As filed with the Securities and Exchange Commission on March 28, 2002.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
THE BOSTON BEER COMPANY,INC.
(Exact name of issuer as specified in its charter)
Massachusetts 04-3284048
(State of Incorporation) (IRS Employer Identification Number)
75 Arlington Street, Boston, MA 02116
(Address of Principal Executive Offices)
(617) 368-5000
(Registrant's telephone number, including area code)
THE BOSTON BEER COMPANY, INC.
EMPLOYEE EQUITY INCENTIVE PLAN
(Full title of the Plan)
Frederick H. Grein, Jr., Esquire
Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, Massachusetts 02110
(617) 951-6600
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of Registration
registered registered(1) Offering Price Per Share Aggregate Offering Price Fee(2)
Class A Common Stock 1,000,000 $14.675 $14,675,000 $1,350.10
$.01 par value, per share
(1) Also registered hereunder are such additional number of shares of Common
Stock, presently indeterminable, as may be necessary to satisfy the antidilution
provisions of the Plan to which this Registration Statement relates.
(2) Computed in accordance with Rule 457(h) under the Securities Act solely for
the purpose of calculating the registration fee. The registration fee has been
calculated with respect to the shares registered on the basis of the average of
the high and low price as reported on the New York Stock Exchange ("NYSE"),
calculated at $14.675 on March 21, 2002.
NOTE
This Registration Statement is being filed solely for the purpose of
registering 1,000,000 additional shares of Class A Common Stock of The Boston
Beer Company, Inc. issuable pursuant to The Boston Beer Company, Inc. 1995
Employee Equity Incentive Plan (the "Plan") originally adopted in 1995. The
total number of shares issuable under the Plan is 3,687,500 as of December 14,
2001, of which 1,000,000 shares were previously registered on Form S-8 (Reg. No.
333-68531) and 1,687,500 shares were previously registered on Form S-8 (Reg. No.
33-01798). Pursuant to Instruction E to Form S-8, the contents of the
Registration Statements on Form S-8 (Registration Nos. 333-68531 and 33-01798)
are herein incorporated by reference.
ITEM 8. EXHIBITS
Number Description
4.1 1995 Employee Equity Plan, as amended.
5.1 Opinion of Hutchins, Wheeler & Dittmar, A Professional Corporation.
23.1 Consent of Hutchins, Wheeler & Dittmar, a Professional Corporation (including in Exhibit 5.1).
23.2 Consent of Arthur Andersen, LLP.
24.1 Powers of Attorney (See Page II-2).
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Boston, Massachusetts on March 27, 2002.
THE BOSTON BEER COMPANY, INC.
By /s/Martin F. Roper
Martin F. Roper, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Martin Roper and C. James Koch and each of them
acting without the other, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him or in his name, place and
stead, in any and all capacities to sign any and all amendments or
post-effective amendments to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agents, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/Martin F. Roper President, Chief Executive Officer and March 27, 2002
Martin F. Roper Director (principal executive officer)
/s/Richard P. Lindsay Chief Financial Officer (principal March 27, 2002
Richard P. Lindsay financial and accounting officer)
/s/C .James Koch Chairman of the Board of Directors March 27, 2002
C. James Koch
/s/Pearson C. Cummin, III Director March 12, 2002
Pearson C. Cummin, III
/s/James C. Kautz Director March 27, 2002
James C. Kautz
/s/Robert N. Hiatt Director March 12, 2002
Robert N. Hiatt
/s/John B. Wing Director March 12, 2002
John B. Wing
\
INDEX TO EXHIBITS
Exhibit
Number
4.1 1995 Employee Equity Incentive Plan, as amended.
5.1 Opinion of Hutchins, Wheeler & Dittmar, A Professional Corporation.
23.1 Consent of Hutchins, Wheeler & Dittmar, A Professional Corporation (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen, LLP.
24.1 Powers of Attorney (See page II-2).
THE BOSTON BEER COMPANY, INC.
