignment, license or transfer of any
material CBC Owned IP, other than in the ordinary course of business and
consistent with past practice;


 


(iv)          any mortgage, pledge or Lien placed on
any portion of a Molson Coors Group Company’s assets used in the Coors
Business, except Permitted Liens;


 


(v)           any sale, acquisition, assignment or
transfer of any of a Molson Coors Group Company’s material tangible assets used
in the Coors Business, except in the ordinary course of business consistent
with past practice, or any sale, lease, assignment, transfer or other
disposition of any of the water usage and storage rights described on Schedule
4.01(w) (other than leases of Excess Rights (as defined in the Water
Supply Lease) for terms of one year or less);


 


(vi)          any material change in any method of
accounting or accounting practice or principle by a CBC Group Company (or, to
CBC’s knowledge, the Coors Joint Ventures);


 


(vii)         any assumption, guarantee or
endorsement of or other act to become liable or responsible for (whether
directly, contingently or otherwise) more than $2,500,000 of liabilities of any
other Person if such liability would be a Molson Coors Contribution;


 


(viii)        any settlement of any suit, action,
claim, proceeding or investigation (including any suit, action, claim,
proceeding or investigation relating to this Agreement or the Contemplated
Transactions) or payment, discharge or satisfaction or agreement to pay,
discharge or satisfy any claim or liability in connection with the Coors


 


34






 












 


Business except for immaterial suits, actions, claims,
proceedings or investigations incident to and settled in the ordinary course of
business prior to the Closing Date;


 


(ix)                                any promise, agreement or arrangement
with any Transferring CBC Employee to provide such employee change in control
benefits, a transaction bonus or similar payouts or benefits triggered by the
Contemplated Transactions (either alone or in connection with any other event,
including, without limitation, the termination of such employee’s employment);
or


 


(x)                                   any agreement to take any of the
foregoing actions.


 


(i)                                     Financial Information and Undisclosed
Liabilities.


 


(i)                                     The financial
information in relation to the Coors Business contained in the balance sheet as
at September 30, 2007 and contained in the profit and loss statement for
the period ending March 31, 2007 set out in Schedule 4.01(i) (“Coors
Financial Information”): (A) has been properly extracted from the
underlying financial accounting records of the Molson Coors Group; (B) presents
a reasonably accurate view of both the financial position of the Coors Business
as at the date to which the balance sheet was drawn up and the profit or loss
of the Coors Business for the period to which the profit and loss statements
relate; and (C) was prepared on a basis that is consistent with US GAAP
and the audited financial statements of MCBC for the relevant periods (as
reflected in the U.S. segment of such audited financial statements).  The forecast information in relation to the
Coors Business contained in the profit and loss statement for the period ending
March 31, 2008 set out in Schedule 4.01(i) has been: (a) with
respect to the period up to September 30, 2007, properly extracted from
the underlying financial accounting records of the CBC Group; and (b) with
respect to the period from October 1, 2007 to March 31, 2008,
prepared with due care based on reasonable assumptions.  The adjustments set forth on the
normalization schedule included as the final page of Schedule 4.01(i) have
been prepared with due care based on reasonable assumptions.


 


(ii)                                  No MCBC Group Company is subject to any
material liability of a type that would appear on a balance sheet under US GAAP
in force at the date of this Agreement arising out of events, transactions or
actions or inactions arising prior to the date hereof, except (A) liabilities under leases, licenses,
contracts and agreements described in the Schedules hereto or under leases,
licenses, contracts and agreements which are not required to be disclosed
thereon, (B) liabilities arising out of or related to the Contemplated
Transactions, (C) liabilities reflected on the most recent balance sheet
included in the Coors Financial Information (the “Latest CBC Balance Sheet”)
or liabilities which have arisen after the date of the Latest CBC Balance Sheet
in the ordinary course of business consistent with past practices, (D) liabilities
otherwise disclosed on the Schedules attached hereto and (E) liabilities
not being assumed by the Company. 
Notwithstanding the foregoing, this representation and warranty will not
apply to (and will exclude) any liability arising out of or related to facts,
events, transactions, or actions or inactions the category of which is the
subject of another representation or warranty set forth in this Section 4.01,
whether or not the existence of such liability would constitute a breach or
inaccuracy of such representation or warranty. 
(By way of example, pending and threatened litigation is addressed in
the representations and warranties in


 


35

















 


Section 4.01(e) and therefore all pending and threatened
litigation (regardless of whether such litigation is covered by the
representation and warranties in Section 4.01(e)) is considered a “category”
for the purposes of the foregoing sentence).


 


(iii)                               Each Molson Coors Group Company has
timely filed all reports, registrations, schedules, forms, statements and other
documents, together with any amendments required to be made with respect
thereto (each, a “Report”), that it was required to file with the U.S.
Securities Exchange Commission (the “SEC”) in connection with the
Contemplated Transactions, except where the failure to file such Report has not
had, and would not reasonably be expected to have, a Material Adverse Effect or
would not reasonably be expected to materially impair the ability of MCBC or
CBC to perform their obligations under this Agreement or otherwise materially
threaten or materially impede or delay, beyond the date set forth in Section 10.01(c),
the consummation of the Contemplated Transactions by MCBC or CBC.  No Report of the Company made with the SEC,
as of the date of such Report, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in the light of the
circumstances in which they were made, not misleading, except that information
as of a later date (but before the date of this Agreement) shall be deemed to
modify information as of an earlier date.


 


(j)                                     Title and Sufficiency of Assets.


 


(i)                                     Except as a result of operating the Coors
Business in the ordinary course consistent with past practice since September 30,
2007, a Molson Coors Group Company owns all the assets reflected on the Latest
CBC Balance Sheet, free and clear of all Liens (other than Permitted
Liens).  A Molson Coors Group Company has
good title to, or a valid leasehold or licensed interest in (with respect to
leased or licensed assets and properties), all assets, tangible or intangible,
that are part of the Molson Coors Contributions, free and clear of all Liens
other than Permitted Liens.  Except for
Unassigned CBC Assets, a Molson Coors Group Company has the right to convey
(subject only to the third party consents required with respect to the
Contracts referenced on Schedule 4.01(d)), and upon the transfer (or
license or lease, as applicable) of such assets that are part of the Molson
Coors Contributions to the Company at the Closing will have conveyed, good
title and interest (or a valid leasehold or license interest, as applicable) in
and to such assets, free and clear of all Liens other than Permitted Liens.


 


(ii)                                  The Molson Coors Contributions comprise
substantially all of the assets, properties and rights used by the Molson Coors
Group in the Coors Business and all of the assets, properties and rights (other
than de minimis exceptions) necessary to permit the Company to carry on the
Coors Business following the Closing in substantially the same manner as
conducted by the Molson Coors Group as of the date hereof (other than to the
extent of sales of inventory in the ordinary course of operating the Coors
Business).


 


(iii)                               To CBC’s knowledge, the Coors Joint
Ventures have good title to, or a valid leasehold or licensed interest in, all
assets, tangible or intangible, necessary to permit them to carry on their
respective businesses following the Closing in substantially the same manner as
they are conducted as of the date hereof (other than to the extent of sales of


 


36

















 


inventory in the ordinary course of operating their
respective businesses and other than de minimis exceptions)


 


(k)                                  Insurance


 


(i)                                     The operations and assets of the Molson
Coors Group Companies and the Coors Joint Ventures used in the Coors Business
which are capable of being insured are (in the case of the Coors Joint
Ventures, to CBC’s knowledge), in the aggregate, reasonably adequately insured
against all loss and liability (including product liability) risks normally
insured against by a person operating the same size and type of business or
owning assets of the same amount and kind (in the locations in which such
business is operating and such assets are owned), except where the failure to
be so insured would not reasonably be expected to, individually or in the
aggregate, cause a Loss to the Coors Business in excess of $5,000,000.


 


(ii)                                  Each of the insurance and indemnity
policies relating to operations and assets used in the Coors Business with a
policy limit in excess of $5,000,000 in which a Molson Coors Group Company or a
Coors Joint Venture has an interest (together, the “CBC Policies”) is in
full force and effect, has not been endorsed in favor of any third party (other
than landlords, licensors, lenders and similar counterparties, or the Company
pursuant to the Contemplated Transactions), and no Molson Coors Group Company
or Coors Joint Venture has violated any provisions of, or committed or failed
to perform any act that would constitute a default under the provisions of any
such CBC Policy, except such as would not reasonably be expected to,
individually or in the aggregate, cause a Loss to the Coors Business in excess
of $5,000,000 (and provided that so far as any statement in this Section 4.01(k)(ii) is
given in relation to the Coors Joint Ventures it is made subject to CBC’s
knowledge).


 


(iii)                               Since January 1, 2005, no insurer
under any CBC Policy has given notice in writing to a Molson Coors Group
Company or, to CBC’s knowledge, to a Coors Joint Venture that it disputes or
intends to dispute the validity of a CBC Policy, or has refused to accept or
continue or (except for notices indicating a change of the insurer’s terms and
conditions of coverage) given notice of its intention to terminate any
insurance in relation to any Molson Coors Group Company or, to CBC’s knowledge,
to a Coors Joint Venture as a result of any action by a Molson Coors Group
Company or Coors Joint Venture, except such as would not reasonably be expected
to, individually or in the aggregate, cause a Loss to the Coors Business in
excess of $5,000,000.


 


(iv)                              Since January 1, 2005, no insurer
under any CBC Policy has refused any indemnity (in whole or in part) in respect
of any claim by a Molson Coors Group Company or, to CBC’s knowledge, by a Coors
Joint Venture under a CBC Policy, except such as would not reasonably be
expected to, individually or in the aggregate, cause a Loss to the Coors
Business in excess of $5,000,000.


 


(l)                                     Insolvency, Winding Up, etc


 


(i)                                     Since December 31, 2006, there has
not been (i) an assignment by a CBC Group Company or, to CBC’s knowledge,
a Coors Joint Venture for the benefit of creditors generally, or an admission
by a CBC Group Company or a Coors Joint Venture in


 


37

















 


writing of its inability to pay its debts as they
become due, (ii) a filing by a CBC Group Company or, to CBC’s knowledge, a
Coors Joint Venture of a voluntary petition in bankruptcy or of any petition or
answer seeking for itself any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future Law, or (iii) a filing by a CBC Group Company or, to CBC’s
knowledge, a Coors Joint Venture of any answer admitting or failing to deny the
material allegations of a petition filed against such CBC Group Company or
Coors Joint Venture for any such relief, or seeking or consenting to or
acquiescing in the appointment of any trustee, receiver or liquidator of any
CBC Group Company or Coors Joint Venture or of all or any substantial part of
the assets of such CBC Group Company or Coors Joint Venture, as the case may
be.


 


(ii)                                  There are no pending proceedings against
any CBC Group Company or, to CBC’s knowledge, Coors Joint Venture seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any Law, and no trustee, receiver or
liquidator of all or substantially all of the assets of any CBC Group Company
has been appointed and not vacated or otherwise removed.


 


(m)                               Contracts.


 


(i)                                     Except as set forth on Schedule
4.01(m), no Molson Coors Group Company is party to any of the following
with respect to the Coors Business (collectively, the “CBC Material
Contracts”) as of the date of this Agreement:


 


(A)                              a collective
bargaining agreement (“CBA”) or Contract with any labor union;


 


(B)                                a Contract for
the employment or severance of any director, officer, individual employee or
other individual or any Contract for consulting services, in each case with
annual payments or change-in-control payments in excess of $250,000;


 


(C)                                a Contract
granting rights of first refusal or first negotiation, other than such rights
as do not involve property having a value exceeding $5,000,000 or as could
create a liability of the Company in excess of $5,000,000;


 


(D)                               a loan
agreement, indenture or other agreement relating to indebtedness, bonds or
letters of credit, other than as will not be assumed or guaranteed by the
Company pursuant to this Agreement or as would in no manner impair or restrict
any of the assets of the Company;


 


(E)                                 a lease or
other Contract under which it is lessee of, or holds or operates any real or
personal property owned by any other party, for which the annual rental exceeds
$1,000,000 and which cannot be terminated by the relevant Molson Coors Group
Company without penalty on less than six months notice;


 


38

















 


(F)                                 a lease or
other Contract under which it is lessor of or permits any third party to hold
or operate any real or personal property, for which the annual rental exceeds
$1,000,000 and which cannot be terminated by the relevant Molson Coors Group
Company without penalty on less than six months notice;


 


(G)                                a Contract or
series of related Contracts involving the expenditure by any Molson Coors Group
Company of more than $10,000,000 in any instance for the sale or purchase of
goods, materials, supplies, equipment or services and which cannot be
terminated by the relevant Molson Coors Group Company without penalty on less
than six months notice;


 


(H)                               a Contract
containing covenants materially limiting the freedom of any Molson Coors Group
Company to compete in any geographic area within the Territory or in any line
of business within the Territory;


 


(I)                                    a Contract
concerning the establishment or operation of a partnership, joint venture,
limited liability company or similar entity;


 


(J)                                   a Contract that
contains any provisions requiring it to indemnify any other party for amounts
greater than $1,000,000 (excluding customary indemnities contained in
agreements for the purchase, sale or license of products or services entered
into in the ordinary course of business);


 


(K)                               a Contract for
the disposition of any significant portion of the assets or business of a
Molson Coors Group Company or any Contract for the acquisition of a significant
portion of the assets or business of any other Person, in each case for a
consideration exceeding $10,000,000;


 


(L)                                 License
Agreements, other than licenses of unmodified, commercially available
off-the-shelf software applications, under which a Molson Coors Group Company
is obliged to pay after the date of this Agreement an amount in excess of
$5,000,000 and which cannot be terminated by the relevant Molson Coors Group
Company without penalty on less than six months notice;


 


(M)                            a merchandising
or distribution agreement involving expenditure by any Molson Coors Group
Company of more than $5,000,000 and which cannot be terminated by the relevant
Molson Coors Group Company without penalty on less than six months notice;


 


(N)                               a Contract
allocating or settling any liability in excess of $5,000,000 of any CBC Group
Company for Taxes;


 


(O)                               a Contract that
is a settlement, conciliation, or similar agreement with any Governmental
Authority or which, after the execution date of this Agreement, requires
payment of consideration in excess of $500,000;


 


39

















 


(P)                                 a material
Contract entered into other than in the ordinary course of business consistent
with past practice;


 


(Q)                               a decree or
other ownership of water usage or storage rights, including any Contract
providing for rights to store or use water;


 


(R)                                a Contract
required to be disclosed on Schedule 4.01(n); or


 


(S)                                 to the extent
not already covered by any of the foregoing, a Contract (i) reasonably
likely to involve expenditure by a Molson Coors Group Company in excess of
$5,000,000, (ii) under which a Molson Coors Group Company is reasonably
likely to incur liability in excess of $5,000,000, or (iii) reasonably
likely to involve the receipt by a Molson Coors Group Company of more than
$5,000,000.


 


(ii)                                  Except as referred to in Schedule
4.01(m), (A) each of the CBC Material Contracts set forth on or
required to be set forth on Schedule 4.01(m) is legal, valid,
binding, enforceable and in full force and effect; (B) each Molson Coors
Group Company and each other party thereto, has in all material respects
performed all obligations required to be performed by it under such CBC
Material Contracts, and no Molson Coors Group Company or other party thereto,
is in breach or default (and with the giving of notice or lapse of time or both
would not be in breach or default), and will not be in breach or default (and
with the giving of notice or the lapse of time will not be in breach or
default) as a result of the consummation of the Contemplated Transactions, under any such CBC Material Contract;
and (C) the consummation of the Contemplated Transactions (1) does not require any consent or
notice to be given by a Molson Coors Group Company and (2) will not result
in a right to terminate or modify any right or privilege now enjoyed by a
Molson Coors Group Company under any such CBC Material Contract.


 


(n)                                 Affiliate Transactions. 
Except as set forth on Schedule 4.01(n), no Affiliate,
stockholder or director, officer or employee of a Molson Coors Group Company
or, to CBC’s knowledge, a Coors Joint Venture (a) owns or has any
interest, directly or indirectly, in any property or right, tangible or
intangible, which is used in the Coors Business and which has a value in excess
of $250,000, or (b) is a party to any Contract (other than with respect to
a CBC Benefit Plan, in which case the $250,000 thresholds set forth in
(b)(i)-(b)(iii) shall be increased to $1,000,000) with a Molson Coors
Group Company (i) which is reasonably likely to involve expenditure by a
Molson Coors Group Company in excess of $250,000 with respect to the Coors
Business, (ii) under which a Molson Coors Group Company is reasonably
likely to incur liability in excess of $250,000 with respect to the Coors
Business, or (iii) which is reasonably likely to involve the receipt by a
Molson Coors Group Company of more than $250,000 with respect to the Coors
Business.  To CBC’s knowledge, except as
set forth on Schedule 4.01(n), no Affiliate, stockholder or director,
officer or employee of a Molson Coors Group Company (i) is a competitor of
a Molson Coors Group Company with respect to the Coors Business, (ii) serves
as an officer or director, or in another similar capacity, of any Person whose
business manufactures or sells products similar to those of the Coors Business,
or 


 


40

















 


(iii) has any claim or cause of action against a
Molson Coors Group Company with respect to the Coors Business other than
immaterial claims.


 


(o)                                 Real Property.


 


(i)                                     Schedule 4.01(o) sets forth a correct and complete list of
all real property owned by the Molson Coors Group that is used in the Coors Business
(“CBC Owned Real Property”).  As
of the date hereof, a Molson Coors Group Company has good and marketable fee
simple title to each parcel of CBC Owned Real Property, free and clear of any
Liens, covenants or reservations of interests in title, except for Permitted
Liens.


 


(ii)                                  Schedule 4.01(o) sets forth a correct and complete list of
all real property leased by the Molson Coors Group that is used in the Coors
Business (“CBC Leased Real Property”; together with the CBC Owned Real
Property and all buildings, structures and other improvements and fixtures
located on or under such real property and all easements, rights and other
appurtenances to such real property, “CBC Real Property”).  As of the date hereof, with respect to each
lease that constitutes a CBC Material Contract, a Molson Coors Group Company
has a valid, binding and enforceable leasehold interest in each parcel of CBC
Leased Real Property, free and clear of any Liens, covenants or reservations of
interests in title on such Molson Coors Group Company’s leasehold interest,
except for Permitted Liens.


 


(iii)                               With respect to the CBC Owned Real
Property, except as provided on Schedule 4.01(o): (A) no Molson
Coors Group Company has leased or otherwise granted to any Person the right to
use or occupy such CBC Real Property or any portion thereof, and (B) other
than the rights pursuant to this Agreement or any other Transaction Document,
there are no outstanding options, rights of first offer or rights of first
refusal to purchase such CBC Real Property or any portion thereof or interest
therein.


 


(iv)                              With respect to the CBC Leased Real
Property leased pursuant to a CBC Material Contract: (A) no security
deposit or portion thereof deposited with respect thereto has been applied in
respect of a breach or default which has not been redeposited in full; and (B) except
as provided on Schedule 4.01(o), no Molson Coors Group Company has
subleased, licensed or otherwise granted any Person the right to use or occupy
such CBC Real Property or any portion thereof.


 


(v)                                 Except as set forth on Schedule
4.01(o), a Molson Coors Group Company has obtained all certificates,
permits, licenses and/or land use approvals from any Governmental Authority
having jurisdiction over any CBC Real Property and all agreements, easements or
other rights necessary to permit the lawful use and operation of the buildings
and improvements on any CBC Real Property, or that are necessary to permit the
lawful use and operation of all utilities, parking areas, retention ponds,
driveways, roads and other means of egress and ingress to and from any CBC Real
Property, except such as would not reasonably be expected to, individually or
in the aggregate, be material to the Coors Business.  No Molson Coors Group Company has received
written notice that any such certificate, permit, license, land use approval,
agreement, easement or other right is not in full force and effect, except such
as would not reasonably be expected to, individually or in the aggregate, be
material to the Coors Business, nor has any Molson Coors Group Company received
written notice of any


 


41

















 


pending written threat of modification or cancellation
of any of same, that would reasonably be expected to, individually or in the aggregate,
be material to the Coors Business.


 


(vi)                              Except as provided for in Schedule
4.01(o), as of the date hereof, there are no existing condemnation or
rezoning proceedings with respect to the CBC Real Property, and no Molson Coors
Group Company has received any written notice to the effect that any
condemnation or rezoning proceedings are threatened or pending with respect to
any of the CBC Real Properties, in all cases, except such as would not
reasonably be expected to, individually or in the aggregate, be material to the
Coors Business.


 


(p)                                 Environmental.


 


(i)                                     Except as disclosed in Schedule 4.01(p) or
as would not reasonably be expected to cause a Loss to the Coors Business in
excess of $2,500,000, a Molson Coors Group Company or a Coors Joint Venture:


 


(A)                              has obtained
and is in compliance with, and has at all times since January 1, 2003 been
in compliance with, all Environmental Permits that are required for the lawful
operation of the Coors Business or the occupation of the CBC Real Property or of
any property or facility owned or operated by a Coors Joint Venture (in the
case of the Coors Joint Ventures, to CBC’s knowledge);


 


(B)                                has at all
times since January 1, 2003 complied with, and is in compliance with, all
applicable Environmental Laws with respect to the Coors Business or which could
result in any liability to the Company (in the case of the Coors Joint
Ventures, to CBC’s knowledge); and


 


(C)                                has received no
written or oral notice or other information (other than such of the foregoing
which have been fully resolved) regarding, any violation of any Environmental
Law or any liability, including without limitation any investigatory, remedial
or corrective obligation, relating to the Coors Business or the CBC Real
Property or of any property or facility owned or operated by a Coors Joint
Venture and arising under Environmental Laws (in the case of the Coors Joint
Ventures, to CBC’s knowledge).


 


(ii)                                  Except as disclosed in Schedule 4.01(p) or
as would not reasonably be expected to, individually or in the aggregate, cause
a Loss to the Coors Business in excess of $2,500,000, with respect to the Coors
Business or the Molson Coors Contributions, no Molson Coors Group Company or,
to CBC’s knowledge, Coors Joint Venture has treated, stored, disposed of,
arranged for or permitted the disposal of, transported, handled, released, or
exposed any Person to, any substance (including without limitation any
Hazardous Substance), owned or operated any property or facility used in the
Coors Business (including without limitation the CBC Real Property) which is or
has been contaminated by any substance, so as to give rise to any current or
future liabilities, including any such liability for response costs, corrective
action costs, personal injury, property damage, natural resources damages or
attorney


 


42

















 


fees, or any investigative, corrective or remedial
obligations, pursuant to the CERCLA or any other Environmental Laws.


 


(iii)                               No Molson Coors Group Company or, to CBC’s
knowledge, Coors Joint Venture has been identified as a potentially responsible
party at any federal or state National Priority List site or analogous state
site with respect to the Coors Business, other than as would not reasonably be
expected to cause a Loss to the Coors Business in excess of $2,500,000.


 


(iv)                              MCBC has delivered to Miller or its
Representatives true and complete copies and results of all material reports,
studies, analyses, tests,  monitoring
results or other material documents in the possession or under the reasonable
control of a Molson Coors Group Company pertaining to Hazardous Substances in,
on, at, to, under or from the CBC Real Property or any other current or former
property or facility used in the Coors Business, concerning compliance by a
Molson Coors Group Company with Environmental Laws, or materially bearing on
any environmental, health or safety liabilities relating to the past or current
operations or facilities of the Coors Business.


 


(v)                                 Except as set forth on Schedule
4.01(p), none of the following exists at any of the CBC Real Properties or,
to CBC’s knowledge, at any property owned or operated by a Coors Joint
Venture:  (A) underground storage
tanks; (B) asbestos containing material in any form or condition; (C) materials
or equipment containing polychlorinated biphenyls; (D) groundwater
monitoring wells, drinking water wells, or production water wells; or (E) landfills,
surface impoundments, or disposal areas.


 


(vi)                              With respect to the Coors Business or the
Molson Coors Contributions, to CBC’s knowledge, no CBC Group Company or Coors
Joint Venture has, either expressly or by operation of law, assumed,
undertaken, or provided an indemnity with respect to any material or
potentially material liability relating to Environmental Laws.


 


(q)                                 Intellectual Property.


