EXHIBIT 2.1
CONFORMED COPY
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CONTRIBUTION AND SUBSCRIPTION AGREEMENT
by and among
S-BRACO PARTICIPACOES S.A.
ROUGEVAL LIMITED
TINSEL INVESTMENTS INC.
EMPRESA DE ADMINISTRACAO E PARTICIPACOES S.A.-ECAP
BRACO ▇.▇.
▇▇▇▇▇ MANAGEMENT INC.
TINSEL PARTICIPACOES LTDA
TINSEL INVESTMENTS S.A.
BRC S.A.
THE STICHTING INTERBREW
▇▇▇▇▇▇▇ ▇▇▇▇▇ SEBASTIEN
BRACOPAR S.A.
and
INTERBREW S.A.
Dated as of
March 3, 2004
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TABLE OF CONTENTS
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ARTICLE I
Certain Definitions
SECTION 1.01. Certain Definitions...........................................2
SECTION 1.02. Terms Generally...............................................9
SECTION 1.03. Interpretation; Exhibits and Schedules........................9
ARTICLE II
Contribution and Subscription; Closing; Closing Date
SECTION 2.01. The Contribution and Subscription; Closing...................10
SECTION 2.02. Closing Date.................................................11
ARTICLE III
The SB Restructuring
SECTION 3.01. The SB Restructuring.........................................11
ARTICLE IV
Representations and Warranties of the SB Group Companies
SECTION 4.01. Organization, Standing and Power.............................12
SECTION 4.02. Authority; Execution and Delivery; Enforceability............13
SECTION 4.03. No Conflicts; Consents.......................................13
SECTION 4.04. Brokers or Finders...........................................14
ARTICLE V
Additional Representations and Warranties of the SB Group Companies
SECTION 5.01. SB Group Company Operations; Assets; Liabilities.............14
SECTION 5.02. Capital Stock of each SB Group Company and AmBev's
Subsidiaries.................................................15
SECTION 5.03. Tinsel Lux Shares............................................18
SECTION 5.04. SEC Documents................................................18
SECTION 5.05. Absence of Certain Changes or Events.........................19
SECTION 5.06. Control......................................................20
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ARTICLE VI
Representations and Warranties of Interbrew
SECTION 6.01. Organization, Standing and Power.............................20
SECTION 6.02. Capital Stock of Interbrew and its Subsidiaries..............20
SECTION 6.03. Interbrew Shares.............................................21
SECTION 6.04. Authority; Execution and Delivery; Enforceability............22
SECTION 6.05. No Conflicts; Consents.......................................22
SECTION 6.06. Belgian Filings..............................................23
SECTION 6.07. Absence of Certain Changes or Events.........................23
SECTION 6.08. Brokers or Finders...........................................24
ARTICLE VII
Representations and Warranties of the Stichting and EPS
SECTION 7.01. Organization, Standing and Power.............................25
SECTION 7.02. Authority; Execution and Delivery; Enforceability............25
SECTION 7.03. No Conflicts; Consents.......................................25
SECTION 7.04. Stichting Certificates.......................................26
ARTICLE VIII
Additional Pre-Closing Covenants
SECTION 8.01. Covenants Relating to Conduct of Business....................26
SECTION 8.02. Approval of the Transactions; Reasonable Best Efforts........29
SECTION 8.03. Expenses; Transfer Taxes.....................................30
SECTION 8.04. Publicity....................................................31
SECTION 8.05. Further Assurances...........................................31
SECTION 8.06. Operative Documents..........................................32
SECTION 8.07. Access to Information........................................32
SECTION 8.08. Adjustment Upon Changes in Capitalization....................33
SECTION 8.09. Restructuring................................................33
ARTICLE IX
No Solicitation; SB Transfer Restrictions
SECTION 9.01. No Solicitation..............................................34
SECTION 9.02. Transfer Restrictions........................................35
ARTICLE X
Additional Covenants
SECTION 10.01. Consolidation...............................................35
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SECTION 10.02. New Name, NYSE and EVA......................................35
SECTION 10.03. BAC Tag-Along Right.........................................36
SECTION 10.04. AmBev MTO...................................................36
SECTION 10.05. Listing of Shares...........................................37
SECTION 10.06. Information to and Consultation with the Works Council......37
SECTION 10.07. Shareholder Meetings........................................37
SECTION 10.08. AmBev Co-Chairman...........................................38
SECTION 10.09. ECAP Minority Interests.....................................38
ARTICLE XI
Conditions Precedent
SECTION 11.01. Conditions to Each Party's Obligation.......................38
SECTION 11.02. Conditions to Obligation of Interbrew.......................39
SECTION 11.03. Conditions to Obligation of the SB Group Companies..........40
SECTION 11.04. Postponement of Closing.....................................41
SECTION 11.05. Frustration of Closing Conditions...........................42
ARTICLE XII
Termination, Amendment and Waiver
SECTION 12.01. Termination.................................................42
SECTION 12.02. Effect of Termination.......................................43
SECTION 12.03. Amendments and Waivers......................................43
ARTICLE XIII
Indemnification
SECTION 13.01. Indemnification relating to SB Group Companies..............43
SECTION 13.02. Calculation of Losses.......................................45
SECTION 13.03. Termination of Indemnification..............................45
SECTION 13.04. Procedures..................................................45
SECTION 13.05. Indemnification Relating to Interbrew.......................47
SECTION 13.06. Calculation of Losses.......................................49
SECTION 13.07. Termination of Indemnification..............................49
SECTION 13.08. Procedures..................................................49
SECTION 13.09. Responsibility for Interbrew Listing Prospectus.............51
SECTION 13.10. ECAP Claims.................................................52
SECTION 13.11. Sole Remedy.................................................52
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ARTICLE XIV
General Provisions
SECTION 14.01. Survival....................................................52
SECTION 14.02. Assignment..................................................53
SECTION 14.03. No Third-Party Beneficiaries................................53
SECTION 14.04. Attorneys' Fees.............................................53
SECTION 14.05. Notices.....................................................53
SECTION 14.06. Counterparts................................................55
SECTION 14.07. Entire Agreement............................................55
SECTION 14.08. Severability................................................55
SECTION 14.09. Subsidiary or Other Action; SB Group Company Liability......55
SECTION 14.10. Governing Law...............................................56
SECTION 14.11. Arbitration.................................................56
Exhibits
Exhibit AForm of Labatt Incorporacao Agreement
Exhibit BForm of Interbrew Shareholders' Agreement
Exhibit CLST Lock-up Agreement
Exhibit DEPS Lock-up Agreements
Exhibit EForm of Amended Stichting By-Laws
Exhibit FForm of Amended Interbrew By-Laws
Exhibit GForm of Amended Conditions of Administration
Exhibit HFAHZ Amendment
Exhibit IAmBev 2003 Financial Statements
Exhibit JInterbrew 2003 Financial Statements
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CONTRIBUTION AND SUBSCRIPTION AGREEMENT, dated as of March 3, 2004
(this "Agreement"), by and among BRC S.A., a corporation organized under the
laws of Luxembourg as a SOPARFI, and as a resident of Luxembourg for tax
purposes ("BRC"), Tinsel Investments S.A., a corporation organized under the
laws of Luxembourg as a SOPARFI, and as a resident of Luxembourg for tax
purposes ("Tinsel Lux"), S-Braco Participacoes S.A., a corporation organized
under the laws of the Federative Republic of Brazil ("SB"), Braco S.A., a
corporation organized under the laws of the Federative Republic of Brazil
("Braco"), Braco Management Inc., a corporation organized under the laws of
the Bahamas ("Braco Management"), Bracopar S.A., a corporation organized under
the laws of the Federative Republic of Brazil ("Bracopar"), Empresa de
Administracao e Participacoes S.A.-ECAP, a corporation organized under the
laws of the Federative Republic of Brazil ("ECAP"), Tinsel Participacoes Ltda,
a corporation organized under the laws of the Federative Republic of Brazil
("Tinsel Participacoes"), Tinsel Investments Inc., a corporation organized
under the laws of the Bahamas ("Tinsel"), and Rougeval Limited, a corporation
organized under the laws of the Bahamas ("Rougeval"), on the one hand, and the
Stichting Interbrew, a foundation organized under the laws of the Netherlands
(the "Stichting"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ Sebastien, a societe en commandite par
actions organized under the laws of Luxembourg that currently holds a majority
of the outstanding certificates issued by the Stichting ("EPS") and Interbrew
S.A., a public limited liability company organized under the laws of the
Kingdom of Belgium ("Interbrew"), on the other hand (each, a "Party" and
collectively, the "Parties").
WITNESSETH:
WHEREAS, BRC desires to subscribe for 141,712,000 ordinary shares,
without nominal value, of Interbrew (the "Interbrew Shares"), by contributing
to Interbrew all of the issued and outstanding shares of Tinsel Lux (the
"Tinsel Lux Shares"), and Interbrew desires to accept such contribution by BRC
of the Tinsel Lux Shares as payment for BRC's subscription for the Interbrew
Shares;
WHEREAS, the corporate structure of the SB Group Companies (as
defined below) shall be reorganized to facilitate the completion of the
transactions described herein;
WHEREAS, simultaneously with the execution and delivery of this
Agreement, Interbrew, Labatt Brewing Canada Holding Ltd., a corporation
organized under the laws of the Bahamas, and Companhia de Bebidas das
Americas-AmBev, a corporation organized under the laws of the Federative
Republic of Brazil ("AmBev") have entered into the Incorporacao Agreement in
the form attached as Exhibit A (the "Labatt Incorporacao Agreement") pursuant
to which Labatt shall become a subsidiary of AmBev (the "Labatt
Incorporacao");
WHEREAS, BRC desires to deposit the Interbrew Shares in the
Stichting in exchange for certificates issued by the Stichting representing a
beneficial economic interest in the Interbrew Shares;
WHEREAS, BRC and EPS desire to amend the by-laws and the terms of
administration of the Stichting, as well as the by-laws of Interbrew, and
together with the Stichting, to enter into a shareholders' agreement in
relation to Interbrew in the form attached as Exhibit B (the "Interbrew
Shareholders' Agreement");
WHEREAS, the contributing shareholders of SB, simultaneously with
the execution and delivery of this Agreement, are entering into a lock-up
agreement in the form attached as Exhibit C (the "LST Lock-up Agreement");
WHEREAS, the contributing shareholders of EPS, simultaneously with
the execution and delivery of this agreement, are entering into a lock-up
agreement in the form attached as Exhibit D (the "EPS Lock-up Agreement"); and
WHEREAS, the Parties desire to set forth certain additional
agreements relating to the transactions described herein.
