(Mark One) | ||
þ
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
For the fiscal year ended December 30, 2006 | ||
OR
|
||
o
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
For the transition period from to |
Massachusetts | 04-3284048 | |
(State or other jurisdiction
of
incorporation or organization) |
(I.R.S. Employer
Identification No.) |
Title of each class
|
Name of each exchange on which registered
|
|
Class A Common Stock
|
NYSE |
1
18
59
67
68
69
70
Item 1.
Business
2
Table of Contents
Year First Introduced
1984
2001
1988
1989
1989
1996
1997
1987
1993
1994
1995
1999
2003
2005
1994
2001
2003
2005
2001
2001
2003
2005
1997
2005
3
Table of Contents
4
Table of Contents
5
Table of Contents
6
Table of Contents
7
Table of Contents
8
Table of Contents
9
Table of Contents
Item 1A.
Risk
Factors
10
Table of Contents
11
Table of Contents
12
Table of Contents
13
Table of Contents
14
Table of Contents
15
Table of Contents
Item 1B.
Unresolved
Staff Comments
Item 2.
Properties
Item 3.
Legal
Proceedings
16
Table of Contents
Item 4.
Submission
of Matters to a Vote of Security Holders
Item 5.
Market
for Registrants Common Equity, Related Stockholder Matters
and Issuer Purchases of Equity Securities
High
Low
$
27.50
$
24.75
$
29.45
$
25.55
$
33.99
$
28.00
$
37.50
$
30.80
17
Table of Contents
High
Low
$
24.55
$
20.71
$
23.25
$
19.85
$
24.08
$
21.00
$
27.27
$
23.32
Table of Contents
Item 6.
Selected
Consolidated Financial Data
Year Ended
Dec. 31
Dec. 30
2005
Dec. 25
Dec. 27
Dec. 28,
2006
(53 Weeks)
2004
2003
2002
(In thousands, except per share data)
$
315,250
$
263,255
$
239,680
$
230,103
$
238,335
29,819
24,951
22,472
22,158
22,980
285,431
238,304
217,208
207,945
215,355
121,155
96,830
87,973
85,606
88,367
164,276
141,474
129,235
122,339
126,988
113,669
100,870
94,913
91,841
100,734
22,657
17,288
14,837
14,628
14,586
136,326
118,158
109,750
106,469
115,320
27,950
23,316
19,485
15,870
11,668
3,816
2,203
593
1,104
2,423
31,766
25,519
20,078
16,974
14,091
13,574
9,960
7,576
6,416
5,538
$
18,192
$
15,559
$
12,502
$
10,558
$
8,553
$
1.31
$
1.10
$
0.89
$
0.72
$
0.53
$
1.27
$
1.07
$
0.86
$
0.70
$
0.52
13,900
14,126
14,126
14,723
16,083
14,375
14,516
14,518
15,000
16,407
$
79,692
$
60,450
$
61,530
$
45,920
$
58,666
$
154,475
$
119,054
$
107,462
$
87,354
$
106,806
$
5,016
$
4,336
$
2,854
$
2,931
$
3,103
$
108,589
$
85,979
$
78,370
$
62,524
$
78,832
1,612
1,364
1,267
1,236
1,286
$
177
$
175
$
171
$
168
$
167
Item 7.
Managements
Discussion and Analysis of Financial Condition and Results of
Operations
19
Table of Contents
20
Table of Contents
Year Ended
Dec. 31 2005
Dec. 30 2006
(53 Weeks)
Dec. 25 2004
1,612
1,364
1,267
Percentage of Net
Revenue
100.00
%
100.00
%
100.00
%
42.4
40.6
40.5
57.6
59.4
59.5
39.8
42.3
43.7
7.9
7.3
6.8
47.8
49.6
50.5
9.8
9.8
9.0
1.1
0.7
0.4
0.2
0.2
(0.1
)
11.1
10.7
9.3
4.8
4.2
3.5
6.37
%
6.53
%
5.76
%
21
Table of Contents
22
Table of Contents
23
Table of Contents
24
Table of Contents
25
Table of Contents
26
Table of Contents
27
Table of Contents
28
Table of Contents
29
Table of Contents
Payments Due by Period
Total
2007
2008-2009
2010-2011
Thereafter
(In thousands)
$
15,284
$
15,026
$
258
$
$
24,423
10,022
12,079
2,322
7,134
691
1,442
1,235
3,766
1,746
1,231
515
$
48,587
$
26,970
$
14,294
$
3,557
$
3,766
30
Table of Contents
Item 7A.
Quantitative
and Qualitative Disclosures About Market Risk
31
Table of Contents
32
Table of Contents
Item 8.
Financial
Statements and Supplementary Data
33
Table of Contents
34
Table of Contents
35
Table of Contents
Year Ended
December 31,
December 30,
2005
December 25,
2006
(53 weeks)
2004
$
315,250
$
263,255
$
239,680
29,819
24,951
22,472
285,431
238,304
217,208
121,155
96,830
87,973
164,276
141,474
129,235
113,669
100,870
94,913
22,657
17,288
14,837
136,326
118,158
109,750
27,950
23,316
19,485
3,143
1,761
840
673
442
(247
)
3,816
2,203
593
31,766
25,519
20,078
13,574
9,960
7,576
$
18,192
$
15,559
$
12,502
$
1.31
$
1.10
$
0.89
$
1.27
$
1.07
$
0.86
13,900
14,126
14,126
14,375
14,516
14,518
36
Table of Contents
CONSOLIDATED STATEMENTS OF STOCKHOLDERS
EQUITY
For the Years Ended December 30, 2006, December 31,
2005 and December 25, 2004
(In thousands, continued on next page)
Class A
Class A
Class B
Class B
Additional
Common
Common
Common
Common
Treasury
Paid-in
Shares
Stock
Shares
Stock
Shares
Capital
16,945
$
169
4,107
$
41
(7,102
)
$
62,517
223
3
3,210
23
430
(7,102
)
(71
)
7,102
10,089
101
4,107
41
66,157
249
2
4,122
24
529
(548
)
(5
)
9,814
98
4,107
41
70,808
334
3
6,737
13
216
30
1
(1
)
(353
)
2,751
(199
)
(2
)
9,992
$
100
4,107
$
41
$
80,158
37
Table of Contents
CONSOLIDATED STATEMENTS OF STOCKHOLDERS
EQUITY
For the Years Ended December 30, 2006,
December 31, 2005 and December 25, 2004
(In thousands)
Accumulated
Other
Comprehensive
Total
Unearned
Income (Loss),
Retained
Treasury
Stockholders
Comprehensive
Compensation
Net of Tax
Earnings
Stock
Equity
Income
$
(229
)
$
45
$
74,758
$
(74,777
)
$
62,524
12,502
12,502
$
12,502
3,213
(172
)
258
121
121
(74,706
)
74,777
(107
)
(107
)
(107
)
(141
)
(141
)
(141
)
$
12,254
(280
)
(203
)
12,554
78,370
15,559
15,559
$
15,559
4,124
(219
)
310
146
146
(12,532
)
(12,537
)
7
7
7
$
15,566
(353
)
(196
)
15,581
85,979
18,192
18,192
$
18,192
6,740
216
353
2,751
(5,286
)
(5,288
)
(1
)
(1
)
(1
)
$
18,191
$
$
(197
)
$
28,487
$
$
108,589
38
Table of Contents
Year Ended
December 31,
December 30,
2005
December 25,
2006
(53 Weeks)
2004
$
18,192
$
15,559
$
12,502
4,991
4,521
5,025
229
(8
)
162
(4
)
365
(255
)
147
2,751
146
121
(2,240
)
1,172
915
(731
)
952
(449
)
(36,577
)
(9,075
)
(32,400
)
39,779
10,650
8,400
(8,601
)
3,547
(2,541
)
(3,385
)
(1,088
)
(2,671
)
(1,506
)
(1,133
)
1,692
6,564
1,634
3,349
7,807
867
990
1,576
1,182
(32
)
28,977
28,841
(4,727
)
(9,056
)
(13,973
)
(4,559
)
42
129
4
(6,255
)
20,983
(9,014
)
(13,844
)
10,173
(5,288
)
(12,537
)
4,500
2,952
2,298
2,240
216
310
258
1,668
(9,275
)
2,556
21,631
5,722
8,002
41,516
35,794
27,792
$
63,147
$
41,516
$
35,794
$
10,632
$
7,901
$
5,202
39
Table of Contents
A.