EMPLOYEE EQUITY INCENTIVE PLAN
[As Adopted Effective November 20, 1995]
[and Amended Effective February 23, 1996]
[and Effective December 19, 1997]
[and Effective December 14, 2001]
1. Purpose. The purpose of The Boston Beer Company, Inc. ("TBBC") Employee
Equity Incentive Plan (the "Equity Plan" or the "Plan") is to provide additional
incentive for management and other employees of Boston Beer Company Limited
Partnership, a Massachusetts limited partnership (the "Company", which term
shall include TBBC and all of its affiliates), selected for participation in the
Plan, to promote the growth and success of the Company's business, and to reward
them for such growth and success, by making available to them for purchase
shares of the Company's Class A [Limited Voting Rights] Common Stock ($0.01 par
value) ("Class A Stock").
2. Shares Covered By the Plan. The maximum number of shares of
Class A Stock which may be issued under the Plan is 3,687,500 shares, subject to
adjustment in accordance with Section 12 of the Plan. Shares of Class A Stock
which are the subject of Management Options (as defined in Section 5) or
Discretionary Options (as defined in Section 6) which lapse unexercised or
Investment Shares which do not become Vested Shares (as defined in Section 6)
and are repurchased by TBBC pursuant to Section 8(g), or which are redeemed by
TBBC pursuant to Section 8(f) shall again be available for issuance hereunder.
3. Administration of the Plan. The Plan shall be administered by TBBC's
Board of Directors (the "Board"). In its sole discretion, the Board shall have
the power to:
(i) select management-level employees to be granted Management Options
under Section 5 of the Plan and management or other employees to be granted
Discretionary Options pursuant to Section 6 of the Plan (in either case,
individually, an Optionee and collectively, "Optionees");
(ii) authorize the grant of options ("Options") to acquire shares
("Option Shares") of Class A Stock, pursuant to Sections 5 and 6 of the
Plan;
(iii) construe the Plan;
(iv) determine all questions arising under the Plan; and
(v) adopt and amend such rules and regulations for the administration
of the Plan as it may deem desirable.
The decision of the Board as to all questions of interpretation
and application of the Plan shall be final and binding on all persons.
4. Eligibility. Employees eligible to participate in the Plan ("Eligible
Employees") are those employees of the Company who:
(i) have been employed by the Company for at least one (1) year; and
(ii) have entered into an Employment Agreement (the "Employment
Agreement") with the Company containing substantially the covenants and the
terms and conditions set forth in the form of Employment Agreement attached
hereto as EXHIBIT A and/or such other terms and conditions as the Board in
its discretion may from time to time require.
Only full-time management-level Eligible Employees, as
determined by the Board in its sole discretion, shall be selected by the Board
for the grant of a Management Option. In designating Optionees for Management
Options, the Board shall take into account each prospective Optionee's level of
responsibility, performance, potential and such other considerations as the
Board deems appropriate.
5. Grants of Management Options.
(a) For purposes hereof the following terms shall have the following
meanings:
(i) The term "Option Share Value" means the fair market value of
shares of Class A Stock as of the Option Date, as determined by the
Board.
(ii) The effective date of each Management Option shall be
January 1 in the year in which the grant is made and is referred to
herein as the "Option Date", except that Management Options shall be
announced on or about March 15 in each year.
(iii) An Optionee's "Option Grant Percentage" shall be the
percentage of his or her base salary which may be received by him or
her in the form of the grant of a Management Option, as determined by
the Board in its discretion, taking into consideration such
performance criteria as it shall, from time to time, deem appropriate.
(b) Each Optionee shall be granted as of the Option Date a Management
Option to acquire Option Shares. Each such Management Option granted to an
Optionee shall have a value (the "Option Value") equal to the amount
calculated by multiplying the Optionee's base salary earned during the
calendar year ending immediately prior to the Option Date, by his or her
Option Grant Percentage.
(c) The exercise price per Option Share under Management Options shall
in all cases be $0.01 per Share.
(d) After the Board determines that it will grant a Management Option
to an Optionee under the Plan, it shall notify the Optionee in writing,
stating the number of Option Shares to which his or her Management Option
shall be subject. Such notice shall incorporate by reference the terms,
conditions, restrictions and other provisions set forth in the Plan.
(e) No Management Options shall be granted after December 19, 1997.
6. Grants of Discretionary Options. The Board may also, from time to time,
grant to Eligible Employees options ("Discretionary Options") to acquire shares
of Class A Stock, on such terms and conditions, including exercise price, as the
Board shall determine.