Accordingly, the Parties hereby agree as follows:
ARTICLE I
Certain Definitions
SECTION 1.01. Certain Definitions. (a) The following terms are used
in this Agreement with the meanings set forth below:
"affiliate" of any person 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 the beneficiaries of which include only
such individual or any of the relatives of such individual specified in clause
(ii) and (iv) a charitable foundation, charitable trust or similar charitable
entity established by such individual and administered by such individual or
relatives of such individual in clause (ii).
"AmBev Capital Stock" means, collectively, all of the AmBev Common
Stock and AmBev Preferred Stock issued and outstanding.
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"AmBev Common Stock" means the ordinary shares or American
Depositary Shares representing deposited ordinary shares, in each case,
without par value, of AmBev.
"AmBev Preferred Stock" means the preferred shares or American
Depositary Shares representing deposited shares of preferred shares, in each
case without par value, of AmBev.
"AmBev Shareholders' Agreement" means the Shareholders' Agreement of
AmBev dated July 1, 1999, as amended, by and among FAHZ, Braco and ECAP, and,
where the context requires, shall include such agreement as amended by the
FAHZ Amendment.
"AmBev Shareholders' Meeting" means the meeting of AmBev
shareholders at which a vote shall be taken with respect to the Labatt
Incorporacao.
"AmBev Shareholders' Meeting Materials" means any written material
furnished to shareholders of AmBev under Applicable Law in connection with the
AmBev Shareholders' Meeting.
"Amended Interbrew By-Laws" means the by-laws of Interbrew as
amended on or prior to the Closing Date, the form of which is attached as
Exhibit E, pursuant to which, among other things, the maximum size of
Interbrew's board of directors shall be increased to 14.
"Amended Stichting By-Laws" means the by-laws of the Stichting as
amended on or prior to the Closing Date, the form of which is attached as
Exhibit F.
"Amended Conditions of Administration" means the Conditions of
Administration of the Stichting as amended on or prior to the Closing Date,
the form of which is attached as Exhibit G.
"Antitrust Laws" means any applicable antitrust or competition laws.
"BAC" means Beverage Associates (BAC) Corp., a corporation organized
under the laws of the British Virgin Islands.
"BAC Tag-Along Right" means the tag-along right of the BAC
shareholders, as set forth in Section 2.03 of the Share Transfer Agreement
dated as of January 31, 2003 by and among Braco, ECAP, FAHZ, BAC and AmBev.
"Base Price" means U.S. $24.85 per Depositary Share representing 100
shares of AmBev Common Stock or AmBev Preferred Stock, as applicable.
"Bracopar Common Stock" means the issued and outstanding shares of
common stock, no par value, of Bracopar.
"Braco Capital Stock" means all of the issued and outstanding
capital stock of Braco.
"Braco Common Stock" means the shares of common stock, no par value,
of Braco.
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"Braco Management Capital Stock" means all of the issued and
outstanding capital stock of Braco Management.
"Braco Preferred Stock" means the shares of preferred stock, no par
value, of Braco.
"Brazilian Corporation Law" means Law no. 6.404 of December 15, 1976
of the Federative Republic of Brazil, as amended.
"Brazilian GAAP" means generally accepted accounting principles in
the Federative Republic of Brazil as in effect at the time any applicable
financial statements were prepared.
"Confidentiality Agreement" means the Mutual Confidentiality
Agreement dated as of October 15, 2003 between Interbrew and AmBev, as amended
on November 25, 2003.
"Disclosure Schedule" means the schedules delivered by the Parties
concurrently with the execution of this Agreement setting forth, among other
things, items the disclosure of which is necessary or appropriate either (a)
in response to an express informational requirement contained in or requested
by a provision this Agreement or (b) as an exception to one or more
representations or warranties or covenants contained in this Agreement.
"ECAP Capital Stock" means all of the issued and outstanding capital
stock of ECAP.
"ECAP Common Stock" means the shares of common stock, no par value,
of ECAP.
"ECAP Preferred Stock" means the shares of preferred stock, no par
value, of ECAP.
"Euronext Brussels" means the Belgian-regulated market operated by
Euronext Brussels S.A./N.V., a corporation organized under the laws of the
Kingdom of Belgium and recognized as market undertaking in accordance with
Article 16 of the Belgian Law of August 2, 2002 governing the supervision of
the financial sector and the financial services.
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"Exchange Act" means U.S. Securities Exchange Act of 1934, as
amended.
"Excluded Taxes" means (i) the registration duties ("droits
d'enregistrement"), if any, resulting from the sale by Tinsel of its Tinsel
Participacoes Shares to Tinsel Lux in accordance with the Restructuring and
(ii) Belgium indirect taxes, if any, due or becoming due as a result of the
Closing.
"FAHZ" means Fundacao Antonio e ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Instituicao
Nacional de Beneficiencia, a charitable foundation organized under the laws of
the Federative Republic of Brazil.
"FAHZ Amendment" means the amendment to the AmBev Shareholders'
Agreement dated as of March 2, 2004 by and among FAHZ, Braco and ECAP, a copy
of which is attached as Exhibit H.
"IFRS" means International Financial Reporting Standards as in
effect at the time any applicable financial statements were prepared.
"Interbrew Common Stock" means all of the issued and outstanding
ordinary shares, notional value of (euro)0.77 per share, of Interbrew.
"Interbrew Listing Prospectus" means the prospectus that is required
under Belgian Applicable Law to list the Interbrew Shares on the First Market
of Euronext Brussels.
"Interbrew Material Adverse Effect" means a material adverse effect
(a) on the business, assets, financial condition, prospects or results of
operations of Interbrew and its subsidiaries, the Stichting and EPS taken as a
whole, (b) on the ability of Interbrew, the Stichting or EPS to perform its
respective obligations under this Agreement and the Operative Documents to
which it is, or is specified to be, a party, or (c) on the ability of
Interbrew or EPS to consummate the Transactions.
"Interbrew Shareholders' Meeting" means the meeting of Interbrew
shareholders to be held in the presence of a notary at which a vote shall be
taken with respect to, inter alia, (i) the Contribution and Subscription and
(ii) the Amended Interbrew By-Laws.
"Interbrew Shareholders' Meeting Materials" means any written
material furnished to shareholders of Interbrew in connection with the
Interbrew Shareholders' Meeting.
"Labatt" means Labatt Brewing Company Limited, a corporation
organized under the laws of Canada.
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"Labatt Side Letter" means the letter dated the date hereof from
Labatt Holding B.V. to Interbrew International BV, a corporation organized
under the laws of the Netherlands, with respect to certain matters related to
the Labatt Incorporacao.
"Liabilities" means any and all debts, liabilities and obligations,
whether accrued or fixed, absolute or contingent, matured or unmatured,
determined or determinable, unasserted or otherwise, including those arising
under any Applicable Law or pursuant to any claim, action, suit, arbitration,
inquiry, proceeding or investigation by or before any Governmental Entity and
those arising under any Contract, and including, for the avoidance of doubt,
any Taxes.
"Operative Documents" means (i) the Labatt Incorporacao Agreement,
(ii) the FAHZ Amendment, (iii) the Interbrew Shareholders' Agreement, (iv) the
Amended Terms of Administration, (v) the Amended Stichting By-Laws, (vi) the
Amended Interbrew By-Laws, (vii) the LST Lock-up Agreement, (viii) the EPS
Lock-up Agreement, (ix) the Labatt Side Letter and (x) the other agreements
and instruments to be executed and delivered, or to take effect, in connection
with or as contemplated by this Agreement or any of the foregoing agreements.
"person" means any individual, firm, corporation, partnership,
limited liability company, foundation, trust, joint venture, association,
unincorporated organization, Governmental Entity or other entity.
"Pre-Closing Liabilities" means any and all Liabilities of any of
the SB Group Companies (other than AmBev) arising prior to the Closing or in
any way relating to the period ending on the Closing, including any such
Liabilities that are set forth in any Section of the Disclosure Schedule and
any Liabilities relating to the Restructuring (other than the Excluded Taxes).
"Quinsa" means Quinsa of Quilmes Industrial ("Quinsa") Societe
Anonyme.
"Rougeval Shares" means the issued and outstanding common stock,
$1.00 par value, of Rougeval.
"SB Group Company" means each of SB, BRC, Tinsel Lux, Braco, Tinsel,
Rougeval, Braco Management, ECAP, Tinsel Participacoes, Bracopar and AmBev,
and, in each case, any successors thereto (it being understood that SB will be
dissolved in connection with the Restructuring and that BRC will be deemed the
successor to SB following such dissolution for purposes of this Agreement and
references to SB following such dissolution shall be deemed to be references
to BRC where the context so requires).
"SB Material Adverse Effect" means a material adverse effect (a) on
the business, assets, financial condition, prospects or results of operations
of the SB Group Companies and AmBev's subsidiaries, taken as a whole, or (b)
on the ability of any SB
6
Group Company to perform its obligations under this Agreement and the
Operative Documents to which it is, or is specified to be, a party, or (c) on
the ability of any SB Group Company to consummate the Transactions.
"subsidiary" of any person means another person, an amount of the
voting securities or other voting ownership or voting interests of which
sufficient to elect at least a majority of its board of directors or other
governing body is owned directly or indirectly by such first person or by
another subsidiary of such first person.