Organization
and Basis of Presentation
B.
Summary
of Significant Accounting Policies
40
Table of Contents
5 years
3 to 20 years, or the term of
the production agreement, whichever is shorter
3 to 5 years
Lesser of the remaining term of
the lease or estimated useful life of the asset
15 to 20 years
41
Table of Contents
42
Table of Contents
43
Table of Contents
44
Table of Contents
December 30, 2006
December 31, 2005
(In thousands)
$
11,767
$
11,354
3,483
1,192
1,784
1,103
$
17,034
$
13,649
45
Table of Contents
December 30, 2006
December 31, 2005
(In thousands)
$
27,421
$
26,301
32,774
30,777
8,443
6,717
3,544
1,700
1,315
350
5,479
4,392
78,976
70,237
48,277
43,712
$
30,699
$
26,525
F.
Accrued
Expenses
December 30, 2006
December 31, 2005
(In thousands)
$
3,052
$
2,608
4,840
4,568
5,217
3,821
3,295
1,737
6,524
4,627
$
22,928
$
17,361
46
Table of Contents
H.
Income
Taxes
December 30,
December 31,
2006
2005
Current
Long-Term
Total
Current
Long-Term
Total
(In thousands)
$
$
120
$
120
$
$
136
$
136
1,132
1,132
1,147
1,147
1,052
1,052
475
475
603
603
51
74
125
49
42
91
1,183
1,721
2,904
1,196
781
1,977
(3,025
)
(3,025
)
(3,020
)
(3,020
)
(515
)
(515
)
(362
)
(362
)
(190
)
(190
)
(151
)
(151
)
(1
)
(1
)
(5
)
(5
)
(516
)
(3,215
)
(3,731
)
(367
)
(3,171
)
(3,538
)
$
667
$
(1,494
)
$
(827
)
$
829
$
(2,390
)
$
(1,561
)
47
Table of Contents
2005
2006
(53 weeks)
2004
$
10,845
$
7,682
$
7,134
3,457
1,326
821
14,302
9,008
7,955
(714
)
913
(344
)
(14
)
39
(35
)
(728
)
952
(379
)
$
13,574
$
9,960
$
7,576
2006
2005
2004
35.0
%
35.0
%
35.0
%
8.5
4.2
2.5
1.1
1.2
1.4
(1.1
)
(1.5
)
(0.8
)
(0.9
)
(0.9
)
0.1
1.0
(0.3
)
42.7
%
39.0
%
37.8
%
I.
Commitments
and Contingencies
48
Table of Contents
(In thousands)
$
10,022
6,445
5,634
2,322
$
24,423
49
Table of Contents
(In thousands)
$
691
716
726
603
632
3,766
$
7,134
50
Table of Contents
J.
Common
Stock
51
Table of Contents
52
Table of Contents
Weighted-Average
Shares
Option Price
Exercise Price
1,738,267
$ 0.01
$ 35.09
$
12.84
169,100
18.47 19.41
18.61
(13,325
)
0.01 17.55
12.54
(222,847
)
0.01 17.55
10.04
1,671,195
0.01 35.09
13.80
473,050
21.14 24.19
22.00
(40,530
)
7.16 21.14
12.56
(249,015
)
0.01 23.33
11.86
1,854,700
0.01 35.09
16.18
125,000
24.95 26.43
25.45
(29,230
)
14.47 24.95
20.22
(334,476
)
0.01 21.21
13.45
1,615,994
$ 0.01
$ 35.09
$
17.39
Outstanding
Exercisable
Weighted
Weighted
Weighted
Average
Weighted
Average
Average
Remaining
Average
Remaining
Number
Exercise
Contractual
Number
Exercise
Contractual
of Shares
Price
Life
of Shares
Price
Life
551
$
0.01
0.30 years
551
$
0.01
0.30 years
298,660
$
8.85
2.55 years
298,660
$
8.85
2.55 years
449,363
$
14.63
4.54 years
344,763
$
14.50
4.06 years
814,920
$
21.25
7.44 years
171,220
$
19.42
5.87 years
52,500
$
29.59
4.61 years
42,500
$
28.29
5.63 years
1,615,994
$
17.39
5.64 years
857,694
$
14.19
3.97 years
53
Table of Contents
2005
(53 weeks)
2004
(In thousands, except per share data)
$
15,559
$
12,502
87
70
(1,038
)
(1,006
)
$
14,608
$
11,566
$
1.10
$
0.89
$
1.03
$
0.82
$
1.07
$
0.86
$
1.01
$
0.80
2006
2005
2004
(Binomial Model)
(Black-Scholes Model)
31.6
%
33.6
%
34.2
%
Ù
6.8 years
7.1 years
3.82
%
3.78
%
3.50
%
0
%
0
%
0
%
1.5 times
*
*
6.5
%
*
*
Ù
The expected life of the option is an output of the binomial
model, which resulted in a weighted average of 7.3 years
for options granted during 2006.
*
Assumption not considered in the Black-Scholes option-pricing
model.