 


(i)                                     Schedule 4.01(q) lists all of the following that are
included in the CBC Owned IP and used, held for use, or exploited as of the
date hereof in connection with the Molson Coors Contributed Brands (or any goods
or services bearing, or provided under, such Molson Coors Contributed Brands): (A) United
States and Puerto Rico Patents, (B) Trademarks registered and applied for
in the United States or Puerto Rico and (C) Copyrights registered and
applied for in the United States or Puerto Rico, in each case specifying the
jurisdiction where the application/registration is located, the
application/registration number, and date of application/registration.  Schedule 4.01(q) also lists (A) all
Internet domain names included in the Molson Coors Contributed Assets and (B) all
License Agreements for material Software licensed to a Molson Coors Group
Company (excluding any License Agreements for off-the-shelf shrinkwrap,
clickwrap or similar commercially available non-custom software) to the extent
such Software is used, held for use or exploited in connection with the Coors
Business.


 


(ii)                                  Except as set forth on Schedule 4.01(q) or
as would not reasonably be expected to, individually or in the aggregate, be
material to the Coors Business:


 


43

















 


(A)                              except for CBC Intellectual Property that constitutes a Molson Coors
Excluded Asset, the Molson Coors Group Companies collectively own
all right, title and interest in, or have the valid and enforceable right to
use (pursuant to a written License Agreement), all CBC Intellectual Property,
free and clear of any Liens (other than Permitted Liens);


 


(B)                                to CBC’s
knowledge, each of the registrations listed in Schedule 4.01(q) is
valid, enforceable and subsisting and has not been cancelled, and no loss,
cancellation, abandonment or expiration of any such registered CBC Intellectual
Property is pending or threatened;


 


(C)                                subject to the
receipt of any third-party consents required with respect to the assignment of
License Agreements that are Molson Coors Assumed Contracts, and except for CBC
Intellectual Property that constitutes a Molson Coors Excluded Asset,
immediately subsequent to the Closing, the Company will own or have the valid
and enforceable right to use the CBC Intellectual Property on terms and
conditions not less favorable than those under which the Molson Coors Group
Companies owned or used such CBC Intellectual Property immediately prior to the
Closing, subject to the terms of the Molson Coors IP License Agreement and the
Services Agreement;


 


(D)                               no action,
suit, claim, investigation, arbitration or any other legal proceeding is
pending or, to CBC’s knowledge, threatened, against a Molson Coors Group
Company alleging that (i) any current use or exploitation by a Molson
Coors Group Company of any Molson Coors
Contributed IP, or (ii) the conduct of the Coors Business as
currently conducted or as has been conducted within the preceding five years,
in each case, infringes, misappropriates or otherwise violates the Intellectual
Property rights of any third party; and no claim by any third party contesting
the validity, enforceability, use or ownership of any of the Molson Coors Contributed IP has been made in
writing and is currently outstanding or, to CBC’s knowledge, is threatened, and
to CBC’s knowledge, there are no grounds for any such claim;


 


(E)                                 no Molson Coors
Group Company is subject to any judgment, order, writ, injunction, judgment, or
decree of any Governmental Authority relating to the Molson Coors Contributed IP, and no Molson Coors Group Company has
entered into any Contract that restricts, limits or impairs its use of any of
the Molson Coors Contributed IP;


 


(F)                                 to CBC’s
knowledge, neither the use or exploitation of the Molson Coors Contributed IP by the Molson Coors Group Companies, nor
the operation of the Coors Business as currently conducted, has infringed,
misappropriated or otherwise violated the Intellectual Property rights of any
third party.  No Molson Coors Group Company
has received any written notices regarding any of the foregoing (including,
without limitation, any demands or unsolicited offers to license any CBC Intellectual Property from any third
party);


 


44

















 


(G)                                to CBC’s
knowledge, no third party has infringed, misappropriated or otherwise violated
any of the Molson Coors Contributed IP;


 


(H)                               each Molson
Coors Group Company has taken all reasonably necessary actions to maintain and
protect all of the Molson Coors Contributed IP
material to the Coors Business and owned by such entity. Without limiting the
foregoing, each Molson Coors Group Company has taken all reasonable security
measures to protect the secrecy, confidentiality and value of all Trade Secrets
included in the Molson Coors Contributed IP and
to which it has had access;


 


(I)                                    all Molson Coors Contributed IP is exclusively
owned by a Molson Coors Group Company. 
Except as disclosed on Schedule 4.01(q), no Molson Coors Group
Company has entered into a License Agreement granting any third party exclusive
rights under any Molson Coors Contributed IP;


 


(J)                                   the Molson
Coors Group’s collection, storage, use and dissemination of any personally
identifiable information in or in relation to the Territory is and has been, so
far as it was collected, stored, used or disseminated in connection with the
Coors Business, in material compliance with all Applicable Laws in the
Territory relating to privacy, data security and data protection, and all
applicable privacy policies and terms of use or other contractual
obligations.  The Molson Coors Group has,
with respect to the Coors Business, reasonable security and data protections in
place, consistent with general industry practices in the Territory, with
respect to third-party Trade Secrets or personally identifiable information,
and there has been no material breach thereof or loss of data in the two (2) years
prior to the date of this Agreement; and


 


(K)                               all rights of
the Molson Coors Group Companies in and to Molson Coors Contributed IP are
transferable to the Company without any required consent or other approval.


 


(r)                                    Taxes.


 


Except as set
forth in Schedule 4.01(r) or as would not reasonably be expected
to, individually or in the aggregate, be material to the Coors Business:


 


(i)                                     With respect to the Coors Business, the
CBC Group Companies and, to CBC’s knowledge, the Coors Joint Ventures (A) have
prepared in accordance with Applicable Law and duly and timely filed (taking
into account any extension of time within which to file) all material Tax
Returns required to be filed by any of them and all such Tax Returns were, at
the time of filing, true and complete in all material respects; (B) have
paid all Taxes that they were required to pay and withheld all Taxes that they
were obligated to withhold from amounts owing to any employee, creditor,
stockholder or third party, except with respect to matters contested in good
faith for which adequate reserves have been established and are reflected in
the Coors Financial Information or are incurred in the ordinary course of the


 


45

















 


Coors Business, consistent with past practice, after
the date of the Latest CBC Balance Sheet and except where such failure to so
pay or remit, individually or in the aggregate, is not reasonably likely to be
material; and (C) have not waived any statute of limitations with respect
to any material amount of Taxes or agreed to any extension of time with respect
to any material amount of Tax assessment or deficiency.


 


(ii)                                  As of the date hereof, there are not
pending or threatened in writing, any audits, examinations, investigations or
other proceedings in respect of material Taxes with respect to the Coors
Business.  There are no unresolved
proposed, or to CBC’s knowledge, threatened Tax claims, assessments or
reassessments with respect to the Coors Business that, if upheld, would,
individually or in the aggregate, reasonably be expected to be material to the
Coors Business.


 


(iii)                               There are no Liens for any Taxes upon
assets that are Molson Coors Contributions, other than statutory Liens for
Taxes not yet due and payable and Liens for Taxes contested in good faith for
which adequate reserves have been established in the Coors Financial
Information. No written claim has been made by any Governmental Authority in a
jurisdiction in which any CBC Group Company and, to CBC’s knowledge, any Coors
Joint Venture does not file a Tax Return that any CBC Group Company or, to CBC’s
knowledge, any Coors Joint Venture is or may be subject to taxation by such
jurisdiction with respect to the Coors Business.


 


(iv)                              No CBC Group Company (A) has been
since 1990 a member of any other affiliated group filing a consolidated United
States federal income Tax Return (except any affiliated group of which MCBC is
the common parent) or (B) has any liability for the Taxes of any Person
under Treasury Regulations Section 1.1502-6 (or any similar provision of
state, local, or foreign law), as a transferee or successor, by contract, or
otherwise.  No CBC Group Company is a
party to or bound by any tax allocation or sharing agreement.


 


(v)                                 CBC has provided to Miller true and
complete copies of all private letter rulings, technical advice memoranda or
rulings from a taxing authority with respect to the Coors Business that have
been issued to or received by any CBC Group Company since January 1, 2005.


 


(vi)                              No CBC Group Company nor, to CBC’s
knowledge, any Coors Joint Venture has entered into, or otherwise participated
(directly or indirectly) in, any “listed transaction” within the meaning of Section 1.6011-4(b) of
the Treasury Regulations.


 


(vii)                           Schedule 4.01(r) lists each CBC Group Company or other
Person which is a Molson Coors Contribution for which an election has been made
pursuant to Section 7701 of the Code and the Treasury Regulations
thereunder to be treated other than its default classification for U.S. federal
income tax purposes.  Except as disclosed
on such Schedule, each CBC Group Company or other Person will be classified for
U.S. federal income tax purposes according to its default classification.


 


46

















 


(s)                                  Employee Benefit Plans.


 


(i)                                     Schedule 4.01(s) contains a complete and accurate list of
each Employee Benefit Plan that a Molson Coors Group Company maintains,
administers or contributes to on behalf of any Transferring CBC Employee or
with respect to which a Molson Coors Group Company has any obligation or
liability related to or with respect to any Transferring CBC Employee (the “CBC
Benefit Plans”). Complete and accurate copies of (A) each CBC Benefit
Plan which has been reduced to writing, (B) written summaries of the
material terms of each unwritten CBC Benefit Plan, (C) each related trust
agreement, insurance or group annuity contract (and other funding vehicles),
most recent summary plan descriptions, most recent summaries of material
modifications, (D) all annual reports filed on the applicable Form 5500
for the three years prior to the date of this Agreement (together with all attachments
and financial statements thereto), and (E) any material notices, letters
or other correspondence with any Governmental Authority in respect of any CBC
Benefit Plan, have been provided or made available to SABMiller.


 


(ii)                                  Except as set forth on Schedule
4.01(s), (A) each CBC Benefit Plan has been, since the date that is
two years prior to the Closing Date, administered in all material respects in
accordance with its terms and each relevant Molson Coors Group Company has in
all material respects, since the date that is two years prior to the Closing
Date, met its obligations with respect to each CBC Benefit Plan; (B) all
CBC Benefit Plans intended to be “qualified” under Section 401(a) of
the Code have received a favorable determination letter from the IRS regarding
such plan’s qualified status, and, to CBC’s knowledge, nothing has occurred
which would reasonably be expected to adversely affect such qualified status; (C) each
CBC Benefit Plan has been maintained and administered in compliance with Applicable
Law, including ERISA and the Code and the regulations thereunder, except for
such noncompliance as would not reasonably be expected to be material to the
Coors Business; and (D) there are no pending actions, examinations,
audits, inquiries, claims or judicial or governmental proceedings against any
CBC Benefit Plan with respect to the operation of such plan (other than routine
benefit claims), and no CBC Benefit Plan has, within the six years prior to the
date of this Agreement, been the subject of any examination, audit, inquiry,
review, proceeding, claim or demand by a Governmental Authority or been the
subject of an application or filing under a government-sponsored amnesty,
voluntary compliance, self-correction or similar program.  Except as provided on Schedule 4.01(s),
no CBC Benefit Plan has assets that include securities issued by a Molson Coors
Group Company or “qualifying employer real property” as defined in Section 407(d) of
ERISA, and no CBC Benefit Plan is a “multiple employer welfare plan” (as
defined in Section 3(40) of ERISA).


 


(iii)                               Except as provided on Schedule 4.01(s),
at no time since January 1, 2005 has CBC or any ERISA Affiliate been
obligated to contribute to any CBC Benefit Plan subject to Title IV of ERISA,
including without limitation any “multiemployer plan” (as defined in Section 4001(a)(3) of
ERISA).


 


(iv)                              With respect to each CBC Benefit Plan (A) no
breaches of fiduciary duty have occurred that could reasonably be expected to
give rise to material liability on the part of a Molson Coors Group Company; (B) no
prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975
of the Code and other than a transaction that is exempt under a statutory or
administrative exemption) has occurred that could reasonably be expected to
give rise to material liability on the part of a Molson Coors Group Company;
and 


 


47

















 


(C) no condition exists that would subject any
Molson Coors Group Company, either directly or by its affiliation with any
ERISA Affiliate, to any material tax, fine, lien, penalty or other similar
liability imposed by ERISA, the Code or other Applicable Law.


 


(v)                                 Except as provided on Schedule 4.01(s),
no CBC Benefit Plan provides post-employment welfare benefits other than
continuation of health coverage required to be continued under Section 4980B
of the Code or other applicable law and insurance conversion privileges under
federal or state law.


 


(vi)                              No events have occurred or are expected
to occur with respect to any CBC Benefit Plan that would reasonably be expected
to cause a material increase in the cost of providing benefits under such plan.


 


(vii)                           Since the date that is two years prior to
the Closing Date, all contributions and premiums under or in connection with
the CBC Benefit Plans that are required to have been made have been timely made
and to the extent not due have been appropriately accrued in the Coors
Financial Information.  No CBC Benefit
Plan has an “accumulated funding deficiency” (as such term is defined in Section 302
of ERISA or Section 412 of the Code), whether or not waived.


 


(viii)                        Except as set forth on Schedule
4.01(s), the consummation of the Contemplated Transactions will not, either alone or in connection
with any other event (including the termination of employment of an employee), (A) entitle
any Transferring CBC Employee to severance pay, any change in control payment,
or any other material payment, or (B) accelerate the time of payment or
vesting, change the form or method of payment, or increase the amount of
compensation due to any Transferring CBC Employee, or (C) result in any
excise tax under Section 4999 of the Code or non-deductibility of any
compensation or benefit under Section 280G of the Code with respect to any
Transferring CBC Employee.


 


(ix)                                Each CBC Benefit Plan that is a
nonqualified deferred compensation plan subject to Section 409A of the
Code has been operated and administered in good faith compliance with such Code
Section 409A and the guidance issued by the Department of Treasury
thereunder from the period beginning January 1, 2005 through the date
hereof.


 


(t)                                    Labor Matters.


 


(i)                                     Except as set forth on Schedule 4.01(t) or
as would not reasonably be expected to be material to the Coors Business, no
Molson Coors Group Company is, with respect to Transferring CBC Employees, the
subject of any Proceeding asserting that a Molson Coors Group Company has
committed an unfair labor practice or CBA breach or seeking to compel it to
bargain with any labor union or labor organization, nor is there pending or, to
CBC’s knowledge, threatened, nor has there been during the past three years,
any labor strike, dispute, walk-out, work stoppage, slow-down, lockout or other
labor dispute involving any Molson Coors Group Company with respect to the
Coors Business.  No Molson Coors Group
Company is in receipt, written or oral, of any demand by any labor union or
labor organization seeking recognition as the collective bargaining
representative of any Transferring 


 


48

















 


CBC Employees, and to CBC’s knowledge, no union
organizing, certification or decertification campaigns are underway or
threatened with respect to any Transferring CBC Employees.


 


(ii)                                  Except as would not reasonably be expected
to, individually or in the aggregate, cause a Loss to the Coors Business in
excess of $5,000,000 or would otherwise be material to the Coors Business,
there is no employment-related obligation or Proceeding of any kind, pending
or, to CBC’s knowledge, threatened in any forum, relating to an alleged
violation or breach by a Molson Coors Group Company (or its officers or
directors) of any Law or contract with respect to Transferring CBC Employees,
and to CBC’s knowledge, no employee or agent of a Molson Coors Group Company
has committed any act or omission giving rise to liability for any such
violation or breach.


 


(iii)                               To CBC’s knowledge, no Transferring CBC
Employee with annual compensation in excess of $250,000 (A) has any
present intention to terminate their employment, or (B) is a party to any
confidentiality, non-competition, proprietary rights or other such agreement
between such employee and any other Person besides a Molson Coors Group
Company, as applicable, that would be material to the performance of such
employee’s employment duties, or the ability of any Molson Coors Group Company
(or the Company) to conduct the Coors Business.


 


(iv)                              With respect to the Contemplated
Transactions, any notice required under any law or collective bargaining agreement
applicable to the Coors Business has been or prior to Closing will be given,
and all bargaining obligations with any employee representative have been or
prior to Closing will be satisfied. 
During the past three years, no Molson Coors Group Company has, with
respect to the Coors Business, implemented any plant closing or layoff of
employees that would reasonably be expected to result in any liability under
the Worker Adjustment and Retraining Notification Act of 1988, as amended, or
any similar foreign, state or local Law (the “WARN Act”), and no such
action will be implemented without advance notification to Miller.


 


(u)                                 Finders’ Fees. 
Except as set forth in Schedule 4.01(u), there is no investment
banker, broker, finder or other intermediary that has been retained by or is
authorized to act on behalf of it who might be entitled to any fee or
commission from the Company or any of its Affiliates upon consummation of the
Contemplated Transactions.


 


(v)                                 Coors Joint Ventures. 
Neither of the Coors Joint Ventures has any employees.


 


(w)                               Water Usage and Storage Rights. 
The water usage and storage rights described on Schedule 4.01(w) are
(i) legally and beneficially owned by a member of the Molson Coors Group, not subject to any Liens, and no other Person has (or, to CBC’s knowledge, has, since January 1,
2006, claimed to have) any rights of ownership or use of such water rights (with the exception of rights or claims arising solely by virtue of a
leasehold interest of no more than one year in duration) or has, since January 1, 2006, made
any claim contesting the validity, enforceability or ownership of such water
rights by any member of the Molson Coors Group, and (ii) all the water rights and related interests owned or controlled by a 


 


49

















 


member of the Molson Coors Group that are legally and
physically capable of providing water to the Golden Brewery (as defined in the
Water Supply Lease).


 


Section 4.02                                Representations
and Warranties of SABMiller and Miller.  Each of
SABMiller and Miller  represents and
warrants, jointly and severally, to the Company, as of the date of this
Agreement and as of the Closing Date, that:


 


(a)                                  Corporate Existence and Power. 
It is a corporation duly incorporated, validly existing and in good
standing under the laws of the state or jurisdiction of its incorporation and
has all corporate power and authority required to carry on its businesses as
now conducted.  Where applicable, it is
duly qualified to do business as a foreign corporation or other entity and is
in good standing in each jurisdiction where the nature of its business,
activities or properties makes such qualification necessary to carry on its
business as now conducted, except where the failure to be so qualified or in good
standing has not been, and would not reasonably be expected to be, material to
the Miller Business.


 


(b)                                 Corporate Authorization. 
The execution, delivery and performance by it of the Transaction
Documents to which it is a party and the consummation by it of the Contemplated
Transactions are within its corporate powers and have been duly authorized by
all necessary corporate action on its part. 
No SABMiller shareholder approval of the Contemplated Transactions is
required.  This Agreement constitutes and
each of the other Transaction Documents to which it is a party constitutes or
shall constitute at Closing a legal, valid and binding agreement of it,
enforceable against it in accordance with its terms (i) except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors’ rights generally, including the effect of
statutory and other laws regarding fraudulent conveyances and preferential
transfers, and (ii) subject to the limitations imposed by general
equitable principles regardless of whether such enforceability is considered in
a proceeding at law or in equity.


 


(c)                                  Governmental Authorization. 
The execution, delivery and performance by it  of the Transaction Documents to which it is a party require
no action by or in respect of, or consent or approval of, or filing with, any
Governmental Authority other than:


 


(i)                                     compliance with any applicable
requirements of the Antitrust Laws;


 


(ii)                                  the actions, consents, approvals, permits
or filings set forth in Schedule 4.02(c) or otherwise expressly
referred to in this Agreement; and


 


(iii)                               such other consents, approvals,
authorizations, permits and filings, the failure to obtain or make of which
would not, individually or in the aggregate, be material to the Miller
Business.


 


(d)                                 Non-Contravention. 
Except as set forth in Schedule 4.02(d), the execution, delivery
and performance by it of the Transaction Documents to which it is a party  does not and shall not (i) contravene
or conflict with its charter, bylaws or other organizational documents, (ii) assuming
compliance with the matters referred to in Section 4.02(c),
contravene 


 


50

















 


or conflict with, or constitute a violation of, any
provisions of any Applicable Law binding upon it, or (iii) assuming
compliance with the matters referred to in Section 4.02(c),
constitute a default under, or give rise to any right of termination,
cancellation or acceleration of, or to a loss of any benefit to which it is
entitled under, any Contract binding upon it  or
any license, franchise, permit or similar authorization held by it  except, in the case of clauses (ii) and
(iii), for any such contravention, conflict, violation, default, termination,
cancellation, acceleration or loss that would not reasonably be expected to be
material to the Miller Business.


 


(e)                                  Litigation.  Except as set
forth in Schedule 4.02(e), there is, as of the date hereof, no
Proceeding pending, or to Miller’s knowledge, threatened against or affecting a
SABMiller Group Company relating to the Miller Business or to the Contemplated
Transactions before (or that could come before) any Governmental Authority that
would reasonably be expected to result in a Loss to the Miller Business in
excess of $2,500,000 or otherwise be material to the Miller Business or the
ability of the Parties to timely consummate the Contemplated Transactions.


 


(f)                                    Compliance with Laws. 
Except as set forth in Schedule 4.02(f), since January 1,
2005, the SABMiller Group Companies have complied, and are in compliance, with
all Applicable Laws which affect the Miller Business and to which they may be
subject, and no fines, penalties, or claims have been assessed, filed or commenced
or, to Miller’s knowledge, threatened against any of them alleging any failure
to so comply, except where such failure to comply would not reasonably be
expected to result in a Loss to the Miller Business in excess of $2,500,000 or
otherwise be material to the Miller Business.


 


(g)                                 Licenses.  The SABMiller
Group Companies have obtained and maintained all material licenses, permits,
approvals and authorizations required to enable the SABMiller Group to carry on
the Miller Business.


 


(h)                                 Absence of Changes. 
Since January 1, 2007, the SABMiller Group Companies have conducted
the Miller Business in the ordinary and usual course of such Miller Business
and there has not been, except as set forth in Schedule 4.02(h):


 


(i)                                     any change, effect, circumstance or event
that has had or would reasonably be expected to have a Material Adverse Effect
in respect of SABMiller or Miller and there does not exist any effect or
condition that would or would reasonably be expected to  materially impair the ability of SABMiller or
Miller to perform their obligations under any Transaction Document or otherwise
materially threaten or materially impede or delay the consummation of the
Contemplated Transactions by SABMiller or Miller;


 


(ii)                                  any material damage, destruction or other
casualty loss with respect to any material asset or property owned, leased or
otherwise used by the SABMiller Group in the Miller Business, whether or not
covered by insurance;


 


(iii)                               any abandonment or lapse of any material
Miller Owned IP, or any sale, assignment, license or transfer of any material
Miller Owned IP, other than in the ordinary course of business and consistent
with past practice;


 


51

















 


(iv)                              any mortgage, pledge or Lien placed on
any portion of a SABMiller Group Company’s assets used in the Miller Business,
except Permitted Liens;


 


(v)                                 any sale, acquisition, assignment or
transfer of any of a SABMiller Group Company’s material tangible assets used in
the Miller Business, except in the ordinary course of business consistent with
past practice;


 


(vi)                              any material change in any method of
accounting or accounting practice or principle by a Miller Group Company; or


 


(vii)                           any assumption, guarantee or endorsement
of or other act to become liable or responsible for (whether directly,
contingently or otherwise) more than $2,500,000 of liabilities of any other
Person if such liability would be a Miller Contribution;


 


(viii)                        any settlement of any suit, action,
claim, proceeding or investigation (including any suit, action, claim,
proceeding or investigation relating to this Agreement or the Contemplated
Transactions) or payment, discharge or satisfaction or agreement to pay,
discharge or satisfy any claim or liability in connection with the Miller
Business except for immaterial suits, actions, claims, proceedings or
investigations incident to and settled in the ordinary course of business prior
to the Closing Date;


 


(ix)                                any promise, agreement or arrangement
with any Transferring Miller Employee to provide such employee change in
control benefits, a transaction bonus or similar payouts or benefits triggered
by the Contemplated Transactions (either alone or in connection with any other
event, including, without limitation, the termination of such employee’s employment);
or


 


(x)                                   any agreement to take any of the
foregoing actions.


 


(i)                                     Financial Information and Undisclosed
Liabilities.


