EXHIBIT 2.10
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STICHTING INTERBREW
Conditions of Administration
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The present Conditions of Administration apply to the AK, incorporated on 19
October 2000 by a notarial deed executed by the Notary Heering, having his
registered office located in Amsterdam and have been amended on [...] by a
notarial deed executed by Notary ▇▇▇▇▇, having his registered office in
Amsterdam.
CHAPTER ONE - GENERAL PROVISIONS
ARTICLE 1 - DEFINITIONS
As used herein, the following terms shall have the following meanings:
- "Administratie Kantoor" or "AK" means the Stichting Interbrew.
- "affiliate" of any person other than an individual means another
person that, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common
control with, such first person and, in the case of an individual,
(i) upon the death of such individual, such individual's executors,
administrators or testamentary trustees, (ii) such individual's
spouse, parents, siblings or descendants or such parents', siblings'
or descendants' spouses, (iii) a trust or similar arrangement the
beneficiaries of which include only such individual or any of the
relatives of such individual specified in clause (ii) or (iv) a
charitable foundation, charitable trust or similar charitable entity
established by such individual and administered by such individual
or relatives of such individual specified in clause (ii).
- "AK Board" means the board of directors of the Administratie
Kantoor.
- "Amended Interbrew By-Laws" means the Amended By-Laws of Interbrew
dated as of the Closing Date, as modified from time to time.
- "Belgian Founders' Affiliate" means any legal or natural person
affiliated to a Belgian Founder.
- "By-laws" means the Amended By-laws of the AK dated as of the date
hereof, as modified from time to time by a Dutch notarial deed.
- "BRC" means BRC SA, a company (societe anonyme) duly incorporated
and validly existing under the laws of Luxemburg, having its
registered office at 73, Cote ▇'▇▇▇▇, ▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
- "Certificate" means any Class A Certificate or Class B Certificate.
- "Class A Certificate" means a certificate issued by the AK to EPS or
any Permitted Successor or Permitted Transferee of EPS in accordance
with Section 2.01(a) in respect of a Share directly or indirectly
owned by EPS or such Permitted Successor or Permitted Transferee.
- "Class B Certificate" means a certificate issued by the AK to BRC or
any Permitted Successor or Permitted Transferee of BRC in accordance
with
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Section 2.02(a) in respect of a Share directly or indirectly owned
by BRC or such Permitted Successor or Permitted Transferee.
- "Class A Director" means any director of the AK appointed by the
Class A Holders.
- "Class B Director" means any director of the AK appointed by the
Class B Holders.
- "Class A Holders" means EPS and any Permitted Successor or Permitted
Transferee.
- "Class A Holders' Assembly" means a general meeting of the Class A
Holders held in accordance with the By-Laws and the Conditions of
Administration.
- "Class B Holders" means BRC and any Permitted Successor or Permitted
Transferee.
- "Class B Holders' Assembly" means a general meeting of the Class B
Holders held in accordance with the By-Laws and the Conditions of
Administration.
- "Closing" means the closing of the Contribution and Subscription
that shall take place at the offices of Linklaters ▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, at 3:00 p.m. Brussels time on the fifth
business day (the "Closing Date") following the satisfaction (or, to
the extent permitted, the waiver) of the conditions set forth in
Article XI of the Contribution and Subscription Agreement, or at
such other place, time and date as shall be agreed between the
Company and BRC.
- "Contribution and Subscription" means the contribution, transfer and
delivery to the Company by BRC of all of the shares of Tinsel
Investments SA, a company duly incorporated and validly existing
under the laws of Luxemburg, with registered office at ▇▇, ▇▇▇▇
▇'▇▇▇▇, ▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, and the Company's issuance and transfer
to BRC of 141,700,000 Shares of the Company, upon the terms and
subject to the conditions set forth in the Contribution and
Subscription Agreement and on the Closing Date.
- "Contribution and Subscription Agreement" means the Contribution and
Subscription Agreement, dated as of March 2, 2004, by and among
Interbrew, the AK, EPS, S-Braco Participacoes SA and the other
parties thereto, as amended.
- "control" over any Person means the ability, by having a sufficient
amount of the voting securities, or other voting ownership or voting
interests, to elect directly or indirectly at least a majority of
the board of directors or other
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governing body of that person.
- "Company" means Interbrew, a corporation (societe anonyme/naamloze
vennootschap) duly incorporated and validly existing under the laws
of Belgium, having its registered office located at ▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇.
- "Conditions of Administration" these Conditions of Administration,
as modified from time to time in accordance with Article 15.