54
Table of Contents
(In thousands)
$
1,792
1,084
506
226
$
3,608
55
Table of Contents
Weighted
Number
Average
of Shares
Fair Value
70,583
$
8.50
51,656
20.38
(22,425
)
7.58
(8,760
)
13.74
91,054
$
14.96
56
Table of Contents
57
Table of Contents
Local 1199 Plan
Post-Retirement Medical Plan
2006
2005
2006
2005
(In thousands)
$
981
$
847
$
259
$
199
77
74
9
9
53
48
14
11
(40
)
25
7
45
(19
)
(13
)
(8
)
(5
)
$
1,052
$
981
$
281
$
259
$
713
$
603
$
$
50
53
69
70
8
5
(19
)
(13
)
(8
)
(5
)
$
813
$
713
$
$
$
(239
)
$
(268
)
$
(281
)
$
(259
)
261
316
58
53
14
$
22
$
62
$
(223
)
$
(206
)
$
$
$
(8
)
$
(4
)
(239
)
(254
)
(273
)
(255
)
261
316
58
53
$
22
$
62
$
(223
)
$
(206
)
$
1,052
$
981
$
$
58
Table of Contents
Post-Retirement
Local 1199 Plan
Medical Plan
2006
2005
2004
2006
2005
2004
(In thousands)
$
77
$
74
$
61
$
9
$
9
$
7
53
48
44
14
11
11
(54
)
(52
)
(44
)
17
18
13
2
$
93
$
88
$
74
$
25
$
20
$
18
$
(54
)
$
6
$
61
$
5
$
44
$
13
(17
)
(18
)
(13
)
(2
)
$
(71
)
$
(12
)
$
48
$
3
$
44
$
13
5.75
%
5.5
%
5.8
%
5.75
%
5.5
%
5.75
%
5.5
%
5.8
%
6.3
%
5.5
%
5.75
%
6.25
%
7.0
%
7.0
%
7.8
%
September 30,
September 30,
2006
2005
46
%
45
%
54
55
100
%
100
%
Table of Contents
Local 1199
Post-Retirement
Plan
Medical Plan
(In thousands)
$
20
$
8
23
8
24
9
27
9
33
9
312
76
$
439
$
119
L.
Net
Income per Share
2005
2006
(53 weeks)
2004
(In thousands)
$
18,192
$
15,559
$
12,502
13,900
14,126
14,126
460
390
392
15
475
390
392
14,375
14,516
14,518
$
1.31
$
1.10
$
0.89
$
1.27
$
1.07
$
0.86
60
Table of Contents
M.
Accumulated
Other Comprehensive Income (Loss)
Unrealized
Minimum
Accumulated
Gain (Loss) on
Pension
Other
Available-For-
Liability
Comprehensive
Sale Securities
Adjustment
Income (Loss)
(In thousands)
$
141
$
(96
)
$
45
(107
)
(107
)
(141
)
(141
)
(203
)
(203
)
7
7
(196
)
(196
)
(1
)
(1
)
$
$
(197
)
$
(197
)
N.
Valuation
and Qualifying Accounts
Balance at
Balance at
Beginning of
Net Provision
Amounts Charged
End of
Period
(Recovery)
Against Reserves
Period
(In thousands)
$
116
$
365
$
(30
)
$
451
597
(255
)
(226
)
116
450
147
597
Balance at
Balance at
Beginning of
Net Provision
Amounts Charged
End of
Period
(Recovery)
Against Reserves
Period
(In thousands)
$
463
$
(89
)
$
(57
)
$
317
713
(247
)
(3
)
463
1,047
(334
)
713
Balance at
Balance at
Beginning of
Net Provision
Amounts Charged
End of
Period
(Recovery)
Against Reserves
Period
(In thousands)
$
845
$
1,755
$
(1,746
)
$
854
798
1,393
(1,346
)
845
742
1,030
(974
)
798
61
Table of Contents
O.
Quarterly
Results (Unaudited)
For Quarters Ended
(In thousands, except per share data)
December 30,
September 30,
July 1,
April 1,
December 31,
September 24,
June 25,
March 26,
2006(1)
2006
2006
2006
2005
2005
2005
2005
(13 weeks)
(13 weeks)
(13 weeks)
(13 weeks)
(14 weeks)
(13 weeks)
(13 weeks)
(13 weeks)
416
432
440
324
371
360
353
280
$
81,013
$
83,864
$
87,635
$
62,738
$
71,392
$
69,743
$
68,495
$
53,625
7,670
7,997
8,302
5,850
6,640
6,533
6,862
4,916
73,343
75,867
79,333
56,888
64,752
63,210
61,633
48,709
32,267
32,397
32,276
24,215
27,414
25,838
24,701
18,877
41,076
43,470
47,057
32,673
37,338
37,372
36,932
29,832
29,010
29,913
29,368
25,378
29,173
26,816
25,073
19,808
6,976
5,374
5,381
4,926
4,916
4,353
3,999
4,020
35,986
35,287
34,749
30,304
34,089
31,169
29,072
23,828
5,090
8,183
12,308
2,369
3,249
6,203
7,860
6,004
970
874
711
588
556
425
479
301
171
271
170
61
49
175
60
158
6,231
9,328
13,189
3,018
3,854
6,803
8,399
6,463
3,754
3,420
5,203
1,197
1,588
2,616
3,256
2,500
$
2,477
$
5,908
$
7,986
$
1,821
$
2,266
$
4,187
$
5,143
$
3,963
$
0.18
$
0.43
$
0.57
$
0.13
$
0.16
$
0.30
$
0.36
$
0.28
$
0.17
$
0.41
$
0.56
$
0.13
$
0.16
$
0.29
$
0.35
$
0.27
13,971
13,865
13,919
13,856
13,915
14,070
14,258
14,275
14,520
14,351
14,346
14,293
14,328
14,437
14,614
14,698
(1)
During the fourth quarter of 2006, the Company increased income
tax expense related to state income tax in certain states for
2003 to 2006 by approximately $1.0 million, of which
approximately $0.5 million related to 2006.
62
Table of Contents
Item 9.
Changes
in and Disagreements with Accountants on Accounting and
Financial Disclosures
Item 9A.
Controls
and Procedures
(a)
Evaluation
of disclosure controls and procedures
(b)
Managements
Annual Report on Internal Control Over Financial
Reporting
63
Table of Contents
64
Table of Contents
(c)
Changes
in internal control over financial reporting
Item 9B.
Other
Information
Item 10.
Directors
and Executive Officers of the Registrant
Item 11.
Executive
Compensation
Item 12.
Security
Ownership of Certain Beneficial Owners and Management and
Related Stockholder Matters
Number of Securities to be
Weighted-Average
Number of Securities
Issued Upon Exercise of
Exercise Price of
Remaining Available for
Outstanding Options,
Outstanding Options,
Future Issuance Under
Warrants and Rights
Warrants and Rights
Equity Compensation Plans
1,615,994
$
17.39
739,759
N/A
N/A
N/A
1,615,994
$
17.39
739,759
65
Table of Contents
Item 13.
Certain
Relationships and Related Transactions
Item 14.
Principal
Accountant Fees and Services
Item 15.
Exhibits
and Financial Statement Schedules
Page
33
34
35
36
37
39
40
3
.1
Amended and Restated By-Laws of
the Company, dated June 2, 1998 (incorporated by reference
to Exhibit 3.5 to the Companys
Form 10-Q
filed on August 10, 1998).
3
.2
Restated Articles of Organization
of the Company, dated November 17, 1995, as amended
August 4, 1998.
4
.1
Form of Class A Common Stock
Certificate (incorporated by reference to Exhibit 4.1 to
the Companys Registration Statement
No. 33-96164).
10
.1
Revolving Credit Agreement between
Fleet Bank of Massachusetts, N.A. and Boston Beer Company
Limited Partnership (the Partnership), dated as of
May 2, 1995 (incorporated by reference to Exhibit 10.1
to the Companys Registration Statement
No. 33-96162).
10
.2
Loan Security and Trust Agreement,
dated October 1, 1987, among Massachusetts Industrial
Finance Agency, the Partnership and The First National Bank of
Boston, as Trustee, as amended (incorporated by reference to
Exhibit 10.2 to the Companys Registration Statement
No. 33-96164).