 


(i)                                     The financial
information in relation to the Miller Business contained in the balance sheet
as at September 30, 2007 and contained in the profit and loss statement
for the period ending March 31, 2007 (prior to normalization adjustments)
set out in Schedule 4.02(i) (“Miller Financial Information”):
(A) has been properly extracted from the underlying financial accounting
records of the Miller Group; (B) presents a reasonably accurate view of
both the financial position of the Miller Business as at the date to which the
balance sheet was drawn up and the profit or loss of the Miller Business for
the period to which the profit and loss statements relate; and (C) was
prepared on a basis that is consistent with IFRS and the audited financial
statements of SABMiller for the relevant periods (as reflected in the North
America segment of such audited financial statements).  The forecast information in relation to the
Miller Business contained in the profit and loss statement for the period
ending March 31, 2008 (prior to normalization adjustments) set out in Schedule
4.02(i) has been: (a) with respect to the period up to September 30,
2007, properly extracted from the underlying financial accounting records of
the Miller Group; and (b) with respect to the period from October 1,
2007 to March 31, 2008, prepared with due care based on reasonable
assumptions.  The adjustments set forth
on the normalization schedules included in Schedule 4.02(i) have
been prepared with due care based on reasonable assumptions.


 


52

















 


(ii)                                  No SABMiller
Group Company is subject to any material liability of a type that would appear
on a balance sheet under IFRS in force at the date of this Agreement arising
out of events, transactions or actions or inactions arising prior to the date
hereof, except (A) liabilities
under leases, licenses, contracts and agreements described in the Schedules
hereto or under leases, licenses, contracts and agreements which are not
required to be disclosed thereon, (B) liabilities arising out of or
related to the Contemplated Transactions, (C) liabilities reflected on the most recent balance sheet included in
the Miller Financial Information (the “Latest Miller Balance Sheet”) or
liabilities which have arisen after the date of the Latest Miller Balance Sheet
in the ordinary course of business consistent with past practices, (D) liabilities
otherwise disclosed on the Schedules attached hereto and (E) liabilities
not being assumed by the Company. 
Notwithstanding the foregoing, this representation and warranty will not
apply to (and will exclude) any liability arising out of or related to facts,
events, transactions, or actions or inactions the category of which is the
subject of another representation or warranty set forth in this Section 4.02,
whether or not the existence of such liability would constitute a breach or
inaccuracy of such representation or warranty. 
(By way of example, pending and threatened litigation is addressed in
the representations and warranties in Section 4.02(e) and
therefore all pending and threatened litigation (regardless of whether such
litigation is covered by the representation and warranties in Section 4.02(e))
is considered a “category” for the purposes of the foregoing sentence.)


 


(iii)                               The information furnished in writing by
it or any of its Subsidiaries or any of its or their respective Representatives
specifically for inclusion in any of the Reports, or any amendment or
supplement thereto, will not, as of the date such Report, or any amendment or
supplement thereto, is filed in final form with the SEC, contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.


 


(j)                                     Title and Sufficiency of Assets.


 


(i)                                     Except as a result of operating the
Miller Business in the ordinary course consistent with past practice since September 30,
2007, a SABMiller Group Company owns all the assets reflected on the Latest
Miller Balance Sheet, free and clear of all Liens (other than Permitted
Liens).  A SABMiller Group Company has
good title to, or a valid leasehold or licensed interest in (with respect to
leased or licensed assets and properties), all assets, tangible or intangible,
that are part of the Miller Contributions, free and clear of all Liens other
than Permitted Liens.  Except for
Unassigned Miller Assets, a SABMiller Group Company has the right to convey
(subject only to the third party consents required with respect to the
Contracts referenced on Schedule 4.02(d)), and upon the transfer (or license
or lease, as applicable) of such assets that are part of the Miller
Contributions to the Company at the Closing will have conveyed, good title and
interest (or a valid leasehold or license interest, as applicable) in and to
such assets, free and clear of all Liens other than Permitted Liens.


 


(ii)                                  The Miller Contributions comprise
substantially all of the assets, properties and rights used by the SABMiller
Group in the Miller Business and all of the assets, properties and rights
(other than de minimis exceptions) necessary to permit the Company to carry on
the Miller Business following the Closing in substantially the same manner as


 


53

















 


conducted by the SABMiller Group as of the date hereof
(other than to the extent of sales of inventory in the ordinary course of
operating the Miller Business).


 


(iii)                               Neither SABMiller nor any of its
Subsidiaries (other than any Subsidiary that is a Miller Group Company) owns or
has any rights to any assets, properties or rights used in the Miller Business.


 


(k)                                  Insurance


 


(i)                                     The operations and assets of the
SABMiller Group Companies used in the Miller Business which are capable of
being insured are, in the aggregate, reasonably adequately insured against all
loss and liability (including product liability) risks normally insured against
by a person operating the same size and type of business or owning assets of
the same amount and kind (in the locations in which such business is operating
and such assets are owned), except where the failure to be so insured would not
reasonably be expected to, individually or in the aggregate, cause a Loss to
the Miller Business in excess of $5,000,000.


 


(ii)                                  Each of the insurance and indemnity
policies relating to operations and assets used in the Miller Business with a
policy limit in excess of $5,000,000 in which a SABMiller Group Company has an
interest (together, the “Miller Policies”) is in full force and effect,
has not been endorsed in favor of any third party (other than landlords,
licensors, lenders and similar counterparties, or the Company pursuant to the
Contemplated Transactions), and no SABMiller Group Company has violated any
provisions of, or committed or failed to perform any act that would constitute
a default under the provisions of any such Miller Policy, except such as would
not reasonably be expected to, individually or in the aggregate, cause a Loss
to the Miller Business in excess of $5,000,000.


 


(iii)                               Since January 1, 2005, no insurer
under any Miller Policy has given notice in writing to a SABMiller Group
Company that it disputes or intends to dispute the validity of a Miller Policy,
or has refused to accept or continue or (except for notices indicating a change
of the insurer’s terms and conditions of coverage) given notice of its
intention to terminate any insurance in relation to any SABMiller Group Company
as a result of any action by a SABMiller Group Company, except such as would
not reasonably be expected to, individually or in the aggregate, cause a Loss
to the Miller Business in excess of $5,000,000.


 


(iv)                              Since January 1, 2005, no insurer
under any Miller Policy has refused any indemnity (in whole or in part) in
respect of any claim by a SABMiller Group Company under a Miller Policy, except
such as would not reasonably be expected to, individually or in the aggregate,
cause a Loss to the Miller Business in excess of $5,000,000.


 


(l)                                     Insolvency, Winding Up, etc


 


(i)                                     Since December 31, 2006, there has
not been (i) an assignment by a Miller Group Company for the benefit of
creditors generally, or an admission by a Miller Group Company in writing of
its inability to pay its debts as they become due, (ii) a filing by a
Miller Group Company of a voluntary petition in bankruptcy or of any petition
or answer seeking for itself any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future Law, or (iii) a filing by a Miller Group


 


54






 












Company of any answer admitting or failing to deny the
material allegations of a petition filed against such Miller Group Company for
any such relief, or seeking or consenting to or acquiescing in the appointment
of any trustee, receiver or liquidator of any Miller Group Company or of all or
any substantial part of the assets of such Miller Group Company.


 


(ii)           There are no pending proceedings
against any Miller Group Company seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
Law, and no trustee, receiver or liquidator of all or substantially all of the
assets of any Miller Group Company has been appointed and not vacated or
otherwise removed.


 


(m)          Contracts.


 


(i)            Except as set forth on Schedule
4.02(m), no SABMiller Group Company is party to any of the following with
respect to the Miller Business (collectively, the “Miller Material Contracts”)
as of the date of this Agreement:


 


(A)          a CBA or Contract with any labor union;


 


(B)           a Contract for the employment or severance of any
director, officer, individual employee or other individual or any Contract for
consulting services, in each case with annual payments or change-in-control
payments in excess of $250,000;


 


(C)           a Contract granting rights of first refusal or first
negotiation, other than such rights as do not involve property having a value
exceeding $5,000,000 or as could create a liability of the Company in excess of
$5,000,000;


 


(D)          a loan agreement, indenture or other agreement relating to
indebtedness, bonds or letters of credit, other than as will not be assumed or
guaranteed by the Company pursuant to this Agreement or as would in no manner
impair or restrict any of the assets of the Company;


 


(E)           a lease or other Contract under which it is lessee of, or
holds or operates any real or personal property owned by any other party, for
which the annual rental exceeds $1,000,000 and which cannot be terminated by
the relevant SABMiller Group Company without penalty on less than six months notice;


 


(F)           a lease or other Contract under which it is lessor of or
permits any third party to hold or operate any real or personal property, for
which the annual rental exceeds $1,000,000 and which cannot be terminated by
the relevant SABMiller Group Company without penalty on less than six months
notice;


 


(G)           a Contract or series of related Contracts involving the
expenditure by any SABMiller Group Company of more than $10,000,000 in


 


 


55

















 


any instance for the sale or purchase of
goods, materials, supplies, equipment or services and which cannot be
terminated by the relevant SABMiller Group Company without penalty on less than
six months notice;


 


(H)          a Contract containing covenants materially limiting the
freedom of any SABMiller Group Company to compete in any geographic area within
the Territory or in any line of business within the Territory;


 


(I)            a Contract concerning the establishment or operation of a
partnership, joint venture, limited liability company or similar entity;


 


(J)            a Contract that contains any provisions requiring it to
indemnify any other party for amounts greater than $1,000,000 (excluding
customary indemnities contained in agreements for the purchase, sale or license
of products or services entered into in the ordinary course of business);


 


(K)          a Contract for the disposition of any significant portion
of the assets or business of a SABMiller Group Company or any Contract for the
acquisition of a significant portion of the assets or business of any other
Person, in each case for a consideration exceeding $10,000,000;


 


(L)           License Agreements other than licenses of unmodified,
commercially available off-the-shelf software applications, under which a
SABMiller Group Company is obliged to pay after the date of this Agreement an
amount in excess of $5,000,000 and which cannot be terminated by the relevant
SABMiller Group Company without penalty on less than six months notice;


 


(M)         a merchandising or distribution agreement involving
expenditure by any SABMiller Group Company of more than $5,000,000 and which
cannot be terminated by the relevant SABMiller Group Company without penalty on
less than six months notice;


 


(N)          a Contract allocating or settling any liability in excess
of $5,000,000 of any Miller Group Company for Taxes;


 


(O)          a Contract that is a settlement, conciliation, or similar
agreement with any Governmental Authority or which, after the execution date of
this Agreement, requires payment of consideration in excess of $500,000;


 


(P)           a material Contract entered into other than in the
ordinary course of business consistent with past practice;


 


(Q)          a decree or other ownership of water usage or storage
rights, including any Contract providing for rights to store or use water;


 


(R)           a Contract required to be disclosed on Schedule 4.02(n);
or


 


 


56

















 


(S)           to the extent not already covered by any of the foregoing,
a Contract (i) reasonably likely to involve expenditure by a SABMiller
Group Company in excess of $5,000,000, (ii) under which a SABMiller Group
Company is reasonably likely to incur liability in excess of $5,000,000, or (iii) reasonably
likely to involve the receipt by a SABMiller Group Company of more than
$5,000,000.


 


(ii)           Except as referred to in Schedule
4.02(m), (A) each of the Miller Material Contracts set forth on or
required to be set forth on Schedule 4.02(m) is legal, valid,
binding, enforceable and in full force and effect; (B) each SABMiller
Group Company, and, to Miller’s knowledge, each other party thereto, has in all
material respects performed all obligations required to be performed by it
under such Miller Material Contracts, and no SABMiller Group Company, nor, to
Miller’s knowledge, any other party thereto, is in breach or default (and with
the giving of notice or lapse of time or both would not be in breach or
default), and will not be in breach or default (and with the giving of notice
or the lapse of time will not be in breach or default) as a result of the
consummation of the Contemplated Transactions, under any such Miller Material Contract; and (C) the
consummation of the Contemplated Transactions (1) does not require any consent or notice to be
given by a SABMiller Group Company and (2) will not result in a right to
terminate or modify any right or privilege now enjoyed by a SABMiller Group
Company under any such Miller Material Contract.


 


(n)           Affiliate Transactions.  Except as set forth on Schedule 4.02(n),
no Affiliate, stockholder or director, officer or employee of a  SABMiller Group Company (a) owns or has
any interest, directly or indirectly, in any property or right, tangible or
intangible, which is used in the Miller Business and which has a value in
excess of $250,000, or (b) is a party to any Contract with a SABMiller
Group Company (other than with respect to a Miller Benefit Plan, in which case
the $250,000 thresholds set forth in (b)(i)-(b)(iii) shall be increased to
$1,000,000) (i) which is reasonably likely to involve expenditure by a
SABMiller Group Company in excess of $250,000 with respect to the Miller
Business, (ii) under which a SABMiller Group Company is reasonably likely
to incur liability in excess of $250,000 with respect to the Miller Business or
(iii) which is reasonably likely to involve the receipt by a SABMiller
Group Company of more than $250,000 with respect to the Miller Business.  To Miller’s knowledge, except as set forth on
Schedule 4.02(n), no Affiliate, stockholder or director, officer or
employee of a SABMiller Group Company (i) is a competitor of a SABMiller
Group Company with respect to the Miller Business, (ii) serves as an
officer or director, or in another similar capacity, of any Person whose
business manufactures or sells products similar to those of the Miller
Business, or (iii) has any claim or cause of action against a SABMiller
Group Company with respect to the Miller Business other than immaterial claims.


 


(o)           Real Property.


 


(i)            Schedule 4.02(o) sets
forth a correct and complete list of all real property owned by the SABMiller
Group that is used in the Miller Business (“Miller Owned Real Property”).  As of the date hereof, a SABMiller Group
Company has good and marketable fee simple title to each parcel of Miller Owned
Real Property, free and clear of any Liens, covenants or reservations of
interests in title, except for Permitted Liens.


 


 


57

















 


(ii)           Schedule 4.02(o) sets forth a
correct and complete list of all real property leased by the SABMiller Group
that is used in the Miller Business (“Miller Leased Real Property”;
together with the Miller Owned Real Property and all buildings, structures and
other improvements and fixtures located on or under such real property and all
easements, rights and other appurtenances to such real property, “Miller
Real Property”).  As of the date
hereof, with respect to each lease that constitutes a Miller Material Contract,
a SABMiller Group Company has a valid, binding and enforceable leasehold
interest in each parcel of Miller Leased Real Property, free and clear of any
Liens, covenants or reservations of interests in title on such SABMiller Group
Company’s leasehold interest, except for Permitted Liens.


 


(iii)          With respect to the Miller Owned Real
Property, except as provided on Schedule 4.02(o): (A) no SABMiller
Group Company has leased or otherwise granted to any Person the right to use or
occupy such Miller Real Property or any portion thereof, and (B) other
than the rights pursuant to this Agreement or any other Transaction Document,
there are no outstanding options, rights of first offer or rights of first
refusal to purchase such Miller Real Property or any portion thereof or
interest therein.


 


(iv)          With respect to the Miller Leased Real
Property leased pursuant to a Miller Material Contract: (A) no security
deposit or portion thereof deposited with respect thereto has been applied in
respect of a breach or default which has not been redeposited in full; and (B) except
as provided on Schedule 4.02(o), no SABMiller Group Company has
subleased, licensed or otherwise granted any Person the right to use or occupy
such Miller Real Property or any portion thereof.


 


(v)           Except as set forth on Schedule
4.02(o), a SABMiller Group Company has obtained all certificates, permits,
licenses and/or land use approvals from any Governmental Authority having
jurisdiction over any Miller Real Property and all agreements, easements or
other rights necessary to permit the lawful use and operation of the buildings
and improvements on any Miller Real Property, or that are necessary to permit
the lawful use and operation of all utilities, parking areas, retention ponds,
driveways, roads and other means of egress and ingress to and from any Miller
Real Property, except such as would not reasonably be expected to, individually
or in the aggregate, be material to the Miller Business.  No SABMiller Group Company has received
written notice that any such certificate, permit, license, land use approval,
agreement, easement or other right is not in full force and effect, except such
as would not reasonably be expected to, individually or in the aggregate, be
material to the Miller Business, nor has any SABMiller Group Company received
written notice of any pending written threat of modification or cancellation of
any of same, that would reasonably be expected to, individually or in the
aggregate, be material to the Miller Business.


 


(vi)          Except as provided for in Schedule
4.02(o), as of the date hereof, there are no existing condemnation or
rezoning proceedings with respect to the Miller Real Property, and no SABMiller
Group Company has received any written notice to the effect that any
condemnation or rezoning proceedings are threatened or pending with respect to
any of the Miller Real Properties, in all cases, except such as would not
reasonably be expected to, individually or in the aggregate, be material to the
Miller Business.


 


 


 


58

















 


(p)           Environmental.


 


(i)            Except as disclosed in Schedule
4.02(p) or as would not reasonably be expected to cause a Loss to the
Miller Business in excess of $2,500,000, a SABMiller Group Company:


 


(A)          has obtained and is in compliance with, and has at all
times since January 1, 2003 been in compliance with, all Environmental
Permits that are required for the lawful operation of the Miller Business or
the occupation of the Miller Real Property;


 


(B)           has at all times since January 1, 2003 complied with,
and is in compliance with, all applicable Environmental Laws with respect to
the Miller Business or which could result in any liability to the Company; and


 


(C)           has received no written or oral notice or other
information (other than such of the foregoing which have been fully resolved)
regarding, any violation of any Environmental Law or any liability, including
without limitation any investigatory, remedial or corrective obligation,
relating to the Miller Business or the Miller Real Property and arising under
Environmental Laws.


 


(ii)           Except as disclosed in Schedule
4.02(p) or as would not reasonably be expected to, individually or in the
aggregate, cause a Loss to the Miller Business in excess of $2,500,000, with
respect to the Miller Business or the Miller Contributions, no SABMiller Group
Company has treated, stored, disposed of, arranged for or permitted the
disposal of, transported, handled, released, or exposed any Person to, any
substance (including without limitation any Hazardous Substance), owned or
operated any property or facility used in the Miller Business (including
without limitation the Miller Real Property) which is or has been contaminated
by any substance, so as to give rise to any current or future liabilities,
including any such liability for response costs, corrective action costs,
personal injury, property damage, natural resources damages or attorney fees,
or any investigative, corrective or remedial obligations, pursuant to the
CERCLA or any other Environmental Laws.


 


(iii)          No SABMiller Group Company has been
identified as a potentially responsible party at any federal or state National Priority
List site or analogous state site with respect to the Miller Business, other
than as would not reasonably be expected to cause a Loss to the Miller Business
in excess of $2,500,000.


 


(iv)          SABMiller has delivered to CBC or its
Representatives true and complete copies and results of all material reports,
studies, analyses, tests, monitoring results or other material documents in the
possession or under the reasonable control of a SABMiller Group Company
pertaining to Hazardous Substances in, on, at, to, under or from the Miller
Real Property or any other current or former property or facility used in the
Miller Business, concerning compliance by a SABMiller Group Company with
Environmental Laws, or materially bearing on any environmental, health or safety
liabilities relating to the past or current operations or facilities of the
Miller Business.


 


(v)           Except as set forth on Schedule
4.02(p), none of the following exists at any of the Miller Real
Properties:  (A) underground storage
tanks;


 


 


59

















 


(B) asbestos-containing material in any form or
condition; (C) materials or equipment containing polychlorinated
biphenyls; (D) groundwater monitoring wells, drinking water wells, or
production water wells; or (E) landfills, surface impoundments, or
disposal areas.


 


(vi)          With respect to the Miller Business or
the Miller Contributions, to Miller’s knowledge, no SABMiller Group Company
has, either expressly or by operation of law, assumed, undertaken, or provided
an indemnity with respect to any material or potentially material liability
relating to Environmental Laws.


 


(q)           Intellectual Property.


 


(i)            Schedule 4.02(q) lists all of
the following that are included in the Miller Owned IP and used, held for use, or exploited as of the date hereof in connection
with the Miller Contributed Brands (or any goods or services bearing, or
provided under, such Miller Contributed Brands): (A) United States and
Puerto Rico Patents, (B) Trademarks registered and applied for in the United
States or Puerto Rico, and (C) Copyrights registered and applied for in
the United States or Puerto Rico, in each case specifying the jurisdiction
where the application/registration is located, the application/registration
number, and date of application/registration. 
Schedule 4.02(q) also lists (A) all Internet domain names
included in the Miller Contributed Assets and (B) all License Agreements
for material Software licensed to a Miller Group Company (excluding any License
Agreements for off-the-shelf shrinkwrap, clickwrap or similar commercially
available non-custom software) to the extent such Software is used, held for
use or exploited in connection with the Miller Business.


 


(ii)           Except as set forth on Schedule
4.02(q) or as would not reasonably be expected to, individually or in the
aggregate, be material to the Miller Business:


 


(A)          except for Miller
Intellectual Property that constitutes a Miller Excluded Asset, the
SABMiller Group Companies collectively own all right, title and interest in, or
have the valid and enforceable right to use (pursuant to a written License
Agreement), all Miller Intellectual Property, free and clear of any Liens
(other than Permitted Liens);


 


(B)           to Miller’s knowledge, each of the registrations listed in
Schedule 4.02(q) is valid, enforceable and subsisting and has not been
cancelled, and no loss, cancellation, abandonment or expiration of any such
registered Miller Intellectual Property is pending or threatened;


 


(C)           subject to the receipt of any third-party consents required
with respect to the assignment of License Agreements that are Miller Assumed
Contracts, and except for Miller Intellectual Property that constitutes a
Miller Excluded Asset, immediately subsequent to the Closing, the Company will
own or have the valid and enforceable right to use the Miller Intellectual
Property on terms and conditions not less favorable than those under which the
SABMiller Group Companies owned or used such Miller Intellectual Property
immediately prior to the Closing, subject to the terms of the Miller IP License
Agreement and the Services Agreement;


 


 


 


60

















 


(D)          no action, suit, claim, investigation, arbitration or any
other legal proceeding is pending or, to Miller’s knowledge, threatened,
against a SABMiller Group Company alleging that (i) any current use or
exploitation by a SABMiller Group Company of any Miller Contributed IP, or (ii) the conduct of the Miller
Business as currently conducted or as has been conducted within the preceding
five years, in each case, infringes, misappropriates or otherwise violates the
Intellectual Property rights of any third party; and no claim by any third
party contesting the validity, enforceability, use or ownership of any of the Miller Contributed IP has been made in writing
and is currently outstanding or, to Miller’s knowledge, is threatened, and to
Miller’s knowledge, there are no grounds for any such claim;


 


(E)           no SABMiller Group Company is subject to any judgment,
order, writ, injunction, judgment, or decree of any Governmental Authority
relating to the Miller Contributed IP,
and no SABMiller Group Company has entered into any Contract that restricts,
limits or impairs its use of any of the Miller
Contributed IP;


 


(F)           to Miller’s knowledge, neither the use or exploitation of
the Miller Contributed IP by the
SABMiller Group Companies, nor the operation of the Miller Business as
currently conducted, has infringed, misappropriated or otherwise violated the
Intellectual Property rights of any third party.  No SABMiller Group Company has received any
written notices regarding any of the foregoing (including, without limitation,
any demands or unsolicited offers to license any Miller Intellectual Property from any third party);


 


(G)           to Miller’s knowledge, no third party has infringed,
misappropriated or otherwise violated any of the Miller Contributed IP;


 


(H)          each SABMiller Group Company has taken all reasonably
necessary actions to maintain and protect all of the Miller Contributed IP material to the Miller Business and owned by
such entity. Without limiting the foregoing, each SABMiller Group Company has
taken all reasonable security measures to protect the secrecy, confidentiality
and value of all Trade Secrets included in the Miller Contributed IP and to which it has had access;


 


(I)            all Miller Contributed IP
is exclusively owned by a SABMiller Group Company.  Except as disclosed on Schedule 4.02(q),
no SABMiller Group Company has entered into a License Agreement granting any
third party exclusive rights under any Miller
Contributed IP;


 


(J)            the SABMiller Group’s collection, storage, use and
dissemination of any personally identifiable information in or in relation to
the Territory is and has been, so far as it was collected, stored, used or
disseminated in connection with the Miller Business, in material compliance
with all Applicable Laws in the Territory relating to privacy, data security
and data protection, and all applicable privacy policies and terms of use or
other


 


 


61

















 


contractual obligations.  The SABMiller Group has, with respect to the
Miller Business, reasonable security and data protections in place, consistent
with general industry practices in the Territory, with respect to third-party
Trade Secrets or personally identifiable information, and there has been no
material breach thereof or loss of data in the two (2) years prior to the
date of this Agreement; and


 


(K)          all rights of the SABMiller Group Companies in and to
Miller Contributed IP are transferable to the Company without any required
consent or other approval.