7. Right to Exercise Options. Each Management Option and, except as the
Board may from time to time otherwise determine with respect to a particular
Discretionary Option, each Discretionary Option, shall be set forth in an Option
Agreement, substantially in the form attached hereto as EXHIBIT B, which shall
include in any event the following terms, conditions and restrictions:
(a) Except as otherwise determined from time to time by the Board in
connection with specific options, the right to exercise each Management
Option or Discretionary Option shall vest over the period of five (5) years
after the Option Date at the rate of twenty percent (20%) of the Option
Shares covered thereby per year, so long as the Optionee continues to be
employed by the Company as of each vesting date, provided that (i) the
Board may in its discretion permit accelerated vesting, (ii) Management
Options shall become exercisable in full in the event of an Optionee's
retirement at or after age 65, death or disability, and (iii) the Board may
tie exercisability to compliance by an Optionee with any applicable
restrictive covenants.
(b) Except as determined by the Board from time to time, each
Management Option and each Discretionary Option shall terminate on the
earlier to occur of the expiration of (i) ninety days after the Optionee
ceases to be an employee of the Company and (ii) ten (10) years after the
Option Date.
8. Purchase of Investment Shares.
(a) Eligible Employees may also become "Participants" in the Plan and
invest up to ten percent (10%) of their most recent annual W-2 earnings in
shares ("Investment Shares") of Class A Stock. The number of Investment
Shares which can be purchased by each Participant will be computed by
dividing 10% of the Participant's W-2 earnings by the Investment Share
Value (as defined in Section 8(c)). After a Participant has been employed
by the Company for at least two (2) years, Investment Shares will be issued
at a discount from Investment Share Value based on length of service. The
cost to the Participant will be the Investment Share Value, discounted, if
applicable, according to the schedule in Section 8(c). For each full year
Investment Shares are held after issuance and the Participant remains
employed with the Company, twenty percent (20%) will become fully vested
("Vested Shares"). Investment Shares not yet vested shall cease to vest
upon the termination of a Participant's employment with the Company, except
as otherwise then determined by the Board, unless such termination was
because of retirement at or after reaching age 65, death or disability.
Upon termination of a Participant's employment with the Company because of
retirement at or after reaching age 65, death or disability, all then
unvested Investment Shares shall fully vest.
(b) The maximum number of Investment Shares that may be issued to each
Participant at any time will be equal to ten percent (10%) of his or her
most recent annual W-2 earnings, divided by the applicable Discounted
Investment Share Value then in effect under Section 8(c), below.
(c) The issuance price for Investment Shares will be based on the then
Investment Share Value. Investment Share Value shall be the mean between
the high and the low prices at which shares of Class A stock traded on the
New York Stock Exchange or on any other exchange on which such shares may
be traded, on the day next preceding the date of a Participant's investment
in Investment Shares, which ordinarily shall be effective as of January 1
in each applicable year. The issuance price for Investment Shares will be
the "Discounted Investment Share Value", determined based on discounts from
Investment Share Value, keyed to each Eligible Employee's tenure with the
Company. Prior to 2 full years of employment, there will be no discount
After 2 full years of employment, the discount will be 20% After 3 full
years of employment, the discount will be 30% After 4 full years of
employment, the discount will be 40%
(d) Each Participant will be responsible for the withholding taxes
payable on his or her W-2 earnings, including on the amount of taxable
income realized by him or her by reason of the purchase of Investment
Shares at Discounted Investment Share Value, whether recognized at the time
of purchase or upon vesting.
(e) All Investment Shares which have not yet vested shall be held in
escrow by an escrow agent selected by the Board, pursuant to a Restricted
Stock Escrow Agreement, substantially in the form attached hereto as
EXHIBIT C.
(f) Each Participant who purchases Investment Shares and who is not
subject to the provisions of Section 16(b) of the 1934 Act shall have the
right at any time to cause the Company to redeem all, but not less than
all, of the Investment Shares previously purchased by him or her but which
have not yet vested at a price equal to the lesser of (i) the Discounted
Investment Share Value at which the Shares were issued and (ii) the
Investment Share Value, as of the date next preceding the date on which the
Investment Shares are tendered for redemption.
(g) In the event of the termination of the employment with the Company
of any Participant who holds Investment Shares, TBBC shall have the right,
but not the obligation, to redeem within ninety (90) days after such
termination any or all of such Investment Shares which are not Vested
Shares at a price, payable in cash, equal to the lesser of (i) the
Discounted Investment Share Value at which the Shares were issued and (ii)
the Investment Share Value, as of the date next preceding the date on which
the Investment Shares are called for redemption.