- "Deadlock" means any situation as referred to in Section 9.5, (i),
a, of this Agreement;
- "EPS" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Sebastien SCA or EPS SCA, a corporation
(societe en commandite par actions) duly incorporated and validly
existing under the laws of Luxembourg law, having its registered
office at 398 Route ▇'▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇;
- "Founder" means, on the one hand, each of the founders of the
Company, being the descendants of ▇▇▇▇▇ de Spoelberch, Olivier de
Spoelberch, Guillaume de Spoelberch, ▇▇▇▇▇▇▇▇▇ de Pret ▇▇▇▇▇ de
Calesberg, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ van
der Straten Ponthoz and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ (the `Belgian Founders')
and, on the other hand, each of the controlling shareholders of
AmBev, being ▇▇▇▇▇ Paulo ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Sicupira
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the `Brazilian Shareholders').
- "Founders' Affiliate" means any legal or natural person affiliated
to a Founder.
- "First Certification" means the certification of the Shares effected
in accordance with Article 4.1.
- "Holder" means any Class A Holder or Class B Holder.
- "Holders' Assembly" means any general meeting of the Class A Holders
and the Class B Holders held in accordance with the By-laws of the
AK and these Conditions of Administration.
- "Interbrew Shareholders' Agreement" means the Shareholders'
Agreement, dated as of March 2, 2004, by and among BRC, EPS, Rayvax
and the AK, as amended.
- "Lien" means any mortgage, lien, pledge, security or other interest,
charge, covenant, option, claim, restriction or encumbrance of any
kind or nature whatsoever.
- "Member" means, with respect to EPS or BRC, any ultimate direct or
indirect
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owner of Certificates or Shares which are directly or indirectly
owned by EPS or BRC, as the case may be, as of the date hereof.
- "Notification" means any notification to be given by the AK Board
under the By-Laws or these Conditions of Administration, it being
understood that any Notification shall be sent by registered mail to
the relevant address set forth in the register of Certificates.
- "Offered Certificates" has the meaning given to such term in Article
8.3.
- "Permitted Transferee" means any Founders' Affiliate; provided, that
the voting or economic interests held directly or indirectly in any
such Founders' Affiliate by Persons who are not Founders or
Founders' Affiliate shall not exceed 24.99%
- "Permitted Successor" means, with respect to EPS, any successor as
referred to in Section 2.01.(a) of this Agreement and, with respect
to BRC, any successor as referred to in Section 2.02.(a) of this
Agreement.
- "Person" means any individual, firm, corporation, partnership,
limited liability company, foundation, trust, joint venture,
association, unincorporated organization, governmental entity or
other entity.
- "Rights" means, in respect of any Certificate or any Share, any
right, warrant, option or other security which, directly or
indirectly, represents the right to purchase or acquire, or is
convertible into or exercisable or exchangeable for, or otherwise
represents an interest in, such Certificate or Share.
- "Second Certification" means the certification of the Shares as
effected in accordance with Article 4.2.
- "Share" means a share of capital stock of the Company.
- "Third Party" means any person who is not a Holder.
- "Transfer", as to any Certificates or Rights in respect of
Certificates, means to sell, or in any other way transfer, assign,
pledge, distribute, encumber or otherwise dispose of, create any
Rights in respect of, or permit any Lien to exist on, such
Certificates or Rights, whether directly or indirectly, voluntarily
or involuntarily or with or without consideration, including,
without limitation, any Transfer of shares or other Rights in a
Person that owns, directly or indirectly, such Certificates or
Rights.
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ARTICLE 2 - OBJECTIVES OF THE ADMINISTRATIE KANTOOR
2.1 The principal objective of the Administratie Kantoor is to provide a
means by which the Class A Holders and the Class B Holders, who
collectively directly or indirectly own a majority of the issued and
outstanding Shares, may jointly and equally exercise control over the
business and affairs of the Company in their capacity as indirect
shareholders of the Company.
2.2 The issuance of Certificates by the Administratie Kantoor as contemplated
hereby is regarded by the Company as being in its corporate interest.
ARTICLE 3 - CERTIFICATES
3.1 The Administratie Kantoor shall issue one Certificate for each Share
transferred to it in accordance herewith. Each Holder shall be deemed to
represent and warrant, for the benefit of the Administratie Kantoor and
each other Holder, that such Holder has good and valid title to each
Share transferred to the AK by such Holder for certification, and that
each Share so transferred is free and clear of all Liens.
3.2 The certification of any Share shall be effected by (i) the actual
transfer of such Share by or on behalf of the holder thereof to the
Administratie Kantoor, (ii) the issuance by the AK of a Class A
Certificate or a Class B Certificate, as the case may be, to and in the
name of such Holder and (iii) the recordation of such issuance, including
the name and address of such Holder, in a register of Certificates to be
maintained by the AK.
3.3 All Certificates to be issued by the AK shall be registered. The AK shall
not issue any Certificates in bearer form. In the event of any Transfer
of a Certificate by a Holder of one Class to a Holder of the other Class
in accordance with Article 8, the Certificate to be transferred shall be
presented to the AK for cancellation and a Certificate in respect of such
other Class shall be issued to the transferee Holder.