"Tax" or "Taxes" means all federal, provincial, local, municipal,
foreign and other taxes, assessments, duties or similar charges of any kind
whatsoever including all corporate franchise, income, sales, use, ad valorem,
receipts, value added, profits, license, withholding, payroll, employment,
excise, premium, property, customs, net worth, capital gains, transfer, stamp,
documentary, social security, environmental, alternative minimum, occupation,
recapture, territorial, goods and services, harmonized sales, capital,
employer health taxes, health taxes, social services taxes, education taxes,
all employment insurance, health insurance, all surtaxes, all customs duties
and import and export taxes, countervail and anti-dumping taxes, all license,
franchise and registration fees, and other taxes, and including all interest,
penalties and additions imposed with respect to such amounts, and all amounts
payable pursuant to any agreement or arrangement with respect to Taxes.
"Tinsel Participacoes Shares" means the shares of common stock, no
par value, of Tinsel Participacoes.
"Tinsel Shares" means the shares of common stock, $1.00 par value,
of Tinsel.
"Transactions" means each of the transactions contemplated by this
Agreement or any of the Operative Documents.
"U.S. GAAP" means generally accepted accounting principles in the
United States of America as in effect at the time any applicable financial
statements were prepared.
(b) The following terms are defined in the Section set forth
opposite the term:
Terms Section
----- -------
Agreement Preamble
AmBev Witnesseth
AmBev 2003 Financial Statements 5.04(b)
AmBev SEC Documents 5.04(a)
AmBev SEC Financial Statements 5.04(b)
AmBev Shares 5.02(b)
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Terms Section
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Antitrust Authorities 8.02(e)
Applicable Law 4.03
BAC Premium 10.03
BFIC 6.06(a)
Braco Preamble
Braco Capital Stock 5.02(b)
Braco Management Preamble
Bracopar Preamble
Bracopar Shares 5.02(b)
Braco Owned AmBev Shares 5.02(b)
Braco Shares 5.02(b)
BRC Preamble
Closing 2.02
Closing Date 2.02
Consent 4.03
Contract 4.03
Contribution and Subscription 2.01(a)
CVM 8.02(e)
ECAP Preamble
ECAP Owned AmBev Shares 5.02(b)
ECAP Shares 5.02(b)
EPS Preamble
EPS Lock up Agreement Witnesseth
Governmental Entity 4.03
Incorporacao Laudo 8.02(a)
Indemnifying Party 13.01(a)
Indemnifying SB Party 13.05(a)
Interbrew Preamble
Interbrew 2003 Financial Statements 6.06(b)
Interbrew BFIC Documents 6.06(a)
Interbrew BFIC Financial Statements 6.06(b)
Interbrew Capital Stock 6.02
Interbrew Indemnities 13.05(a)
Interbrew Losses 13.05(a)
Interbrew Representatives 8.07(a)
Interbrew Shareholders' Agreement Witnesseth
Interbrew Shares Witnesseth
Interbrew Third Party Claim 13.08(a)
Interbrew Voting Debt 6.02
Judgment 4.03
Labatt Incorporacao Witnesseth
Labatt Incorporacao Agreement Witnesseth
Liens 4.03
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Terms Section
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LST Lock-up Agreement Witnesseth
MTO 10.4
Other Bid 9.01
Party Preamble
Representatives 9.01
Restructuring 3.01(a)
Rights 5.02(a)
Rougeval Preamble
SB Preamble
SB Group Companies Capital Stock 5.02(a)
SB Group Company Voting Debt 5.02(a)
SB Indemnitees 13.01(a)
SB Losses 13.01(a)
SB Owned AmBev Shares 5.02(b)
SB Representatives 8.07(b)
SB Third Party Claim 13.04(a)
SEC 5.04(a)
Stichting Preamble
Stichting Interests 9.02
Target 9.01
Tinsel Preamble
Tinsel Lux Preamble
Tinsel Lux Shares Witnesseth
Tinsel Participacoes Preamble
Transfer 9.02
SECTION 1.02. Terms Generally. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Agreement include both the plural and
the singular;
(b) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision; and
(c) the words "including" and "include" and other words of similar
import shall be deemed to be followed by the phrase "without limitation".
SECTION 1.03. Interpretation; Exhibits and Schedules. The headings
contained in this Agreement, in any Exhibit or Schedule hereto and in the
table of contents to this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. All
Exhibits and Schedules
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annexed hereto or referred to herein are hereby incorporated in and made a
part of this Agreement as if set forth in full herein. Any capitalized terms
used in any Schedule or Exhibit but not otherwise defined therein, shall have
the meaning as defined in this Agreement. When a reference is made in this
Agreement to a Section, Exhibit or Schedule, such reference shall be to a
Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
ARTICLE II
Contribution and Subscription; Closing; Closing Date
SECTION 2.01. The Contribution and Subscription; Closing. (a) Upon
the terms and subject to the conditions set forth in this Agreement, at the
Closing, Tinsel and Rougeval shall cause BRC to, and BRC shall, contribute,
transfer and deliver to Interbrew all of the Tinsel Lux Shares, in bearer form
or registered in the name of Interbrew, and Interbrew shall issue and transfer
to BRC the Interbrew Shares as set forth below. The subscription to the
Interbrew Shares and payment therefor in the form of a contribution to
Interbrew of the Tinsel Lux Shares are referred to in this Agreement as the
"Contribution and Subscription".
(b) At the Closing:
(i) Tinsel and Rougeval shall cause BRC to, and BRC shall,
contribute and transfer to Interbrew and deliver to Interbrew (A)
certificates representing Tinsel Lux Shares, in bearer form or
registered in the name of Interbrew, with appropriate transfer tax
stamps, if any, affixed, and (B) deliver or cause to be delivered
such other documents as Interbrew or its counsel may reasonably
request to demonstrate satisfaction of the conditions and compliance
with the covenants set forth in this Agreement including with
respect to the Restructuring;
(ii) (A) Interbrew shall issue the Interbrew Shares to BRC and
register them in the name of BRC in the shareholders' register of
Interbrew, (B) BRC shall thereafter transfer the Interbrew Shares to
the Stichting for certification thereof by the Stichting, and
immediately thereafter, Interbrew shall register the transfer of the
Interbrew Shares from BRC to the Stichting in the shareholders'
register of Interbrew (such mention to be signed and dated by BRC
and the Stichting) and shall deliver to the Stichting certificates
representing the Interbrew Shares certified by the Stichting in
favor of BRC, and (C) Interbrew shall deliver or cause to be
delivered to BRC such other documents as BRC or its counsel may
reasonably request to demonstrate satisfaction of the
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conditions and compliance with the covenants set forth in this
Agreement; and
(iii) Each of the Amended Terms of Administration, the Amended
Stichting By-Laws, the Amended Interbrew By-Laws and the Interbrew
Shareholders' Agreement shall become effective.
SECTION 2.02. Closing Date. The closing of the Contribution and
Subscription (the "Closing") shall take place at the offices of Linklaters ▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, at 2:00 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, or at
such other place, time and date as shall be agreed between Interbrew and BRC.
The Parties shall use their reasonable best efforts in accordance with Section
8.02 to have the Closing occur as soon as practicable.
ARTICLE III
The SB Restructuring
SECTION 3.01. The SB Restructuring.
(a) Between the date of this Agreement and prior to the Closing, the
SB Group Companies (excluding AmBev) (i) will increase the capital of Tinsel
Participacoes by causing Tinsel Lux to contribute a minimum amount of U.S.
$100 million to Tinsel Participacoes, (ii) subsequently, Tinsel Participacoes
will discharge all its Liabilities in full and (iii) following such discharge,
no later than one day prior to the Closing Date, Tinsel Participacoes will
have applied for a registration of foreign investment with the Central Bank of
Brazil in an amount equivalent to no less than U.S. $130 million.
(b) Immediately prior to the Closing, the SB Group Companies shall
be reorganized in the manner and on the terms previously agreed by Interbrew
and the SB Group Companies (the "Restructuring"), as a result of which,
immediately prior to the Closing, (i) BRC, as its sole asset, will hold 1,000
Tinsel Lux Shares, representing 100% of all of the capital stock of Tinsel Lux
issued and outstanding, (ii) Tinsel Lux, as its sole asset, will hold
5,635,664,826 Tinsel Participacoes Shares, representing 100% of all of the
issued and outstanding capital stock of Tinsel Participacoes, (iii) Tinsel
Participacoes, as its sole assets, will hold 4,214,345,035 shares of AmBev
Common Stock, representing approximately 26.78%, including treasury shares, of
all of the AmBev Common Stock issued and outstanding, 280,833,991 shares of
ECAP Common Stock, representing approximately 99.74% of all of the issued and
outstanding ECAP Common Stock, and 367,650,721 shares of ECAP Preferred Stock,
representing approximately 97.82% of all of the ECAP Preferred Stock issued
and outstanding, (iv) ECAP, as its sole asset, will
11
hold 4,039,568,225 shares of AmBev Common Stock, representing approximately
25.67%, including treasury shares, of all of the AmBev Common Stock issued and
outstanding, and (v) Tinsel Lux will hold indirectly, through Tinsel
Participacoes and ECAP, 8,253,913,260 shares of AmBev Common Stock,
representing approximately 52.45%, including treasury shares, of the AmBev
Common Stock issued and outstanding, in each case (i) through (v), free and
clear of all Liens.
(c) BRC shall cause the investment of Tinsel Lux in Tinsel
Participacoes, at the time of the Closing, to have a registration of foreign
investment with the Central Bank of Brazil in an amount equivalent to no less
than U.S. $130 million, which shall represent at least 99.03% of Tinsel Lux's
equity interest in Tinsel Participacoes at such time, such registration to be
subject only to processing of such registration by the Central Bank of Brazil.
ARTICLE IV
Representations and Warranties of the SB Group Companies
Each SB Group Company (other than AmBev) represents and warrants,
jointly and severally, to the Stichting, EPS and Interbrew, as follows:
SECTION 4.01. Organization, Standing and Power. (a) Each SB Group
Company and AmBev's subsidiaries is duly organized, validly existing and in
good standing (to the extent recognized by the laws of the jurisdiction in
which it is organized) under the laws of the jurisdiction in which it is
organized and has full power (corporate or otherwise) and authority and
possesses all governmental franchises, licenses, permits, authorizations and
approvals necessary to enable it to own, lease or otherwise hold its
properties and assets and to conduct its businesses as presently conducted or
as otherwise contemplated herein, other than such franchises, licenses,
permits, authorizations and approvals, the lack of which, individually or in
the aggregate, have not had and would not reasonably be expected to have an SB
Material Adverse Effect.