66
Table of Contents
10
.3
Deferred Compensation Agreement
between the Partnership and Alfred W. Rossow, Jr.,
effective December 1, 1992 (incorporated by reference to
Exhibit 10.3 to the Companys Registration Statement
No. 33-96162).
10
.4
The Boston Beer Company, Inc.
Employee Equity Incentive Plan, as adopted effective
November 20, 1995 and amended effective February 23,
1996 (incorporated by reference to Exhibit 4.1 to the
Companys Registration Statement
No. 333-1798).
10
.5
Form of Employment Agreement
between the Partnership and employees (incorporated by reference
to Exhibit 10.5 to the Companys Registration
Statement No.
33-96162).
10
.6
Services Agreement between The
Boston Beer Company, Inc. and Chemical Mellon Shareholder
Services, dated as of October 27, 1995 (incorporated by
reference to the Companys
Form 10-K,
filed on April 1, 1996).
10
.7
Form of Indemnification Agreement
between the Partnership and certain employees and Advisory
Committee members (incorporated by reference to
Exhibit 10.7 to the Companys Registration Statement
No. 33-96162).
10
.8
Stockholder Rights Agreement,
dated as of December, 1995, among The Boston Beer Company, Inc.
and the initial Stockholders (incorporated by reference to the
Companys
Form 10-K,
filed on April 1, 1996).
+10
.9
Agreement between Boston Brewing
Company, Inc. and The Stroh Brewery Company, dated as of
January 31, 1994 (incorporated by reference to
Exhibit 10.9 to the Companys Registration Statement
No. 33-96164).
+10
.10
Agreement between Boston Brewing
Company, Inc. and the Genesee Brewing Company, dated as of
July 25, 1995 (incorporated by reference to
Exhibit 10.10 to the Companys Registration Statement
No. 33-96164).
+10
.11
Amended and Restated Agreement
between Pittsburgh Brewing Company and Boston Brewing Company,
Inc. dated as of February 28, 1989 (incorporated by
reference to Exhibit 10.11 to the Companys
Registration Statement
No. 33-96164).
10
.12
Amendment to Amended and Restated
Agreement between Pittsburgh Brewing Company, Boston Brewing
Company, Inc., and G. Heileman Brewing Company, Inc., dated
December 13, 1989 (incorporated by reference to
Exhibit 10.12 to the Companys Registration Statement
No. 33-96162).
+10
.13
Second Amendment to Amended and
Restated Agreement between Pittsburgh Brewing Company and Boston
Brewing Company, Inc. dated as of August 3, 1992
(incorporated by reference to Exhibit 10.13 to the
Companys Registration Statement No.
33-96164).
+10
.14
Third Amendment to Amended and
Restated Agreement between Pittsburgh Brewing Company and Boston
Brewing Company, Inc. dated December 1, 1994 (incorporated
by reference to Exhibit 10.14 to the Companys Registration
Statement
No. 33-96164).
10
.15
Fourth Amendment to Amended and
Restated Agreement between Pittsburgh Brewing Company and Boston
Brewing Company, Inc. dated as of April 7, 1995
(incorporated by reference to Exhibit 10.15 to the
Companys Registration Statement
No. 33-96162).
+10
.16
Letter Agreement between Boston
Beer Company Limited Partnership and Joseph E.
Seagram & Sons, Inc. (incorporated by reference to
Exhibit 10.16 to the Companys Registration Statement
No. 33-96162).
10
.17
Services Agreement and Fee
Schedule of Mellon Bank, N.A. Escrow Agent Services for The
Boston Beer Company, Inc. dated as of October 27, 1995
(incorporated by reference to Exhibit 10.17 to the
Companys Registration Statement No.
33-96164).
10
.18
Amendment to Revolving Credit
Agreement between Fleet Bank of Massachusetts, N.A. and the
Partnership (incorporated by reference to Exhibit 10.18 to
the Companys Registration Statement
No. 33-96164).
10
.19
1996 Stock Option Plan for
Non-Employee Directors (incorporated by reference to the
Companys
Form 10-K,
filed on March 31, 1997).
Table of Contents
+10
.20
Production Agreement between The
Stroh Brewery Company and Boston Beer Company Limited
Partnership, dated January 14, 1997 (incorporated by
reference to the Companys
Form 10-K,
filed on March 31, 1997).
+10
.21
Letter Agreement between The Stroh
Brewery Company and Boston Beer Company Limited Partnership,
dated January 14, 1997 (incorporated by reference to the
Companys
Form 10-K,
filed on March 31, 1997).
+10
.22
Agreement between Boston Beer
Company Limited Partnership and The Schoenling Brewing Company,
dated May 22, 1996 (incorporated by reference to the
Companys
Form 10-K,
filed on March 31, 1997).
10
.23
Revolving Credit Agreement between
Fleet Bank of Massachusetts, N.A. and The Boston Beer Company,
Inc., dated as of March 21, 1997 (incorporated by reference
to the Companys
Form 10-Q,
filed on May 12, 1997).
+10
.24
Amended and Restated Agreement
between Boston Brewing Company, Inc. and the Genesee Brewing
Company, Inc. dated April 30, 1997 (incorporated by
reference to the Companys
Form 10-Q,
filed on August 11, 1997).
+10
.26
Fifth Amendment, dated
December 31, 1997, to Amended and Restated Agreement
between Pittsburgh Brewing Company and Boston Brewing Company,
Inc. (incorporated by reference to the Companys
Form 10-K,
filed on March 26, 1998).
10
.27
Extension letters, dated
August 19, 1997, November 19, 1997, December 19,
1997, January 22, 1998, February 25, 1998 and
March 11, 1998 between The Stroh Brewery Company and Boston
Brewing Company, Inc. (incorporated by reference to the
Companys
Form 10-K,
filed on March 26, 1998).
+10
.28
Employee Equity Incentive Plan, as
amended and effective on December 19, 1997 (incorporated by
reference to the Companys
Form 10-K,
filed on March 26, 1998).
+10
.29
1996 Stock Option Plan for
Non-Employee Directors, as amended and effective on
December 19, 1997 (incorporated by reference to the
Companys
Form 10-K,
filed March 26, 1998).
+10
.30
Glass Supply Agreement
between The Boston Beer Company and Owens Brockway
Glass Container Inc., dated April 30, 1998
(incorporated by reference to the Companys
Form 10-Q,
filed on August 10, 1998).
10
.31
Extension letters, dated
April 13, 1998, April 27, 1998, June 11, 1998,
June 25, 1998 and July 20, 1998 between The Stroh
Brewery Company and Boston Brewing Company, Inc. (incorporated
by reference to the Companys
Form 10-Q,
filed on August 10, 1998).
+10
.33
Amended and Restated Production
Agreement between The Stroh Brewery Company and Boston Beer
Company Limited Partnership, dated November 1, 1998
(incorporated by reference to the Companys
Form 10-K,
filed on March 25, 1999).
10
.34
Agreement between Boston Beer
Company Limited Partnership, Pabst Brewing Company and Miller
Brewing Company, dated February 5, 1999 (incorporated by
reference to the Companys
Form 10-K,
filed on March 25, 1999).