3.4 Upon reasonable prior written notice delivered to the AK Board, any
Holder may have access to the register of Certificates during normal
business hours.
3.5 Each Holder covenants and agrees that it shall not Transfer its
Certificates except in accordance herewith.
3.6 The AK shall not register the Transfer of any Certificates unless the
Transfer is permitted by Article 8. The register of Certificates and any
entry in the register of Certificates made upon any Transfer to a
Permitted Transferee shall include the following legend:
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"THE CERTIFICATES REPRESENTED BY THIS REGISTRATION ARE SUBJECT TO
RESTRICTIONS ON TRANSFER IN ACCORDANCE WITH THE TERMS OF A SHAREHOLDERS'
AGREEMENT DATED AS OF MARCH 2, 2004, AND THE CONDITIONS OF ADMINISTRATION
OF THE ISSUER AS THE SAME MAY BE AMENDED OR MODIFIED FROM TIME TO TIME, A
COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICE OF THE ISSUER.
NO REGISTRATION OF TRANSFER OF SUCH CERTIFICATES WILL BE MADE ON THE
BOOKS OF THE ISSUER UNLESS SUCH RESTRICTIONS ARE COMPLIED WITH."
3.7 As of the Closing Date, the AK has issued 180,000,000 Class A
Certificates to EPS and 141,700,000 Class B Certificates to BRC, and no
other Certificates are issued and outstanding as of the Closing Date or
held by any other persons.
ARTICLE 4 - CERTIFICATIONS
4.1 The First Certification was effected by and under the supervision of the
Dutch notary who formed the Administratie Kantoor. Such Notary delivered
to each owner of Shares certified at such time certificates of category
A, B or C corresponding to such Shares.
4.2 The Second Certification shall be completed as of the Closing Date by and
under the supervision of a Dutch notary. Upon completion of the Second
Certification, (i) all A, B and C certificates issued pursuant to the
First Certification shall have been automatically cancelled and have been
rendered null and void for all purposes, (ii) 180,000,000 Shares in
respect of 180,000,000 of such cancelled A, B and C certificates shall
have been retained by the AK, (iii) 180,000,000 Class A Certificates in
respect of such 180,000,000 retained Shares shall have been issued by the
AK to EPS, (iv) the remaining 75,056,026 Shares in respect of such
cancelled A, B and C certificates shall have been transferred to EPS or
to Belgian Founders' Affiliates, (v) BRC shall have transferred to the AK
141,700,000 Shares and the AK shall have issued to BRC 141,700,000 Class
B Certificates in respect of such Shares. Such notary shall give to all
Class A Certificate Holders and Class B Certificate Holders a copy of the
By-laws and of the Conditions of Administration.
4.3 Any further certifications of Shares shall require the supermajority
approval of no less than 85% of the members of the AK Board at a
duly-constituted meeting. Moreover, the admission of any new industrial
or financial partner as a shareholder of the Company and the subsequent
participation of this potential new shareholder of the Company to the AK
through the certification of the Shares it would acquire, shall both
require the supermajority approval of no less than 85% of the members of
the AK Board at a duly-constituted meeting.
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ARTICLE 5 - CERTAIN OBLIGATIONS OF THE AK
5.1 In its capacity as the holder of Shares transferred to it for
certification hereunder, the Administratie Kantoor, shall, as long as it
shall remain the holder of such Shares, exercise all the rights that are
attached to such Shares, including the voting rights.
Notwithstanding the foregoing, the Administratie Kantoor shall not
Transfer any Shares held by it at any time.
The AK Board shall ensure that all Shares held by the AK are (i) if such
Shares are bearer shares (i.e., physical certificates), forthwith
delivered to a financial institution of recognized international standing
in the business of safeguarding stock certificates to be held by such
financial institution in its vault or other secure facility in the name
of the AK, or (ii) if such Shares are registered shares (i.e.,
book-entry), maintained through a securities account (compte-titre) at a
financial institution of recognized international standing in the name of
the Administratie Kantoor.
5.2 The Administratie Kantoor shall distribute to the Holders, within 10 days
of receipt and after deduction of costs and expenses associated with
administering any such distribution and the costs related to the
operations of the Administratie Kantoor as provided in Article 14.1, such
costs and expenses to be borne by the Class A Holders and the Class B
Holders on a pro rata basis, (i) any dividends (whether payable in cash
or in securities) distributed by the Company in respect of the Shares
held by the AK and (ii) any other amounts distributed in respect of such
Shares, in each case on a pro rata basis. Any such distribution shall be
made by the AK to the account specified by each Holder by written notice
delivered to the AK Board. The Holders shall be informed of any such
distribution by Notification.
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ARTICLE 6 - SPECIFIC UNDERTAKINGS OF THE HOLDERS
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Each Holder agrees not to take, neither directly nor indirectly, any
action, or omit to take any action, if such action or omission would
adversely affect the Class A Holders' and the Class B Holders' joint
equal control of the AK and the Company, except to the extent such action
or omission is expressly permitted or contemplated by the Interbrew
Shareholders' Agreement or these Conditions of Administration.