(b) Each SB Group Company and each of AmBev's subsidiaries is duly
qualified to do business as a foreign corporation in each jurisdiction in
which the conduct or nature of its business or the ownership, leasing or
holding of its properties makes such qualification necessary except, with
respect to SB and Braco, in such jurisdictions where the failure to be so
qualified or in good standing, individually or in the aggregate, have not had
and would not reasonably be expected to have an SB Material Adverse Effect.
(c) SB has delivered to Interbrew true and complete copies of the
charter documents, articles of incorporation, by-laws or other constituent
documents, in each case as amended through the date of delivery, of each of
the SB Group Companies.
12
SECTION 4.02. Authority; Execution and Delivery; Enforceability.
Each SB Group Company (other than AmBev) has full power and authority to
execute this Agreement, and each SB Group Company has, or at the time of
execution thereof will have, full power and authority to execute each
Operative Document to which it is, or is specified to be, a party and to
consummate the Transactions. The execution and delivery by each SB Group
Company (other than AmBev) of this Agreement and the execution by each SB
Group Company of each other Operative Document to which it is, or is specified
to be, a party and the consummation by the SB Group Companies of the
Transactions have, or will have prior to the Closing Date, been duly
authorized by all necessary corporate action, except as set forth in Schedule
4.02. Each SB Group Company (other than AmBev) has duly executed and delivered
this Agreement, and each SB Group Company prior to the Closing Date will have
duly executed and delivered each Operative Document specified to be delivered
on or before the Closing Date to which it is, or is specified to be, a party,
and this Agreement constitutes, and each Operative Document to which a SB
Group Company is, or is specified to be, a party, or by which such SB Group
Company will be bound, will as of the Closing Date constitute, such SB Group
Company's legal, valid and binding obligation, enforceable against it in
accordance with its terms, subject to the effects of applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and
equitable principles of general applicability.
SECTION 4.03. No Conflicts; Consents. The execution and delivery by
each SB Group Company (other than AmBev) of this Agreement does not, the
execution and delivery by each SB Group Company of each Operative Document to
which it is, or is specified to be, a party, or by which it will be bound,
will not, and the consummation of the Transactions and compliance by the SB
Group Companies with the terms hereof and thereof will not, contravene,
conflict with, or result in any violation of or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to loss of a
material benefit under, require the consent of any person under, or give rise
to increased, additional, accelerated or guaranteed rights or entitlements of
any person under, or except as set forth in Schedule 4.03(a), trigger any
change of control provision under, or result in the creation of any mortgages,
liens, security or other interests, charges, easements, leases, subleases,
covenants, rights of way, options, claims, restrictions or encumbrances of any
kind (collectively, "Liens") upon any of the properties or assets of any SB
Group Company or any AmBev subsidiary under any provision of (a) the charter
documents, articles of incorporation, by-laws or other organizational
documents of any SB Group Company or any AmBev subsidiary, if applicable, (b)
any contract, lease, license, indenture, agreement, commitment or other
legally binding arrangement (a "Contract") to which an SB Group Company or any
AmBev subsidiary is a party or by which any of its properties or assets are
bound or (c) any judgment, order or decree ("Judgment") or applicable
national, state, local or foreign statute, law (including common law),
ordinance, rule or regulation ("Applicable Law") applicable to any SB Group
Company, any AmBev subsidiary or any of their respective properties or assets,
other than, in the
13
case of clauses (b) and (c) above, any such items that, individually or in the
aggregate, have not had and would not reasonably be expected to have an SB
Material Adverse Effect. Except as set forth in Schedule 4.03(b), no consent,
approval, license, permit, order or authorization ("Consent") of, or
registration, declaration or filing with, any national, state, local or
foreign government or any court of competent jurisdiction, administrative
agency or commission or other governmental authority or instrumentality,
domestic or foreign (a "Governmental Entity"), is required to be obtained or
made by or with respect to any SB Group Company or any of AmBev's subsidiaries
in connection with (i) the execution, delivery and performance of this
Agreement or any Operative Document to which a SB Group Company is, or is
specified to be, a party, or by which it will be bound, or the consummation of
the Transactions to be consummated by any SB Group Company pursuant to this
Agreement or any Operative Document or (ii) the ownership by Interbrew of the
Tinsel Lux Shares following the Closing, other than (A) compliance with and
filings under the Antitrust Laws, (B) compliance with and filings under the
Exchange Act and the securities laws of the Federative Republic of Brazil, (C)
any required Central Bank of the Federative Republic of Brazil registration or
(D) any required filings with the Sao Paulo Board of Trade.
SECTION 4.04. Brokers or Finders. No agent, broker, investment
banker or other firm or person retained, directly or indirectly, by or on
behalf of any SB Group Company or any of their respective affiliates is or
will be entitled to any broker's or finder's fee or any other commission or
similar fee in connection with any of the Transactions, except for Citigroup
Global Markets, Inc., all of whose fees and expenses will be paid by AmBev,
and Rinaldini & Co., LLC, all of whose fees and expenses will be paid by or on
behalf of SB.
ARTICLE V
Additional Representations and Warranties of the SB Group Companies
Each SB Group Company represents and warrants, jointly and
severally, to the Stichting, EPS and Interbrew, as follows:
SECTION 5.01. SB Group Company Operations; Assets; Liabilities. (a)
except as set forth in Schedule 5.01, (i) since the date of its formation,
other than the ownership of the Tinsel Lux Shares and any activities
reasonably incidental thereto, BRC has not engaged in any other business or
activity, has not owned, directly or indirectly, any capital stock, membership
interest, partnership interest, joint venture interest or other equity
interest in any person, and has not created, incurred or permitted to exist
any Liability, other than any Liability reasonably incidental to its ownership
of the Tinsel Lux Shares and activities reasonably incidental to its entering
into this Agreement and performing its obligations hereunder, including in
connection with the Restructuring; (ii) since the date of its formation, other
than the ownership of the Tinsel
14
Participacoes Shares and any activities reasonably incidental thereto, Tinsel
Lux has not engaged in any other business or activity, will not have owned,
directly or indirectly, any capital stock, membership interest, partnership
interest, joint venture interest or other equity interest in any person, and
has not created, incurred or permitted to exist any Liability other than any
Liability reasonably incidental to its ownership of the Tinsel Participacoes
Shares and activities reasonably incidental to its entering into this
Agreement and performing its obligations hereunder, in each case, that are de
minimis, including in connection with the Restructuring (provided that any
Liabilities incurred in connection therewith shall be discharged in full prior
to the Closing); (iii) immediately prior to the Closing, other than the
ownership of the Braco Shares and the ECAP Shares and any activities
reasonably incidental thereto, Tinsel Participacoes will not engage in any
other business or activity, will not own, directly or indirectly, any capital
stock, membership interest, partnership interest, joint venture interest or
other equity interest in any person and will not create, incur or permit to
exist any Liability, other than any Liability reasonably incidental to its
ownership of the Braco Shares and ECAP Shares and activities reasonably
incidental to its entering into this Agreement and performing its obligations
hereunder or in connection with the Restructuring (provided that any
Liabilities incurred in connection therewith shall be discharged in full prior
to the Closing); (iv) other than its ownership of the Braco Owned AmBev Shares
and the ECAP Shares, Braco will not conduct any business or activity other
than in the ordinary course of business consistent with past practice or in
connection with the Restructuring and will not have any Liabilities other than
Liabilities incurred in the ordinary course of business consistent with past
practice or incurred in connection with the Restructuring and (v) immediately
prior to the Closing, other than the ownership of the ECAP Owned AmBev Shares
and any activities reasonably incidental thereto, ECAP will not engage in any
other business or activity, will not own, directly or indirectly, any capital
stock, membership interest, partnership interest, joint venture interest or
other equity interest in any person, and will not create, incur or permit to
exist any Liability, other than any Liability reasonably incidental to its
ownership of the ECAP Owned AmBev Shares and activities reasonably incidental
to its entering into this Agreement and performing its obligations hereunder,
including in connection with the Restructuring (provided that any Liabilities
incurred in connection therewith shall be discharged in full prior to the
Closing).
(b) Immediately prior to the Closing, (i) BRC will have no assets
other than the Tinsel Lux Shares, (ii) Tinsel Lux will have no assets other
than the Tinsel Participacoes Shares, (iii) Tinsel Participacoes will have no
assets other than the Braco Owned AmBev Shares, the SB Owned AmBev Shares and
the ECAP Shares and (iv) ECAP will have no assets other than the ECAP Owned
AmBev Shares.