9. Previously Granted Options and Investment Shares. All options granted by
Boston Beer Company Limited Partnership prior to November 20, 1995, which were
assumed under the Plan on that date and became Management Options or
Discretionary Options, shall first become exercisable, to the extent that the
right to exercise has otherwise then vested, on March 1, 1996, except that any
such option held by Optionees subject to the provisions of Section 16 (b) of the
1934 Act shall not become exercisable until May 20, 1996. All Investment Shares
purchased from Boston Beer Company Limited Partnership prior to November 20,
1995, which have vested prior to March 1, 1996, shall be issued to the
applicable Participants on that date, except that Vested Investment Shares
otherwise then issuable to Participants subject to the provisions of Section
16(b) of the 1934 Act shall not be issuable until May 20, 1996.
10. Provisions Relating to Securities Act. Notwithstanding any other
provision of the Plan, TBBC may delay the issuance of Option Shares covered by
the exercise of a Management Option or a Discretionary Option or any Investment
Shares which have become Vested Shares (in either case, "Shares") until one of
the following conditions shall be satisfied:
(i) Such Shares are at the time of issuance effectively registered
under applicable federal and state securities acts, as now in force or
hereafter amended; or
(ii) Counsel for TBBC shall have given an opinion, which opinion shall
not be unreasonably conditioned or withheld, that the issuance of such
Shares is exempt from registration under applicable federal and state
securities acts, as now in force or hereafter amended.
Moreover, unless the Shares to be issued have been effectively registered under
the Securities Act of 1933, as amended (the "Act"), TBBC shall be under no
obligation to issue such Shares unless the Optionee or Participant shall first
give written representation to TBBC, satisfactory in form and scope to TBBC's
counsel and upon which in the opinion of such counsel TBBC may reasonably rely,
that he or she is acquiring the Shares to be issued to him or her as an
investment and not with a view to or for sale in connection with any
distribution thereof in violation of the Act. TBBC shall have no obligation,
contractual or otherwise, to any Optionee or Participant to register under any
federal or state securities laws any Shares issued under the Plan to such
Optionee or Participant.
11. Expenses of the Plan. All costs and expenses of the adoption and
administration of the Plan shall be borne by the Company, and none of such
expenses shall be charged to any Optionee or Participant.
12. No Contractual Right to Participate and No Right to Continued
Employment. Nothing in the Plan shall be deemed to give any employee of the
Company, or his or her legal representatives or assigns, or any other person
claiming under or through him or her, any contractual or other right to
participate in the benefits of the Plan. Nothing in the Plan and no action or
grant thereunder shall be construed to constitute or be evidence of any
agreement or understanding, express or implied, on the part of the Company to
employ or retain in its employ for any specific period of time any Optionee or
Participant. No grant of a Management Option or a Discretionary Option to an
Optionee shall give to such Optionee any rights as a stockholder in the Company
nor any rights in any Option Shares, except to the extent the Option has been
exercised and Option Shares issued.
13. Dilution and Other Adjustments. In the event that the outstanding
shares of Class A Stock are changed into or exchanged for a different number or
kind of shares or other securities of TBBC or of another corporation by reason
of any reorganization, merger, consolidation, recapitalization,
reclassification, stock split-up, combination of shares, or dividends payable in
capital stock, appropriate adjustment shall be made in the number and kind of
shares which may be issued under the Plan and as to which outstanding Management
Options or Discretionary Options or portions thereof then unexercised shall be
exercisable, to the end that the proportionate interest of the Optionee shall be
maintained as before the occurrence of such event; such adjustment in
outstanding discretionary Options shall be made without change in the total
price applicable to the unexercised portion of such Discretionary Options and
with a corresponding adjustment in the exercise price per share. The exercise
price per share of Management Options shall remain $0.01 per share.