ARTICLE 7 - EXCHANGE OF THE CERTIFICATES
7.1 In addition to Article 12 of the By-laws, the exchange of
Certificates for the Shares in respect of which such Certificates
were issued is subject to the provisions of this Article 7.
7.2 Subject to Article 7.3, any Holder wishing to exchange any of its
Certificates shall provide written notification to the AK Board at
least 12 months in advance of the proposed date of exchange. Such
written notice shall specify the number and Class of Certificates
that such Holder contemplates exchanging.
7.3 The A Holders may exchange Class A Certificates so long as, after
giving effect to any such exchange, EPS or any Permitted Transferee
shall directly hold at least 180,000,000 Class A Certificates (the
"Class A Minimum Amount"). The Class B Holders may exchange Class B
Certificates, so long as, after giving effect to any such exchange,
BRC or any Permitted Transferee shall collectively hold at least
141,700,000 Class B Certificates (the "Class B Minimum Amount"). If,
at any time, more than one Holder of the same Class wishes to
exchange its Certificates and if, after giving effect to all such
exchanges contemplated to be made at such time, the Class A Minimum
Amount or the Class B Minimum Amount, as the case may be, would be
exceeded, then the AK shall effect such exchanges in chronological
order according to the dates on which the AK received the underlying
request to effect such exchange. If more than one such request was
received on the same day and the Class A Minimum Amount or the Class
B Minimum Amount, as the case may be, would be exceeded if all such
exchanges were effected, then no such exchanges shall be made unless
one or more of the affected Holders agrees to reduce the number of
Certificates to be exchanged so as to cause the Class A Minimum
Amount or the Class B Minimum Amount, as the case may be, not to be
exceeded.
7.4 The AK Board may specify additional procedures consistent with this
Article 7 with respect to the exchange of Certificates.
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ARTICLE 8 - TRANSFER OF CERTIFICATES
8.1 TRANSFER RESTRICTIONS.
(a) Class A Certificates. No Class A Holder shall Transfer any Class A
Certificate, or any shares or other Rights in EPS or any other Person
that is a direct or indirect shareholder of EPS, to any Person other than
(i) EPS, (ii) a Permitted Transferee or (iii) a Class B Holder; provided,
however, that, after giving effect to any such Transfer, EPS shall
directly hold no less than 180,000,000 Class A Certificates; provided
further, however, that EPS may transfer the 180,000,000 Class A
Certificates in their entirety to any successor holding company that is
directly or indirectly owned solely by Members and/or Permitted
Transferees of EPS and that also becomes a party to the Interbrew
Shareholders' Agreement.
(b) Class B Certificates. No Class B Holder shall Transfer any Class B
Certificate, or any shares or other Rights in BRC or any other Person
that is a direct or indirect shareholder of BRC to any Person other than
(i) BRC, (ii) a Permitted Transferee or (iii) a Class A Holder; provided,
however, that, after giving effect to any such Transfer, BRC shall
directly hold no less than 141,700,000 Class B Certificates; provided
further, however, that BRC may transfer the 141,700,000 Class B
Certificates in their entirety to any successor holding company that is
directly or indirectly owned solely by Members and/or Permitted
Transferees of BRC and that also becomes a party to the Interbrew
Shareholders' Agreement.
(c) Adjustments Upon Changes in Capitalization. For purposes of Articles
8.1(a) and 8.1(b), the number of Certificates referred to in the first
sentence thereof shall be appropriately adjusted to give effect to any
shared dividend, split-up, subdivision or combination of shares or any
recapitalization, reclassification, reorganization or similar transaction
involving the Company or the AK.
8.2 Procedures Relating to the Transfer of Certificates.
No Transfer permitted pursuant to Article 8.1 shall be valid unless the
transferring Holder provides written notice to the AK Board at least 10
business days in advance of the proposed date of Transfer specifying (i)
the number of Certificates to be Transferred and (ii) the name and
address of the transferee. Any such written notice delivered by a
transferring Holder shall be deemed to constitute a representation by
such transferring Holder that the transferee (if other than BRC, EPS or
another Holder) is a Permitted Transferee. The AK Board may, in its
reasonable discretion, request that such transferring Holder provide
evidence reasonably satisfactory to the AK Board in support of such
representation. The transferring Holder shall promptly notify the AK
Board in writing if the proposed Transfer does not take place.
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8.2.1 Any Transfer of Certificates that does not comply with the applicable
formalities is null and void (and unenforceable as against the
Administratie Kantoor and the Holders). However, such non-compliance may
be cured if the non-complying transferor shall have duly complied with
all conditions, formalities or requirements set forth in this Article 8.
