(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