14. Transferability. No right or interest under the Plan of any Eligible
Employee shall be assignable or transferable, in whole or in part, either
directly or by operation of law or otherwise, including, but not by way of
limitation, execution, levy, garnishment, attachment, pledge, bankruptcy or in
any other manner, other than by will or the laws of descent and distribution;
and no such right or interest of any Eligible Employee shall be subject to any
obligation or liability of such Eligible Employee. The Option shall be null and
void and without effect upon the bankruptcy of the Optionee or upon any
attempted assignment or transfer, except as hereinabove provided, including
without limitation any purported assignment, whether voluntary or by operation
of law, pledge, hypothecation or other disposition contrary to the provisions
hereof, or levy of execution, attachment, trustee process or similar process,
whether legal or equitable, upon the Option.
15. Withholding of Income Taxes. The Company shall have the right to deduct
from amounts otherwise payable by the Company to an Optionee or Participant by
way of salary or wages or otherwise, any Federal, state or local taxes required
by law to be withheld with respect to the exercise of a Management Option or
Discretionary Option granted under the Plan or the purchase or vesting under the
Plan of Investment Shares which results in taxable income to the Optionee or
Participant.
16. Effective Date. The Plan shall became effective upon its adoption by
the Board and its approval by the holders of TBBC's Class B [Voting] Common
Stock ($0.01 par value) (the "Class B Stock") and a majority in interest of
TBBC's then issued and outstanding Class A Stock on November 20, 1995.
17. Amendment and Termination of the Plan. The Board, subject to the
approval of the holders of a majority in interest of TBBC's issued and
outstanding Class B Stock, may at any time terminate, extend, or amend the Plan;
provided, however, that termination or amendment of the Plan shall not, without
the consent of any person affected thereby, modify or in any way affect any
Option granted or Investment Shares purchased prior to such termination or
amendment.
EXHIBIT A
EMPLOYMENT AGREEMENT
AGREEMENT entered into by and between BOSTON BEER COMPANY LIMITED
PARTNERSHIP, a Massachusetts limited partnership having its executive offices at
75 Arlington Street, Boston, Massachusetts 02116 (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 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 or stock option 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, training methods and materials,
and manuals 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 (i) 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,
(ii) not to make any copies of any of these documents, notebooks, materials and
data, without the prior written permission of the Company, and (iii) 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, this day of , 199 .
BOSTON BEER COMPANY LIMITED PARTNERSHIP
By:
Signature of Employee
Name of Employee
Position
Current Pay Rate
EXHIBIT B
THE BOSTON BEER COMPANY, INC.
OPTION AGREEMENT
AGREEMENT entered into effective as of _____________ by and between THE
BOSTON BEER COMPANY, INC., a Massachusetts corporation (the "Company"), and the
undersigned employee of the Company or one of its affiliates (the "Optionee").
IN CONSIDERATION OF services rendered and to be rendered by the Optionee
to the Company and of the mutual covenants and agreements contained herein, the
Company and the Optionee hereby agree as follows:
1. Grant of Option. The Company hereby irrevocably grants to the
Optionee an option (the "Option") to purchase all or any part of an
aggregate of shares (the "Shares") of the Company's Class A Common
Stock, on the terms and conditions hereinafter set forth.
2. Purchase Price and Exercisability.
(a) The purchase price ("Purchase Price") for the Shares
is ($ ) per Share.
(b) So long as the Optionee continues to be employed
by the Company or an affiliate of the Company as of
each indicated date, the Option shall become
exercisable, as follows:
Additional Shares Total Shares
Date Exercisable Exercisable
January 1,
---
January 1,
-------
January 1,
---
January 1,
---
January 1,
-------
3. Manner of Exercise of Option. To the extent exercisable, the Option may
be exercised in full at one time or in part from time to time, by giving written
notice, signed by the person or persons exercising the Option, to the Company,
stating the number of Shares with respect to which the Option is being
exercised, accompanied by payment in full of the Purchase Price for such Shares
in cash. There shall be no exercise at any one time as to fewer than one hundred
(100) Shares or all of the remaining Shares then purchasable by the person or
persons exercising the Option, if fewer than one hundred (100) Shares.
4. Term of Option. The Option shall terminate on the sooner to occur of (i)
the expiration of ninety (90) days after the Optionee ceases to be an employee
of the Company, regardless of the reason therefor or (ii) the close of business
on December 31, 200 . -
5. Non-Transferability. The right of the Optionee to exercise the Option
shall not be assignable or transferable by the Optionee otherwise than by will
or the laws of descent and distribution, and the Option may be exercised during
the lifetime of the Optionee only by him or her. The Option shall be null and
void and without effect upon the bankruptcy of the Optionee or upon any
attempted assignment or transfer, except as hereinabove provided, including
without limitation any purported assignment, whether voluntary or by operation
of law, pledge, hypothecation or other disposition contrary to the provisions
hereof, or levy of execution, attachment, trustee process or similar process,
whether legal or equitable, upon the Option.