8.3 Deliberately left blank.
ARTICLE 9 - AK BOARD
9.1 In addition to what is described in Articles 3 to 7 of the By-laws, the
composition, the functioning and the powers of the AK Board are subject
to the following provisions.
9.2 The AK Board shall consist of eight (8) members. Such eight (8) members
shall consist of four (4) directors appointed by the Class A Holders'
Assembly and four (4) directors appointed by the Class B Holders'
Assembly.
9.3 The AK Board members appointed by such Holders' Assemblies shall be
considered the actual representatives of the Class A Holders and the
Class B Holders. Except as otherwise provided elsewhere in these
Conditions of Administration, the presence in person or by proxy of at
least seven (7) directors shall be necessary to constitute a quorum for
the transaction of business and the approval of a majority of the
directors present, including at least two (2) Class A Directors and two
(2) Class B Directors, shall be required to pass valid resolutions of the
AK Board; provided, however, that in the event any meeting of the AK
Board shall fail to achieve a quorum due, in any case, to the absence of
directors appointed by the Holders' Assembly of a certain class, the
quorum requirement shall not apply to the second meeting and valid
resolutions may be passed at such second meeting by the directors then
present. The Class A Holders and the Class B Holders agree to cause the
respective directors appointed by them to duly appoint a proxy holder to
attend any meeting from which such directors will be absent so that all
directors nominated by such Holders will be present in person or by proxy
at all meetings of the AK Board. Any second meeting of the AK Board shall
be held no sooner than 48 hours after the time set for the first meeting.
9.4 The decisions of the AK Board that are referred to in Articles 4.3, 15.2
and 16.2 shall require the supermajority approval of 85% of the AK Board
members at a duly-constituted meeting.
9.5 The AK Board will meet prior to each shareholders' meeting of the Company
in order to determine the manner in which the Shares owned by the AK will
be voted.
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One Class A Director (designated by the Class A Directors) and one Class
B Director (designated by the Class B Directors) shall jointly represent
the Administratie Kantoor at each ordinary or extraordinary shareholders'
meeting of the Company. Such representatives of the Administratie Kantoor
shall jointly vote at the ordinary or extraordinary shareholders'
meetings of the Company in accordance with the decisions of the AK Board.
If any Ownership Matter (as defined in the Interbrew Shareholders'
Agreement), Key Operational Matter (as defined in the Interbrew
Shareholders' Agreement) or Other Operational Matter (as defined in the
Interbrew Shareholders' Agreement) shall be considered at any ordinary or
extraordinary shareholders' meeting of the Company, then the following
rules shall apply:
(i) Ownership Matters. (a) If the AK Board takes action in accordance with
Article 9.3 on the manner in which the AK should vote with respect to any
Ownership Matter, it will instruct its representatives selected pursuant
to Article 9.5 to vote the AK's shares accordingly. If the AK Board
cannot take action in accordance with Article 9.3 on the manner in which
the AK should vote with respect to any Ownership Matter because of a tie
vote (a "Deadlock"), the AK shall instruct its representatives selected
pursuant to Article 9.5 to vote the AK's Shares against the approval of
the Ownership Matter. After the occurrence of a Deadlock, the Holders
shall endeavor to resolve the Deadlock for a period of 360 days (the
"Cooling Off Period") from the date of the shareholders' meeting at which
the Ownership Matter was presented for approval. Negotiations between the
Holders shall organized under the supervision of the Chairman of the
Board of the Company.
(b) If a Deadlock on an Ownership Matter has not been resolved during the
Cooling Off Period in accordance with the immediately preceding
paragraph, then, subject to paragraph (d) below, the Holder that wished
to approve the Ownership Matter that resulted in the Deadlock (the
"Proposing Holder") may deliver to the other Holder (the "Dissenting
Holder") an offer (the "Buy/Sell Offer") stating the price per
Certificate (which must be payable entirely in cash or immediately
available funds in accordance with paragraph (d) below and which shall be
adjusted for any share dividend, split-up, subdivision or combination of
Certificates occurring after the date of the Buy/Sell Offer and prior to
the consummation of the sale and purchase of the applicable Certificates)
at which the Proposing Holder is willing either to (i) sell all, but not
less than all, the Certificates held by the Proposing Holder and its
Permitted Transferees to the Dissenting Holder or (ii) purchase (or to
cause a nominee or nominees designed by it to purchase) from the
Dissenting Holder and its Permitted Transferees all, but not less than
all, the Certificates held by the Dissenting Holder and its Permitted
Transferees. The Buy/Sell Offer shall be irrevocable for a period of 90
days and shall preempt the right of the Dissenting Holder to make such an
offer. Any Buy/Sell Offer must be supported by a valuation report of an
internationally
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recognized investment bank based on a multi-criteria valuation
methodology customary in the industry.