 


(r)                                    Taxes.


 


Except as set
forth in Schedule 4.02(r) or as would not reasonably be expected to,
individually or in the aggregate, be material to the Miller Business:


 


(i)            With respect to the Miller Business,
the Miller Group Companies (A) have prepared in accordance with Applicable
Law and duly and timely filed (taking into account any extension of time within
which to file) all material Tax Returns required to be filed by any of them and
all such Tax Returns were, at the time of filing, true and complete in all
material respects; (B) have paid all Taxes that they were required to pay
and withheld all Taxes that they were obligated to withhold from amounts owing
to any employee, creditor, stockholder or third party, except with respect to
matters contested in good faith for which adequate reserves have been
established and are reflected in the Miller Financial Information or are
incurred in the ordinary course of the Miller Business, consistent with past
practice, after the date of the Latest Miller Balance Sheet and except where
such failure to so pay or remit, individually or in the aggregate, is not
reasonably likely to be material; and (C) have not waived any statute of
limitations with respect to any material amount of Taxes or agreed to any
extension of time with respect to any material amount of Tax assessment or
deficiency.


 


(ii)           As of the date hereof, there are not
pending or threatened in writing, any audits, examinations, investigations or
other proceedings in respect of material Taxes with respect to the Miller
Business.  There are no unresolved
proposed, or to Miller’s knowledge, threatened Tax claims, assessments or
reassessments with respect to the Miller Business that, if upheld, would,
individually or in the aggregate, reasonably be expected to be material  to the Miller Business.


 


(iii)          There are no Liens for any Taxes upon
assets that are Miller Contributions, other than statutory Liens for Taxes not
yet due and payable and Liens for Taxes contested in good faith for which
adequate reserves have been established in the Miller Financial Information. No
written claim has been made by any Governmental Authority in a jurisdiction in
which any Miller Group Company does not file a Tax Return that any Miller Group
Company is or may be subject to taxation by such jurisdiction with respect to
the Miller Business.


 


(iv)          No Miller Group Company (A) has
been since 1990 a member of any other affiliated group filing a consolidated United
States federal income Tax Return (except


 


 


62

















 


each of the affiliated groups of which Miller,
SABMiller Holdings and Altria Group, Inc. (or any predecessor of Altria
Group, Inc.) is or was the common parent) or (B) has any liability
for the Taxes of any Person other than Miller, SABMiller Holdings or Altria
Group, Inc. (or any predecessor of Altria Group, Inc.) or any of
their Subsidiaries under Treasury Regulations Section 1.1502-6 (or any
similar provision of state, local, or foreign law), as a transferee or
successor, by contract, or otherwise (other than in connection with the
TMA).  No Miller Group Company is a party
to or bound by any tax allocation or sharing agreement (other than the TMA).


 


(v)           Miller has provided to MCBC true and
complete copies of all private letter rulings, technical advice memoranda or
rulings from a taxing authority with respect to the Miller Business that have
been issued to or received by any Miller Group Company since January 1,
2005.


 


(vi)          No Miller Group Company has entered
into, or otherwise participated (directly or indirectly) in, any “listed
transaction” within the meaning of Section 1.6011-4(b) of the
Treasury Regulations.


 


(vii)         Schedule 4.02(r) lists each
Miller Group Company or other Person which is a Miller Contribution for which
an election has been made pursuant to Section 7701 of the Code and the
Treasury Regulations thereunder to be treated other than its default
classification for U.S. federal income tax purposes.  Except as disclosed on such Schedule, each
Miller Group Company or other Person will be classified for U.S. federal income
tax purposes according to its default classification.


 


(s)           Employee Benefit Plans.


 


(i)            Schedule 4.02(s) contains
a complete and accurate list of each Employee Benefit Plan that a SABMiller
Group Company maintains, administers or contributes to on behalf of any
Transferring Miller Employee or with respect to which a SABMiller Group Company
has any obligation or liability related to or with respect to any Transferring
Miller Employee (the “Miller Benefit Plans”). Complete and accurate
copies of (A) each Miller Benefit Plan which has been reduced to writing, (B) written
summaries of the material terms of each unwritten Miller Benefit Plan, (C) each
related trust agreement, insurance or group annuity contract (and other funding
vehicles), most recent summary plan descriptions, most recent summaries of
material modifications, (D) all annual reports filed on the applicable Form 5500
for the three years prior to the date of this Agreement (together with all
attachments and financial statements thereto), and (E) any material
notices, letters or other correspondence with any Governmental Authority in
respect of any Miller Benefit Plan, have been provided or made available to
MCBC.


 


(ii)           Except as set forth on Schedule
4.02(s), (A) each Miller Benefit Plan has been, since the date that is
two years prior to the Closing Date, administered in all material respects in
accordance with its terms and each relevant SABMiller Group Company has in all
material respects, since the date that is two years prior to the Closing Date,
met its obligations with respect to each Miller Benefit Plan; (B) all
Miller Benefit Plans intended to be “qualified” under Section 401(a) of
the Code have received a favorable determination letter


 


 


63

















 


from the IRS regarding such plan’s qualified status,
and, to Miller’s knowledge, nothing has occurred which would reasonably be expected
to adversely affect such qualified status; (C) each Miller Benefit Plan
has been maintained and administered in compliance with Applicable Law,
including ERISA and the Code and the regulations thereunder, except for such
noncompliance as would not reasonably be expected to be material to the Miller
Business; and (D) there are no pending actions, examinations, audits,
inquiries, claims or judicial or governmental proceedings against any Miller
Benefit Plan with respect to the operation of such plan (other than routine
benefit claims), and no Miller Benefit Plan has, within the six years prior to
the date of this Agreement, been the subject of any examination, audit,
inquiry, review, proceeding, claim or demand by a Governmental Authority or
been the subject of an application or filing under a government-sponsored
amnesty, voluntary compliance, self-correction or similar program.  Except as provided on Schedule 4.02(s),
no Miller Benefit Plan has assets that include securities issued by a SABMiller
Group Company or “qualifying employer real property” as defined in Section 407(d) of
ERISA, and no Miller Benefit Plan is a “multiple employer welfare plan” (as
defined in Section 3(40) of ERISA).


 


(iii)          Except as provided on Schedule
4.02(s), at no time since January 1, 2005 has Miller or any ERISA
Affiliate been obligated to contribute to any Miller Benefit Plan subject to
Title IV of ERISA, including without limitation any “multiemployer plan” (as
defined in Section 4001(a)(3) of ERISA).


 


(iv)          With respect to each Miller Benefit
Plan (A) no breaches of fiduciary duty have occurred that could reasonably
be expected to give rise to material liability on the part of a SABMiller Group
Company; (B) no prohibited transaction (within the meaning of Section 406
of ERISA or Section 4975 of the Code and other than a transaction that is
exempt under a statutory or administrative exemption) has occurred that could
reasonably be expected to give rise to material liability on the part of a
SABMiller Group Company; and (C) no condition exists that would subject
any SABMiller Group Company, either directly or by its affiliation with any
ERISA Affiliate, to any material tax, fine, lien, penalty or other similar
liability imposed by ERISA, the Code or other Applicable Law.


 


(v)           Except as provided on Schedule
4.02(s), no Miller Benefit Plan provides post-employment welfare benefits
other than continuation of health coverage required to be continued under Section 4980B
of the Code or other applicable law and insurance conversion privileges under
federal or state law.


 


(vi)          No events have occurred or are
expected to occur with respect to any Miller Benefit Plan that would reasonably
be expected to cause a material increase in the cost of providing benefits
under such plan.


 


(vii)         Since the date that is two years prior
to the Closing Date, all contributions and premiums under or in connection with
the Miller Benefit Plans that are required to have been made have been timely
made and to the extent not due have been appropriately accrued in the Miller
Financial Information.  No Miller Benefit
Plan has an “accumulated funding deficiency” (as such term is defined in Section 302
of ERISA or Section 412 of the Code), whether or not waived.


 


 


64

















 


(viii)        Except as set forth on Schedule
4.02(s), the consummation of the Contemplated Transactions will not, either alone or in connection
with any other event (including the termination of employment of an employee), (A) entitle
any Transferring Miller Employee to severance pay, any change in control
payment, or any other material payment, or (B) accelerate the time of
payment or vesting, change the form or method of payment, or increase the
amount of compensation due to any Transferring Miller Employee, or (C) result
in any excise tax under Section 4999 of the Code or non-deductibility of
any compensation or benefit under Section 280G of the Code with respect to
any Transferring Miller Employee.


 


(ix)           Each Miller Benefit Plan that is a
nonqualified deferred compensation plan subject to Section 409A of the
Code has been operated and administered in good faith compliance with such Code
Section 409A and the guidance issued by the Department of Treasury
thereunder from the period beginning January 1, 2005 through the date
hereof.


 


(t)            Labor Matters.


 


(i)            Except as set forth on Schedule
4.02(t) or as would not reasonably be expected to be material to the
Miller Group, no SABMiller Group Company is, with respect to Transferring
Miller Employees, the subject of any Proceeding asserting that a SABMiller
Group Company has committed an unfair labor practice or CBA breach or seeking
to compel it to bargain with any labor union or labor organization, nor is
there pending or, to Miller’s knowledge, threatened, nor has there been during
the past three years, any labor strike, dispute, walk-out, work stoppage,
slow-down, lockout or other labor dispute involving any SABMiller Group Company
with respect to the Miller Business.  No
SABMiller Group Company is in receipt, written or oral, of any demand by any
labor union or labor organization seeking recognition as the collective
bargaining representative of any Transferring Miller Employees, and to Miller’s
knowledge, no union organizing, certification or decertification campaigns are
underway or threatened with respect to any Transferring Miller Employees.


 


(ii)           Except as would not reasonably be
expected to, individually or in the aggregate, cause a Loss to the Miller
Business in excess of $5,000,000 or would otherwise be material to the Miller
Business, there is no employment-related obligation or Proceeding of any kind,
pending or, to Miller’s knowledge, threatened in any forum, relating to an
alleged violation or breach by a SABMiller Group Company (or its officers or
directors) of any Law or contract with respect to Transferring Miller
Employees, and to Miller’s knowledge, no employee or agent of a SABMiller Group
Company has committed any act or omission giving rise to liability for any such
violation or breach.


 


(iii)          To Miller’s knowledge, no Transferring
Miller Employee with annual compensation in excess of $250,000 (A) has any
present intention to terminate their employment, or (B) is a party to any
confidentiality, non-competition, proprietary rights or other such agreement
between such employee and any other Person besides a SABMiller Group Company,
as applicable, that would be material to the performance of such employee’s
employment duties, or the ability of any SABMiller Group Company (or the
Company) to conduct the Miller Business.


 


65

















 


(iv)          With respect to the Contemplated
Transactions, any notice required under any law or collective bargaining
agreement applicable to the Miller Business has been or prior to Closing will be
given, and all bargaining obligations with any employee representative have
been or prior to Closing will be satisfied. 
During the past three years, no SABMiller Group Company has, with
respect to the Miller Business, implemented any plant closing or layoff of
employees that would reasonably be expected to result in any liability under
the WARN Act, and no such action will be implemented without advance
notification to CBC.


 


(u)           Finders’ Fees.  Except as set forth in Schedule 4.02(u),
there is no investment banker, broker, finder or other intermediary that has
been retained by or is authorized to act on behalf of it  who might be entitled to any fee or
commission from the Company or any of its Affiliates upon consummation of the
Contemplated Transactions.


 


ARTICLE V

COVENANTS AND AGREEMENTS OF THE PARTIES


 


Section 5.01        Confidentiality.   The Parties agree that the Confidentiality
Agreement by and among SABMiller and MCBC, as amended as of October 26,
2006 (the “Confidentiality Agreement”) shall continue in full force and
effect until otherwise agreed by the Parties or until it expires pursuant to
its terms.


 


Section 5.02           Certain Intellectual Property Matters.


 


MCBC, CBC and the Company shall enter into the Molson
Coors IP License Agreement, SABMiller, Miller and the Company shall enter into
the Miller IP License Agreement, and each of the Parties shall enter into the
Brand Cooperation Agreement, in each case effective as of the Closing.


 


Section 5.03           Conduct of Coors Business.


 


(a)           From the date hereof to the Closing Date, except as
otherwise provided in or contemplated by the Transaction Documents or as set
forth on Schedule 5.03, and except to the extent that SABMiller shall
otherwise give its prior written consent (which consent will not be
unreasonably withheld or delayed), MCBC and CBC shall cause the Molson Coors
Group to: (i) conduct the Coors Business in the ordinary course consistent
with past practice and in compliance in all material respects with Applicable
Laws; (ii) pay or perform all its material obligations with respect to the
Coors Business when due; and (iii) use its commercially reasonable efforts
to (A) preserve the Coors Business as currently conducted and (B) keep
available the material services of its senior management personnel.


 


(b)           Without limiting the generality of
the foregoing, from the date hereof to the Closing Date, except as otherwise
provided for or contemplated by the Transaction Documents, set forth on Schedule
5.03, required by Applicable Law or consented to in writing by SABMiller
(which consent will not be unreasonably withheld or delayed), MCBC and CBC
shall not, and shall not permit any Molson Coors Group Company to:


 


(i)            acquire or agree to acquire by
merging or consolidating with, or by purchasing a substantial portion of the
assets of, or by any other manner, any business or any


 


 


66

















 


corporation, limited liability company, partnership,
joint venture, association or other business organization or division thereof
or any assets in each case that would operate as part of the Coors Business
with a purchase price in excess of $50,000,000 individually or $250,000,000 in
the aggregate;


 


(ii)           amend any Molson Coors Group
Company’s certificate of incorporation or bylaws (or equivalent organizational
documents) in any manner that would affect the Contemplated Transactions;


 


(iii)          except in the ordinary course of
business consistent with past practice, as provided by this Agreement, or as
would not involve property having a value in excess of or involve the creation
of a liability for any Molson Coors Group Company in excess of $1,000,000
individually or $5,000,000 in the aggregate, sell, lease, license or otherwise
encumber or subject to any Lien (other than Permitted Liens) or otherwise
dispose of any of their properties or assets that relate to the Coors Business
or that are or would have been (absent such event) Molson Coors Contributions;


 


(iv)          in each case in connection with the
Coors Business, make any settlement of or compromise any material Tax
liability, change in any material respect any Tax election or Tax method of
accounting, make any new material Tax election or adopt any material new Tax
method of accounting or file or rescind any claim for refund of material Taxes,
file a materially amended Tax Return, make any waiver or extension of the
period of limitations for the assessment or payment of any material Tax (other
than in the ordinary course with respect to the conduct of an audit) or agree
to any assessment of a material amount of Tax, in each case as relates to the
Coors Business;


 


(v)           except, in each case, to the extent
entered into in the ordinary course of business consistent with past practice,
enter into any new CBC Material Contract, modify, amend or transfer in any
respect or terminate any existing CBC Material Contract or waive, release or
assign any material rights or claims thereunder, fail to renew any existing CBC
Material Contract in accordance with its terms or default in the performance of
any CBC Material Contract whether currently existing or entered into after the
date of this Agreement;


 


(vi)          become legally committed to any new
capital expenditures with respect to the Coors Business requiring expenditures
following the Closing Date in excess of $50,000,000 in the aggregate, except
for any expenditures pursuant to projects for which work has already been
commenced or committed;


 


(vii)         with respect to the Coors Business,
make any loans or advances to any Transferring CBC Employee or make any loans,
advances or capital contributions to, or investments in, any other Person in an
amount exceeding $5,000,000;


 


(viii)        except in the ordinary course of
business consistent with past practice or except as required by law or any
written agreement (including this Agreement and any CBA) in effect as of the
date hereof, (A) grant any salary or wage increases, except with respect
to employees not being transferred to the Company, (B) terminate, adopt,
modify or amend any CBC Benefit Plan in any manner that materially changes the
amount of the liability


 


 


67

















 


attributable to the Company in respect of such CBC
Benefit Plan or (C) transfer any employee from outside the Coors Business
to fill a newly created management position in the Coors Business;


 


(ix)           except in the ordinary course of
business consistent with past practice (including hiring of new employees) or
except as required by law or any written agreement (including this Agreement
and any CBA) in effect as of the date hereof, or except with respect to
employees not being transferred to the Company, enter into or amend any
agreement with any employees, officers or directors who will transfer to the
Company pursuant to this Agreement;


 


(x)            implement any layoffs or terminations
of employees who are (or would have been absent such layoffs or terminations)
Transferring CBC Employees that would reasonably be expected to result in any
liability under the WARN Act (including, without limitation, any obligation to
deliver advance written notice to any such employees in respect of a “plant
closing” or “mass layoff” (each as defined in the WARN Act));


 


(xi)           transfer or grant any rights or
permits under, or enter into any settlement regarding the infringement of, or
breach of any license relating to, any Molson Coors Contributed IP, or modify
any existing rights with respect thereto, or enter into any License Agreements,
except in each case in the ordinary course of business consistent with past
practice;


 


(xii)          with respect to the Coors Business or
any Molson Coors Contributions, waive, release, grant or transfer any material
right other than in the ordinary course of business or commence any material
legal proceedings other than in the ordinary course of business consistent with
past practice;


 


(xiii)         with respect to the CBC Real
Properties, demolish or remove any of the existing Improvements, erect new
Improvements or otherwise cause such CBC Real Property to change from
substantially the same condition as of the date of this Agreement, ordinary
wear and tear excepted, except as would not reasonably be expected to be
material to the Coors Business;


 


(xiv)        with respect to the Coors Business,
change in any material respect its existing policies or practices with respect
to inventory management;


 


(xv)         with respect to the Coors Business,
change in any material respect its existing policies or practices with respect
to the collection of accounts receivable or offer any material special terms to
any debtor or take any action whatsoever to accelerate the collection of any
material amount of receivables;


 


(xvi)        with respect to the Coors Business,
change in any material respect its existing policies or practices with respect
to the payment of accounts payable (including Non-Income Taxes), including any
change to the payment terms or timings in relation to any creditor, and
(without prejudice to the generality of the foregoing) all payments to the
suppliers set out in Schedule 5.03(b) shall be made in accordance
with the payment schedules shown on Schedule 5.03(b);


 


 


68

















 


(xvii)       with respect to the Coors Business, delay
in any material respect any material capital expenditure from that contemplated
in the 2008 capital expenditure plan for the Coors Business to be subsequently
provided to SABMiller or otherwise in a manner inconsistent with prior periods;


 


(xviii)      with respect to the Coors Business, change
in any material respect its existing practices with respect to the timing of
shipments to distributors;


 


(xix)         enter into any Contract that limits or
otherwise restricts any CBC Group Company or that would, after the Closing
Date, limit or restrict any CBC Group Company from, in each case, engaging or
competing in any material respect in any line of business or in any geographic
area;


 


(xx)          with respect to the Coors Business,
enter into any material transaction or agreement with an Affiliate (except as
expressly contemplated in the Transaction Documents);


 


(xxi)         sell, lease, assign, transfer or
otherwise dispose of any of the water usage and storage rights described on Schedule
4.01(w) (other than leases of Excess Rights for terms of one year or
less); or


 


(xxii)        authorize or enter into any agreement to
do any of the foregoing.


 


Section 5.04           Conduct of Miller Business.


 


(a)           From the date hereof to the Closing Date, except as
otherwise provided in or contemplated by the Transaction Documents or as set
forth on Schedule 5.04, and except to the extent that MCBC shall
otherwise give its prior written consent (which consent will not be
unreasonably withheld or delayed), SABMiller and Miller shall cause the
SABMiller Group to: (i) conduct the Miller Business in the ordinary course
consistent with past practice and in compliance in all material respects with
Applicable Laws; (ii) pay or perform all its material obligations with
respect to the Miller Business when due; and (iii) use its commercially
reasonable efforts to (A) preserve the Miller Business as currently
conducted and (B) keep available the material services of its senior
management personnel.


 


(b)           Without limiting the generality of the foregoing, from
the date hereof to the Closing Date, except as otherwise provided for or
contemplated by the Transaction Documents, set forth on Schedule 5.04,
required by Applicable Law or consented to in writing by MCBC (which consent
will not be unreasonably withheld or delayed), SABMiller and Miller shall not,
and shall not permit any SABMiller Group Company to:


 


(i)            acquire or agree to acquire by merging or
consolidating with, or by purchasing a substantial portion of the assets of, or
by any other manner, any business or any corporation, limited liability
company, partnership, joint venture, association or other business organization
or division thereof or any assets in each case that would operate as part of
the Miller Business with a purchase price in excess of $50,000,000 individually
or $250,000,000 in the aggregate;


 


 


69

















 


(ii)           amend any SABMiller Group Company’s certificate of
incorporation or bylaws (or equivalent organizational documents) in any manner
that would affect the Contemplated Transactions;


 


(iii)          except in the ordinary course of business consistent
with past practice, as provided by this Agreement, or as would not involve
property having a value in excess of or involve the creation of a liability for
any SABMiller Group Company in excess of $1,000,000 individually or $5,000,000
in the aggregate, sell, lease, license or otherwise encumber or subject to any
Lien (other than Permitted Liens) or otherwise dispose of any of their
properties or assets that relate to the Miller Business or that are or would
have been (absent such event) Miller Contributions;


 


(iv)          in each case in connection with the Miller Business, make
any settlement of or compromise any material Tax liability, change in any
material respect any Tax election or Tax method of accounting, make any new
material Tax election or adopt any material new Tax method of accounting or
file or rescind any claim for refund of material Taxes, file a materially
amended Tax Return, make any waiver or extension of the period of limitations
for the assessment or payment of any material Tax (other than in the ordinary
course with respect to the conduct of an audit) or agree to any assessment of a
material amount of Tax, in each case as relates to the Miller Business;


 


(v)           except, in each case, to the extent entered into in
the ordinary course of business consistent with past practice, enter into any
new Miller Material Contract, modify, amend or transfer in any respect or
terminate any existing Miller Material Contract or waive, release or assign any
material rights or claims thereunder, fail to renew any existing Miller
Material Contract in accordance with its terms or default in the performance of
any Miller Material Contract whether currently existing or entered into after
the date of this Agreement;


 


(vi)          become legally committed to any new capital
expenditures with respect to the Miller Business requiring expenditures
following the Closing Date in excess of $50,000,000 in the aggregate, except
for any expenditures pursuant to projects for which work has already been
commenced or committed;


 


(vii)         with respect to the Miller Business, make any loans or
advances to any Transferring Miller Employee, or make any loans, advances or
capital contributions to, or investments in, any other Person in an amount
exceeding $5,000,000;


 


(viii)        except in the ordinary course of business consistent
with past practice or except as required by law or any written agreement
(including this Agreement and any CBA) in effect as of the date hereof, (A) grant
any salary or wage increases, except with respect to employees not being
transferred to the Company, (B) terminate, adopt, modify or amend any
Miller Benefit Plan in any manner that materially changes the amount of the
liability attributable to the Company in respect of such Miller Benefit Plan or
(C) transfer any employee from outside the Miller Business to fill a newly
created management position in the Miller Business;


 


 


70

















 


(ix)           except in the ordinary course of business consistent
with past practice (including hiring of new employees) or except as required by
law or any written agreement (including this Agreement and any CBA) in effect
as of the date hereof, or except with respect to employees not being
transferred to the Company, enter into or amend any agreement with any
employees, officers or directors who will transfer to the Company pursuant to
this Agreement;


 


(x)            implement any layoffs or terminations of employees who
are (or would have been absent such layoffs or terminations) Transferring
Miller Employees that would reasonably be expected to result in any liability
under the WARN Act (including, without limitation, any obligation to deliver
advance written notice to any such employees in respect of a “plant closing” or
“mass layoff” (each as defined in the WARN Act));


 


(xi)           transfer or grant any rights or permits under, or
enter into any settlement regarding the infringement of, or breach of any
license relating to, any Miller Contributed IP, or modify any existing rights
with respect thereto, or enter into any License Agreements, except in each case
in the ordinary course of business consistent with past practice;


 


(xii)          with respect to the Miller Business or any Miller
Contributions, waive, release, grant or transfer any material right other than
in the ordinary course of business or commence any material legal proceedings
other than in the ordinary course of business consistent with past practice;


 


(xiii)         with respect to the Miller Real Properties, demolish
or remove any of the existing Improvements, erect new Improvements or otherwise
cause such Miller Real Property to change from substantially the same condition
as of the date of this Agreement, ordinary wear and tear excepted, except as
would not reasonably be expected to be material to the Miller Business;


 


(xiv)        with respect to the Miller Business, change in any
material respect its existing policies or practices with respect to inventory
management;


 


(xv)         with respect to the Miller Business,
change in any material respect its existing policies or practices with respect
to the collection of accounts receivable or offer any material special terms to
any debtor or take any action whatsoever to accelerate the collection of any
material amount of receivables;


 


(xvi)        with respect to the Miller Business,
change in any material respect its existing policies or practices with respect
to the payment of accounts payable (including Non-Income Taxes), including any
change to the payment terms or timings in relation to any creditor, and
(without prejudice to the generality of the foregoing) all payments to the
suppliers set out in Schedule 5.04(b) shall be made in accordance
with the payment schedules shown on Schedule 5.04(b);


 


(xvii)       with respect to the Miller Business,
delay in any material respect any material capital expenditure from that
contemplated in the 2008 capital expenditure plan for


 


 


71

















 


the Miller Business to be subsequently provided to
MCBC or otherwise in a manner inconsistent with prior periods;


 


(xviii)      with respect to the Miller Business,
change in any material respect its existing practices with respect to the
timing of shipments to distributors;


 


(xix)         enter into any Contract that limits or otherwise
restricts any Miller Group Company or that would, after the Closing Date, limit
or restrict any Miller Group Company from, in each case, engaging or competing
in any material respect in any line of business or in any geographic area;


 


(xx)          with respect to the Miller Business, enter into any
material transaction or agreement with an Affiliate (except as expressly
contemplated in the Transaction Documents); or


 


(xxi)       authorize
or enter into any agreement to do any of the foregoing.