10
.35
Amendment to Revolving Credit
Agreement between Fleet Bank of Massachusetts, N.A. and The
Boston Beer Company, Inc., dated March 30, 1999
(incorporated by reference to the Companys
Form 10-Q,
filed on May 10, 1999).
+10
.37
Consent to Assignment of the
Amended and Restated Agreement between Boston Brewing Company,
Inc. and the Genesee Brewing Company, Inc. dated April 30,
1997 to Monroe Brewing Co., LLC (now known as High Falls
Brewing Company, LLC) dated December 15, 2000 (incorporated
by reference to the
Companys 10-K,
filed on March 30, 2001).
+10
.38
Guaranty of The Genesee Brewing
Company, Inc. dated December 15, 2000 in favor of Boston
Brewing Company, Inc., for itself and as the sole general
partner of Boston Beer Company Limited Partnership in connection
with the Consent of Assignment of the Amended and Restated
Agreement between Boston Brewing Company, Inc. and the Genesee
Brewing Company, Inc. dated April 30, 1997 to Monroe
Brewing Co., LLC (now known as High Falls Brewing Company, LLC)
dated December 15, 2000 (incorporated by reference to the
Companys 10-K,
filed on March 30, 2001).
Table of Contents
Table of Contents
14
.1
Code of Business Conduct and
Ethics adopted by the Board of Directors on December 17,
2002 (incorporated by reference to the
Companys 10-K,
filed on March 27, 2003).
*21
.5
List of subsidiaries of The Boston
Beer Company, Inc. effective as of December 30, 2006
*23
.1
Consent of Ernst & Young
LLP, independent registered public accounting firm.
*23
.2
Consent of Deloitte &
Touche LLP, independent registered public accounting firm.
*31
.1
Certification of the President and
Chief Executive Officer pursuant to
Rule 13a-14(a)
under the Securities Exchange Act of 1934, as adopted pursuant
to Section 302 of the Sarbanes-Oxley Act of 2002
*31
.2
Certification of the Chief
Financial Officer pursuant to
Rule 13a-14(a)
under the Securities Exchange Act of 1934, as adopted pursuant
to Section 302 of the Sarbanes-Oxley Act of 2002
*32
.1
Certification of the President and
Chief Executive Officer pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002
*32
.2
Certification of the Chief
Financial Officer pursuant to 18 U.S.C. Section 1350,
as adopted pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002
*
Filed with this report.
+
Portions of this Exhibit have been omitted pursuant to an
application for an order declaring confidential treatment filed
with the Securities and Exchange Commission.
Table of Contents
President, Chief Executive Officer
(principal executive officer) and Director
Chief Financial Officer and
Treasurer (principal accounting and financial officer)
Chairman, Clerk and Director
Director
Director
Director
Director
Director
71
EXHIBIT 10.53
[*] DENOTES EXPURGATED INFORMATION
SEPARATION AGREEMENT AND GENERAL RELEASE
This SEPARATION AGREEMENT AND GENERAL RELEASE ("Agreement") is made by and between JEFFREY D. WHITE who resides at [*] ("Mr. White") and THE BOSTON BEER COMPANY, INC., a Massachusetts corporation with a principal place of business at One Design Center Place, Suite 850, Boston, MA 02210, for itself and its various subsidiaries and affiliates, including Boston Beer Corporation (collectively, the "Company"), as of the Effective Date (as hereinafter defined).
Mr. White has been employed by the Company as an employee-at-will and, most recently, as its Chief Operating Officer. Mr. White and the Company have agreed that Mr. White's employment with the Company shall terminate, on and subject to the terms and conditions set forth in this Agreement.
ACCORDINGLY, in consideration of the mutual covenants to be performed by each of the parties and set forth in their entirety herein, the parties agree as follows:
1. SEPARATION FROM EMPLOYMENT. Mr. White will continue to perform his job as the Company's Chief Operating Officer through April 27, 2007 (the "Separation Date"), which shall be the last day of Mr. White's employment with the Company. Prior to the Separation Date, Mr. White shall continue to perform his regular and usual duties as Chief Operating Officer, which shall include support and consulting to the new Vice President of Operations to ensure a smooth transition of responsibilities, projects and business continuity. Mr. White shall also endeavor to complete on or before the Separation Date the various special tasks (the "Special Tasks") specified on Exhibit A attached hereto. Notwithstanding the foregoing, Mr. White may devote one day a week on average to pursue career counseling and new employment opportunities. Mr. White shall not, however, enter into any verbal or written agreements or make any binding commitments on behalf of the Company, except with the consent of Martin Roper, the Company's Chief Executive Officer, nor shall Mr. White commit any act or omission which impacts adversely on the business or reputation of the Company. Mr. White shall continue to be paid his salary, at its current rate, and shall receive the benefits he currently receives, provided he continues to make his employee contribution therefor, through the Separation Date and shall be entitled to receive the bonus earned by Mr. White for his performance in 2006 ($49,000). Mr. White shall be paid his accrued but unused vacation pay for 2007, if any, on the Separation Date. In addition, Mr. White shall be paid a bonus within fourteen (14) days after Separation Date or the Effective Date, whichever is later, in accordance with Exhibit A, provided he completes the Special Tasks to the reasonable satisfaction of Mr. Roper. As of Separation Date, Employee will be relieved of further duties and responsibilities and will no longer be authorized to transact business on behalf of Company.
2. CONSIDERATION. Provided Mr. White executes this Agreement, does not rescind his asset to it as provided in paragraph 8 hereof, and complies with the terms and conditions of this Agreement, the Company shall:
(a) Pay Mr. White an amount equal to six (6) months of his salary at his current rate, less applicable federal, state, local and other employment-related deductions and payable in a lump sum within fourteen (14) days after the Separation Date or the Effective Date, whichever is later (the "Severance Payment");
[*] DENOTES EXPURGATED INFORMATION
(b) Continue to pay its portion of the premium for Mr. White's health and dental benefits that he is currently receiving as a Company benefit through the Separation Date (the "Company's Share"). The Separation Date serves as a "qualifying event" under the Consolidated Omnibus Budget Reconciliation Act ("COBRA") and, hence, health and dental coverage and premiums paid after the Separation Date are pursuant to COBRA. After the Separation Date, the Company will pay the Company's Share for coverage until December 31, 2007, provided that Mr. White timely elects continuation of coverage under COBRA and has made payments of the appropriate amounts due. Thereafter, Mr. White's medical and dental benefits will be continued only to the extent available under COBRA. The Company will forward to Mr. White separate correspondence regarding his COBRA rights prior to the termination of his current benefits. The Employee shall have the right to continue certain other benefits in accordance with any conversion options that exist under Company's benefit plans and
(c) Pay up to $40,000 in fees for outplacement and career counseling services to a provider of Mr. White's choice, provided that such services are utilized by Mr. White prior to December 31, 2007.
Mr. White acknowledges and agrees that the Severance Payment, the benefits and the other consideration provided for in this Sections 2 are not otherwise due or owing to Mr. White under any employment agreement (oral or written) with the Company or any Company policy or practice, and that the Severance Payment and the other consideration provided for herein are not intended to, and shall not constitute, a severance plan, and shall confer no benefit on anyone other than the Company and Mr. White. Mr. White further acknowledges that, except for the specific financial consideration set forth in this Agreement, Mr. White is not and shall not in the future be entitled to any other compensation or benefit from the Company including, without limitation, other wages, commissions, bonuses, options, stock awards, vacation pay, holiday pay or any other form of compensation or benefit.
