August ___, 2004 INTERBREW S.A. INTERBREW INTERNATIONAL B.V. COMPANHIA DE BEBIDAS DAS AMÉRICAS - AMBEV JALUA SPAIN S.L. TRANSFER AGREEMENT
EXHIBIT
4.21
August ___,
2004
INTERBREW
S.A.
INTERBREW
INTERNATIONAL B.V.
COMPANHIA
DE BEBIDAS DAS AMÉRICAS - AMBEV
JALUA
SPAIN S.L.
_________________________________
_________________________________
THIS
TRANSFER AGREEMENT
is made
on August ____, 2004.
AMONG:
INTERBREW
S.A.,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, a public limited liability company
organized under the laws of Belgium
(hereinafter
called “Interbrew”);
INTERBREW
INTERNATIONAL B.V.,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, a corporation
organized under the laws of the Netherlands
(hereinafter
called “IIBV”);
COMPANHIA
DE BEBIDAS DAS AMÉRICAS - AMBEV,
Rua
▇▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ 1017, ▇▇▇▇▇-▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ of Brazil, a corporation organized under the laws of the Federative
Republic of Brazil
(hereinafter
called “AmBev”)
-
and
-
JALUA
SPAIN S.L.,
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, a corporation
organized under the laws of the Kingdom of Spain,
(hereinafter
called “Jalua”)
WHEREAS:
A. IIBV
is
the registered and beneficial owner of one (1) share (the “Remaining
Share”)
in the
capital of Labatt Holding ApS, a corporation organized under the laws of Denmark
(“Labatt
Holdco”).
B. Interbrew,
of which IIBV is an indirect wholly-owned subsidiary, entered into the
Incorporação Agreement (as amended, supplemented or otherwise modified, the
“Agreement”)
on
March 3, 2004 among AmBev, Labatt Brewing Canada Holding Ltd., a company
organized under the laws of the Bahamas (“Mergeco”),
and
Labatt Brewing Company Limited, a corporation organized under the federal laws
of Canada (“Labatt”).
C. Pursuant
to the Agreement, it was agreed that IIBV’s Remaining Share of Labatt Holdco
would be transferred to Companhia Brasileira De Bebidas, a corporation organized
under the laws of the Federative Republic of Brazil and a subsidiary of AmBev
(“CBB”).
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D. AmBev
desires that Interbrew cause IIBV to transfer the Remaining Share to Jalua
instead of CBB at the Closing.
E. Interbrew
desires to cause IIBV to, and IIBV desires to, transfer the Remaining Share
to
Jalua instead of CBB at the Closing.
NOW
THEREFORE THIS TRANSFER AGREEMENT WITNESSES that
in
consideration for the payment by Jalua to Interbrew of U.S.$1.00 and other
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties, the parties have agreed as follows:
ARTICLE I
TRANSFER
OF REMAINING SHARE
1.1 Waiver
of Provision to the Agreement.
Interbrew and AmBev agree that Interbrew will cause IIBV to transfer the
Remaining Share to Jalua instead of CBB at the Closing. Except as, and to the
extent, expressly set forth in this Transfer Agreement, the Agreement
(including, for the avoidance of doubt, Section 1.04 of the Agreement)
shall remain unamended and in full force and effect.
1.2 Transfer
of Share.
At the
Closing, (i) IIBV will transfer to Jalua and Jalua will accept from
IIBV
the Remaining Share and (ii) IIBV, Labatt Holdco and, if applicable,
Jalua
shall take all actions as may be necessary to effectuate such transfer in
accordance with the laws of Denmark.
1.3 References
to CBB in the Agreement.
The
references to CBS contained in Sections 1.04(b)(ii) and 3.06(b) of the
Agreement shall hereinafter be deemed to refer to Jalua.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES
2.1 Representations
and Warranties of IIBV.
IIBV
represents and warrants to Jalua, and acknowledges that Jalua is relying upon
such representations and warranties in connection with the entering into and
completion of this Transfer Agreement, that:
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(a)
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IIBV
is a company validly subsisting pursuant to the laws of the Netherlands
and has the corporate power and capacity to carry out the transactions
contemplated hereby;
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(b)
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the
execution and delivery by IIBV of, and the performance of IIBV’s
obligations under, this Transfer Agreement and the completion by
IIBV of
the transactions contemplated hereby will not result in the violation
of
any applicable law or the terms or provisions of the constating documents
of IIBV; and
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(c)
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this
Transfer Agreement has been duly authorized, executed and delivered
by
IIBV and is a valid and binding obligation of IIBV enforceable against
IIBV in accordance with its terms.
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The
representations and warranties of IIBV contained in this Transfer Agreement
shall not survive the closing of the transactions contemplated by this Transfer
Agreement.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF JALUA
3.1 Representations
and Warranties of Jalua.