 


Section 5.05           Competitive Businesses.


 


Unless and until the Closing of the Contemplated
Transactions is consummated, the Shareholders will continue to operate as competitive
businesses and will not collaborate in any manner or take any other action in
violation of Applicable Law.


 


Section
5.06           Selection of Executive
Committee.  The executive committee
of the Board shall initially be selected from existing members of the CBC and
Miller management teams except in exceptional circumstances, with due regard to
appropriate balancing of the candidates from the two management teams.  The first executive committee of the Board
will be selected based on recommendations from the Company’s Chief Executive
Officer-designate and a working team which will include representatives from
the human resources functions of both MCBC and SABMiller.  The Chief Executive Officer of SABMiller and
the Vice Chairman of MCBC will work in good faith to determine the identity of
the initial Chief Financial Officer and the initial Chief Integration Officer
of the Company.  If there is a lack of
consensus between the Chief Executive Officer of SABMiller and the Vice
Chairman of MCBC on the identity of the initial Chief Financial Officer or the
initial Chief Integration Officer of the Company, MCBC shall be entitled to
name the initial Chief Integration Officer and SABMiller shall be entitled to
name the initial Chief Financial Officer.


 


ARTICLE VI

FURTHER COVENANTS AND AGREEMENTS OF THE PARTIES


 


Section 6.01           Further
Assurances.


 


Subject to the terms and conditions of this Agreement,
each Party shall use commercially reasonable efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary or
desirable under Applicable Law to consummate or implement the Contemplated
Transactions, including satisfaction of the conditions in Article VIII
and the


 


 


72

















 


execution of such
agreements reasonably necessary for the Parties to retain their respective
interests in the CBC Excluded Assets and Miller Excluded Assets.  The Parties shall execute and deliver, and
shall cause their respective Subsidiaries, as appropriate or required as the
case may be, to execute and deliver, such other documents, certificates,
agreements and other writings and to take such other actions as may be
necessary or desirable to consummate or implement the Contemplated
Transactions, including satisfaction of the conditions in Article VIII.


 


Section 6.02           Certain Filings; Consents.


 


(a)           The Parties shall cooperate with each
other (a) in determining whether any action by or in respect
of, or filing with, any Governmental Authority is required in connection with
the consummation of the Contemplated Transactions and (b) subject to the
terms and conditions of this Agreement, in taking any such actions or making
any such filings, furnishing information required in connection therewith and
seeking timely to obtain any such actions, consents, approvals or waivers.


 


(b)           MCBC and CBC shall use commercially
reasonable efforts to obtain and deliver to SABMiller and Miller by Closing all
approvals and consents, to make all filings with the SEC relating to the
Contemplated Transactions (each of which, upon being filed, shall constitute a
“Report”), to promptly send all notices required by Delaware law to MCBC’s
shareholders and to provide all notices and obtain all waivers required to be
obtained or provided for, or which may be reasonably necessary to, the
consummation of the Contemplated Transactions or the ownership of, or use by,
the Company of the Molson Coors Contributions or operation of the Coors
Business. To the extent that any Molson Coors Group Company’s rights under any
Molson Coors Assumed Contract (including any Contract relating partly to the
Coors Business and partly to other Molson Coors Group operations), permit or
other asset to be contributed or assigned to the Company under this Agreement
may not be assigned (if applicable, to the extent relevant to the Coors
Business) without the consent of another Person which has not been obtained by
Closing, this Agreement shall not constitute an agreement to assign or
contribute the same if an attempted assignment would constitute a breach
thereof or be unlawful, and MCBC and CBC shall use commercially reasonable
efforts to obtain any such required consents as promptly as possible after
Closing.  If any such consent shall not
be obtained or if any attempted assignment would be ineffective or would impair
the Company’s rights under the Contract, permit or other asset in question (the
“Unassigned CBC Asset”) so that the Company would not in effect acquire
the benefit of all such rights on the Closing Date, from the Closing Date until
the relevant consent has been obtained: (A) MCBC and CBC shall, to the
maximum extent permitted by Applicable Law and, if applicable, to the extent
relevant to the Coors Business, (1) act after the Closing as the Company’s
agent in order to obtain for it the benefits thereunder, (2) pay to the
Company forthwith upon receipt any sums received by any Molson Coors Group
Company in respect of the Unassigned CBC Asset after the Closing Date and (3) cooperate
with the Company in any other reasonable arrangement designed to provide such
benefits to the Company and to enable the Company to enforce the rights of the
relevant Molson Coors Group Companies in respect of the relevant Unassigned CBC
Asset, including if the Unassigned CBC Asset is a License Agreement seeking to
sublicense the applicable Intellectual Property to the Company and (B) the
Company shall, at its own cost and for its own benefit, and to the maximum
extent permitted by Applicable Law, perform the obligations of


 


 


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the relevant Molson Coors Group Companies in respect
of the Unassigned CBC Asset to the extent it is obtaining the benefit of such
asset.


 


(c)           SABMiller and Miller shall use
commercially reasonable efforts to obtain and deliver to MCBC and CBC by
Closing all approvals and consents, to provide such information as may be
needed for any required SEC filings of MCBC or CBC relating to the Contemplated
Transactions and to provide all notices and obtain all waivers required to be
obtained or provided for, or which may be reasonably necessary to, the
consummation of the Contemplated Transactions or the ownership of, or use by,
the Company of the Miller Contributions or operation of the Miller Business. To
the extent that any SABMiller Group Company’s rights under any Miller Assumed
Contract (including any Contract relating partly to the Miller Business and
partly to other SABMiller Group operations), permit or other asset to be
contributed or assigned to the Company under this Agreement may not be assigned
(if applicable, to the extent relevant to the Miller Business) without the
consent of another Person which has not been obtained by Closing, this
Agreement shall not constitute an agreement to assign or contribute the same if
an attempted assignment would constitute a breach thereof or be unlawful, and
SABMiller and Miller shall use commercially reasonable efforts to obtain any
such required consents as promptly as possible after Closing.  If any such consent shall not be obtained or
if any attempted assignment would be ineffective or would impair the Company’s
rights under the Contract, permit or other asset in question (the “Unassigned
Miller Asset”) so that the Company would not in effect acquire the benefit
of all such rights on the Closing Date, from the Closing Date until the
relevant consent has been obtained: (A) SABMiller and Miller shall, to the
maximum extent permitted by Applicable Law and, if applicable, to the extent
relevant to the Miller Business, (1) act after the Closing as the
Company’s agent in order to obtain for it the benefits thereunder, (2) pay
to the Company forthwith upon receipt any sums received by a SABMiller Group
Company in respect of the Unassigned Miller Asset after the Closing Date and (3) cooperate
with the Company in any other reasonable arrangement designed to provide such
benefits to the Company and to enable the Company to enforce the rights of the
relevant SABMiller Group Companies in respect of the relevant Unassigned Miller
Asset, including if the Unassigned Miller Asset is a License Agreement seeking
to sublicense the applicable Intellectual Property to the Company and (B) the
Company shall, at its own cost and for its own benefit, and to the maximum
extent permitted by Applicable Law, perform the obligations of the relevant
SABMiller Group Companies in respect of the Unassigned Miller Asset to the
extent it is obtaining the benefit of such asset.


 


Section 6.03           Public Announcements


 


Prior to the Closing, the
Parties shall not (and shall not permit any Affiliate to) issue any press
release or make any public statement or employee communication with respect to
any Transaction Document or any of the Contemplated Transactions without the
prior written consent of the other Parties, and the Parties shall cooperate as
to the timing and contents of any such press release or public statement or
employee communication, except as may be required by Applicable Law, in which case no
Party shall issue any such press release or make any such public statement
without prior discussion with the other Parties (to the extent reasonably
practicable and to the extent permitted by Applicable Law) and without
complying with Applicable Law.


 


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Section 6.04                                Antitrust Laws


 


(a)                                  MCBC, SABMiller and the Shareholders
shall make the filings required under the HSR Act and any other material
Antitrust Laws.  MCBC, SABMiller and the
Shareholders shall also comply at the earliest practicable date with any
request for additional information, documents or other materials received from
the U.S. Federal Trade Commission, the Antitrust Division of the U.S.
Department of Justice or any other Governmental Authority.  MCBC, SABMiller and the Shareholders shall use
all commercially reasonable efforts to resolve objections, if any, that may be
asserted by any Governmental Authority with respect to the Contemplated
Transactions under any Antitrust Laws, including the HSR Act, the Sherman Act,
as amended, the Clayton Act, as amended, and the Federal Trade Commission Act,
as amended.  If any judicial or
administrative action or proceeding is initiated (or threatened to be
initiated) by a Governmental Authority challenging the Contemplated
Transactions as violative of any Antitrust Law or any other Applicable Law,
MCBC, SABMiller and the Shareholders shall each cooperate to contest and resist
any such action or proceeding, and to have vacated, lifted, reversed or
overturned any decree, judgment, injunction, ruling, decision, finding or other
order (whether temporary, preliminary, or permanent) until such time as a
final, non-appealable order has been entered. 
Notwithstanding the foregoing, the Parties shall not be required to
divest any businesses or effect other structural or behavioral changes in order
to obtain any approvals under Antitrust Laws.


 


(b)                                 MCBC, SABMiller and each Shareholder
covenant and agree that, to the extent practicable, prior to engaging in any
substantive discussions with any representatives of a Governmental Authority
concerning the Contemplated Transactions, they will advise the other Parties of
the anticipated substance of the discussions, provide the other Parties with
copies of any written materials they intend to provide to or review with such representatives
and afford the other Parties a reasonable opportunity to comment upon the
anticipated substance of the discussions or such written materials or to join
them and participate in such discussions. 
In the event it is impracticable for a Party to comply with its
obligations in the preceding sentence because the Party is contacted directly
by a representative of a Governmental Authority without advance notice, or in
any event such a discussion occurs without the presence of Representatives of
both Shareholders, as soon as practicable following any such discussions the
Party shall advise the other Parties of the discussions, the identity of the
parties participating in the discussions and the substance of the discussions,
and shall provide the other Parties with copies of any written materials
provided to, reviewed with or received from representatives of the Governmental
Authority.


 


Section 6.05                                Access


 


Through the Closing, each of the Parties shall (and no
investigation or information obtained pursuant to this Section 6.05
or otherwise shall affect or be deemed to modify any of the representations and
warranties made by any Party hereunder):


 


(a)                                  afford to the authorized representatives
of the other Parties, subject to reasonable notice provided by the Party
seeking such access, reasonable access, during normal business hours, to the
employees, offices, plants, properties, books and records of it and its
Subsidiaries in order that the other Parties may have full opportunity to make
such legal,


 


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financial, accounting and other reviews or
investigations of the Miller Business or Coors Business (as the case may be) as
such other Parties shall desire to make;


 


(b)                                 instruct, and use commercially reasonable
efforts to cause, its independent public accountants to permit the other
Parties’ independent public accountants to inspect the accounting work papers
and other records relating to the Miller Business or the Coors Business (as the
case may be); and


 


(c)                                  furnish to the other Parties and their
authorized representatives such additional financial and operating data and
other information regarding the Miller Business or the Coors Business (as the
case may be) as such other Parties shall reasonably request.


 


Section 6.06                                Employee
Matters


 


(a)                                  The Company shall offer employment,
effective as of the Closing Date, to all Transferring CBC Employees and
Transferring Miller Employees who are actively employed by a member of the
Molson Coors Group or the SABMiller Group, as applicable, immediately prior to
the Closing or then on an approved leave of absence (including, without
limitation, paid or unpaid leave, disability, medical, personal or any other
form of approved leave).  Those
Transferring CBC Employees and Transferring Miller Employees who accept such
offers of employment on the Closing Date (or, with respect to any employee on
an approved leave of absence, upon the conclusion of such approved leave) shall
be referred to herein as the “Company Employees.”  Except as provided in an employment contract
with any Company Employee or as required by the terms of an Assumed Benefit
Plan (as defined below), offers of employment to Company Employees whose
employment rights are subject to a CBA as of the Closing Date shall be in
accordance with the applicable terms of such CBA and the Company’s obligations
under the Labor Management Relations Act, 29 U.S.C. § 141, et seq., and offers
of employment to all other Company Employees shall be on an at-will basis.


 


(b)                                 Effective as of the Closing Date, each of
MCBC and SABMiller shall, or shall have caused one of its respective Affiliates
to, establish a defined contribution plan and trust for the benefit of the
Excluded CBC Employees and Excluded Miller Employees, respectively (each such
401(k) Plan referred to herein as a “Parent 401(k) Plan”).  Each of MCBC and SABMiller shall be
responsible for taking all necessary, reasonable and appropriate action to
establish, maintain and administer its respective Parent 401(k) Plan so that
it is qualified under Section 401(a) of the Code and so that the
related trust thereunder is exempt from Section 501(a) of the
Code.  Each of MCBC and SABMiller (acting
directly or through its Affiliates) shall be responsible for any and all
liabilities (including liability for funding) and other obligations with
respect to its respective Parent 401(k) Plan.  Effective as of the Closing Date, each of
MCBC and SABMiller shall cause the account (including any outstanding loan
balances) of each Excluded CBC Employee and Excluded Miller Employee,
respectively, if any, in the applicable 401(k) Plan of the CBC Group and
Miller Group, respectively, in which such employee participates and all of the
assets in such 401(k) Plan that are attributable thereto, if any, to be
transferred in-kind to the respective Parent 401(k) Plan, and each of MCBC
and SABMiller shall cause its respective Parent 401(k) Plan to accept such
transfer, to assume and to fully perform, pay and discharge all obligations of
the applicable 401(k) Plan relating to the accounts of such Excluded CBC
Employees and Excluded Miller Employees, respectively, as


 


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of the Closing Date. 
The transfer of assets described in this Section 6.06(b) shall
be conducted in accordance with Section 414(l) of the Code, Treasury
Regulation Section 1.414(1)-1, and Section 208 of ERISA.


 


(c)                                  For the period commencing on the Closing
Date and ending on the two-year anniversary thereof, the Company shall provide
to each Company Employee who experiences an involuntary termination of
employment, severance benefits based on a severance benefit formula that is no
less favorable than the severance benefit formula that would have applied to
such Company Employee upon a termination of employment under the same
circumstances immediately prior to the Closing pursuant to the severance
program or policy applicable to such Company Employee immediately prior to the
Closing Date; provided, that such severance benefits shall be determined
without taking into account any reduction after the Closing Date in the base
salary or annual bonus opportunity of such Company Employee in effect
immediately prior to the Closing Date and used to determine severance benefits.


 


(d)                                 Each Company Employee will receive
service credit for all periods of employment with the Molson Coors Group and
the SABMiller Group, respectively, prior to the Closing for purposes of
vesting, eligibility to participate and, with respect to severance and
vacation, level of benefits (but in no circumstances for benefit accruals)
under any employee benefit plan in which such employee participates after the
Closing, to the extent that such service was recognized under any analogous
plan of the Molson Coors Group and the SABMiller Group, respectively,
immediately prior to the Closing; provided that no such service credit
shall be given where such credit would result in a duplication of benefits.


 


(e)                                  The Company shall, to the extent
permitted by applicable Law, (i) cause any pre-existing condition
exclusions or limitations under any group health plan, group life insurance
plan and group disability plan in which Company Employees (and their eligible
dependents) are eligible to participate following the Closing Date to be waived
for any condition, to the extent that such Company Employees and eligible
dependents, as applicable, would have been entitled to coverage for such
condition under the corresponding plan in which such Company Employees or
eligible dependents participated immediately prior to the Closing, and (ii) credit
the dollar amount of all expenses incurred by each Company Employee (and their
eligible dependents), for the plan year in which such Company Employee
commences participation in group health plans of the Company for the purposes
of satisfying such year’s applicable deductibles and co-payment limitations and
annual out-of-pocket maximums for expenses incurred prior to the commencement
of participation in such group health plans.


 


(f)                                    Except as otherwise specifically provided
for in this Agreement, the Molson Coors Group and the SABMiller Group shall
retain all liabilities for payment and satisfaction of all annual base salary
and employee benefits that become due and payable prior to the Closing Date to
any member of the CBC Employee Group and Miller Employee Group, respectively; provided
that the Company shall assume any and all liabilities attributable to any and
all amounts due and owing to Company Employees as of the Closing Date for
vacation or paid time off pursuant to the respective policies and procedures of
the Molson Coors Group and the SABMiller Group to the extent accrued on the
Coors Financial Information or the Miller Financial Information, respectively,
at the Closing Date.  MCBC and SABMiller
agree to pay to each of their respective Company Employees, to the extent
eligible, a pro-rated bonus (the


 


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“Stub Bonus”) in respect of the period
commencing on the start of the relevant performance period and ending on the
Closing Date (the “Stub Period”), in accordance with the terms and
conditions of the relevant CBC Benefit Plan or Miller Benefit Plan, as
applicable.  The amount of the Stub Bonus
payable to each Company Employee, if any, shall be determined based on actual
performance results for the Stub Period. 
The Company agrees to pay to each Company Employee a pro-rated annual
bonus in respect of the period commencing on the Closing Date and ending on the
last day of the Company’s partial first fiscal year in accordance with the
terms and conditions of the applicable Company annual bonus plan(s).


 


(g)                                 Effective as of the Closing, the Company
shall assume sponsorship of, and shall succeed to all of the rights, title and
interest (including the rights of the Molson Coors Group or the SABMiller
Group, as applicable, if any, as plan sponsor, plan administrator or employer)
under, each CBC Benefit Plan and Miller Benefit Plan set forth on Schedule
6.06(g) and each contract, agreement or arrangement established under
any CBC Benefit Plan and Miller Benefit Plan, as applicable (collectively, the
“Assumed Benefit Plans”).  The
Parties hereto shall use their reasonable best efforts to cooperate with each
other, and shall cause their officers, employees, agents, auditors and
representatives to cooperate with each other after the Closing Date (i) in
the execution of any documents, adoption of any corporate resolutions or the
taking of all actions that are necessary and appropriate to effectuate such
sponsorship and related transfers of Assumed Benefit Plans and (ii) the
negotiation and execution of any Services Agreement that be may be necessary
and appropriate (including, without limitation, the provision of services to or
continued administration of employee benefits) in order for (A) the
Company to provide employee benefits to the Company Employees under the Assumed
Benefit Plans or any other any employee benefit plan in which the Company
Employees participate after the Closing Date and (B) any member of the
Molson Coors Group or the SABMiller Group to provide employee benefits to
Excluded CBC Employees and Excluded Miller Employees, respectively.


 


(h)                                 The Parties hereto agree to (i) treat
the Company as a “successor employer” and each of MCBC (or the applicable
member of the Molson Coors Group) and SABMiller (or the applicable member of
the SABMiller Group), as the case may be, as a “predecessor” within
the meaning of Sections 3121(a)(1) and 3306(b)(1) of the Code with
respect to Company Employees for purposes of taxes imposed under the United
States Federal Unemployment Tax Act and the United States Federal Insurance
Contributions Act and (ii) use their reasonable best efforts to cooperate with
each other to avoid the filing of more than one Internal Revenue Service Form W-2
with respect to each Company Employee for the calendar year in which the
Closing Date occurs.


 


(i)                                     Except as otherwise provided in this Section 6.06(i),
the Company agrees to assume the obligations of the SABMiller Group and the
Molson Coors Group under each CBA covering a Transferring CBC Employee or
Transferring Miller Employee (the “Assumed CBAs”).  For each Assumed CBA in effect as of the
Closing, the Company agrees to (a) recognize the union which is a party to
such Assumed CBA as the exclusive collective bargaining representative for the
Company Employees covered under the terms of the Assumed CBA, (b) employ
all Company Employees covered by such Assumed CBA with full recognition of all
seniority rights, (c) negotiate with the union over the terms of any
successor CBA upon expiration of the Assumed CBA and upon timely demand by the
union and (d) with


 


78

















 


the agreement of the appropriate union or otherwise as
provided by law and to the extent necessary, substitute, as of the Closing
Date, benefit plans of the Company for the Employee Benefit Plans specified in
the Assumed CBAs as required to be provided to the Company Employees covered by
the Assumed CBAs.


 


(i)                                     In the event that any withdrawal
liability under any multiemployer pension plan to which the Company is required
to contribute pursuant to an Assumed CBA (each, a “Multiemployer Plan”)
is imposed on the Company as a result of acts or failures to act by the Company
that the applicable Multiemployer Plan concludes constitute a complete or
partial withdrawal from the Multiemployer Plan, within the one-year period
commencing on the Closing Date, the Parties hereto agree that the Company will
use its best efforts to negotiate the lowest practicable amount thereof,
predicated in part and to the extent practicable on satisfying such liability
in a single lump sum, subject to MCBC and SABMiller’s approval which will not
be unreasonably withheld or delayed.  The
Parties further agree that the Company will be responsible for satisfying such
liability.


 


(ii)                                  The provisions of this Section 6.06(i) are
intended to satisfy the requirements of Section 4204 of ERISA in order
that the transactions contemplated by this Agreement shall not be deemed a
complete or partial withdrawal from the Multiemployer Plans, and the Parties
agree that such provisions shall be interpreted in the manner required by such Section so
as to accomplish this desired result. 
Accordingly the Parties agree that:


 


(A)                              they will
notify each of the Multiemployer Plans, informing it of the transaction, and
they will jointly seek a determination from each Multiemployer Plan that the
Closing of the transactions contemplated by this Agreement by themselves or in
combination with any other transaction or event (whether or not related to the
transactions contemplated by this Agreement) has not resulted in a complete or
partial withdrawal from each such Multiemployer Plan.


 


(B)                                after the
Closing, the Company will be obligated to
contribute to each Multiemployer Plan for “substantially the same number” (within
the meaning of Section 4204(a)(1)(A) of ERISA) of “contribution base units” for which the Molson Coors Group or SABMiller
Group, pursuant to the Assumed CBAs, had an “obligation to contribute” thereto (as
those terms are defined in Sections 4001(a)(11) and 4212 of ERISA,
respectively); and


 


(C)                                subject to Section 6.06(i)(i),
the Company will provide each Multiemployer Plan for a period of five
consecutive plan years commencing with the first plan year beginning after the
Closing Date, a bond issued by a corporate surety company that is an acceptable
surety for purposes of ERISA Section 412, or an amount held in escrow by a
bank or similar financial institution, satisfactory to the applicable
Multiemployer Plan, which bond or escrow will be paid to the applicable
Multiemployer Plan if the Company withdraws from such Multiemployer Plan, or
fails to make a contribution when due, at any time during the first five
consecutive plan years beginning after the Closing Date, in an amount equal to
the greater of:


 


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a)                                      the average annual contribution required
to be made by the Molson Coors Group or the SABMiller Group, as applicable, to
such Multiemployer Plan with respect to the operations under the applicable
Assumed CBA for the three plan years preceding the plan year in which the
Closing Date occurs, or


 


b)                                     the annual contribution that the Molson
Coors Group or the SABMiller Group, as applicable, was required to make to such
Multiemployer Plan with respect to the operations under the applicable Assumed
CBA for the last plan year prior to the plan year in which the Closing Date
occurs.