6. Restrictions on Issue of Shares.
(a) Notwithstanding the provisions of Section 3 hereof, the Company
may delay the issuance of Shares covered by the exercise of the Option
until one of the following conditions shall be satisfied:
(i) The Shares with respect to which the Option has been
exercised are at the time of the issuance of such Shares effectively
registered under applicable federal and state securities acts, as now
in force or hereafter amended; or
(ii) Counsel for the Company shall have given an opinion, which
opinion shall not be unreasonably conditioned or withheld, that the
issuance of such Shares is exempt from registration under applicable
federal and state securities acts, as now in force or hereafter
amended.
(b) In the event that for any reason the Shares to be issued upon
exercise of the Option shall not be effectively registered under the
Securities Act of 1933 (the "1933 Act"), upon any date on which the Option
is exercised in whole or in part, the Company shall be under no further
obligation to issue Shares covered by the Option, unless the person
exercising the Option shall give a written representation to the Company
that such person is acquiring the Shares issued to him or her pursuant to
such exercise of the Option for investment and not with a view to, or for
sale in connection with, the distribution of any such Shares, and that he
or she will make no transfer of the same except in compliance with the 1933
Act and the rules and regulations promulgated thereunder and then in force,
and in such event, the Company may place an "investment legend", so-called,
upon any certificate for the Shares which may be issued by reason of such
exercise.
7. Adjustments Upon Changes in Capitalization. In the event that shares of
the Company's Class A Common Stock are changed into or exchanged for a different
number or kind of securities of the Company or of another entity by reason of
any reorganization, merger, consolidation, recapitalization, reclassification,
stock split-up, combination of shares or dividend payable in capital stock or
other securities, appropriate adjustment shall be made in the number and kind of
securities as to which the Option, or any part thereof then unexercised, shall
be exercisable, to the end that the proportionate interest of the Optionee shall
remain as before the occurrence of such event; such adjustment in the Option
shall be made without change in the total price applicable to the unexercised
portion of the Option and with a corresponding adjustment in the Option price
per share or other security unit.
8. Compliance with Post-Employment Obligations. The Optionee understands
and agrees that his or her rights hereunder are conditioned on continued
compliance with all of his or her obligations to the Company, including
obligations to protect the confidentiality of the Company's proprietary
information and the proprietary information of any of the Company's affiliates
and not to compete with the Company or any of its affiliates after the
Optionee's employment with the Company or any of its affiliates has terminated.
In furtherance of the Optionee's understanding and agreement, the Optionee
further agrees that, if the Optionee breaches any post-employment
confidentiality covenants or covenants not to compete with the Company or any of
its affiliates, the Company shall be entitled, in addition to any other remedies
it may then have available to it, to recover all profit realized by the Optionee
as a result of exercises of the Option during the Optionee's last twelve (12)
months of employment with the Company or any of its affiliates or at any time
following termination of such employment.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and its corporate seal to be hereto affixed by its officer thereunto
duly authorized, and the Optionee has hereunto set her hand and seal, all as of
the day and year first above written.
THE BOSTON BEER COMPANY, INC.
By:
C. James Koch, President
Optionee Signature
Name
EXHIBIT C
THE BOSTON BEER COMPANY, INC.
RESTRICTED STOCK ESCROW AGREEMENT
AGREEMENT entered into effective as of March 1, 1996 by and among THE
BOSTON BEER COMPANY, INC. (the "Company"), FREDERICK H. GREIN, JR., the escrow
agent (the "Escrow Agent") designated by the Company's Board of Directors (the
"Board") acting pursuant to Section 3 of the Company's Employee Equity Incentive
Plan (the "Plan"), acting for himself and any successor so designated, and the
undersigned employee (the "Employee") of the Company or one of its subsidiaries.