SECTION 5.02. Capital Stock of each SB Group Company and AmBev's
Subsidiaries. Set forth in Schedule 5.02 is the authorized capital stock, as
of the date hereof and the Closing Date, and the number of issued and
outstanding shares of each SB Group Company (collectively, the "SB Group
Companies Capital Stock"),
15
other than for issuances currently contemplated to the extent set forth in
Schedule 5.02, and the name of each holder thereof (other than with respect to
AmBev). Except for their respective SB Group Companies Capital Stock and as
set forth in Schedules 5.01 and 5.02, there are not, and at the Closing Date
there will not be, any shares of capital stock or other equity or voting
securities of any SB Group Company issued, reserved for issuance or
outstanding. The SB Group Companies Capital Stock and any other equity or
voting securities of each SB Group Company are, and at the Closing Date,
except as contemplated in Schedule 5.01, will be, duly authorized, validly
issued, fully paid and nonassessable and, except as set forth in Schedule
5.02, free of preemptive rights, with no personal liability attaching to
ownership thereof and, except as contemplated by the Operative Documents, none
of the SB Group Companies Capital Stock is, or at the Closing Date will be,
subject to or issued in violation of any purchase option, call option, right
of first refusal, preemptive right, subscription right or any similar right
under any provision of any Applicable Law, the charter documents, articles of
incorporation or other constituent documents of such SB Group Company or any
of AmBev's subsidiaries or any Contract to which it is a party or by which it
is otherwise bound. All the outstanding shares of capital stock of each
subsidiary of AmBev have been duly authorized and validly issued and are fully
paid and nonassessable and free of preemptive rights, with no personal
liability attaching to ownership thereof, and are owned, beneficially and of
record by AmBev or one of its subsidiaries, except as set forth in Schedule
5.02. There are no bonds, debentures, notes or other indebtedness having the
right to vote (or convertible into, or exchangeable for, securities having the
right to vote) on any matters on which holders of SB Group Companies Capital
Stock may vote (collectively, "SB Group Company Voting Debt"). Except as set
forth above, as contemplated by the Operative Documents and as set forth on
Schedule 5.02, as of the date of this Agreement, there are not, and as of the
Closing Date there will not be, any options, warrants, rights, convertible or
exchangeable securities, "phantom" stock rights, stock appreciation rights,
stock-based performance units, commitments, Contracts, arrangements or
undertakings of any kind (collectively, "Rights") to which any SB Group
Company or any of AmBev's subsidiaries is a party or by which any of them is
bound: (i) obligating it or any of AmBev's subsidiaries to issue, deliver or
sell, or cause to be issued, delivered or sold, additional shares of capital
stock of, or other equity interests in, or any security convertible or
exercisable for or exchangeable into any capital stock of or other equity
interest in, such SB Group Company or of any of AmBev's subsidiaries or any SB
Group Company Voting Debt, (ii) obligating any SB Group Company or any of
AmBev's subsidiaries to issue, grant, extend or enter into any such Rights or
(iii) giving any person the right to receive any economic benefit or right
similar to or derived from the economic benefits and rights accruing to
holders of the SB Group Companies Capital Stock. As of the date of this
Agreement, there are, and as of the Closing Date, there will be, no
outstanding contractual obligations of any SB Group Company or any of AmBev's
subsidiaries to repurchase, redeem or otherwise acquire any shares of capital
stock of any such SB Group Company or any of AmBev's subsidiaries, other than
as contemplated by the Transactions or as set forth on Schedule 5.02.
16
(b) As of the date hereof, (i) SB has good and valid title to (A)
136,171 shares of Braco Common Stock and 55,625 shares of Braco Preferred
Stock, together representing approximately 43.55% of the Braco Capital Stock
(such shares of Braco Common Stock and Braco Preferred Stock, collectively the
"Braco Shares"), and (B) 888,214,820 shares of AmBev Common Stock,
representing approximately 5.64%, including treasury shares, of all of the
issued and outstanding AmBev Common Stock (the "SB Owned AmBev Shares") and
(C) 540,824 shares of Bracopar Common Stock and 220,735 shares of Bracopar
Preferred Stock (such shares of Bracopar Common Stock and Bracopar Preferred
Stock, collectively the "Bracopar Shares"), representing approximately 76.11%
of all issued and outstanding shares of the capital stock of Bracopar; (ii)
Bracopar has good and valid title to 100,000 shares of Braco Management
representing 100% of all issued and outstanding shares of the Braco Management
Capital Stock, (iii) Braco Management has good and valid title to 5,000 shares
of Rougeval Common Stock, representing 100% of all issued and outstanding
shares of the capital stock of Rougeval; (iv) Braco has good and valid title
to (A) 3,326,130,215 shares of AmBev Common Stock, representing approximately
21.14%, including treasury shares, of the AmBev Common Stock (the "Braco Owned
AmBev Shares"), and (B) 280,833,991 shares of ECAP Common Stock and
367,650,721 shares of all of the issued and outstanding ECAP Preferred Stock,
representing approximately 98.64% of the ECAP Capital Stock (such shares of
ECAP Common Stock and ECAP Preferred Stock, collectively the "ECAP Shares");
(v) Rougeval has good and valid title to 5,000 Tinsel Shares, representing
100% of all issued and outstanding shares of the capital stock of Tinsel; (vi)
Tinsel has good and valid title to 5,635,664,822 Tinsel Participacoes Shares,
representing approximately 99.99% of all issued and outstanding shares of the
capital stock of Tinsel Participacoes; (vii) Tinsel Participacoes has good and
valid title to 188,365 shares of Braco Preferred Stock, representing
approximately 42.77% of the Braco Capital Stock; and (viii) ECAP has good and
valid title to 4,039,568,225 shares of AmBev Common Stock, representing
approximately 25.67%, including treasury shares, of the AmBev Common Stock
(the "ECAP Owned AmBev Shares", and together with the SB Owned AmBev Shares
and the Braco Owned AmBev Shares, the "AmBev Shares"), in each case (i)-(viii)
free and clear of all Liens and, in the case of the investment of Tinsel in
Tinsel Participacoes Shares only, 99.03% of which is fully registered with the
Central Bank of the Federative Republic of Brazil. The AmBev Shares represent
approximately 52.45%, including treasury shares, of all of the AmBev Common
Stock.
(c) On the Closing Date, (i) BRC will have good and valid title to
all of the Tinsel Lux Shares; (ii) Tinsel Lux will have good and valid title
to all of the Tinsel Participacoes Shares; (iii) Tinsel Participacoes will
have good and valid title to (A) all of the Braco Owned AmBev Shares, (B) the
SB Owned AmBev Shares and (C) the ECAP Shares; and (iv) ECAP will have good
and valid title to the ECAP Owned AmBev Shares, in each case (i)-(iv) free and
clear of all Liens and, in the case of the investment of Tinsel Lux in Tinsel
Participacoes Shares only, at least 99.03% of which will be fully
17
registered with the Central Bank of Brazil, subject only to processing of the
registration by the Central Bank of Brazil.
(d) Other than pursuant to this Agreement, the Operative Documents
and the Contracts described on Schedule 5.02, none of the Tinsel Lux Shares,
the Tinsel Participacoes Shares, the Braco Shares, the ECAP Shares or the
AmBev Shares is subject to any voting trust agreement or other Contract,
including any Contract restricting or otherwise relating to the voting,
dividend rights or disposition of the Tinsel Lux Shares, the Tinsel
Participacoes Shares, the Braco Shares, the ECAP Shares or the AmBev Shares.
SECTION 5.03. Tinsel Lux Shares. The Tinsel Lux Shares constitute
all of the issued and outstanding capital stock of Tinsel Lux. Assuming
Interbrew has the requisite power and authority to be the lawful owner of the
Tinsel Lux Shares, upon (i) delivery to Interbrew at the Closing of the Tinsel
Lux Shares in bearer form or registered in the name of Interbrew, and (ii)
issuance to BRC of the Interbrew Shares, good and valid title to the Tinsel
Lux Shares, and beneficial ownership of all of the AmBev Shares, will pass to
Interbrew, free and clear of any Liens.
SECTION 5.04. SEC Documents.
(a) Since January 1, 2003, AmBev has filed all reports, schedules,
forms, statements and other documents required to be filed by AmBev with the
U.S. Securities and Exchange Commission (the "SEC"), pursuant to Sections
13(a) and 15(d) of the Exchange Act (the "AmBev SEC Documents").
(b) As of its respective dates (or, if amended, as of the date of
such amendment), each AmBev SEC Document complied in all material respects
with the requirements of the Exchange Act and the rules and regulations of the
SEC promulgated thereunder applicable to such AmBev SEC Document and did not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. Each of the consolidated financial statements of AmBev
included in the AmBev SEC Documents (the "AmBev SEC Financial Statements") and
the audited consolidated financial statements of AmBev for the year ended
December 31, 2003 attached hereto as Exhibit I (the "AmBev 2003 Financial
Statements") comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC
with respect thereto, have been prepared in accordance with Brazilian GAAP
applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto), and fairly present the consolidated financial
position of AmBev and its consolidated subsidiaries as of the dates thereof
and the consolidated results of their operations and cash flows for the
periods shown (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
18
(c) AmBev does not have any Liabilities or obligations of any nature
(whether accrued, absolute, contingent or otherwise) required to be disclosed
by Brazilian GAAP with reference to the AmBev 2003 Financial Statements as a
whole, except as disclosed, reflected or reserved against in the AmBev 2003
Financial Statements or the footnotes thereto.
SECTION 5.05. Absence of Certain Changes or Events.
(a) Except as disclosed in the AmBev SEC Documents filed and
publicly available prior to the date of this Agreement or in the Quinsa SEC
filings filed and publicly available since January 1, 2003, or in the AmBev
2003 Financial Statements, since December 31, 2003 or in Schedule 5.05(a), to
the best of each SB Group Company's knowledge, AmBev has conducted its
business only in the ordinary course consistent with past practice, and there
has not been:
(i) any event, change, effect or development that, individually
or in the aggregate, has had or would reasonably be expected to have
an SB Material Adverse Effect;
(ii) any declaration, setting aside or payment of any dividend
or other distribution (whether in cash, stock or property) with
respect to any AmBev Capital Stock, except, for the avoidance of
doubt, the proposed cash dividend in respect of 2003 as disclosed in
the AmBev 2003 Financial Statements, or any repurchase for value by
AmBev of any AmBev Capital Stock or Rights of AmBev;
(iii) any issuance, split, combination or reclassification of
any AmBev Capital Stock or any issuance or the authorization of any
issuance of any other securities in respect of, in lieu of or in
substitution for shares of SB Group Companies Capital Stock or
Rights of AmBev; or
(iv) any change in accounting methods, principles or practices
by AmBev or any of its subsidiaries materially affecting the
consolidated assets, liabilities or results of operations of AmBev,
except insofar as may have been required by an applicable change in
Brazilian GAAP or U.S. GAAP.
(b) Except as disclosed in the AmBev SEC Documents filed and
publicly available prior to the date of this Agreement or in the Quinsa SEC
filings filed and publicly available since January 1, 2003 or the AmBev 2003
Financial Statements, there are no (i) civil, criminal or administrative
actions, suits, claims, hearings, investigations or proceedings pending or, to
the knowledge of the SB Group Companies, threatened against any of the SB
Group Companies, AmBev or any of AmBev's subsidiaries which have had, or would
reasonably be expected to have, an SB Material Adverse Effect or (ii)
obligations or other Liabilities, whether or not accrued, and
19
whether or not required to be disclosed, or any other facts or circumstances
that could result in any claims against, or other obligations or Liabilities
of, AmBev or any of AmBev's subsidiaries which have had, or would reasonably
be expected to have, an SB Material Adverse Effect.