 


(D)                               In lieu of
providing the bond or escrow contemplated by Section 6.06(i)(ii)(C),
the Company may obtain a waiver, exemption, or variance of the requirement
under ERISA that it provide such bond.


 


(E)                                 If the Company
withdraws from a Multiemployer Plan in a complete withdrawal, or a partial
withdrawal with respect to operations covered by Assumed CBA, during the first
five plan years beginning after the Closing Date, the Company will be primarily
liable to such Multiemployer Plan, and MCBC or SABMiller, as applicable, will
be secondarily liable to such Multiemployer Plan for any withdrawal liability
MCBC or SABMiller, as applicable, would have had to such Multiemployer Plan
with respect to the operations covered by the applicable Assumed CBA (but for
ERISA Section 4204) if the liability of the Company with respect to such
Multiemployer Plan is not paid.


 


(j)                                     The provisions of this Section 6.06
are for the sole benefit of the Parties to this Agreement and nothing herein,
expressed or implied, is intended or shall be construed to confer upon or give
to any Person (including for the avoidance of doubt, any Company Employee),
other than the Parties hereto and their respective permitted successors and
assigns, any legal or equitable or other rights or remedies (with respect to
the matters provided for in this Section 6.06) under or by reason
of any provision of this Agreement. 
Nothing in this Section 6.06 or any other provision of this
Agreement shall amend, or be deemed to amend, any Assumed Benefit Plan, and
nothing in this Section 6.06 or any other provision of this
Agreement is intended to, or does, constitute the establishment of, or an
amendment to, any Employee Benefit Plan. 
Nothing in this Section 6.06 or any other provision of this
Agreement shall prevent the amendment or termination of any Assumed Benefit
Plan by the Company or shall limit the right of the Company to terminate the
employment of any Company Employee, in either case, at any time.


 


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Section 6.07                                Liens


 


The Parties shall, to the extent possible, procure
that (i) inchoate mechanics’ and materialmen’s liens for construction in
progress which are not yet due and payable and (ii) inchoate workmen’s,
repairmen’s warehousemen’s, landlord’s and carriers’ liens arising in the
ordinary course of business which are not yet due and payable are paid in full
and released at Closing.


 


Section 6.08                                LLC
Conversions; Reorganizations


 


(a)                                  Prior to Closing, CBC shall cause Coors
Distribution Company to be converted to a limited liability company that is
treated as a disregarded entity for U.S. federal income tax purposes (an “LLC”).


 


(b)                                 Prior to Closing, Miller shall cause each
of JLB Co. Inc., Martlet Inc. and MBC Acquisition Corp. to be converted to an
LLC, and Miller shall have succeeded to all of the assets and liabilities of
each of Miller Products Company, Miller Breweries East, Inc., MBC1, LLC,
MBC2, LLC, and Miller Breweries West, L.P., whether by merger, contribution,
liquidation or other reorganization.


 


Section 6.09                                Marketing Plan


 


As soon as reasonably practicable following Closing,
each of Miller and CBC shall finalize the marketing plan for the Miller
Business and the Coors Business, respectively, for 2008.  Once such plan has been finalized, each of
Miller and CBC will not delay in any material respect any material marketing
expenditure from that contemplated in the relevant plan.


 


Section 6.10                                Fort Worth Oil and Gas Payments


 


The Company shall pay to Miller (or its nominee) all
royalties and other payments received by the Company or one of its Subsidiaries
after the Closing in respect of oil and natural gas at the Fort Worth
Brewery.  If and to the extent that the
Company elects to receive such royalties or other payments in the form of gas
or oil, the Company shall pay to Miller (or its nominee) an amount equal to the
amount which the Company would have been entitled to receive if it had not made
such election.


 


Section 6.11                                IP
Contributions.


 


It is the intention of the Parties that all registered
and applied for Intellectual Property in the Territory (other than domain
names) that is owned by a Party and used, held for use or exploited as of the
Closing Date in connection with the Molson Coors Contributed Brands or the
Miller Contributed Brands (or any goods or services bearing, or provided under,
such Brands) be assigned to the Company. 
Should it be brought to the attention of either Party that such
Intellectual Property right was not assigned to the Company, or was
inadvertently assigned to the Company, in each case contrary to the intention of
the Parties as set forth in the foregoing sentence, such Party may request the
matter to be corrected by providing a written request to the other Parties
hereto.  Within sixty (60) days of
receiving such request, each of such other Parties shall inform in writing the
Party making the request, and all the other Parties, of its objection to such
correction (including the reasons for such objection) or agreement thereto,
provided that failure to respond to the correction request within such 60-day
period shall be


 


81

















 


deemed agreement
thereto.  If any Party objects to such
correction, any of the Parties may utilize the dispute resolution process set
forth in Section 12.13 of this Agreement.  If all the Parties agree to such correction,
then as soon as practicable (i) the Intellectual Property right that was
not assigned to the Company shall be assigned, or shall be caused to be
assigned, to the Company by the Party that owns such Intellectual Property
right or that may cause such assignment, or (ii) the Intellectual Property
right that was inadvertently assigned to the Company shall be assigned by the
Company to the Party that assigned it, or caused its Affiliate to assign it, to
the Company or to its predecessor.  Section 6.01
of this Agreement shall apply to any such assignment.


 


ARTICLE VII

TRANSACTION DOCUMENTS


 


Section 7.01                                Transaction
Documents


 


Each Party covenants and agrees, as an inducement to
the others to enter into this Agreement and to consummate the Contemplated
Transactions, to execute and deliver and to cause its respective Subsidiaries
to execute and deliver each Transaction Document to which each is a party.


 


ARTICLE VIII

CONDITIONS TO CLOSING


 


Section 8.01                                Conditions to
Obligations of Each Shareholder


 


The obligations of each Shareholder to consummate the
Closing are subject to the satisfaction (or waiver by each Shareholder) of the
following conditions:


 


(a)                                  any applicable waiting period (and any
extension thereof) under any Antitrust Law (including the HSR Act) relating to
the Contemplated Transactions shall have expired or been terminated and any
necessary approvals under any Antitrust Law shall have been obtained;


 


(b)                                 the European Commission issuing a decision under Article 6(1) or
Article 8(1) or 8(2) of Council Regulation 139/2004/EC (the
“Regulation”) that the Contemplated Transactions are
compatible with the common market on terms reasonably satisfactory to the Shareholders (or compatibility being deemed under Article 10(6) of the
Regulation);


 


(c)                                  no provision of any Applicable Law and no
judgment, injunction, order or decree issued by a court or other Governmental
Authority of competent jurisdiction shall prohibit the Closing; and


 


(d)                                 no action or proceeding shall be pending
before any court or other Governmental Authority or any arbitral tribunal that
seeks to prohibit the Closing, or impose damages or obtain other relief in
connection with the Contemplated Transactions that (i) is brought by any
Governmental Authority having jurisdiction in respect thereof or (ii) is
brought by any Person (other than a Governmental Authority) if in the case of
this clause (ii) such


 


82

















 


action or proceeding reasonably could be expected to
prohibit the Closing or deny the Parties the material anticipated benefits of
the Contemplated Transactions.


 


Section 8.02                                Conditions to
Obligations of MCBC and CBC.  The
obligations of MCBC and CBC to consummate the Closing are subject to the
satisfaction (or waiver by MCBC or CBC) of the following further conditions:


 


(a)                                  (i)  SABMiller and Miller shall have
performed in all material respects all of the obligations under this Agreement
required to be performed by them at or prior to the Closing, (ii) the
representations and warranties of SABMiller and Miller contained in this
Agreement shall be true and correct at and as of the date of this Agreement and
as of the Closing Date, as if made at and as of each such date, except that
those representations and warranties that by their express terms are made as of
a specific date shall be required to be true and correct only as of such date,
in each case except for inaccuracies that, in respect of SABMiller or Miller,
would not reasonably be expected to have a Material Adverse Effect (and
provided that to the extent that any such representation or warranty (other
than Section 4.01(h)(i)) is qualified by materiality or dollar
threshold, such materiality qualification or dollar threshold shall be ignored
for the purpose of determining whether there is such a Material Adverse
Effect), and (iii) CBC shall have received a certificate signed by an
officer of each of SABMiller and Miller to the foregoing effect.


 


(b)                                 Each of the Transaction Documents that
are required to be executed by SABMiller, Miller or any of their respective Subsidiaries
shall have been executed and delivered by SABMiller, Miller or their respective
Subsidiaries, as applicable, on or before the Closing Date.


 


(c)                                  Such disclosures and reports as are
required by applicable federal, state and local law in connection with the
conveyance of real property, including any required transfer tax forms, shall
have been delivered by SABMiller or Miller.


 


(d)                                 With respect to each Miller Leased Real
Property with respect to which a memorandum of lease or other evidence of the
lessee’s leasehold interest is recorded in the applicable land records, an
amendment of such document, in recordable form, evidencing the transfer of such
Miller Leased Real Property contemplated hereby shall have been delivered by
SABMiller or Miller.


 


(e)                                  SABMiller or Miller shall have delivered
to CBC no later than thirty (30) Business Days prior to the Closing, a
commitment for an ALTA Owner’s Title Insurance Policy for each Miller Owned
Real Property issued by First American Title Insurance Company (the “Miller
Title Company”), together with a copy of all documents referenced therein
(the “Miller Title Commitments”). At Closing, SABMiller or Miller shall have obtained title insurance policies from
the Miller Title Company (which may be in the form of a mark-up of a pro forma
of the Miller Title Commitments) insuring the Company’s fee simple title to
each Miller Owned Real Property as of the Closing Date (including all recorded
appurtenant easements) with gap coverage through the date of recording, subject
only to Permitted Liens, in such amount as the Parties reasonably determine to
be the value of the real property insured thereunder (the “Miller Title
Policies”).  Each of the Miller Title
Policies shall include an extended coverage


 


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endorsement (insuring over the general or standard exceptions) and all
other endorsements reasonably required by the Parties.  SABMiller or Miller shall pay all fees, costs and expenses with respect
to the Miller Title Commitments and Miller Title Policies.


 


(f)                                    SABMiller or Miller shall have
obtained and delivered to CBC no later than thirty (30) Business Days prior to
the Closing, a survey for each Miller Owned Real Property, dated no earlier
than the date of this Agreement, prepared by a surveyor licensed in the
applicable jurisdiction, and conforming to “Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys” jointly established and adopted by ALTA and NSPS in
2005, and including Items 1, 2, 3, 4, 6, 7(a), 7(b)(1), 7(c), 8, 9, 10, 11(b),
13, 14, 16, 17 and 18 of Table A thereof, and such other standards as the Miller Title
Company may require as a condition to deleting standard or general exceptions
or the removal of any survey exceptions from the Miller Title Policies, and
certified to the Parties and the Miller Title Company, in a form satisfactory
to each of such Parties (the “Miller Surveys”).  The Miller Surveys shall not disclose any
encroachment from or onto any of the real property or any portion thereof or
any other Lien or survey defect which has not been cured or, provided the
Miller Title Company will issue a further assurance endorsement with respect to
such defect, insured over to CBC’s reasonable satisfaction prior to the
Closing, unless such encumbrance, Lien or survey defect would not reasonably be
expected to materially impair the conduct of the Miller Business as conducted
at the pertinent Miller Real Property on the date of the pertinent Miller
Survey.  SABMiller or Miller shall pay all fees, costs and expenses with respect
to the Miller Surveys.


 


(g)                                 SABMiller or Miller shall have
obtained and delivered to CBC an estoppel certificate with respect to each of
the Miller Leased Real Properties that constitutes a Material Contract
certifying (i) that the applicable lease is in full force and effect and
has not been modified except as described in the estoppel certificate, (ii) that
there is no default under the applicable lease that has occurred and is
continuing, nor has any event occurred which with the passage of time would
become a default, (iii) the dates to which rent and other charges have
been paid, and (iv) the expiration date of the lease.  The estoppel certificate shall be dated no
more than twenty (20) Business Days prior to the Closing Date.


 


Section 8.03                                Conditions to
Obligations of SABMiller and Miller. The obligations of SABMiller and Miller to consummate
the Closing are subject to the satisfaction (or waiver by SABMiller or Miller)
of the following further conditions:


 


(a)                                  (i)  MCBC and CBC shall have
performed in all material respects all of the obligations under this Agreement
required to be performed by them at or prior to the Closing, (ii) the
representations and warranties of MCBC and CBC contained in this Agreement
shall be true and correct at and as of the date of this Agreement and as of the
Closing Date, as if made at and as of each such date, except that those
representations and warranties that by their express terms are made as of a
specific date shall be required to be true and correct only as of such date, in
each case except for inaccuracies that, in respect of MCBC or CBC, would not
reasonably be expected to have a Material Adverse Effect (and provided that to
the extent that any such representation or warranty (other than Section 4.02(h)(i))
is qualified by materiality or dollar threshold, such materiality qualification
or dollar threshold shall be ignored for the purpose of determining whether
there is such a Material Adverse Effect), and (iii) Miller shall


 


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have received a certificate signed by an officer of each of MCBC and
CBC to the foregoing effect.


 


(b)                                 Each of the Transaction Documents that
are required to be executed by MCBC, CBC or any of their respective Subsidiaries
shall have been executed and delivered by MCBC, CBC or their respective
Subsidiaries, as applicable, on or before the Closing Date.


 


(c)                                  Such disclosures and reports as are
required by applicable federal, state and local law in connection with the
conveyance of real property, including any required transfer tax forms, shall
have been delivered by MCBC or CBC.


 


(d)                                 With respect to each CBC Leased Real
Property with respect to which a memorandum of lease or other evidence of the
lessee’s leasehold interest is recorded in the applicable land records, an
amendment of such document, in recordable form, evidencing the transfer of such
CBC Leased Real Property contemplated hereby shall have been delivered by MCBC
or CBC.


 


(e)                                  MCBC or CBC shall have delivered to
Miller no later than thirty (30) Business Days prior to the Closing, a
commitment for an ALTA Owner’s Title Insurance Policy for each CBC Owned Real
Property issued by Fidelity National Title Insurance Company (the “CBC Title
Company”), together with a copy of all documents referenced therein (the “CBC
Title Commitments”). At Closing,
MCBC or CBC shall have obtained title insurance policies from the CBC Title
Company (which may be in the form of a mark-up of a pro forma of the CBC Title
Commitments) insuring the Company’s fee simple title to each CBC Owned Real
Property as of the Closing Date (including all recorded appurtenant easements)
with gap coverage through the date of recording, subject only to Permitted
Liens, in such amount as the Parties reasonably determine to be the value of
the real property insured thereunder (the “CBC Title Policies”).  Each of the CBC Title Policies shall include
an extended coverage endorsement (insuring over the general or standard
exceptions) and all other endorsements reasonably required by the Parties.  MCBC or CBC shall pay all fees, costs and
expenses with respect to the CBC Title Commitments and CBC Title Policies.


 


(f)                                    MCBC or CBC shall have obtained and delivered to Miller no later than thirty (30) Business Days prior to
the Closing, a survey for each CBC Owned Real Property, dated no earlier than
the date of this Agreement, prepared by a surveyor licensed in the applicable
jurisdiction, and conforming to “Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys” jointly established and adopted by ALTA and NSPS in
2005, and including Items 1, 2, 3, 4, 6, 7(a), 7(b)(1), 7(c), 8, 9, 10, 11(b),
13, 14, 16, 17 and 18 of Table A thereof, and such other standards as the CBC Title Company
may require as a condition to deleting standard or general exceptions or the
removal of any survey exceptions from the CBC Title Policies, and certified to
the Parties and the CBC Title Company, in a form satisfactory to each of such
Parties (the “CBC Surveys”).  The
CBC Surveys shall not disclose any encroachment from or onto any of the real
property or any portion thereof or any other Lien or survey defect which has
not been cured or, provided the CBC Title Company will issue a further
assurance endorsement with respect to such defect, insured over to Miller’s reasonable satisfaction prior to the Closing,
unless such encumbrance, Lien or survey defect would not reasonably be expected
to materially impair the conduct of the Coors Business as conducted at


 


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the pertinent CBC Real Property on the date of the pertinent CBC
Survey.  MCBC or CBC shall pay all fees,
costs and expenses with respect to the CBC Surveys.


 


(g)                                 MCBC or CBC shall have obtained and
delivered to Miller an estoppel certificate with respect to each of the CBC
Leased Real Properties that constitutes a Material Contract certifying (i) that the applicable lease is in
full force and effect and has not been modified except as described in the
estoppel certificate, (ii) that there is no default under the applicable
lease that has occurred and is continuing, nor has any event occurred which
with the passage of time would become a default, (iii) the dates to which
rent and other charges have been paid, and (iv) the expiration date of the
lease.  The estoppel certificate shall be
dated no more than twenty (20) Business Days prior to the Closing Date.


 


ARTICLE
IX

SURVIVAL AND INDEMNIFICATION


 


Section 9.01                                Survival


 


The representations and warranties contained in this
Agreement shall survive indefinitely except to the extent of any time
limitations specified in Section 9.07(a).  The covenants and agreements set forth in
this Agreement shall survive for the period contemplated by such covenants and
agreements, or if no period is so contemplated, indefinitely.


 


Section 9.02                                Indemnification
by MCBC and CBC


 


Subject to the limitations contained in Section 9.07,
MCBC and CBC hereby agree to jointly and severally indemnify and hold harmless
the Company and its successors, assigns and Affiliates (and its and their
respective directors, officers, employees, agents and representatives)
(collectively, “Indemnitees”) from and against any and all claims,
damages, liabilities, injuries, demands, settlements, judgments, awards,
penalties, Taxes, fees, fines, Liens, losses or other obligations whatsoever,
together with costs and expenses, including reasonable fees and disbursements
of counsel, accountants, financial advisors and other representatives, and
expenses of investigation incurred in connection therewith or in connection
with the enforcement of the indemnifying party’s indemnification obligations
hereunder (collectively, “Losses”):


 


(a)                                  arising out of, based upon, or caused by
the inaccuracy of any representation or the breach of any warranty (or alleged
breach or inaccuracy with respect to any third party claim) of MCBC or CBC
contained in this Agreement or in any agreement, certificate or other
instrument delivered by MCBC or CBC pursuant to this Agreement, provided that
to the extent that any such representation or warranty is qualified by
materiality or dollar threshold, such materiality qualification or dollar
threshold shall be ignored for purposes of calculating the amount of the
related Loss;


 


(b)                                 arising out of, based upon, or caused by
the breach (or alleged breach with respect to any third party claim) of any
covenant or agreement of MCBC or CBC contained in this Agreement or in any
agreement, certificate or other instrument delivered by MCBC or CBC pursuant to
this Agreement; or


 


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(c)                                  arising from the failure (or alleged
failure with respect to any third party claim) of MCBC or CBC to pay or
discharge, in due course, any Molson Coors Excluded Liability.


 


In the event that any amount is due by MCBC and CBC in
respect of Losses suffered or incurred by the Company, the Parties agree that
MCBC or CBC shall pay (and SABMiller and Miller shall be entitled on behalf of
the Company to pursue, at the expense of the Company, any claim in respect of)
the amount due directly to the Company. In the event that Losses are suffered
or incurred by an officer, director, employee or agent of the Company, the
Company may reimburse such person for its Losses and the amount of any payments
by the Company in connection with such reimbursement shall be deemed to be a
Loss incurred by the Company for purposes of this Article IX.


 


Section 9.03                                Indemnification
by SABMiller and Miller


 


Subject to the limitations contained in Section 9.07,
SABMiller and Miller hereby agree to jointly and severally indemnify and hold
harmless the Indemnitees from and against any and all Losses:


 


(a)                                  arising out of, based upon, or caused by
the inaccuracy of any representation or the breach of any warranty (or alleged
breach or inaccuracy with respect to any third party claim) of SABMiller or
Miller contained in this Agreement or in any agreement, certificate or other
instrument delivered by SABMiller or Miller pursuant to this Agreement,
provided, that to the extent that any such representation or warranty is
qualified by materiality or dollar threshold, such materiality qualification or
dollar threshold shall be ignored for purposes of calculating the amount of the
related Loss;


 


(b)                                 arising out of, based upon, or caused by the
breach (or alleged breach with respect to any third party claim) of any
covenant or agreement of SABMiller or Miller contained in this Agreement or in
any agreement, certificate or other instrument delivered by SABMiller or Miller
pursuant to this Agreement; or


 


(c)                                  arising from the failure (or alleged
failure with respect to any third party claim) of SABMiller or Miller to pay or
discharge, in due course, any Miller Excluded Liability.


 


In the event that any amount is due by SABMiller and
Miller in respect of Losses suffered or incurred by the Company, the Parties
agree that SABMiller or Miller shall pay (and MCBC and CBC shall be entitled on
behalf of the Company to pursue, at the expense of the Company, any claim in
respect of) the amount due directly to the Company.  In the event that Losses are suffered or
incurred by an officer, director, employee or agent of the Company, the Company
may reimburse such person for its Losses and the amount of any payments by the
Company in connection with such reimbursement shall be deemed to be a Loss
incurred by the Company for purposes of this Article IX.


 


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Section 9.04                                Special Tax
Indemnification


 


(a)                                  MCBC and CBC hereby agree to jointly and
severally indemnify and hold harmless the Indemnitees from and against any
Losses attributable to (i) any and all CBC Tax Liabilities; and (ii) any
Taxes imposed on the Company or any of its Subsidiaries as a result of being
jointly or severally liable for any Taxes of MCBC, CBC, or any of their
Affiliates pursuant to Treasury Regulations Section 1.1502-6 or any
analogous provision of state, local or foreign Tax law, or as successor,
transferee, by contract or otherwise.


 


(b)                                 SABMiller and Miller hereby agree to
jointly and severally indemnify and hold harmless the Indemnitees from and
against any Losses attributable to (i) any and all Miller Tax Liabilities;
and (ii) any Taxes imposed on the Company or any of its Subsidiaries as a
result of being jointly or severally liable for any Taxes of SABMiller
Holdings, Miller or any of their Affiliates pursuant to Treasury Regulations Section 1.1502-6
or any analogous provision of state, local or foreign Tax Law, as successor,
transferee, by contract or otherwise.


 


(c)                                  CBC’s and MCBC’s obligation to indemnify
the Indemnitees under Section 9.04(a) and SABMiller’s and
Miller’s obligation to indemnify the Indemnitees under Section 9.04(b) shall
survive the Closing hereunder and continue until 40 Business Days following the
expiration of the statute of limitations on assessment of the relevant Tax
(including extensions thereof). 
Notwithstanding the foregoing, any claim for indemnification shall
survive such termination date if the Party seeking indemnification, prior to
such termination date, shall have advised the other Party in writing of facts
that constitute or may give rise to an alleged claim for indemnification in accordance
with the provisions set forth in Section 9.05.