(c) Within 60 days following receipt of the Buy/Sell Offer, the
Dissenting Holder shall, by notice to the Proposing Holder, elect
either to purchase (or to cause a nominee or nominees designated by
the Dissenting Holder to purchase) all, but not less than all, the
Certificates held by the Proposing Holder and its Permitted
Transferees or to sell to the Proposing Holder (or to a nominee or
nominees designated by the Proposing Holder) all, but not less than
all, the Certificates held by the Dissenting Holder and its
Permitted Transferees, in either case at the price set forth in the
Buy/Sell Offer. In the event that the Dissenting Holder fails to
make such election within such 60-day period, the Proposing Holder
may then elect whether to buy all, but not less than all, the
Certificates held by the Dissenting Holder and its Permitted
Transferees or to sell all, but not less than all, the Certificates
held by the Proposing Holder and its Permitted Transferees to the
Dissenting Holder at the price set forth in the Buy/Sell Offer. Any
election by a Dissenting Holder or Proposing Holder in accordance
with this paragraph (c) shall be deemed to constitute "acceptance"
of a Buy/Sell Offer. Once a Buy/Sell Offer is accepted, the Holders
shall consummate such purchase or sale of the applicable
Certificates as promptly as practicable, but in no case later than
the end of the 90-day period referred to in paragraph (b) above. If
the Dissenting Holder has elected to purchase the Certificates held
by the Proposing Holder and its Permitted Transferees, and fails to
consummate such purchase for any reason within the period set forth
in the preceding sentence, the Proposing Holder shall have the right
to purchase all, but not less than all, the Certificates held by the
Dissenting Holder and its Permitted Transferees at the price
stipulated in the Buy/Sell Offer as soon as reasonably practicable.
In connection with any sale and purchase pursuant to a Buy/Sell
Offer, the selling Holder and its Permitted Transferees shall
execute and deliver appropriate instruments and other documents
conveying good and valid title to the applicable Certificates, free
and clear of any Liens.
(d) The purchase price for the Certificates purchased pursuant to a
Buy/Sell Offer shall be paid 20% at the closing, with the balance
payable in four equal annual installments of 20% each on the first
four anniversaries of the date of the closing. The unpaid portion of
the purchase price shall bear interest at a rate per annum equal to
one-month LIBOR plus 1% from the date of the closing until the date
of payment.
(e) Notwithstanding the foregoing, (i) no Holder shall be entitled
to deliver a Buy/Sell Offer prior to the sixth anniversary of the
date of this Agreement and (ii) a Holder that is in default in any
material respect in the performance or observance of the terms and
conditions of this Agreement shall not be entitled to deliver a
Buy/Sell Offer at any time.
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(ii) Key Operational Matters and Other Operational Matters. If the AK
Board takes action in accordance with Article 9.3 on the manner in
which the AK should vote with respect to any Key Operational Matter
or Other Operational Matters, it will instruct its representatives
selected pursuant to Article 9.5 to vote the AK's shares
accordingly. If the AK Board is Deadlocked on the manner in which
the AK should vote with respect to any Key Operational Matter or
Other Operational Matters, then the Class A Directors or the Class B
Directors shall have an alternating casting vote, with the first
such casting vote being cast by the Class [ ] Directors1; provided,
however, that notwithstanding the foregoing, if any Holder shall
default in any material respect in the performance or observance of
the terms and conditions of these Conditions of Administration, the
directors appointed by the nondefaulting Holder shall have the
exclusive right to cast the casting vote for a period of one (1)
year after the date of the default.
9.6 The AK Board members may attend all ordinary or extraordinary
shareholders' meetings of the Company. An AK Board member may
request a meeting of the AK Board at any time during any such
shareholders' meeting or any board of directors' meeting in order to
deliberate on:
- any point debated during such meeting which was not
specifically listed on the agenda mentioned in the convocation
letter in respect of such meeting or which was only referred to
under "miscellaneous", without any further specification;
- any point of interpretation relating to the vote of the AK
Board referred to in Article 9.5 (i) or (ii); or
- the scope of the authority granted to the representatives
selected pursuant to Article 9.5.
In such event, the attendance rules described in Article 9.3
shall not apply. However, any decision shall require the
approval of at least two Class A Directors and two Class B
Directors.
ARTICLE 10 - HOLDERS' ASSEMBLY
The Holders' Assembly shall meet each time the AK Board deems it
appropriate as well as in the cases provided for by these Conditions
of Administration and the By-laws. The affirmative vote of Holders
representing 85% of all issued and outstanding Certificates shall be
required for any action to be taken at such Assembly.
------------------------
1 EPS and BRC should flip a coin prior to signing to determine whether the
first casting vote will be cast by the A directors or the B directors.