SECTION 5.06. Control. (a) For accounting purposes, AmBev is
controlled by Braco, ECAP and FAHZ.
(b) As of the Closing Date, apart from the provisions of the AmBev
Shareholders' Agreement, there will be no contractual limitations binding upon
SB, Braco or ECAP that would restrict Braco's ability, as holder (together
with ECAP) of 52.8% of the AmBev Common Stock to exercise control over AmBev.
ARTICLE VI
Representations and Warranties of Interbrew
Interbrew represents and warrants to each SB Group Company (other
than AmBev) as follows:
SECTION 6.01. Organization, Standing and Power. Other than as set
forth in Schedule 6.01, each of Interbrew and its subsidiaries is duly
organized and validly existing under the laws of the jurisdiction in which it
is organized and has full power (corporate or otherwise) and authority and
possesses all governmental franchises, licenses, permits, authorizations and
approvals necessary to enable it to own, lease or otherwise hold its
properties and assets, and to conduct its business as presently conducted,
other than such franchises, licenses, permits, authorizations and approvals,
the lack of which, individually or in the aggregate, have not had and would
not reasonably be expected to have an Interbrew Material Adverse Effect. Other
than as set forth in Schedule 6.01, each of Interbrew and its subsidiaries is
duly qualified to do business as a foreign corporation in each jurisdiction in
which the conduct or nature of its business or the ownership, leasing or
holding of its properties makes such qualification necessary, except in such
jurisdictions where the failure to be so qualified or in good standing,
individually or in the aggregate, have not had and would not reasonably be
expected to have an Interbrew Material Adverse Effect. Interbrew has
delivered, or will have delivered, to SB true and complete copies of the
charter documents, articles of incorporation, by-laws or other constituent
documents, in each case as amended through the date of delivery, of Interbrew.
SECTION 6.02. Capital Stock of Interbrew and its Subsidiaries. As of
the date hereof, the authorized capital stock of Interbrew consists of
(euro)495,800,000, other than for issuances that are currently contemplated to
the extent set forth in
20
Schedule 6.02. As of the date hereof, there are 432,098,182 shares of
Interbrew Common Stock issued and outstanding ("Interbrew Capital Stock").
Except for Interbrew Capital Stock and as set forth on Schedule 6.02, there
are not and, as of the Closing Date will not be, any shares of capital stock
or other equity or voting securities of Interbrew issued, reserved for
issuance or outstanding. The Interbrew Capital Stock and any other equity or
voting securities of Interbrew are, and as of the Closing Date will be, duly
authorized, validly issued, fully paid and nonassessable and free of
preemptive rights, with no personal liability attaching to ownership thereof
and have not been and will not be subject to or issued in violation of any
purchase option, call option, right of first refusal, preemptive right,
subscription right or any similar right under any provision of any Applicable
Law, the articles of association of Interbrew or similar charter documents of
its subsidiaries or any Contract to which Interbrew is a party or otherwise
bound. All the outstanding shares of capital stock of each subsidiary of
Interbrew have been duly authorized and validly issued and are fully paid and
nonassessable and free of preemptive rights, with no personal liability
attaching to ownership thereof and are owned, beneficially and of record by
Interbrew or one of its subsidiaries, except as set forth in Schedule 6.02.
There are not, and at the Closing Date will not be, any bonds, debentures,
notes or other indebtedness of Interbrew having the right to vote (or
convertible into, or exchangeable for, securities having the right to vote) on
any matters on which holders of Interbrew Capital Stock may vote
(collectively, "Interbrew Voting Debt"). Except as set forth in Schedule 6.02
and except as contemplated by the Operative Documents, there are no Rights to
which Interbrew or any of its subsidiaries is a party or by which any of them
is bound: (i) obligating Interbrew or any of its subsidiaries to issue,
deliver or sell, or cause to be issued, delivered or sold, additional shares
of capital stock of or other equity interests in, or any security convertible
or exercisable for or exchangeable into any capital stock of or other equity
interest in, Interbrew or any Interbrew Voting Debt, (ii) obligating Interbrew
or any of its subsidiaries to issue, grant, extend or enter into any such
Rights or (iii) giving any person the right to receive any economic benefit or
right similar to or derived from the economic benefits and rights accruing to
holders of Interbrew Capital Stock. Except as set forth in Schedule 6.02, as
of the date of this Agreement, there are, and as of the Closing Date, there
will be, no outstanding contractual obligations of Interbrew or any of its
subsidiaries to repurchase, redeem or otherwise acquire any shares of capital
stock of Interbrew or any of its subsidiaries.
SECTION 6.03. Interbrew Shares. (a) Other than pursuant to this
Agreement, the Operative Documents and the Contracts described on Schedule
6.03, the Interbrew Shares are not, and will not be, subject to any voting
trust agreement or other Contract, including any Contract relating to the
voting, dividend rights or disposition of the Interbrew Shares. Upon issuance,
the Interbrew Shares will be duly authorized, validly issued, fully paid and
nonassessable and free of preemptive rights, with no personal liability
attaching to ownership thereof, and will not be subject to or issued in
violation of any purchase option, call option, right of first refusal,
preemptive right, subscription right or any similar right under any provision
of Applicable Law, the
21
articles of association of Interbrew or any Contract to which Interbrew is a
party or otherwise bound.
(b) Assuming BRC has the requisite power and authority to be the
lawful owner of Interbrew Shares, upon (i) registration of BRC in the
shareholders' register of Interbrew and signing and dating of the registering
mention at the Closing (at which time certificates confirming the registration
of the Interbrew Shares in the name of BRC will be delivered to BRC), and (ii)
Interbrew's receipt of the Tinsel Lux Shares, good and valid title to the
Interbrew Shares will pass to BRC, free and clear of any Liens.
SECTION 6.04. Authority; Execution and Delivery; Enforceability.
Interbrew has full power and authority to execute this Agreement and the
Operative Documents to which it is, or is specified to be, a party, or by
which it will be bound, and to consummate the Transactions, except as set
forth in Schedule 6.04. The execution and delivery by Interbrew of this
Agreement and the Operative Documents to which it is, or is specified to be, a
party and the consummation by Interbrew of the Transactions have been duly
authorized by all necessary corporate action, except as set forth in Schedule
6.04. Interbrew has duly executed and delivered this Agreement and, prior to
the Closing Date, will have duly executed and delivered each Operative
Document specified to be delivered on or before the Closing Date to which it
is, or is specified to be, a party, and this Agreement constitutes, and each
such Operative Document to which it is, or is specified to be, a party, or by
which it will be bound, will, as of the Closing Date, constitute, its legal,
valid and binding obligation, enforceable against it in accordance with its
terms, subject to the effects of applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and equitable principles of general
applicability.
SECTION 6.05. No Conflicts; Consents. Except as set forth in
Schedule 6.05(a), the execution and delivery by Interbrew of this Agreement
does not, the execution and delivery by Interbrew of each Operative Document
to which it is, or is specified to be, a party, or by which it will be bound,
will not, and the consummation of the Transactions and compliance by Interbrew
with the terms hereof and thereof will not contravene, conflict with, or
result in any violation of or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a material benefit under, or to
increased, additional, accelerated or guaranteed rights or entitlements of any
person under, or trigger, any change of control provisions under, or result in
the creation of any Liens upon any of the properties or assets of Interbrew or
any of its subsidiaries under, any provision of (a) the charter documents,
articles of incorporation, or by-laws of Interbrew or any of its subsidiaries,
(b) any Contract to which Interbrew or any of its subsidiaries is a party or
by which any of their respective properties or assets is bound or (c) any
Judgment or Applicable Law applicable to Interbrew or any of its subsidiaries
or their respective properties or assets, other than, in the case of clauses
(b) and (c) above, any such items that individually or in the aggregate, have
not had and would not reasonably be expected to have a Interbrew Material
Adverse Effect. Except as set forth in
22
Schedule 6.05(b), no Consent of, or registration, declaration or filing with,
any Governmental Entity is required to be obtained or made by or with respect
to Interbrew or any of its subsidiaries in connection with the execution,
delivery and performance of this Agreement or any Operative Document or the
consummation of the Transactions.
SECTION 6.06. Belgian Filings. (a) Interbrew has filed all reports,
schedules, forms, statements and other documents required to be filed by
Interbrew with the National Bank of the Kingdom of Belgium and the Belgian
Banking, Finance and Insurance Commission (the "BFIC") since January 1, 2003
(the "Interbrew BFIC Documents"). As of its respective date (or if amended, as
of the date of such amendment), each Interbrew BFIC Document complied in all
material respects with the requirements of Belgian Applicable Law applicable
to such Interbrew BFIC Document, and did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) Each of Interbrew's consolidated financial statements for the
years ended December 31, 2001 and 2002 (the "Interbrew BFIC Financial
Statements"), as filed with the National Bank of the Kingdom of Belgium and
with the BFIC, and Interbrew's audited consolidated financial statements for
the year ended December 31, 2003 attached hereto as Exhibit J (the "Interbrew
2003 Financial Statements") have been prepared in conformity with IFRS
consistently applied throughout the periods involved (except in each case as
described in the notes thereto) and fairly present, the consolidated financial
position of Interbrew and its subsidiaries and the consolidated results of
their operations and cash flows as of the dates and for the periods indicated
thereof.
(c) Interbrew does not have any Liabilities or obligations or any
nature (whether accrued, absolute, contingent or otherwise) required to be
disclosed by IFRS with reference to the Interbrew 2003 Financial Statements as
a whole, except as disclosed, reflected or reserved against in the Interbrew
2003 Financial Statements or the footnotes thereto.
SECTION 6.07. Absence of Certain Changes or Events.