3. ASSISTANCE BY MR. WHITE. Mr. White acknowledges that, during his employment with the Company, he was either directly or indirectly involved in various matters with respect to which the Company may, after the Separation Date, request his assistance. Mr. White agrees to assist the Company, if requested, in any and all matters relating to the Company which may arise as a result of his direct or indirect involvement, at mutually convenient times. In consideration for such services, and provided Mr. White executes this Agreement, does not rescind his assent to it, and complies with its terms, the Company will pay Mr. White a fee of $10,000 per month for a period of six (6) months, commencing on the Separation Date. In addition, should Mr. White wish to continue to be available for such consulting services at the conclusion of such six (6) month period, he may, by providing written notice to the Chief Executive Officer prior to the conclusion of such period, request an extension of up to six (6) months (provided that all payments shall be made before March 15, 2008), for which the Company will pay Mr. White a fee of $7,500 per month for assistance to be provided by telephone or through electronic means.
4. COVENANTS OF MR. WHITE. Mr. White expressly acknowledges and agrees to the following:
(a) that by the Separation Date Mr. White will have returned to the Company all Company documents (and any copies thereof in whatever format) and any Company property, including but not limited to, any keys or access badges to the Company facilities and credit cards issued by the Company, and that Mr. White shall abide by any and all common law
[*] DENOTES EXPURGATED INFORMATION
and/or statutory obligations relating to protection and non-disclosure of the Company's trade secrets and/or confidential and proprietary documents and information;
(b) that all information relating in any way to the negotiation of this Agreement, including the terms and amount of financial consideration provided for in this Agreement, shall be held confidential by Mr. White and shall not be publicized or disclosed to any person (other than an immediate family member, legal counsel or financial advisor, provided that any such individual to whom disclosure is made agrees to be bound by these confidentiality obligations), business entity or government agency, except as may be required in response to a lawful subpoena, or as may be required by state or federal law;
(c) that Mr. White will not reveal to any person, association or company any trade secrets or confidential information of the Company, except as may be required by the law to be disclosed, provided that Mr. White use his best efforts to notify the Company orally and in writing before making any such intended disclosure;
(d) that Mr. White will keep secret all such matters that have been entrusted to Mr. White and shall not use or attempt to use any such information in any manner which may injure or cause loss to the Company, whether directly or indirectly;
(e) that Mr. White will not make any statements that are professionally, commercially or personally disparaging about, or adverse to, the interests of the Company (including its officers, directors and employees) including, but not limited to, any statements that disparage any person, product, service, finances, financial condition, capability or any other aspect of the business of the Company, and that Mr. White will not engage in any conduct which is intended to harm professionally, commercially or personally the reputation of the Company (including its officers, directors and employees) except as may be required in response to a lawful subpoena or legal process;
(f) that Mr. White confirms his obligations contained in the Employment Agreement previously executed by him, a copy of which is attached hereto as Exhibit B and is incorporated herein and made a part hereof. The period covered by the covenant not to compete shall commence as of the Separation Date; and
(g) that the violation of any of the foregoing covenants by Mr. White would constitute a material breach of this Agreement which would entitle the Company to recover some or all consideration paid or benefits provided pursuant to paragraphs 2 or 3 hereof, as well as attorney's fees and other costs of suit sustained by it in recovering such consideration or benefits, and to be indemnified by Mr. White for such attorney's fees and costs. Mr. White acknowledges that any breach of his obligations hereunder shall cause irreparable harm to the Company for which there is no adequate remedy at law, and that the Company, in its sole discretion, in addition to any other remedies available to it, may bring an action or actions for injunctive relief, specific performance, or both, and have entered a temporary restraining order, preliminary or permanent injunction, or order compelling specific performance and, if successful, recover the costs and attorneys' fees incurred by it in such action from Mr. White.
5. COVENANTS OF THE COMPANY. Provided Mr. White executes this Agreement, does not rescind his assent to it complies with the terms of this Agreement, Boston Beer agrees that:
[*] DENOTES EXPURGATED INFORMATION
(a) the Company, by its directors and executive officers, on their own behalf, or on behalf of the Company, will not make any statements that are professionally, commercially or personally disparaging about Mr. White, or are adverse to Mr. White's interests to any person outside of the Company; provided, however, that the foregoing restrictions shall not apply to statements made in response to a lawful subpoena or which may be required pursuant to state or federal law; and
(b) all information relating in any way to the negotiation of this Agreement, including the terms and amount of financial consideration provided for in this Agreement, shall be held confidential by the executive officers of the Company, and shall not be publicized or disclosed to any person (other than legal counsel or employees with a need to know, provided that any such individual to whom disclosure is made agrees to be bound by these confidentiality obligations), except as may be required in response to a lawful subpoena, or as may be required by state or federal law, or in connection with the Company's SEC filings; and
(c) a violation of any of the foregoing covenants of the Company would constitute a material breach of this Agreement which would entitle Mr. White to recover attorney's fees and other costs of suit sustained by him in recovering damages resulting from such material breach.
6. GENERAL RELEASE OF CLAIMS BY MR. WHITE.
(a) Mr. White hereby acknowledges and agrees that by signing this Agreement and accepting any part of the consideration to be provided to him as set forth herein, Mr. White is waiving his right to assert any form of legal claim against the Company whatsoever for any alleged action, inaction or circumstance existing or arising from the beginning of time through the Effective Date (the "Claim" or "Claims"). Mr. White's waiver and release herein is intended to bar any form of legalClaim, charge, complaint or any other form of action against the Company seeking any form of relief including, without limitation, equitable relief (whether declaratory, injunctive or otherwise), the recovery of any damages or any other form of monetary recovery whatsoever (including, without limitation, back pay, front pay, compensatory damages, emotional distress damages, punitive damages, attorneys fees and any other costs) against the Company, for any alleged action, inaction or circumstance existing or arising through the Effective Date.
(b) Without limiting the foregoing general waiver and release, Mr. White specifically waives and releases the Company from any Claim arising from or related to Mr. White's employment relationship with the Company or the termination of his employment, including, without limitation:
(i) Claims under any state or federal discrimination, fair employment practices or other employment related statute, regulation or executive order (as they may have been amended through the Effective Date) prohibiting discrimination or harassment based upon any protected status including, without limitation, race, national origin, age, gender, marital status, disability, veteran status or sexual orientation. Without limitation, specifically included in this paragraph are any Claims arising under the federal Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Civil Rights Acts of 1866 and 1871, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal Pay Act, the Americans With Disabilities Act, Massachusetts General Laws Chapter 151B, and any similar Massachusetts or other state statute;
[*] DENOTES EXPURGATED INFORMATION
(ii) Claims under any other state or federal employment related statute, regulation or executive order (as they may have been amended through the Effective Date) relating to wages, hours or any other terms and conditions of employment. Without limitation, specifically included in this paragraph are any Claims arising under the Fair Labor Standards Act, the Family and Medical Leave Act of 1993, the National Labor Relations Act, the Employee Retirement Income Security Act of 1974, the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) and any similar Massachusetts, or other state statute;
(iii) Claims under any state or federal common law theory including, without limitation, wrongful discharge, breach of express or implied contract, promissory estoppel, unjust enrichment, breach of a covenant of good faith and fair dealing, violation of public policy, defamation, interference with contractual relations, intentional or negligent infliction of emotional distress, invasion of privacy, misrepresentation, deceit, fraud or negligence; and
(iv) Any other Claim arising under state or federal law.