Jalua
represents and warrants to IIBV, and acknowledges that IIBV is relying upon
such
representations and warranties in connection with the entering into and
completion of this Transfer Agreement, that:
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(a)
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Jalua
is a company validly subsisting pursuant to the laws of the Kingdom
of
Spain and has the corporate power and capacity to carry out the
transactions contemplated hereby;
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(b)
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the
execution and delivery by Jalua of, and the performance of Jalua’s
obligations under, this Transfer Agreement and the completion by
Jalua of
the transactions contemplated hereby will not result in the violation
of
any applicable law or the terms or provisions of the constating documents
of Jalua; and
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(c)
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this
Transfer Agreement has been duly authorized, executed and delivered
by
Jalua and is a valid and binding obligation of Jalua enforceable
against
Jalua in accordance with its terms.
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The
representations and warranties of Jalua contained in this Transfer Agreement
shall not survive the closing of the transactions contemplated by this Transfer
Agreement.
ARTICLE 4
MISCELLANEOUS
4.1 Amendment.
This
Transfer Agreement may not be amended or modified in any respect except by
written instrument signed by each of the parties hereto.
4.2 Assignment.
This
Transfer Agreement and the rights and obligations hereunder shall not be
assignable or transferable by any party without the prior written consent of
the
other party hereto.
4.3 Capitalized
Terms.
Capitalized terms used herein and not defined shall have the meanings set forth
in the Agreement.
4.4 Counterparts.
This
Transfer Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement, and shall become effective
when
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one
or
more such counterparts have been signed by each of the parties and delivered
to
the other parties. An executed counterpart of this Transfer Agreement delivered
by fax or other means of electronic transmission shall be deemed to be an
original and shall be as effective for all purposes as delivery of a manually
executed counterpart.
4.5 Entire
Agreement.
This
Transfer Agreement, the Agreement and the Operative Agreements contain the
entire agreement and understanding among the parties hereto with respect to
the
subject matter hereof and supersede all prior agreements and understandings
relating to such subject matter. None of the parties shall be liable or bound
to
any other party in any manner by any representations, warranties or covenants
relating to such subject matter except as specifically set forth herein or
in
the Agreement or Operative Agreements.
4.6 Severability.
If any
provision of this Transfer Agreement (or any portion thereof) or the application
of any such provision (or any portion thereof) to any person or circumstance
shall be held invalid, illegal or unenforceable in any respect by a court of
competent jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision hereof (or the remaining portion thereof) or
the
application of such provision to any other persons or
circumstances.
4.7 Remedy.
The
parties’ sole and exclusive monetary remedy in connection with any failure to
comply with the obligations under this Transfer Agreement or breach of any
representation, covenant or agreement under this Transfer Agreement shall be
a
claim which shall be subject to the terms of the Agreement.
4.8 Arbitration.
All
disputes arising out of or in connection with this Transfer Agreement shall
be
finally settled under the Rules of Arbitration of the International Chamber
of
Commerce (the “ICC”) in accordance with Section 9.09 of the Incorporação
Agreement (whether or not such agreement remains in effect).
4.9 Governing
Law.
This
Transfer Agreement shall be construed and enforced in accordance with, and
the
rights of the parties shall be governed by, the internal laws of the State
of
New York.
4.10 Further
Assurances.
Each of
the parties agrees to make, do, execute, endorse, acknowledge and deliver or
cause and procure to be made, done, executed, endorsed, acknowledged, filed,
registered and delivered any and all further acts and assurances, including
without limitation, any conveyance, deed, transfer, assignment, share
certificate or other instrument in writing as may, in the opinion of either
of
them, be necessary or desirable to give effect to the transfer provided for
and
contemplated by this Transfer Agreement and to take all such other action as
may
be required or desirable for more effectual and complete vesting of the
Remaining Share for the purpose of registration or otherwise.
4.11 Successors
and Assigns.
This
Transfer Agreement shall enure to the benefit of and be binding upon the parties
and their respective successors and permitted assigns.
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IN
WITNESS WHEREOF, the parties
have duly executed this Transfer Agreement as of the date first written
above.
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INTERBREW
S.A.
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By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title:
V-P Treasury & Risk Management
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By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
V-P Planning & Control
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INTERBREW
S.A. INTERNATIONAL B.V.
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By:
/s/ ▇▇▇▇▇▇▇▇▇ Noirfalisse
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Name:
▇▇▇▇▇▇▇▇▇ Noirfalisse
Title:
Legal Counsel
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By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name:
▇▇▇▇ ▇▇▇▇▇▇
Title:
▇-▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
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▇
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▇▇▇▇▇▇▇▇▇
▇▇ BEBIDAS DAS AMÉRICAS - AMBEV
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By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Resale Officer
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By:
/s/ ▇▇▇▇▇ de Abrev ▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇ de Abrev ▇▇▇▇▇▇▇
Title:
General Counsel
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JALUA
SPAIN S.L.
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By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇ Ferro
Title:
Industrial Officer
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By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ de Brilo
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Name:
▇▇▇▇▇▇ ▇▇▇▇▇ de Brilo
Title:
General Officer
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