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ARTICLE 11 - BOARD OF DIRECTORS OF THE COMPANY
The AK Board shall exercise the voting rights attached to the certified
Shares at the shareholders' meetings of the Company in order to make sure
that the board of directors of the Company shall be composed of not less
than twelve (12) nor more than fourteen (14) directors. Of the members of
the Company's board of directors proposed by the AK, four (4) directors
shall be nominated exclusively by the Class A Holders' Assembly, four (4)
directors shall be nominated exclusively by the Class B Holders'
Assembly, and four (4) up to six (6) independent directors shall be
nominated by the AK Board. An AK Board Member may also serve as a member
of the Company's board of directors.
ARTICLE 12 - CHAIRMAN OF THE BOARD OF DIRECTORS OF THE COMPANY
The Chairman of the Board of Directors of the Company shall be an
independent director and shall not have a casting vote in the event of a
tie.
ARTICLE 13 - COMPLIANCE WITH THE CONDITIONS OF ADMINISTRATION AND THE BY-LAWS
The AK Board may at any time conduct a timely investigation in order to
verify that the By-Laws and these Conditions of Administration have been
complied with. The AK Board must undertake such investigation if one of
its members so requests. To this end, the Holders undertake to provide
the AK Board with any information or document upon request within the
time period reasonably imposed by the AK Board.
ARTICLE 14 - COSTS; AUDIT
14.1 Without prejudice to Article 14.2, all the costs of the Administratie
Kantoor relating to its operations, including the audits referred to in
Article 14.3, are deducted from the income in respect of the Certificates
prior to any distribution to the Holders or shall be funded, if
necessary, by the Class A Holders and Class B Holders on a pro rata
basis.
14.2 All expenses and taxes belonging to a Holder or an AK Board Member shall
be for the account of such Holder or AK Board Member. Such expenses and
taxes include, without limitation, the costs associated with a Transfer
of Certificates and any expenses and taxes associated with the
contribution of Shares to the AK except to the extent otherwise agreed in
the Contribution and Subscription Agreement.
14.3 The financial statements and accounts of the AK shall be audited on an
annual basis by internationally recognized independent public
accountants.
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ARTICLE 15 - AMENDMENTS
15.1 These Conditions of Administration shall take effect as of the Closing
Date and shall remain in effect for so long as the AK remains in
existence, unless amended in accordance with Article 15.3.
15.2 The provisions of the By-laws and of these Conditions of Administration
can only be amended by the supermajority approval of 85% of the AK Board
members, so long as all of the AK Board members are present or
represented at such meeting. The attendance rules described under Article
9.3 are inapplicable to any such meeting. The Holders' Assembly is not
authorized to modify the By-Laws or these Conditions of Administration.
15.3 Any amendment to these Conditions of Administration duly adopted by the
AK Board in accordance with Article 15.2 shall be evidenced by an
amendment document which shall be attached to these Conditions of
Administration and form an integral part hereof, and references to these
Conditions of Administration shall be deemed to refer to these Conditions
of Administration as so amended. The AK Board shall Notify the Holders of
any amendment as soon as practicable in accordance with the Notification
procedures specified herein. Such Notification need not provide the
actual amendment document or the actual text thereof but shall provide a
reasonable synopsis or description thereof. The Holders may obtain a copy
of the amendment document upon request. Each Holder shall be deemed to
have constructive knowledge of any amendment in respect of which a
Notification was duly sent to such Holder in accordance with the
Notification procedures specified herein.
ARTICLE 16 - DISSOLUTION AND LIQUIDATION OF THE ADMINISTRATIE KANTOOR
16.1 The Administratie Kantoor shall automatically be dissolved as a matter of
law when it ceases to hold any Shares or when the Interbrew Shareholders'
Agreement is actually terminated for any reason whatsoever.
16.2 In cases other than an automatic dissolution pursuant to Article 16.1,
the dissolution of the Administratie Kantoor can only be authorized by
the Holders'Assembly upon proposal of the AK Board. The Assembly shall
not deliberate unless those Holders in attendance represent at least 85%
of all issued and outstanding Certificates.
16.3 In order to effect a dissolution pursuant to Article 16.2, the Class A
Directors shall designate one liquidator and the Class B Directors shall
designate one liquidator. The two liquidators must possess professional
qualifications commensurate with the responsibilities inherent in such
appointment and must be independent from the Holders and the
Administratie Kantoor, and shall abide by any professional
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secrecy rules or other applicable law. The liquidators shall act
together and diligently proceed to effect such liquidation and shall
distribute all certified Shares to the Holders thereof that have yet
to be distributed to such Holders, after payment of reasonable
expenses incurred by such liquidators or the AK in connection with
such liquidation. The liquidators shall ensure sure that all
Certificates are exchanged for Shares as promptly as practicable.