(c) Notwithstanding the foregoing, this section does not release the Company from (i) any obligation expressly set forth in this Agreement; (ii) any right to indemnification to which Mr. White may be entitled under the Company's Articles of Organization or By-laws; or (iii) any right to reimbursement for business expenses incurred prior to the Separation Date in accordance with Company policy.
7. LIMITED RELEASE BY THE COMPANY. The Company hereby releases, waives and discharges Mr. White from any and all causes of action or claims which relate to good faith acts of commission or omission by Mr. White during the course of Mr. White's employment by the Company undertaken or not undertaken in the reasonable belief that such acts or omissions were in the best interest of the Company. Nothing in the preceding sentence shall be construed to release any causes of action or claims which may exist arising out of Mr. White's violation of any state or federal laws or regulations. The Company represents and warrants that, at the date hereof, the Company knows of no claims or causes of action arising out of the performance of Mr. White's duties as Boston Beer's Chief Operating Officer.
8. RESCISSION. It is the Company's desire and intent to make certain that
Mr. White fully understands the provisions of this Agreement. To that end, Mr.
White has been advised, and has been given the opportunity, to consult with
legal counsel for the purpose of reviewing the terms of this Agreement. The
Company is providing Mr. White with twenty-one (21) days in which to consider
and accept the terms of this Agreement by signing below and returning it to the
Company. In addition, Mr. White may rescind his assent to this Agreement if,
within seven (7) days after he signs this Agreement, he delivers a notice of
rescission to Martin Roper, the Company's Chief Executive Officer. To be
effective, such rescission must be hand delivered or postmarked within the seven
(7) day period and sent by certified mail, return receipt requested, or by a
nationally-recognized overnight delivery service, to Mr. Roper at the Company's
principal offices in Boston, Massachusetts as set forth above. This Agreement
shall not be effective until such seven (7) day period has expired (the
"Effective Date"), and therefore Mr. White shall not receive the Severance
Payment or other consideration until, at the earliest, fourteen (14) days
following his execution of this Agreement.
9. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit and be binding upon Mr. White and the Company and their respective heirs, personal representatives,
[*] DENOTES EXPURGATED INFORMATION
successors and assigns. In the event of Mr. White's death, any remaining Severance Payment shall continue to be paid to Mr. White's estate.
10. VOLUNTARY AGREEMENT. By executing this Agreement, Mr. White is acknowledging that he has been afforded sufficient time to understand the terms and effects of this Agreement, that his agreements and obligations hereunder are made voluntarily, knowingly and without duress, and that neither the Company nor its agents or representatives have made any representations to Mr. White inconsistent with the provisions of this Agreement or on which Mr. White have relied in executing this Agreement, except as expressly set forth herein.
11. ENTIRE AGREEMENT/CHOICE OF LAW/ENFORCEMENT. Mr. White acknowledges and agrees that this Agreement supersedes any and all prior and contemporaneous oral and/or written agreements between Mr. White and the Company, and sets forth the entire agreement between Mr. White and the Company. No variations or modifications hereof shall be deemed valid unless reduced to writing and signed by the parties hereto. This Agreement shall be deemed to have been made in Massachusetts, shall take effect as an instrument under seal within Massachusetts, and shall be governed by and construed in accordance with the laws of Massachusetts, without giving effect to conflict of law principles. Mr. White agrees that any action, demand, claim or counterclaim relating to the terms and provisions of this Agreement, or to its breach, shall be commenced in Massachusetts in a court of competent jurisdiction, and Mr. White further acknowledges that venue for such actions shall lie exclusively in Massachusetts. The provisions of this Agreement are severable, and if for any reason any part hereof shall be found to be unenforceable, the remaining provisions shall be enforced in full.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals as of the dates set forth below.
/s/ Kathleen H. Wade /s/ Jeffrey D. White ------------------------------------- ---------------------------------------- Witness Jeffrey D. White Date: February 2, 2007 THE BOSTON BEER COMPANY, INC., for itself, its subsidiaries and affiliates /s/ Kathleen H. Wade By: /s/ Martin F. Roper ------------------------------------- ------------------------------------ Witness Authorized Signatory Date: February 5, 2007 |
[*] DENOTES EXPURGATED INFORMATION
EXHIBIT A
Special Tasks
Mr. White will use appropriate efforts to assist in completion of the following tasks as requested by Mr. Koch, Mr. Roper or Mr. Lance.
1. Negotiation of [*]
2. Negotiation and completion of [*]
3. Negotiation and completion of [*]
4. Evaluation and negotiation of [*]
5. Evaluation, design and negotiation for [*]
6. Ongoing supervision of HR, Legal and other matters as requested.
7. Complete 2006 reviews, 2007 salary adjustments, 2006 bonus assessments and 2007 bonus designs for [*]
8. Such other matters as may arise to ensure both a smooth transition of responsibilities [*]
The expected bonus shall be $25,000, if appropriate efforts against these tasks is applied.
EMPLOYMENT AGREEMENT
AGREEMENT entered into by and between BOSTON BEER COMPANY LIMITED PARTNERSHIP, a Massachusetts limited partnership having its principal place of business at 30 Germania Street, Boston, Massachusetts 02130 (the "Company"), and the undersigned employee of the Company (the "Employee").
In consideration of the employment or continued employment of the Employee by the Company and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Employee hereby agrees with the Company as follows:
1. Duties. The Company hereby agrees to employ or continue to employ the Employee in the position identified below the Employee's signature on this Agreement, and the Employee hereby accepts such employment. For so long as he or she is employed by the Company, the Employee shall devote himself or herself to the affairs of the Company on a full business time basis and shall not engage in any other business activities, which, either singly or in the aggregate, materially interfere with his or her duties to the Company.
2. Compensation. In consideration for the performance by the Employee of his or her duties hereunder, the Company shall pay to the Employee a base salary, payable weekly at the current rate set forth below the Employee's signature on this
EXHIBIT B
Agreement, and such other compensation as the Company may from time to time determine, which the Employee agrees to accept in full satisfaction for his or her services. The Employee shall also be entitled to participate in any employee incentive compensation program (an "Incentive Plan"), adopted from time to time by the Company for its employees generally.
3. Proprietary Information. The Employee hereby acknowledges that the techniques, recipes, formulas, programs, processes, designs and production, distribution, business and marketing methods, manuals, training methods and materials used and to be used by the Company are of a confidential and secret character, of great value and proprietary to the Company. The Company shall give or continue to give the Employee access to the foregoing categories or confidential and secret information and the trade secrets of its customers (collectively, "Proprietary Information"), so long as the Employee continues to provide services to the Company, and permit the Employee to work thereon and become familiar therewith to whatever extent the Company in its sole discretion determines. The Employee agrees that, without the prior written consent of the Company, he or she shall not, during his or her employment by the Company or at any time thereafter, divulge to anyone or use to his or her benefit any Proprietary Information, unless such Proprietary Information shall be in the public domain in a reasonably integrated form through no fault of the Employee.