(a) Except as disclosed in Interbrew's Annual Reports, Half-Yearly
Reports and press releases filed or made publicly available prior to the date
of this Agreement or in the Interbrew 2003 Financial Statements or in Schedule
6.07(a), since December 31, 2003, Interbrew has conducted its business only in
the ordinary course consistent with past practice, and during such period
there has not been:
(i) any event, change, effect or development that, individually
or in the aggregate, have had or would reasonably be expected to
have an Interbrew Material Adverse Effect;
23
(ii) any declaration, setting aside or payment of any dividend
or other distribution (whether in cash, stock or property) with
respect to any Interbrew Capital Stock, except, for the avoidance of
doubt, the proposed cash dividend in respect of 2003 as disclosed in
the Interbrew 2003 Financial Statements, or any repurchase for value
by Interbrew of any Interbrew Capital Stock or Rights of Interbrew;
(iii) any issuance, split, combination or reclassification of
any Interbrew Capital Stock or any issuance or the authorization of
any issuance of any other securities in respect of, in lieu of or in
substitution for shares of Interbrew Capital Stock or Rights of
Interbrew; or
(iv) any change in accounting methods, principles or practices
by Interbrew or any of its subsidiaries materially affecting the
consolidated assets, liabilities or results of operations of
Interbrew, except insofar as may have been required by an applicable
change in IFRS.
(b) Except as disclosed in Interbrew's Annual Reports, Half-Yearly
Reports, and press releases filed and publicly available prior to the date
hereof, except as set forth in Schedule 6.07(b), there are no (i) civil,
criminal or administrative actions, suits, claims, hearings, investigations or
proceedings pending or, to the knowledge of the officers of Interbrew,
threatened against Interbrew or any of its subsidiaries which have had, or
would reasonably be expected to have, an Interbrew Material Adverse Effect or
(ii) obligations or other Liabilities, whether or not accrued, and whether or
not required to be disclosed, or any other facts or circumstances that could
result in any claims against, or obligations or Liabilities of, Interbrew or
any of its affiliates which has had or would reasonably be expected to have,
an Interbrew Material Adverse Effect.
SECTION 6.08. Brokers or Finders. No agent, broker, investment
banker or other firm or person retained, directly or indirectly, by or on
behalf of Interbrew or its affiliates is or will be entitled to any broker's
or finder's fee or any other commission or similar fee in connection with any
of the Transactions contemplated by this Agreement, except Lazard B.V. and
▇▇▇▇▇▇▇ ▇▇▇▇▇ International, all of whose fees and expenses will be paid by
Interbrew.
ARTICLE VII
Representations and Warranties of the Stichting and EPS
Each of the Stichting and EPS represents and warrants, severally but
not jointly, in each case with respect to itself, to each SB Group Company
(other than AmBev) as follows:
24
SECTION 7.01. Organization, Standing and Power. (a) It is duly
organized, validly existing and in good standing under the laws of the
Netherlands, with respect to the Stichting, and Luxembourg, with respect to
EPS, and has full power (corporate or otherwise) and authority and possesses
all governmental franchises, licenses, permits, authorizations and approvals
necessary to enable it to own, lease or otherwise hold its properties and
assets, including the shares of Interbrew Common Stock it holds, and to
conduct its businesses as presently conducted, other than such franchises,
licenses, permits, authorizations and approvals, the lack of which,
individually or in the aggregate, have not had and would not reasonably be
expected to have an Interbrew Material Adverse Effect.
(b) It has delivered to SB true and complete copies of its
conditions of administration, with respect to the Stichting, and articles of
association, with respect to EPS, in each case as amended through the date of
delivery.
SECTION 7.02. Authority; Execution and Delivery; Enforceability. It
has full power and authority to execute this Agreement and at the time of
execution of the Interbrew Shareholders' Agreement will have, full power and
authority to execute such Interbrew Shareholders' Agreement, and to consummate
the Transactions to be consummated by it. The execution and delivery by it of
this Agreement and the consummation by it of the Transactions to be
consummated by it pursuant to this Agreement or any Operative Documents to
which it is a party or by which it is bound, have, or will have prior to the
Closing Date, been duly authorized by all necessary corporate action. It has
duly executed and delivered this Agreement, and prior to the Closing Date will
have duly executed and delivered the Interbrew Shareholders' Agreement, and
this Agreement constitutes, and the Interbrew Shareholders' Agreement will as
of the Closing Date constitute, its legal, valid and binding obligation under
the laws of the Netherlands, in the case of the Stichting, and under the laws
of Luxembourg, in the case of EPS, in each case enforceable against it in
accordance with its terms to the extent governed by the laws of the
Netherlands, in the case of the Stichting, or the laws of Luxembourg, in the
case of EPS, subject to the effects of applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and equitable principles of
general applicability, in each case under the laws of its jurisdiction.
SECTION 7.03. No Conflicts; Consents. The execution and delivery by
it of this Agreement does not, and the execution and delivery by it of the
Interbrew Shareholders' Agreement will not, and the consummation of the
Transactions to be consummated by it pursuant to this Agreement or any
Operative Document to which it is a party or by which it is bound and
compliance by it with the terms hereof and thereof will not, contravene,
conflict with, or result in any violation of or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to loss of a
material benefit under, require the consent of any person under, or to
increased, additional, accelerated or guaranteed rights or entitlements of any
person under, or trigger any change of control provision under, or result in
the creation of any Liens upon any of its properties or assets
25
under any provision of (a) the conditions of administration with respect to
the Stichting and the articles of association with respect to the EPS, (b) any
Contract to which it is a party or by which any of its properties or assets
are bound or (c) any Judgment or Applicable Law other than, in the case of
clauses (b) and (c) above, any such items that individually or in the
aggregate, have not had and would not reasonably be expected to have an
Interbrew Material Adverse Effect. No Consent of, or registration, declaration
or filing with, any Governmental Entity is required to be obtained or made by
or with respect to it in connection with the execution, delivery and
performance of this Agreement or the Interbrew Shareholders' Agreement or the
consummation of the Transactions to be consummated by it pursuant to this
Agreement or any Operative Document to which it is a party or by which it is
bound or the certification of Interbrew Shares to be transferred to the
Stichting by BRC, other than required disclosure and filing with BFIC.
SECTION 7.04. Stichting Certificates. EPS holds, in the aggregate,
176 million certificates in the Stichting and shares of Interbrew Common
Stock, in each case, free and clear of all Liens, except as set forth in the
articles of association of EPS.
ARTICLE VIII
Additional Pre-Closing Covenants
SECTION 8.01. Covenants Relating to Conduct of Business. (a) No
Party shall take any action that would, or that could reasonably be expected
to, result in any of the conditions set forth in Article XI not being
satisfied.
(b) During the period beginning on the date hereof and ending on the
Closing Date, each SB Group Company shall cause the businesses of the SB Group
Companies and AmBev's subsidiaries, and each of the Stichting and EPS shall
cause its business, and Interbrew shall cause its business and the business of
its subsidiaries, to be conducted in the usual, regular and ordinary course in
substantially the same manner as previously conducted (including with respect
to research and development efforts, advertising, promotions, capital
expenditures and inventory levels) and use all commercially reasonable efforts
to keep intact their respective businesses, keep available the services of
their current employees and preserve their relationships with customers,
suppliers, licensors, licensees, distributors and others with whom they deal
to the end that their respective businesses shall be unimpaired at the
Closing. In addition (and without limiting the generality of the foregoing),
during such period, none of the SB Group Companies shall, and each SB Group
Company shall not permit any other SB Group Company or any of AmBev's
subsidiaries to, and Interbrew, shall not, and shall not permit any of its
subsidiaries to, do any of the following (except as contemplated to effect the
Transactions), without the prior written consent of SB, in the case of
Interbrew or
26
Interbrew's subsidiaries, or Interbrew, in the case of the SB Group Companies
and AmBev's subsidiaries:
(i) amend the by-laws or other constitutive documents of
Interbrew, Cobrew N.V., Brandbrew N.V. or Interbrew International
B.V., with respect to Interbrew, or AmBev, Companhia Cervejaria
Brsahma, Quincy or any SB Group Company, with respect to the SB
Group Companies except to the extent required by Applicable Law or
as set forth on Schedule 8.01(b)(i);
(ii) de-list from any stock exchange where its or its
subsidiaries' shares or American Depositary Shares are listed;
(iii) file for bankruptcy, liquidation or dissolution or make
an assignment for the benefit of its creditors with respect to
itself or its significant subsidiaries (as defined in Rule 1.02(w)
of Regulation S-X promulgated pursuant to the Exchange Act) except
to the extent set forth on Schedule 8.01(b)(iii);
(iv) merge into, consolidate with or transfer all or
substantially all of its or its subsidiaries' properties and assets,
in the aggregate, to any individual, corporation or other entity,
except as provided in this Agreement, the Labatt Incorporacao
Agreement or as contemplated by the other Operative Documents;
(v) make any acquisitions or enter into lines of business
outside the beverages industry and beverage distribution industry
except, with respect to Interbrew, as set forth on Schedule
8.01(b)(v) in accordance with pre-existing agreements;
(vi) make any material change in any accounting principles,
practices, methods or policies other than those required by
applicable authoritative accounting bodies, including IFRS with
respect to Interbrew and Brazilian GAAP or U.S. GAAP with respect to
any SB Group Company;
(vii) change its external auditor other than to an
internationally recognized public accounting firm;
(viii) make any acquisitions or dispositions of businesses or
assets in the beverages industry exceeding U.S. $1 billion in value
or any acquisitions or dispositions in the beverages industry the
value of which, considered together with anticipated future
acquisitions or dispositions as part of the same series involving
the same counterparty, would have a value exceeding U.S. $1 billion
in the aggregate other than acquisitions or
27
dispositions that are required in accordance with the current terms
of any existing agreements, or that are contemplated or otherwise
permissible by this Agreement (including those contemplated by
Article III hereof), the Labatt Incorporacao Agreement or the Labatt
Side Letter;
(ix) incur or assume any incremental indebtedness for borrowed
money or guarantee any such indebtedness, except in an amount that
in the aggregate does not result in an increase in net debt, as
reflected on the consolidated balance sheet at December 31, 2003
included in the AmBev 2003 Financial Statements or the Interbrew
2003 Financial Statements, as the case may be, of more than U.S. $1
billion except as set forth on Schedule 8.01(b)(ix);
(x) make any change in the size or composition of the board of
directors of Interbrew and AmBev other than a change made in
accordance with this Agreement or any of the Operative Documents,
except to fill a vacancy on the Interbrew board of directors as
required under its by-laws or by Applicable Law and except as set
forth on Schedule 8.01(b)(x);
(xi) approve any issuance, split, combination or
reclassification of any capital stock or any issuance of any other
securities in respect of, in lieu of or in substitution for any
capital stock, except as currently contemplated to the extent set
forth in Schedule 8.01 (xi);
(xii) in any way change its policies regarding dividends or
distributions or declare or pay any dividend or make any other
distribution to its shareholders whether or not upon or in respect
of any shares of its capital stock; provided, however, that (A)
dividends and distributions may continue to be made by subsidiaries
to their parents and (B) dividends and distributions in cash,
including the proposed cash dividend in respect of 2003, may
continue to be made in amounts and at times consistent with past
practice or in accordance with pre-existing agreements;
(xiii) declare or pay any extraordinary dividends or
distributions, or effect any recapitalizations, spin-offs or other
transactions, actions or omissions that would adversely affect any
Party's realization of the rights and benefits intended to be
afforded to it as a result of the Transactions; and
(xiv) authorize any of, or commit or agree to take, whether in
writing or otherwise, to do any of, the foregoing actions.