ARTICLE 17 - COMMUNICATIONS
17.1 All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be delivered by hand or sent by
fax or sent, postage prepaid, by registered, certified or express mail or
overnight courier service and shall be deemed given when so delivered by
hand or fax, or if mailed, three days after mailing (one business day in
the case of express mail or overnight courier service), as follows:
If to the AK,
Stichting Administratie Kantoor Interbrew
548, Herengracht, 1017, CG Amsterdam, the Netherlands
Attention: The Board
With a copy at the following address:
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
If to EPS,
EPS CSA
▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇, ▇-▇▇▇▇ Luxemburg
Attention: The Board
If to BRC,
BRC SA
▇▇, ▇▇▇▇ ▇'▇▇▇▇, ▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
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Attention : ▇▇▇▇▇ Paulo ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Sicupira and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
17.2 The failure to provide any communication to a Holder whose identity or
whose domicile is unknown, and who has not notified the AK Board of his
address, shall in no way violate the procedures for Notification and
communication set forth in these Conditions of Administration and, more
generally, shall not affect the rights and obligations deriving from
these Conditions of Administration.
ARTICLE 18 - MISCELLANEOUS
18.1 If any provision of these Conditions of Administration (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 an arbitrator or 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.
In such case the parties shall negotiate in good faith in order to
replace such term or provision by another term or provision with a
similar legal and economic effect, to the extent permitted by applicable
law. Also, should any new legal or regulatory provision, or any case-laws
development render this Agreement invalid, illegal or unenforceable in
any respect, the parties shall negotiate in good faith in order to
replace such term or provision by another term or provision with a
similar legal and economic effect, to the extent permitted by applicable
law.
18.2 The Holders and the AK Board members may inform without restriction Third
Parties of the existence of the Administratie Kantoor.
No Holder or AK Board member may disclose to Third Parties the content of
these Conditions of Administration except as follows:
(i) if such disclosure is made to advisors bound by rules of professional
secrecy within the meaning of Article 458 of the Belgian Criminal Code,
or by a similar confidentiality obligation in accordance with any foreign
law, as well as to any other person who signs a confidentiality
agreement, or (if such Holder is not an individual) to such Holder's
officers, directors, employees, representatives and advisors provided
each such Person agrees to be bound by the provisions of this Article;
(ii) if such disclosure is made to ensure the protection of such Holder's or
AK Board member's rights in the framework of a judicial or an arbitration
procedure; or
(iii) if such disclosure is required by applicable law.
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The Holders and the AK Board members shall not divulge to Third
Parties the identity of any Holder and the number of Certificates
held by such Holder, without the prior approval of such Holder,
except as otherwise provided by these Conditions of Administration
or if required by applicable law or in connection with a judicial or
an arbitration procedure.
18.3 In case of any conflict between these Conditions of Administration
and the By-laws, the provisions of the By-Laws shall prevail. In the
case of any conflict between these Conditions of Administration or
the By-laws and the Interbrew Shareholders Agreement, the Interbrew
Shareholders' Agreement shall prevail.
ARTICLE 19 - APPLICABLE LAW
These Conditions of Administration are subject to Belgian law,
except for any matter which is compulsorily subject to a foreign
law.
ARTICLE 20 - ARBITRATION
All disputes arising out of or in connection with these Conditions
of Administration shall be finally settled under the Rules of
Arbitration of the International Chamber of Commerce. Judgment on
the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. The number of arbitrators shall be
three, one appointed by the plaintiff party or parties, one by the
respondent party or parties and a chairman appointed jointly by the
first two arbitrators. In the event that, in multiple party
proceedings, the plaintiff parties or the respondent parties are not
able to reach consensus on the appointment of their arbitrator, such
(and only such) arbitrator shall be appointed by the International
Chamber of Commerce (Article 10, paragraph 2 of the ICC Rules,
Edition 1998). Any party to the dispute submitted to arbitration in
connection with these Conditions of Administration may assert a
counterclaim or cross-claim against any other party to the dispute
based on any breach of these Conditions of Administration. Any party
to the dispute shall have access to all documents filed by any other
party. The parties agree that the ICC Court of Arbitration shall fix
separate advances on costs in respect of each claim, counterclaim or
cross-claim. The parties agree that if a dispute raises issues which
are the same as or substantially connected with issues raised in a
related dispute arising in connection with these Conditions of
Administration, the CSA or any other Operative Document (as defined
in the CSA), such dispute and such related dispute shall be finally
settled by the first appointed arbitral tribunal, provided a joinder
of proceedings is requested by at least one party to any of the
disputes. The place of arbitration shall be Paris, France. The
language of the arbitration shall be English. The arbitrators will
have no authority to award punitive damages or any other damages not
measured by the prevailing party's actual damages, and may not, in
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any event, make any ruling, finding or award that does not conform
to the terms and conditions of this contract. Any party may make an
application to the arbitrators seeking injunctive relief to maintain
the status quo until such time as the arbitration award is rendered
or the controversy is otherwise resolved. Any party may apply to any
court having jurisdiction hereof to seek injunctive relief in order
to maintain the status quo until such time as the arbitration award
is rendered or the controversy is otherwise resolved.
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