The Employee has previously purchased at a discount under a predecessor
plan which has been assumed under the Plan shares of the Class A Common Stock
($0.01 par value) of the Company (the "Shares"). The Shares are subject to
certain vesting and repurchase restrictions set forth in Section 8(g) of the
Plan. Because of these restrictions, the Board, in accordance with the
provisions of Section 8(e) of the Plan, is requiring that the Employee deposit
with the Escrow Agent the certificates representing the Shares, together with a
stock power or other instrument of transfer, appropriately endorsed in blank
with signature guaranteed, under a deposit agreement requiring the Shares to be
held in escrow subject to the Company's right to repurchase the Shares pursuant
to Section 8(g) of the Plan.
ACCORDINGLY, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company, the Escrow Agent and
the Employee agree as follows:
1. Deposit of Certificates for the Shares. The Employee shall, upon
his or her execution of this Agreement, deposit with the Escrow Agent:
(i) certificates (the "Certificates") each representing
that number of Shares vesting on each "Vesting Date" specified on the
Vesting Schedule attached hereto as Schedule A (the "Vesting
Schedule"); and
(ii) for each such Certificate, a stock power or other
instrument of transfer reasonably acceptable to the Escrow Agent,
appropriately endorsed in blank with signature guaranteed.
2. Duties of Escrow Agent. The Escrow Agent and any successor
escrow agent designated by the Board (and the term "Escrow Agent" as used herein
shall mean the Escrow Agent and any and all such successor escrow agents) shall
hold the Certificates representing the Shares, deposited with him pursuant to
paragraph 1, above, and shall dispose of the same in accordance with the
provisions hereof and of the Plan. The Escrow Agent's duties shall be solely
those duties specified herein and the Escrow Agent shall have no other duties or
responsibilities. In particular, the Escrow Agent shall have no duty to the
Employee with respect to amounts which may be owing to the Employee by the
Company on account of Shares redelivered by the Escrow Agent to the Board.
3. Release of Shares from Escrow.
(a) In General. So long as the Escrow Agent continues to hold any of the
Shares, the Company shall, within ten (10) business days after each "Vesting
Date" specified on the Vesting Schedule, deliver to the Escrow Agent a
statement, signed by a duly authorized officer of the Company, that the Employee
was still employed by the Company or one of its subsidiaries as of such Vesting
Date. Upon receipt of such certificate, the Escrow Agent shall deliver to the
Employee a Certificate for the Shares then vested, together with the
corresponding stock power or other instrument of transfer.
If the Company shall not have delivered such a certificate to the
Escrow Agent within said ten (10) business day period, the Escrow Agent shall,
upon expiration of said ten (10) business day period, give written notice of
such fact to the Company, with a copy to the Employee. The Company shall then
have a further period of five (5) business days from the effective date of such
notice to deliver to the Escrow Agent the statement called for by the preceding
paragraph. If the Company shall not have so delivered such a statement within
said further five (5) business day period, the Escrow Agent shall, upon the
expiration thereof, deliver to the Board all Certificates and stock powers or
other instruments of transfer then held by him pursuant to this Agreement. The
effective date of the notice to be given by the Escrow Agent pursuant to this
paragraph shall be the date on which the copy to the Employee is deposited in
the United States mail, certified mail, postage prepaid, addressed to the
Employee at the address set forth below, or such other address as to which the
Escrow Agent shall similarly have been notified in writing by the Employee.
(b) Notification of Termination of Employment or Redemption. If, at any
time while this Agreement remains in effect, the Escrow Agent receives a written
statement signed by a duly authorized officer of the Company that the Employee
(i) is no longer employed by the Company or any of its subsidiaries, other than
by reason of his or her retirement, disability or death, setting forth the date
of termination of employment, or (ii) has caused the Company to redeem all of
the shares in accordance with Section 6(f) of the Plan, the Escrow Agent shall
forthwith deliver to the Board all Certificates and stock powers or other
instruments of transfer then held by him pursuant to this Agreement, unless, in
the case of termination of employment, the date of termination of employment set
forth in such certificate is subsequent to a Vesting Date for which no Shares
have yet been delivered to the Employee pursuant to subparagraph (a), above, in
which case, the Escrow Agent shall deliver:
(i) to the Employee a Certificate for the Shares so vested,
together with the corresponding stock power or other instrument of
transfer; and
(ii) to the Board the balance of the Certificates and powers or
other instruments of transfer then held by him pursuant to this
Agreement.