 


Section 9.05                                Notice, etc


 


(a)                                  In order to assert an indemnification
claim hereunder, the Indemnitee shall give the indemnifying party prompt
written notice of any action, claim, demand, discovery of fact, proceeding or
suit (collectively, “Claims”) for which such Indemnitee intends to
assert a right to indemnification under this Agreement; provided, however, that
no delay or deficiency on the part of the Indemnitee in so notifying the
indemnifying party shall relieve the indemnifying party of any obligation
hereunder except to the extent the indemnifying party has been prejudiced by
such delay or failure.  With respect to a
claim by a third party against an Indemnitee (other than an Assumed Claim, to
which Section 9.05(b) applies), the indemnifying party shall
have the right to monitor the Indemnitee’s defense, settlement or other
disposition of any Claim.  With respect
to any such third party claim relating solely to the payment of money damages
and which could not reasonably be expected to result in the Indemnitee becoming
subject to injunctive or other relief or otherwise adversely affect the
business of the Indemnitee in any manner, and as to which the indemnifying
party shall have acknowledged in writing the obligation to indemnify the
Indemnitee hereunder, the indemnifying party shall have the sole right to
defend, settle or otherwise dispose of such Claim at the indemnifying party’s
cost and using counsel reasonably satisfactory to the Indemnitee, on such terms
as the indemnifying party, in its sole discretion, shall deem appropriate;
provided that the indemnifying party must elect to assume the defense by
providing written notice not more than 20 Business Days after its receipt of
notice of the Claim.  The indemnifying
party shall obtain the written consent of the Indemnitee, which shall not be
unreasonably withheld or delayed, prior to ceasing to defend, settling or
otherwise disposing of any Claim if as a result thereof the Indemnitee could


 


88

















 


reasonably be expected to become subject to injunctive
or other equitable relief or the business of the Indemnitee could reasonably be
expected to be adversely affected in any manner.  If the indemnifying party assumes the defense
of any Claim, it shall keep the Indemnitee reasonably advised of the status of
such suit or proceeding and the defense thereof and shall consider in good
faith recommendations made by the Indemnitee with respect thereto.  If the indemnifying party does not assume the
defense of any Claim, the Indemnitee shall keep the indemnifying party
reasonably advised of the status of such suit or proceeding and the defense
thereof and shall consider in good faith recommendations made by the
indemnifying party with respect thereto. 
Each party shall cooperate with the other in the defense of any Claim as
reasonably requested by the other party, including by furnishing the other
party with such information as it may have with respect to such suit or
proceeding (including copies of any summons, complaint or other pleading which
may have been served on such party and any written claim, demand, invoice,
billing or other document evidencing or asserting the same).


 


(b)                                 Notwithstanding Section 9.05(a),
with respect to any Claim by a third party against the Company for which the
Company intends to rely on a right to indemnification under this Agreement, the
Company shall, if so requested by the indemnifying party, (1) allow the
indemnifying party to take sole conduct of the Claim in the name of the
Company, and/or (2) use legal counsel selected by the indemnifying party
in connection with any legal matters relating to the relevant Claim.  If the indemnifying party intends to assume
the conduct of any such Claim (an “Assumed Claim”) it must notify the
Company within 20 Business Days of receiving notice of the Company’s intention
to rely on its right of indemnification under this Agreement.  The indemnifying party shall have the sole
right to defend, settle or otherwise dispose of an Assumed Claim at the
indemnifying party’s cost, and shall not be required to obtain the consent of the
Company before taking any action (including making any payment) in respect of
the Assumed Claim.  The indemnifying
party shall keep the Company reasonably advised of the status of the Assumed
Claim and shall consider in good faith the recommendations of the Company with
respect thereto.  The Company must not
admit any liability or make or agree to any payment or compromise in respect of
any Assumed Claim without first obtaining the prior written consent of the indemnifying
party.


 


Section 9.06                                Mitigation.


 


In the event that an Indemnitee suffers damage or loss
in respect of which it has or makes a valid claim against an indemnifying party
for indemnification, it must take all commercially reasonable steps in a timely
manner to mitigate the loss or damage, including, without limitation, seeking
recovery under any applicable existing insurance policies.  No Indemnitee shall be entitled to
indemnification under this Article IX to the extent it (or another
Indemnitee affiliated with it) actually recovers at any time on the subject
Loss under an insurance policy.  In the
event such Indemnitee recovers on the subject Loss under an insurance policy
after an indemnification payment for such Loss has been made from the indemnifying
party, the Indemnitee shall promptly reimburse the indemnifying party the
applicable amount of the indemnification payment recovered under the insurance
policy without demand, deduction, offset or delay.


 


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Section 9.07                                Limitations


 


(a)                                  Notwithstanding anything to the contrary
contained in this Agreement, and notwithstanding any statute of limitations,
the obligation of MCBC, CBC, SABMiller or Miller to indemnify the Indemnitees
from and against any Loss arising from the breach of a representation or
warranty set forth in this Agreement shall terminate on the date which is three
months after the end of the first full fiscal year of the Company following
Closing if no notice of Claim shall have been given with respect to such Loss
prior to expiration of such period, except that Claims pending on, or asserted
prior to, the expiration of said period shall continue to be indemnified
against; provided, however, that (A) there shall be no
termination or expiration of the right to indemnification for the Fundamental
Reps, (B) the obligation of each Party to indemnify the Indemnitees from
and against any Loss arising from the breach of the representations and
warranties set forth in Sections 4.01(r) (Taxes), 4.01(s) (Employee
Benefit Plans), 4.02(r) (Taxes) and 4.02(s) (Employee
Benefit Plans) shall terminate upon the 40th Business Day following the
expiration of the applicable statute of limitations if no notice of Claim shall
have been given with respect to such Loss prior to expiration of said period,
except that Claims pending on, or asserted prior to, the expiration of said
period shall continue to be indemnified and (C) the obligation of each
Party to indemnify the Indemnitees from and against any Loss arising from the
breach of the representations and warranties set forth in Sections 4.01(p) (Environmental)
and 4.02(p) (Environmental) shall terminate on the fifth
anniversary of the Closing Date if no notice of Claim shall have been given
with respect to such Loss prior to expiration of said period, except that
Claims pending on, or asserted prior to, the expiration of said period shall
continue to be indemnified.


 


(b)                                 Notwithstanding the foregoing, no Claim
for indemnification made pursuant to Section 9.02(a) or 9.03(a) (other
than with respect to any fraudulent or willful misrepresentations, which shall
have no such limitations) (i) shall be indemnifiable unless the Losses
with respect to each individual item or group of related items underlying such
Claim exceed $2,500,000 (the “Minimum Claim Threshold”), provided
that if the Losses with respect to such item or group of related items exceed
the Minimum Claim Threshold, the full amount of the Claim (including the first
$2,500,000) shall be indemnifiable, subject to the other limitations herein, (ii) shall
be indemnifiable by MCBC or CBC until the indemnifiable amounts from MCBC and
CBC pursuant to Section 9.02(a) collectively exceed
$50,000,000 in the aggregate (the “MCBC Basket”) in which event MCBC
and/or CBC shall reimburse the Indemnitee(s) for only those Losses in
excess of the MCBC Basket, and (iii) shall be indemnifiable by SABMiller
or Miller until the indemnifiable amounts from SABMiller and Miller pursuant to
Section 9.03(a) collectively exceed $50,000,000 in the
aggregate (the “Miller Basket”) in which event SABMiller and/or Miller
shall reimburse the Indemnitee(s) for only those Losses in excess of the
Miller Basket; provided that, notwithstanding any other provision of
this Agreement, the maximum amount for which (A) MCBC and CBC, collectively,
and (B) SABMiller and Miller, collectively, may be liable with respect to
Claims made pursuant to Section 9.02(a) and 9.03(a),
respectively (other than Claims made with respect to any fraudulent or willful
misrepresentations, which shall have no such limitation), shall not exceed
$500,000,000 in the case of MCBC and CBC collectively (the “MCBC Cap”)
and $500,000,000 in the case of SABMiller and Miller collectively (the “Miller
Cap”); provided  further that Claims made with respect to the
Fundamental Reps shall not be subject to, and shall not be considered in
calculating whether Claims have exceeded, the MCBC Basket, the Miller Basket,
the MCBC Cap, the Miller Cap or, with respect to Section 4.02(j)(iii),
the Minimum Claim Threshold.


 


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(c)                                  For the avoidance of doubt, the
indemnification obligations contained in Section 9.04 (Special Tax
Indemnification) shall not be subject to the limitations contained in Section 9.07(a) and
(b).


 


Section 9.08                                Exclusive Remedy


 


From and after the Closing Date, the indemnification
provisions of this Article IX shall be the sole and exclusive
remedy with respect to any and all claims for monetary damages relating to the
subject matter of this Agreement. 
Notwithstanding the foregoing, either MCBC or CBC, on the one hand, or
SABMiller or Miller, on the other hand, may, pursuant to Section 12.13,
seek appropriate remedy outside of this Article IX against the
others to the extent that such Party directly (other than through CBC’s or
Miller’s interest in the Company) suffers a Loss arising out of, based upon, or
caused by the inaccuracy of any representation or the breach of any warranty
(or alleged breach or inaccuracy with respect to any third party claim) of the
other Party contained in Section 4.01(a), Section 4.01(b),
Section 4.01(c), Section 4.01(d), Section 4.02(a),
Section 4.02(b), Section 4.02(c) or Section 4.02(d).


 


Section 9.09                                Manner of
Payment


 


Any indemnification payment pursuant to this Article IX
shall be effected by wire transfer of 
immediately available funds from the applicable indemnifying party to an
account designated by each applicable Indemnitee within ten (10) Business
Days after the determination thereof.


 


Section 9.10                                No Double
Recovery


 


No indemnifying party shall be liable under a Claim to
the extent that the Loss that is the subject of the relevant Claim has already
been recovered in respect of another Claim.


 


Section 9.11                                Treatment of Indemnity Payments


 


The Parties agree that, for U.S. federal income Tax
purposes: (i) to the extent a Loss is suffered in the same taxable year an
indemnity payment is made by a Shareholder, the Loss shall be allocated to such
Shareholder and such indemnity payment shall be treated as a capital
contribution to the Company; and (ii) to the extent a Loss is suffered and
an indemnity payment is not made by a Shareholder until a subsequent taxable
year, (A) such indemnity payment shall be, to the extent possible, treated
as a capital contribution to the Company and (B) to the extent the amount
of such Loss previously allocated to the indemnifying Shareholder is less than
the amount of such capital contribution, additional deductions shall be
allocated to such Shareholder as necessary to offset any such shortfall.  Notwithstanding the foregoing, the Parties
agree, with respect to any payment or indemnity to or for the benefit of any
Indemnitee under this Article IX, that the indemnity obligation
shall include the payment of such amounts, if any, as shall be necessary to
hold such Indemnitee harmless on an after-Tax basis from all Taxes required to
be paid by such Indemnitee with respect to such payment or indemnity (including
any payments made pursuant to this Section 9.11), but also taking
account of any Tax benefit associated with the related Loss that the applicable
Indemnitee reasonably determines that it has realized.


 


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Section 9.12                                Corporate
Headquarter Services


 


(a)                                  To the extent that any Molson Coors
Equivalent Services are required to operate the Coors Business immediately
after Closing in substantially the same manner as conducted at the date hereof,
and the cost of such Molson Coors Equivalent Services exceeds $5,000,000 on an
annualized basis, SABMiller will provide notice of such excess to MCBC, such
notice to be provided not later than three (3) months after the
Closing.  Upon receipt of such notice,
MCBC shall take one of the following actions: (1) it shall provide such
Molson Coors Equivalent Services to the Company at no cost for a period of ten (10) years
or until MCBC and SABMiller have otherwise agreed, (2) it shall promptly
pay to the Company an amount equal to the multiplier set forth on Schedule
9.12(a) multiplied by the cost of such Molson Coors Equivalent Services
to the extent exceeding $5,000,000 or (3) it shall dispute the excess
amount described in such notice pursuant to the procedures set forth in Section 12.13
and, upon resolution of such dispute, comply with the decision of the arbitral
panel.


 


(b)                                 To the extent that any SABMiller
Equivalent Services are required to operate the Miller Business immediately
after Closing in substantially the same manner as conducted at the date hereof,
and the cost of such SABMiller Equivalent Services exceeds $1,300,000 on an
annualized basis, MCBC will provide notice of such excess to SABMiller, such
notice to be provided not later than three (3) months after the
Closing.  Upon receipt of such notice,
SABMiller shall take one of the following actions: (1) it shall provide such
SABMiller Equivalent Services to the Company at no cost for a period of ten (10) years
or until MCBC and SABMiller have otherwise agreed, (2) it shall pay to the
Company an amount equal to the multiplier set forth on Schedule 9.12(b) multiplied
by the cost of such SABMiller Equivalent Services to the extent exceeding
$1,300,000 or (3) it shall dispute the amount described in such notice
pursuant to the procedures set forth in Section 12.13 and, upon
resolution of such dispute, comply with the decision of the arbitral panel.


 


ARTICLE
X

TERMINATION


 


Section 10.01                          Termination. 
This Agreement may be terminated at any time prior to the Closing:


 


(a)                                  by mutual written agreement of the
Shareholders;


 


(b)                                 by SABMiller if, prior to the earlier of (i) the
commencement of business on the next Business Day following execution of this
Agreement and (ii) any public announcement of the execution of this
Agreement, delivery has not been made to MCBC of valid consents executed by the
holders of a majority in voting power of the outstanding MCBC Class A
Common Stock and Special Class A Voting Stock (taken together as a single
class) consenting to the Contemplated Transactions;


 


(c)                                  by either Shareholder if the Closing
shall not have been consummated by March 31, 2009; provided, however,
that a Shareholder may not terminate this Agreement pursuant to this Section 10.01(c) if
the Closing shall not have been consummated by such date


 


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by reason of the failure of such Shareholder to
perform, or to cause its Affiliates to perform, in all material respects any of
its or their respective covenants or agreements contained in this Agreement;


 


(d)                                 by either Shareholder if there shall be
any Applicable Law that makes consummation of the Contemplated Transactions
illegal or otherwise prohibited or if consummation of the Contemplated
Transactions would violate any nonappealable final order, decree or judgment of
any Governmental Authority having competent jurisdiction over such Shareholder;
or


 


(e)                                  by either Shareholder in the event of a
breach by the other Shareholder of any covenant or agreement under this
Agreement or in the event that any representation or warranty contained in this
Agreement, if then made (provided that any representation or warranty that
speaks as of a particular date or time would continue to speak as of that date
and time, without change), would not be true and correct under the standard set
forth in Section 8.02(a)(ii) or 8.03(a)(ii), as
applicable, and the effect of such breach or inaccuracy would be to cause the
conditions to the obligation of the terminating Shareholder to consummate the
Closing not to be satisfied, and such breach or inaccuracy is not cured by the
breaching Party within 20 Business Days of receiving written notice from the
terminating Party of the breach or inaccuracy or alleged breach or inaccuracy,
which written notice shall state that unless such breach or inaccuracy is cured
in accordance with this Section 10.01(e) the terminating Party
intends to terminate this Agreement (it being understood that such 20 Business
Days cure period shall not under any circumstances extend the date set forth in
Section 10.01(c)).


 


Any
Shareholder desiring to terminate this Agreement pursuant to this Section 10.01
shall give written notice of such termination to the other Shareholder.


 


Section 10.02                          Effect of
Termination.  If this Agreement is terminated as permitted
by Section 10.01:


 


(a)                                  this Agreement shall forthwith become
void and of no further force or effect, except for the following provisions,
which shall remain in full force and effect: (i) the representations and
warranties set forth in Sections 4.01(u) and 4.02(u) (relating
to finders’ fees), (ii) Section 6.03 (relating to publicity), (iii) this
Section 10.02 and (v) Article XII (Miscellaneous) other
than Section 12.05;


 


(b)                                 such termination shall be without
liability of any Party (or any Affiliate, stockholder, consultant or
Representative of such Party) to the other Parties to this Agreement; provided,
however, (i) that if the termination is the result of fraud or of a
willful breach by Miller or SABMiller of a covenant or agreement under this
Agreement and CBC and MCBC shall have complied in all material respects with
their obligations under this Agreement, then Miller or SABMiller, as the case
may be, shall be liable to CBC and MCBC for any Losses incurred by CBC and MCBC
(without duplication) as a result of such fraud or willful breach, and (ii) that
if the termination is a result of fraud or of a willful breach by CBC or MCBC
of a covenant or agreement under this Agreement and Miller and SABMiller shall
have complied in all material respects with their obligations under this
Agreement, then CBC or MCBC, as the


 


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case may be,
shall be liable to Miller and SABMiller (without duplication) for any Losses
incurred by Miller or SABMiller as a result of such fraud or willful breach;
and


 


                (c)           the Shareholders shall cause the
termination and dissolution of the Company (if already formed).


 


ARTICLE
XI

TAX MATTERS


 


Section 11.01                         Allocation of
Certain Taxes and Tax Items.


 


(a)           Whenever it is necessary to determine
the liability for Tax of the Company, the Shareholders or any of their
Subsidiaries for a portion of a taxable year or period that begins before and
ends after the Closing Date, any allocation of income or deductions relating to
Income Taxes (“Income Tax Returns”) for the Company and its Shareholders
shall be made by means of a closing of the books and records of the Company and
its Subsidiaries as of the close of business on the Closing Date, and, where
relevant and permissible, the Parties shall treat the Closing Date as the last
day of a taxable period under applicable Tax law.  Taxes imposed on a periodic basis (such as
real property Taxes) shall be apportioned on a time basis (that is, the amount
of such Tax for the entire taxable period shall be multiplied by a fraction the
numerator of which is the number of days from the start of the taxable period
to the Closing Date and the denominator of which is the number of days in the
entire taxable period) or any other reasonable methodology agreed by the
Shareholders.


 


(b)           Transactions occurring or actions
taken on the Closing Date but after the Closing outside the ordinary course of
business and not contemplated by this Agreement by, or with respect to, the
Company or any of its Subsidiaries shall be treated as occurring on the next
day and as such shall for purposes of this Agreement be treated (and
consistently reported by the Parties) as occurring in the taxable period (or
portion thereof) beginning the day after the Closing Date.


 


(c)           The Parties agree that, except as
otherwise specifically set forth in this Agreement or in the Operating
Agreement, (i) all allowable deductions or other expenses in respect of
any Equity Award held by a Transferring CBC Employee and not paid, issued or
settled by or on behalf of the Company or its Affiliates shall be allocated for
book purposes and all applicable Tax purposes to CBC, whether under the
Operating Agreement or otherwise; and (ii) all allowable deductions or
other expenses in respect of any Equity Award held by a Transferring Miller
Employee and not paid, issued or settled by or on behalf of the Company or its
Affiliates shall be allocated for book purposes and all applicable Tax purposes
to Miller, whether under the Operating Agreement or otherwise.  The Shareholder to whom a deduction is
allocated pursuant to this Section 11.01(c) shall be treated
as having made a capital contribution to the Company immediately prior to the
time at which the deduction arises, in an amount equal to the deduction so
allocated to such Shareholder.


 


Section 11.02         Cooperation and Exchange of
Information.


 


(a)           The Parties and their respective Affiliates
shall reasonably cooperate in the preparation of all Tax Returns for any Tax
periods for which one Party could reasonably


 


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require the assistance of the other Party in obtaining
any reasonably relevant information. 
Such cooperation and information shall include provision of powers of
attorney for the purpose of signing Tax Returns and promptly forwarding copies
of appropriate notices and forms or other communications received from or sent
to any Taxing Authority which relate to any of the Company or its Subsidiaries,
and providing copies of all relevant Tax Returns, together with accompanying
schedules and related workpapers, documents relating to rulings or other
determinations by any Taxing Authority and records concerning the ownership and
tax basis of property, which the party receiving the request may possess.  The Parties and their respective Affiliates
shall make their respective employees and facilities available on a mutually
convenient basis to provide explanation of any documents or information
provided hereunder.  The Parties shall
coordinate to obtain any certificate or other document from any Governmental
Authority or any other Person as may be necessary to mitigate, reduce or eliminate
any Tax that could be imposed on the Company (including with respect to the
Contemplated Transactions).


 


(b)           The Company and its Subsidiaries
shall retain all Tax Returns, books and records (including computer files) of,
or with respect to the activities of, the Company and its Subsidiaries for all
taxable periods ending after the Closing Date for a period of at least ten (10) years
after the filing of the Tax Return for such taxable period.


 


(c)           For a period of six (6) years
after the Closing Date or such longer period as may be required by law, CBC and
Miller or their respective Affiliates shall retain (and not destroy or dispose
of) all Tax Returns (including supporting materials), books and records
(including computer files) of, or with respect to the Taxes of, their
respective portions of the Miller Business or the Coors Business (as the case
may be) for all taxable periods ending on or prior to the Closing Date to the
extent CBC, Miller or their respective Affiliates held such items on the Closing
Date and did not deliver such records to the Company or any Subsidiary of the
Company.  After such retention period,
CBC, Miller and their respective Affiliates shall not dispose of any such Tax
Returns or books or records unless they first offer in writing such Tax Returns
or books and records to the Company and the Company fails to accept such offer
within 30 days of its being made.


 


Section 11.03         Tax Return Filing Responsibilities.


 


(a)           The Company shall timely prepare or cause to be prepared and file or cause to be filed
all Tax Returns, including with respect to a Straddle Period, that are required
to be filed by the Company and its Subsidiaries for all periods related to the Company and its Subsidiaries in accordance
with the Operating Agreement.  The
Company may delegate the preparation of any Tax Return to CBC if a Tax Return
relates to the Molson Coors Contributions or to Miller if a Tax Return relates
to the Miller Contributions.  Except as provided in Section 11.03(b),
the Company shall pay or cause to be paid any and all Taxes shown as due and
owing on such Tax Returns.  All such Tax
Returns shall be filed in a manner consistent with Tax Returns filed by Miller
Group Companies and CBC Group Companies with respect to the Miller Business or
the Coors Business (as the case may be) for the Pre-Closing Tax Period, unless
taking an inconsistent position is required under Applicable Law.


 


(b)           Notwithstanding anything to the
contrary herein or in the Operating Agreement, the Company shall timely prepare
or cause to be prepared any Tax Returns required 


 


95

















 


to be filed by the Company and its Subsidiaries with
respect to a Straddle Period and shall submit a copy of each such Tax Return
(including a calculation of the amount of Tax that constitutes a CBC Tax
Liability or Miller Tax Liability, as the case may be, that is payable with
such Tax Return (the “Straddle Period Taxes”)) to CBC if such Tax Return
relates to CBC Tax Liabilities or to Miller if such Tax Return relates to
Miller Tax Liabilities for their review and comment.  The Company may delegate the preparation of
any Tax Return to CBC if a Tax Return relates primarily to the CBC Tax
Liabilities or to Miller if a Tax Return relates primarily to the Miller Tax
Liabilities.  Such Tax Returns shall be
provided no later than thirty-five (35) Business Days before the due date
(including extensions) of such Tax Returns (or, in the case of any Tax Return
that does not have a specific due date, as soon as reasonably practicable
before such Tax Return is to be submitted to the relevant Tax authority, provided,
however, that the Company shall use reasonable efforts to cause a copy
of any such Tax Return to be provided at least forty (40) Business Days before
such Tax Return is to be submitted to the relevant Tax authority).  The Company shall make such reasonable
revisions to such Tax Returns as requested by either CBC or Miller and shall
file such Tax Returns in a timely manner. 
CBC or Miller, as applicable, shall pay to the Company (without
duplication under Section 9.04 or otherwise under this Agreement)
an amount equal to the Straddle Period Taxes for which each is liable at least
ten (10) Business Days prior to the due date (including any extensions)
for the filing of any such Tax Return.


 


(c)           Notwithstanding anything to the
contrary herein or in the Operating Agreement, the Company shall timely prepare
and cause to be prepared any Tax Returns required to be filed by the Company
and its Subsidiaries with respect to any Transfer Tax and submit a copy of such
Tax Return to CBC if such Tax Return relates to any of the Contemplated
Transactions with respect to the Molson Coors Contributions or to Miller if
such Tax Return relates to any of the Contemplated Transactions with respect to
the Miller Contributions for their review and comment.  The Company may delegate the preparation of
any Tax Return to CBC if such Tax Return relates primarily to the Molson Coors
Contributions or to Miller if such Tax Return relates primarily to the Miller
Contributions.  Such Tax Returns shall be
provided no later than thirty-five (35) Business Days before the due date
(including extensions) of such Tax Returns (or, in the case of any Tax Return that
does not have a specific due date, as soon as reasonably practicable before
such Tax Return is to be submitted to the relevant Tax authority, provided,
however, that the Company shall use reasonable efforts to cause a copy
of any such Tax Return to be provided at least forty (40) Business Days before
such Tax Return is to be submitted to the relevant Tax authority).  The Company shall make such reasonable
revisions to such Tax Returns as requested by either CBC or Miller and shall
file such Tax Returns in a timely manner. 
Each of CBC or Miller, as applicable, shall pay to the Company (without
duplication under Section 9.04 or otherwise under this Agreement)
an amount equal to the Transfer Taxes for which each is liable under Sections
9.04 and 12.03 at least 10 Business Days prior to the due date
(including any extensions) for the filing of any such Tax Return.