The Employee further agrees to take all reasonable precautions to protect from loss or disclosure all documents supplied to the Employee by the Company and all documents, notebooks, materials and other data relating to any work performed by the Employee or others relating to the Proprietary Information, and upon termination for whatever reason of the Employee's employment with the Company, to deliver these documents, notebooks, materials and data forthwith to the Company.
4. Covenant Not-to-Compete. In specific consideration for his or her eligibility to participate in an Incentive Plan, the Employee hereby agrees to be bound by the provisions of this Section 4. During the period commencing on the date hereof and continuing until the expiration of one (1) year from the date on which the Employee last receives compensation in any form from the Company, the Employee shall not, without the prior written consent of the Company, which consent the Company may grant or withhold in its sole discretion, engage, directly or indirectly, for his or her own account or the account of others, as an employee, consultant, partner, officer, director or stockholder (other than a holder of less than five percent (5%) of the issued and outstanding stock or other equity securities of an issuer whose securities are publicly traded), or otherwise, in the importing, production, marketing or distribution to distributors of any beer or ale brewed outside of the United States which is imported into the United States
or any American beer or ale having a wholesale price within twenty percent (20%) of the wholesale price of any of the Company's products.
5. Remedy for Breach. The Employee expressly recognizes that any breach of this Agreement by him or her is likely to result in irreparable injury to the Company and agrees that, in addition to any other rights or remedies which the Company may have, the Company shall be entitled, if it so elects to institute and prosecute proceedings in any court of competent jurisdiction, either in law or in equity, to obtain damages for any breach of this Agreement; to enforce the specific performance of this Agreement by the Employee; and to enjoin the Employee from activities in violation of this Agreement.
6. Entire Agreement; Modification. This instrument contains the entire Agreement of the Company and the Employee with respect to the subject matter contained herein and may be altered, amended or superseded only by an agreement in writing, signed by both parties or the party against whom enforcement of any waiver, change, modification, extension or discharge is sought. No action or course of conduct shall constitute a waiver of any of the terms and conditions of this Agreement, unless such waiver is specified in writing, and then only to the extent so specified. A waiver of any of the terms and conditions of this Agreement on one occasion shall not constitute a waiver of the other terms and conditions of this
Agreement, or of such terms and conditions, on any other occasion.
7. Severability. The Employee and the Company hereby expressly agree that the provisions of this Agreement are severable and, in the event that any court of competent jurisdiction shall determine that any provision or covenant herein contained is invalid, in whole or in part, the remaining provisions shall remain in full force and effect and any such provision or covenant shall nevertheless be enforceable as to the balance thereof.
8. Binding Effect; Benefit. This Agreement shall be binding upon the Employee, without regard to the duration of his or her employment by the Company or the reasons for the cessation of such employment, and upon his or her administrators, executors, heirs, and assigns, and shall inure to the benefit of the Company and its affiliates and subsidiaries, and its and their successors and assigns.
9. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered and have the force and effect of an original.
10. Governing Law. The validity, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed on its behalf and the Employee has hereunto set his or her hand and seal, all as of the date first above written.
BOSTON BEER COMPANY LIMITED
PARTNERSHIP
By: /s/ Alfred W. Rossow, Jr. ------------------------------------ /s/ Jeffrey White ---------------------------------------- Signature of Employee |
JEFFREY WHITE
Name of Employee
OPERATIONS MANAGER
Position
$57,500
Current Pay Rate
Exhibit 10.54
AMENDMENT TO CREDIT AGREEMENT
THIS AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is effective as of February 27, 2007 by and among THE BOSTON BEER COMPANY, INC. and BOSTON BEER CORPORATION (together, the "Borrowers" and each individually, a "Borrower"); and BANK OF AMERICA, N.A., a national banking association, successor-by-merger to Fleet National Bank (the "Bank").
RECITALS
A. The Bank and the Borrowers are parties to that certain Second Amended and Restated Credit Agreement dated as of July 1, 2002, as modified by a letter agreement dated August 4, 2004 and as further modified by letter agreement dated as of December 30, 2005 (as modified, the "Credit Agreement"). Capitalized terms used herein without definition have the meanings assigned to them in the Credit Agreement.
B. The Borrowers have requested that the Bank extend the Expiration Date.
C. The Bank is willing to make such amendment, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, the parties hereto hereby agree as follows:
I. AMENDMENT TO CREDIT AGREEMENT.
A. Extension of Expiration Date. SECTION 1.1 of the Credit Agreement is amended so that the "Expiration Date", as defined therein, shall be March 31, 2008.
B. Further Amendments. Except as specifically amended above, the text of the Credit Agreement shall remain unmodified and in full force and effect and is hereby ratified and affirmed in all respects.
II. MISCELLANEOUS.
A. The Borrowers hereby represent and warrant that (a) all of the Borrowers' representations and warranties contained in Section 3 of the Credit Agreement are true and correct in all material respects as of the date hereof (except for representations and warranties made as of a specified date, which shall be true and correct as of such date) and (b) no Default has occurred and is continuing.
B. This Amendment shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts.
C. This Amendment may be executed by the parties hereto in several counterparts hereof and by the different parties hereto on separate counterparts hereof, all of which counterparts shall together constitute one and the same agreement. Delivery of an executed
signature page of this Amendment by facsimile transmission shall be effective as an in-hand delivery of an original executed counterpart hereof.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed under seal by their duly authorized officers under seal as of the day and year first above written.
THE BOSTON BEER COMPANY, INC.
By: /s/ William F. Urich ------------------------------------ Name: William F. Urich Title: CFO |
BOSTON BEER CORPORATION
By: /s/ William F. Urich ------------------------------------ Name: William F. Urich Title: CFO |
BANK OF AMERICA, N.A.
By: /s/ Luanne T. Smith ------------------------------------ Name: Luanne T. Smith Title: Vice President |
EXHIBIT 21.5
LIST OF SUBSIDIARIES AND AFFILIATES
OF
THE BOSTON BEER COMPANY, INC.
AS OF
DECEMBER 30, 2006
BBC Keg Company, LLC
(a Delaware limited liability company)
BBC Brands, LLC
(a Massachusetts limited liability company)
Boston Beer Corporation
(a Massachusetts corporation)
Boston Beer Corporation Canada Inc.
(a Canadian business corporation)
Boston Brewing Company, Inc.
(a Massachusetts corporation)
SABC Realty, Ltd.
(an Ohio limited liability company)
Samuel Adams Brewery Company, Ltd.
(an Ohio limited liability company)
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
(c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
(d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | ||
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
/s/ Martin F. Roper | ||||
Martin F. Roper | ||||
President and Chief Executive Officer
[Principal Executive Officer] |
||||
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
(c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
(d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | ||
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
/s/ William F. Urich | ||||
William F. Urich | ||||
Chief Financial Officer
[Principal Financial Officer] |
||||
/s/ Martin F. Roper | ||||
Martin F. Roper | ||||
President and Chief Executive Officer | ||||
/s/ William F. Urich | ||||
William F. Urich | ||||
Chief Financial Officer | ||||