(c) Death or Disability of Employee. If the Escrow Agent receives a written
statement signed by a duly authorized officer of the Company that the Employee
has died or become disabled, the Escrow Agent shall deliver or cause to be
delivered to the Employee or the executor of his estate, as applicable, all
Certificates and all stock powers or other instruments of transfer then held by
him pursuant to this Agreement.
4. Escrow Agent Right to Rely. The Escrow Agent shall be
entitled to rely on and act in accordance with certificates as to employment
status signed by a duly authorized officer of the Company and in accordance with
instructions of the Board if given in writing signed by a majority of the
members of the Board.
5. Liability of Escrow Agent. In the performance of his duties
hereunder, the Escrow Agent shall incur no liability to the Employee or the
Company for any action taken or omitted, except in the case of gross negligence
or willful misconduct. The Company hereby agrees to reimburse the Escrow Agent
for and indemnify and hold the Escrow Agent harmless from and against all
expense, loss and liability which the Escrow Agent may pay or may by virtue of
the performance of his duties hereunder.
6. Dividends and Voting Rights. The Employee shall be entitled to vote all
Shares held by the Escrow Agent pursuant to this Agreement and to receive all
dividends declared thereon.
7. Termination of Escrow. The escrow created hereby and this
Agreement shall terminate at such time as the Escrow Agent shall have released
from escrow in accordance with the provisions of paragraph 3 of this Agreement,
all of the Certificates and stock powers or other instruments of transfer
originally deposited with the Escrow Agent pursuant to paragraph 1 hereof.
IN WITNESS WHEREOF, the Escrow Agent and the Employee have hereunto set
their hands and seals as of the day and year first above written. COMPANY:
ESCROW AGENT:
THE BOSTON BEER COMPANY, INC.
By:______________________________ ______________________________
Frederick H. Grein, Jr.
EMPLOYEE:
Name
Address
THE BOSTON BEER COMPANY, INC.
SCHEDULE A
TO
RESTRICTED STOCK ESCROW AGREEMENT
EMPLOYEE:
AGGREGATE NUMBER OF SHARES DEPOSITED IN ESCROW:
VESTING DATES AND SHARES VESTING ON EACH VESTING DATE:
March 27, 2002
The Boston Beer Company, Inc.
75 Arlington Street
Boston, MA 02116
Ladies and Gentlemen:
We are counsel to The Boston Beer Company, Inc., a Massachusetts
Corporation (the "Company"), and as such counsel we are familiar with the
corporate proceedings taken in connection with the adoption of the Company's
Employee Equity Incentive Plan, (the "Plan"). We are also familiar with the
Registration Statement on Form S-8 to which a copy of this opinion will be
attached as an Exhibit.
As such counsel, we have examined the corporate records of the Company,
including its Articles of Organization, By-laws, Minutes of Meetings of its
Board of Directors and Stockholders and such other documents as we have deemed
necessary as a basis for the opinions herein expressed.
Based upon the foregoing, and having regard for such legal considerations
as we deem relevant, we are of the opinion that:
1. The Company is a corporation duly organized and validly existing
under the laws of the Commonwealth of Massachusetts.
2. The Company has duly reserved 3,687,500 shares of its
Class A Common Stock, $.01 par value, per share, for issuance
under the Plan.
3. The shares of Class A Common Stock issuable pursuant to
the Plan have been duly authorized and, when issued in
accordance with the terms of the Plan, such shares will be
validly issued, fully paid and non-assessable shares of capital
stock of the Company to which no personal liability will attach.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement on Form S-8 and to the reference to us under the caption
"Interests of Named Experts and Counsel" in the Registration Statement.
Very truly yours,
/s/Hutchins, Wheeler & Dittmar
HUTCHINS, WHEELER & DITTMAR
A Professional Corporation
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
of The Boston Beer Company, Inc. on Form S-8 of our report dated February 11,
2002, on our audits of the consolidated financial statements of The Boston Beer
Company, Inc. as of December 29, 2001 and December 30, 2000, and for each of
the three years in the periods ending December 29, 2001, December 30, 2000 and
December 25, 1999, which report is included in the Form 10-K of The Boston
Beer Company, Inc., for the year ended December 29, 2001.
/s/ Arthur Anderson LLP
Boston, Massachusetts
March 25, 2002