 


(d)           Each
Party and its Affiliates (treating the Company and Company Subsidiaries for
this purpose as neither a Party nor an Affiliate of any other Party) shall be
responsible for the preparation and filing of all Tax Returns required
to be filed by such Party and its Affiliates.  Any such income Tax Returns filed by Miller and CBC with respect to taxable periods after the
Closing Date, to the extent reflecting operations of the Company, shall 


 


96

















 


be filed in a manner consistent with
the partnership income Tax Returns filed by the Company and its Subsidiaries.


 


Section 11.04         Tax
Refunds.  CBC shall be entitled to
any Tax Refund relating to the Coors Business with respect to any Pre-Closing
Tax Period that is received by the Company or any of its Subsidiaries, except
to the extent that the related Tax was paid by the Company or any of its
Subsidiaries and was not a CBC Tax Liability, and the Company shall pay the
value of any such Tax Refund received to CBC promptly following its
receipt.  Miller shall be entitled to any
Tax Refund relating to the Miller Business with respect to any Pre-Closing Tax
Period that is received by the Company or any of its Subsidiaries, except to
the extent that the related Tax was paid by the Company or any of its
Subsidiaries and was not a Miller Tax Liability, and the Company shall pay the
value of any such Tax Refund received to Miller promptly following its receipt.


 


Section 11.05         Tax Contests.


 


(a)           If a Party (or any Affiliate of a
Party) receives any communication with respect to any pending or threatened
legal proceeding in connection with a Tax liability (or an issue related
thereto) for which another Party or Parties may be responsible pursuant to this
Agreement or otherwise, such Party shall, promptly upon receipt of notice
thereof, notify in writing such other Party or Parties.  Such notice shall include a true, correct and
complete copy of any written communications, and an accurate and complete
written summary of any oral communications, so received by the Party.  The failure of a Party timely to forward such
notification and communications in accordance with the immediately preceding
sentence shall not relieve any other Party or Parties of its obligation to pay
such Tax liability or any indemnity therefor, except and to the extent that the
failure timely to forward such notification and communications prejudices the
ability of the Party liable for such Tax liability to contest such Tax
liability or increases the amount of such Tax liability.


 


(b)           Except as provided for in Section 11.05(c) below
and notwithstanding any other provision of this Agreement, as between CBC and
Miller, the Party responsible for a Tax liability with respect to a taxable
period (or portion thereof) ending on or before the Closing Date (such Party,
the “Controlling Party”) shall have the sole right to represent the
interests of the Party or its Subsidiaries in any legal proceeding relating
solely to such Tax liability and to employ counsel of its choice at its own
expense, provided that the other Party (such Party, the “Non-Controlling
Party”) shall have the right to participate in such proceeding (at its own
expense) and the Controlling Party shall not enter into a settlement without
the consent of the Non-Controlling Party (such consent not to be unreasonably
withheld or delayed), where such settlement could reasonably be expected to
have an adverse effect on the Company or any of its Subsidiaries.


 


(c)           The Company and the tax matters
partner (within the meaning of Section 6231(a)(7) of the Code and any
similar provision under Applicable Law) shall represent the interests of the
Company and its Subsidiaries in any legal proceedings relating to a taxable
period (or portion thereof) of the Company and its Subsidiaries for which no
other Party has any responsibility for a Tax liability, and to employ counsel
of its choice at its own expense, in accordance with the terms of the Operating
Agreement.  Notwithstanding the
foregoing, the 


 


97

















 


Parties intend that the Company will, to the extent
feasible and consistent with Applicable Law and the Transaction Documents, be
responsible for any audit or review by any Governmental Authority with respect
to the Company, in the same manner as if the Company were a stand-alone
taxpayer.


 


 


ARTICLE
XII

MISCELLANEOUS


 


Section 12.01         Notices.  All notices, requests and other
communications to any Party hereunder shall be in writing (including telecopy
or similar writing) and shall be given,


 


if
to MCBC or CBC:


 


Molson
Coors Brewing Company


1225
17th Street, Suite 3200


Denver,
CO 80202


United
States of America


Attention:
Chief Legal Officer


Telecopy:
(303) 277-7407


 


with
copies (which shall not constitute notice) to:


 


	
  Kirkland &
  Ellis LLP

  	
   

  	
   

  
	
  200
  East Randolph Drive

  	
   

  	
   

  
	
  Chicago,
  IL 60601-6636

  	
   

  	
   

  
	
  United
  States of America

  	
   

  	
   

  
	
  Attention:
  

  	
   

  	
  R.
  Scott Falk, P.C.

  
	
   

  	
   

  	
  Robert
  M. Hayward

  
	
  Telecopy:
  (312) 861-2200

  	
   

  	
   

  
					



 


if
to SABMiller or Miller:


 


SABMiller
plc

One Stanhope Gate

London W1K 1AF

England


Attention:  John
Davidson, General Counsel and Company Secretary

Telecopy:  +44 (0)20 7659 0166


 


with
copies (which shall not constitute notice) to:


 


Cleary Gottlieb Steen &
Hamilton LLP

One Liberty Plaza

New York, NY 10006


United States of America


Attention: Victor Lewkow, Esq.

Telecopy:  (212) 225 3999


 


98

















 


and


 


Lovells LLP


Atlantic House


Holborn Viaduct


London, EC1A 2FG


England


Attention: Andrew Pearson, Esq.

Telecopy:  +44 (0)20 7296 2001


 


if
to the Company:


 


At
its address set forth in the Joinder


 


or to
such other address or telecopy number and with such other copies, as such Party
may hereafter specify in writing for the purpose by notice to the other
Parties.  Each such notice, request or
other communication shall be effective (i) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section 12.01
and evidence of receipt is received or (ii) if given by any other means,
upon delivery or refusal of delivery at the address specified in this Section 12.01.


 


Section 12.02         Amendments;
Waivers.


 


(a)           No provision of this Agreement may be
amended or waived unless such amendment or waiver is in writing and signed, in
the case of an amendment, by the Shareholders, or in the case of a waiver, by
the Party against whom the waiver is to be effective.


 


(b)           No failure or delay by any Party in
exercising any right, power or privilege under this Agreement shall operate as
a waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.


 


Section 12.03         Expenses.  Except as otherwise provided in this Agreement,
all costs and expenses incurred in connection with the preparation and
negotiation of this Agreement and the Contemplated Transactions (including
without limitation retention payments to employees and payments pursuant to Sections
6.02(b) and (c)) shall be paid by the Party incurring such cost
or expense.  All transfer taxes and
similar fees and governmental charges and all sales, use and similar taxes and
governmental charges resulting from or relating to the Contemplated
Transactions (the “Transfer Taxes”) shall be paid by the Party
contributing the applicable asset or real property.  Notwithstanding the foregoing, all filing
fees payable in connection with filings required under any Antitrust Laws, all
costs incurred after October 9, 2007 in relation to integration (including
the fees of McKinsey & Company) and the costs of Lovells LLP in
securing the “MillerCoors” and associated domain names worldwide shall be
shared equally by MCBC and Miller.


 


Section 12.04         Successors
and Assigns.  The provisions of this
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective successors and 


 


99

















 


permitted assigns.  No Party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
prior written consent of the other Parties; provided that any Party may,
without the other Parties’ prior written consent, assign its rights under this
Agreement upon written notice to the other Parties (i) to any of its
direct or indirect wholly owned United States Subsidiaries (provided,
that if any such Subsidiary assignee, delegatee or transferee shall at any time
cease to be a direct or indirect wholly owned United States Subsidiary of the
assignor, delegator or transferor, as the case may be, the exception set forth
in this clause (i) shall no longer apply and such assignment, delegation
or transfer shall be void unless otherwise permitted under this Section 12.04)
or (ii) in connection with the transfer or sale of all or substantially
all of its assets or business or its merger or consolidation with another
Person.  Notwithstanding the foregoing,
no assignment, delegation or other transfer of rights under this Agreement
shall relieve the assignor of any liability or obligation hereunder.  Any attempted assignment, delegation or
transfer in violation of this Section 12.04 shall be void.


 


Section 12.05         Disclosure.  Certain information set forth in the
Disclosure Schedules has been included and disclosed solely for informational
purposes and may not be required to be disclosed pursuant to the terms and
conditions of this Agreement.  The
disclosure of any such information shall not be deemed to constitute an
acknowledgement or agreement that the information is required to be disclosed
in connection with the representations and warranties made in this Agreement or
that the information is material, nor shall any information so included and
disclosed be deemed to establish a standard of materiality or otherwise be used
to determine whether any other information is material.  Any information set forth on one section of
the Disclosure Schedules shall be deemed to apply to each other section or
subsection of this Agreement to the extent that the relevance of such information
to such other sections of the Disclosure Schedules is reasonably apparent.


 


100

















 


Section 12.06         Construction.  As used in this Agreement, any reference to
the masculine, feminine or neuter gender shall include all genders, the plural
shall include the singular, and singular shall include the plural.  Unless the context otherwise requires, the
term “party” when used in this Agreement means a party to this Agreement.  References in this Agreement to the “knowledge”
of any Party shall be deemed to mean the actual knowledge, after reasonable
inquiry, of the senior management of such Party.  References in this Agreement to a party or
other Person include their respective successors and permitted assigns.  The words “include,” “includes” and
“including” when used in this Agreement shall be deemed to be followed by the
phrase “without limitation” whether or not such phrase appears.  Unless the context otherwise requires, references
in this Agreement to Articles, Sections, Exhibits, Schedules and Attachments
shall be deemed references to Articles and Sections of, and Exhibits, Schedules
and Attachments to, this Agreement. 
Unless the context otherwise requires, the words “hereof,” “hereby” and
“herein” and words of similar meaning when used in this Agreement refer to this
Agreement in its entirety and not to any particular Article, Section or
provision of this Agreement.  With regard
to each and every term and condition of this Agreement, the Parties understand
and agree that the same have or has been mutually negotiated, prepared and
drafted, and that if at any time the Parties desire or are required to
interpret or construe any such term or condition or any agreement or instrument
subject thereto, no consideration shall be given to the issue of which Party
actually prepared, drafted or requested any term or condition of this
Agreement.


 


Section 12.07         Entire
Agreement.


 


(a)           This Agreement, the other Transaction
Documents and the Confidentiality Agreement constitute the entire agreement
among the Parties with respect to the subject matter of such documents and
supersede all prior agreements, understandings and negotiations, both written
and oral, among the Parties with respect to the subject matter thereof.


 


(b)           THE PARTIES HERETO ACKNOWLEDGE AND
AGREE THAT NO REPRESENTATION, WARRANTY, PROMISE, INDUCEMENT, UNDERSTANDING,
COVENANT OR AGREEMENT HAS BEEN MADE OR RELIED UPON BY ANY PARTY HERETO OTHER
THAN THOSE EXPRESSLY SET FORTH IN THE TRANSACTION DOCUMENTS.  WITHOUT LIMITING THE GENERALITY OF THE
DISCLAIMER SET FORTH IN THE PRECEDING SENTENCE, NO SHAREHOLDER NOR ANY OF ITS
AFFILIATES HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATIONS OR
WARRANTIES, IN ANY PRESENTATION OR WRITTEN INFORMATION GIVEN OR TO BE GIVEN IN
CONNECTION WITH THE CONTEMPLATED TRANSACTIONS, OR IN ANY FILING MADE OR TO BE
MADE BY OR ON BEHALF OF SUCH SHAREHOLDER OR ANY OF ITS AFFILIATES WITH ANY
GOVERNMENTAL AUTHORITY, AND NO STATEMENT MADE IN ANY SUCH PRESENTATION OR
WRITTEN MATERIALS, MADE IN ANY SUCH FILING OR CONTAINED IN ANY SUCH OTHER
INFORMATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY HEREUNDER OR
OTHERWISE.  EACH SHAREHOLDER ACKNOWLEDGES
THAT THE OTHER SHAREHOLDER HAS INFORMED IT THAT NO PERSON HAS BEEN AUTHORIZED
BY SUCH SHAREHOLDER OR ANY OF ITS AFFILIATES TO MAKE ANY REPRESENTATION OR
WARRANTY IN CONNECTION WITH THE CONTEMPLATED TRANSACTIONS, 


 


101

















 


UNLESS IN WRITING AND CONTAINED IN THIS AGREEMENT OR
IN ANY OF THE OTHER TRANSACTION DOCUMENTS TO WHICH SUCH SHAREHOLDER IS A PARTY.


 


(c)           Except as expressly provided herein
this Agreement is not intended to and does not confer upon any Person other
than the Parties (and their successors and permitted assigns) any rights or
remedies hereunder, including any rights of employment for any specified
period, under or by reason of this Agreement.


 


Section 12.08         Governing
Law.  This Agreement shall be
governed by and construed and take effect in accordance with the Laws of the
State of Delaware, without giving effect to any choice of law or conflict of
laws rules or provisions (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the Laws of any jurisdiction
other than the State of Delaware.


 


Section 12.09         Counterparts;
Effectiveness. This Agreement may be signed in any number of counterparts,
each of which shall be deemed an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.  This Agreement shall become effective when
each Party shall have received counterparts hereof signed by the other Parties.


 


Section 12.10         Severability.  Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.  To the extent any provision of this Agreement
is determined to be prohibited or unenforceable in any jurisdiction, the
Parties agree to use commercially reasonable efforts, and agree to cause their
Subsidiaries to use commercially reasonable efforts, to substitute one or more
valid, legal and enforceable provisions that, insofar as practicable, implement
the purposes and intent of the prohibited or unenforceable provision.


 


Section 12.11         Captions.  The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.


 


Section 12.12         Disclaimer
of Agency.  This Agreement shall not
constitute any Party as a legal representative or agent of any other Party, nor
shall a Party have the right or authority to assume, create or incur any
liability or any obligation of any kind, expressed or implied, against or in
the name or on behalf of any other Party, unless otherwise expressly permitted
under the Operating Agreement or pursuant to an agreement in writing between or
among any of the Parties.


 


Section 12.13         Dispute
Resolution; Arbitration.


 


(a)           In the event of any dispute,
controversy or claim between or among any of the Parties arising out of,
relating to or in connection with any provision of this Agreement, or the
rights or obligations of the Parties hereunder (a “Dispute”), the
Parties shall (except where the Dispute is as to the Revised CBC Retiree Amount
and/or the Revised Miller Retiree Amount, any such Dispute to be finally
resolved in accordance with Section 2.10) attempt to settle the
Dispute amicably between or among themselves in accordance with Section 12.13(b).


 


102

















 


(b)           A disputing Party shall initiate the
attempted amicable settlement process by sending written notice of the Dispute
to the other Parties, and within 10 Business Days after such notice, the Chief
Executive Officer of each of MCBC and SABMiller shall meet, in person or by
telephone, for attempted resolution by negotiations. Each of the Parties’
representatives set forth in this Section 12.13(b) shall be
empowered and authorized to bind their respective companies with respect to the
Dispute and to settle the Dispute on behalf of their respective companies.  If for any reason the Dispute is not resolved
within 20 Business Days of the date of the written notice of the Dispute, the
Dispute shall be resolved in accordance with the provisions of Section 12.13(c).


 


(c)           Any Dispute (other than a Dispute as
to the Revised CBC Retiree Amount and/or the Revised Miller Retiree Amount, any
such Dispute to be finally resolved in accordance with Section 2.10)
not otherwise resolved pursuant to Section 12.13(b) shall be
referred to and finally resolved by international arbitration under the LCIA
Rules, which Rules are deemed to be incorporated by reference into this
clause.  Judgment upon any award(s) rendered
by the arbitral tribunal may be entered in any court having jurisdiction
thereof.


 


(d)           The seat of arbitration shall be New
York City, New York, USA.


 


(e)           The number of arbitrators shall be
three, one nominated by the claimant, or jointly by multiple claimants, in the
Request for Arbitration, one nominated by the respondent, or jointly by
multiple respondents, in the Response and the chairman nominated by the two
Party-nominated arbitrators within 15 Business Days of the appointment of the
second arbitrator by the LCIA Court, failing which the chairman shall be
appointed by the LCIA Court; provided that with respect to any Dispute
arising out of Sections 5.03(b)(xiv)-(xviii) or Sections 5.04(b)(xiv)-(xviii),
the chairman shall be an accounting expert with experience in settling disputes
involving accounting issues.  Where there
is more than one claimant and/or more than one respondent, unless otherwise
agreed the parties to the Dispute hereby agree that they represent two separate
sides for the purposes of the formation of the arbitral tribunal as Claimant
and Respondent respectively.


 


(f)            The language to be used in the
arbitral proceedings shall be English.


 


(g)           The arbitral tribunal shall be guided
by the IBA Rules of Evidence.  An
agreement of the Parties and the LCIA Rules (in that order) shall at all
times prevail over an inconsistent provision in the IBA Rules of Evidence.


 


(h)           The Parties agree that an arbitral
tribunal constituted under this Agreement may, upon application by any party to
the arbitration before it, order that the arbitration be consolidated with any
other arbitration or proposed arbitration under this Agreement and/or the
Operating Agreement and/or the Brand Cooperation Agreement if either (1) all
of the parties to the relevant arbitrations or proposed arbitrations agree to
such consolidation, or (2) the relevant arbitrations or proposed
arbitrations involve common issues of fact or law and the arbitral tribunal in
receipt of such an application is satisfied that such consolidation will
provide a fair and efficient means for the final resolution of the parties’
disputes and will not cause undue prejudice to any party.


 


103

















 


(i)            In the event of different rulings on
the question of consolidation by different arbitral tribunals constituted under
this Agreement and/or the Operating Agreement and/or the Brand Cooperation
Agreement, the ruling of the first arbitral tribunal to be fully appointed (the
“First Tribunal”) shall prevail. 
In the event that the First Tribunal has ruled in favor of
consolidation, the First Tribunal shall be the arbitral tribunal that
determines the consolidated arbitration, unless otherwise agreed by the parties
to the consolidated arbitration or, on the application of any party to the
consolidated arbitration (any such application to be made within 30 Business
Days of the date of the First Tribunal’s ruling in favor of consolidation),
otherwise determined by the LCIA Court. 
Each Party hereby irrevocably waives any right to object to the
constitution of the First Tribunal on the ground that it was not entitled to
nominate, or jointly nominate, an arbitrator.


 


(j)            Nothing in this clause shall prevent
a Party from applying for interim injunctive (and/or other forms of interim
and/or conservatory) relief (an “Interim Relief Application”) from any
court of competent jurisdiction in accordance with Article 25.3 of the
LCIA Rules and any such Interim Relief Application will not be deemed
incompatible with, or a waiver of, the Parties’ agreement to arbitrate.  For the avoidance of doubt, such court shall
decide an Interim Relief Application in accordance with the laws of the State
of Delaware (without regard to the choice of law provisions thereof) pursuant
to Section 12.08.  Without
prejudice to the ability of any party to make an Interim Relief Application
before any court of competent jurisdiction, the Parties agree that the United
States District Court for the District of Delaware (or, if subject matter
jurisdiction is unavailable, the state courts of the State of Delaware) shall
have non-exclusive jurisdiction for the purposes of any Interim Relief
Application.  In order to give effect to
the foregoing, each of the Parties
hereby irrevocably and unconditionally agrees (a) to the extent such Party
is not otherwise subject to service of process in the State of Delaware, to
appoint and maintain an agent in the State of Delaware as such Party’s agent
for acceptance of legal process, and (b) that, to the fullest extent
permitted by applicable law, service of process may also be made on such Party
by prepaid certified mail with a proof of mailing receipt validated by the
United States Postal Service constituting evidence of valid service, and that
service made pursuant to clauses (a) or (b) above shall, to the
fullest extent permitted by applicable law, have the same legal force and
effect as if served upon such Party personally within the State of
Delaware.  For purposes of implementing
the Parties’ agreement to appoint and maintain an agent for service of process
in the State of Delaware, each such Party that has not as of the date hereof
already duly appointed such an agent does hereby appoint CT Corporation
Services as such agent.


 


(k)           The Parties agree that the documents
which initiate any court proceeding on an Interim Relief Application or any
court proceeding to enforce this Section 12.13 or an award rendered
hereunder, and any other documents required to be served in relation to any
such proceeding, may be served on the parties in accordance with Section 12.01
regardless of where such proceeding is initiated.  These documents may, however, be served in
any other manner allowed by law.


 


Section 12.14         Consequential
Damages.  Notwithstanding any other
provision of this Agreement or any other Transaction Document to the contrary,
no Party shall be liable to any other Party (or its Affiliates) for special,
indirect, exemplary, punitive or consequential damages, including lost profits
and opportunity costs (except in each case to the extent assessed 


 


104

















 


in connection with claims
by third parties), resulting from or arising out of a breach of this Agreement
or any other Transaction Document.


 


Section 12.15         MCBC
and SABMiller Guarantees.


 


(a)           MCBC hereby unconditionally,
continually and irrevocably guarantees the performance of all obligations of
CBC, including obligations of payment, hereafter existing under this
Agreement.  MCBC acknowledges that this
is a guaranty of full payment promptly when due and not of collection and
without any requirement that SABMiller, Miller or the Company make demand,
proceed against or otherwise attempt recovery from CBC.  MCBC waives any requirement of presentment,
demand of payment, or notice of dishonor, protest or default.


 


(b)           SABMiller hereby unconditionally,
continually and irrevocably guarantees the performance of all obligations of
Miller, including obligations of payment, hereafter existing under this
Agreement.  SABMiller acknowledges that
this is a guaranty of full payment promptly when due and not of collection and
without any requirement that MCBC, CBC or the Company make demand, proceed
against or otherwise attempt recovery from Miller.  SABMiller waives any requirement of
presentment, demand of payment, or notice of dishonor, protest or default.


 


Section 12.16         Sealed Instrument


 


The Parties hereby acknowledge and agree that it is
their intent that this Agreement be, and that it shall be treated and construed
as, a sealed instrument for all purposes of Delaware law, including the statute
of limitations applicable to sealed instruments.


 


105

















 


IN
WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and
sealed by their respective authorized officers on the day and year first above
written.


 


	
   

  	
   

  	
  MOLSON
  COORS BREWING COMPANY

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
  /s/
  Samuel D. Walker

  	
   

  	
  By:
  

  	
  /s/
  W. Leo Kiely

  	
  (seal)

  
	
   

  	
  Name:

  	
  Samuel
  D. Walker

  	
   

  	
  Name:
  

  	
  W.
  Leo Kiely

  
	
   

  	
  Title:

  	
  Chief
  Legal Officer

  	
   

  	
  Title:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COORS
  BREWING COMPANY

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
  /s/
  Samuel D. Walker

  	
   

  	
  By:
  

  	
  /s/
  W. Leo Kiely

  	
  (seal)

  
	
   

  	
  Name:

  	
  Samuel
  D. Walker

  	
   

  	
  Name:
  

  	
  W.
  Leo Kiely

  
	
   

  	
  Title:

  	
  Chief
  Legal Officer

  	
   

  	
  Title:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SABMILLER
  PLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
  /s/
  Stephen Shapiro

  	
   

  	
  By:
  

  	
  /s/
  Graham Mackay

  	
  (seal)

  
	
   

  	
  Name:

  	
  S.
  V. Shapiro

  	
   

  	
  Name:
  

  	
  E.
  A. G. Mackay

  
	
   

  	
  Title:

  	
  Deputy
  Company Secretary

  	
   

  	
  Title:

  	
  Chief
  Executive

  
	
   

  	
   

  	
  and
  Deputy General Counsel

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
  /s/
  Stephen Shapiro

  	
   

  	
  By:
  

  	
  /s/
  John Davidson

  	
  (seal)

  
	
   

  	
  Name:

  	
  S.
  V. Shapiro

  	
   

  	
  Name:
  

  	
  John
  Davidson

  
	
   

  	
  Title:

  	
  Deputy
  Company Secretary

  	
   

  	
  Title:

  	
  Group
  Counsel and Group Secretary

  
	
   

  	
   

  	
  and
  Deputy General Counsel

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MILLER
  BREWING COMPANY

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
  /s/
  Michael Jones

  	
   

  	
  By:
  

  	
  /s/
  Gavin Hattersley

  	
  (seal)

  
	
   

  	
  Name:

  	
  Michael
  Jones

  	
   

  	
  Name:

  	
  Gavin
  Hattersley

  
	
   

  	
  Title:

  	
  Secretary

  	
   

  	
  Title:

  	
  Senior
  Vice President