(c) In addition to the foregoing, during the period beginning
on the date hereof and ending on the Closing Date each SB Group
Company will neither cause
28
nor permit any other SB Group Company (other than AmBev) to (i)
engage in any business or activity other than as contemplated herein
and in the Operative Documents and any activities reasonably
incidental thereto; (ii) create, incur or permit to exist any debt
or other Liability inconsistent with the conduct of its business as
contemplated by Section 8.01(b) and the Restructuring (provided,
with respect to Tinsel Lux, Tinsel Participacoes and ECAP, such debt
or other Liability is satisfied in full prior to the Closing Date),
or any Lien upon any of the Tinsel Lux Shares, Tinsel Participacoes
Shares, ECAP Shares, Braco Shares and AmBev Shares except for Liens
for the benefit of Interbrew; or (iii) liquidate or dissolve, or
merge into or consolidate with, or sell or otherwise transfer any of
its assets to, any other person, except as contemplated by the
Restructuring.
SECTION 8.02. Approval of the Transactions; Reasonable Best Efforts.
(a) The Stichting and EPS agree with the SB Group Companies (solely for the
benefit of the SB Group Companies) that they shall, with respect to any
Interbrew shareholders' meeting held to vote on any of the Transactions,
including the Labatt Incorporacao or any matters related thereto, and each of
the SB Group Companies shall, and shall cause its controlled affiliates to,
with respect to any AmBev shareholders' meeting held to vote on any of the
Transactions, including the Labatt Incorporacao, or any matters related
thereto, (i) cause all of its or, with respect to any SB Group Company, its
controlled affiliates', Stichting Certificates, shares of Interbrew Common
Stock or AmBev Capital Stock, as the case may be, owned by it or, with respect
to any SB Group Company, any of its controlled affiliates, beneficially or of
record, or as to which it or, with respect to any SB Group Company, any of its
controlled affiliates has, directly or indirectly, the right to vote or direct
the vote, to be counted as present thereat for purposes of calculating quorum
and (ii) vote (or cause to be voted), in person or by proxy, all of its or,
with respect to any SB Group Company, its controlled affiliates' shares of
Interbrew Common Stock or AmBev Capital Stock, as the case may be, that are
owned beneficially or of record by it or, with respect to any SB Group
Company, any of its controlled affiliates or as to which it or, with respect
to SB Group Company, any of its controlled affiliates has, directly or
indirectly, the right to vote or direct the vote, (A) in favor of the
Transactions, including the Labatt Incorporacao, and any matters related
thereto required for completion of the Transactions, including the
ratification of the retention of APSIS for the preparation of the accounting
laudo (the "Incorporacao Laudo"), and (B) against any Other Bid and any other
action, agreement or transaction submitted for approval to the shareholders of
Interbrew or AmBev, as the case may be, that is intended, or could reasonably
be expected, to materially impede, interfere or be inconsistent with, delay,
postpone, discourage or materially and adversely affect the Transactions,
including the Labatt Incorporacao.
(b) On the terms and subject to the conditions of this Agreement and
Section 8.02(c), each Party shall use its reasonable best efforts to cause the
Closing to occur, including taking all reasonable actions necessary to comply
promptly with all legal requirements that may be imposed on it or any of its
affiliates with respect to the Closing
29
and take all action reasonably necessary to ensure the timely delivery of the
Interbrew auditor report regarding the contribution of the Tinsel Lux Shares
and laudos, as such report and laudos may be required under applicable Belgian
and Brazilian law for completion of any of the transactions.
(c) Subject to Section 11.04, SB and Interbrew shall, as promptly as
practicable, but in no event later than 15 business days following the
execution and delivery of this Agreement (other than with respect to any
supplemental information requested after an initial filing or submission), if
necessary, make the necessary filings and submissions with the applicable
antitrust authorities under the Antitrust Laws (the "Antitrust Authorities")
required for the Transactions and any supplemental information requested in
connection therewith pursuant to the Antitrust Laws. Any such filings and
submissions and supplemental information shall be in compliance with the
requirements of the Antitrust Laws. SB and Interbrew shall furnish to each
other such information and reasonable assistance as each of them may request
in connection with its preparation of any filing or submission that is
necessary under the Antitrust Laws. SB and Interbrew (i) shall keep each other
apprised of the status of any communications with, and any inquiries or
requests for additional information from, the Antitrust Authorities, (ii)
shall comply promptly with any such inquiry or request, and (iii) shall
promptly provide any supplemental information requested in connection with the
filings made hereunder pursuant to the Antitrust Laws. Any such supplemental
information shall be in compliance with the requirements of the Antitrust
Laws. SB and Interbrew shall use their reasonable best efforts to obtain any
clearance required under the Antitrust Laws for the consummation of the
Closing.
(d) Each Party shall, and shall cause its affiliates to, use its
reasonable best efforts (at its own expense) to obtain as soon as practicable,
and to cooperate in obtaining as soon as practicable, all consents from third
parties and Governmental Entities (in addition to the Antitrust Authorities)
necessary or appropriate to permit the consummation of the Closing.
(e) The SB Group Companies shall cause AmBev to (A) prepare the
disclosure material in connection with the Transactions required by
Regulations No. 319 and 358 of the Brazilian Securities and Exchange
Commission ("CVM"), (B) cause such disclosure material to be published in the
form required by Brazilian Corporate Law and (C) submit such disclosure to the
CVM and the Sao Paulo Stock Exchange for their knowledge and filing and (ii)
enter into, with a financial institution in the Federative Republic of Brazil
authorized to carry out foreign exchange transactions, a non-cash (symbolic)
foreign exchange agreement to reflect the acquisition of AmBev Shares by
Interbrew.
SECTION 8.03. Expenses; Transfer Taxes. (a) Whether or not the
Closing takes place, and except as set forth in the proviso to this sentence,
in paragraph (b) and (c) below or in Article XII, all costs and expenses
incurred in connection with this Agreement and the Operative Documents and the
Transactions,
30
including all costs and expenses incurred pursuant to Section 8.02, shall be
paid by the Party incurring such expense (provided that all expenses incurred
relating to the Labatt Incorporacao shall be paid in accordance with the terms
of the Labatt Incorporacao Agreement).
(b) Any and all Taxes due or becoming due, either directly or
indirectly by any SB Group Company or any affiliate thereof (including any
person having an interest therein) or any representatives or attorneys in fact
thereof, in connection with either (i) the Transactions, including the
Restructuring or (ii) any other transactions effected by any SB Group Company
occurring prior to the Closing, shall be borne in each case, jointly and
severally by BRC, Rougeval, Tinsel and Braco Management and, in each case, any
successors thereto.
(c) Any and all Taxes due or becoming due, either directly or
indirectly, as a result of (i) the Amended Stichting By-Laws and the Amended
Terms of Administration, (ii) the transfer of Interbrew Shares by the
Stichting or the recertification of Interbrew Shares by the Stichting before
Closing and (iii) any changes in the ownership structure of EPS effected in
connection with the Transactions shall be paid by EPS.
SECTION 8.04. Publicity. Subject to Section 10.02, from the date
hereof through the earlier of (i) the termination of this Agreement in
accordance with its terms, and (ii) the Closing Date, no public release or
announcement concerning the Transactions shall be issued by any Party or its
affiliates without the prior consent of BRC, in the case of Interbrew, the
Stichting or EPS, or Interbrew, in the case of the SB Group Companies (which
consent shall not be unreasonably withheld), except as such release or
announcement may be required by Applicable Law, rules or regulations or the
rules of any securities exchange or supervisory authority thereof, in which
case the Party required to make the release or announcement shall use all
reasonable efforts to allow BRC, in the case of Interbrew, or Interbrew, in
the case of the SB Group Companies, reasonable time to comment on such release
or announcement in advance of such issuance.
SECTION 8.05. Further Assurances. (a) From time to time, as and when
requested by any Party, each Party shall execute and deliver, or cause to be
executed and delivered, all such documents, information (including, with
respect to the SB Group Companies, information requested by Interbrew for
inclusion in the Interbrew Listing Prospectus, the Interbrew Shareholders'
Meeting Materials or in any materials required to be delivered by Interbrew or
AmBev in connection with the MTO) and instruments and shall take, or cause to
be taken, all such further or other actions (subject to Section 8.02) as such
requesting Party may reasonably deem necessary or desirable to consummate the
Transactions or to comply with any requirements under Applicable Law arising
in connection therewith, whether prior to or following the Closing Date,
including the MTO.
31
(b) In the event that, during the period following the Closing Date
and ending on the later of (i) six years following the Closing Date and (ii)
the date as of which all outstanding claims under this Agreement or any
Operative Document of each SB Group Company are fully satisfied, any SB Group
Company (other than AmBev) wishes to Transfer, whether by assignment, sale,
dividend, distribution, liquidation or otherwise, any substantial portion of
its assets, to any person other than another SB Group Company or the
Stichting, such SB Group Company shall give Interbrew prior written notice of
its intent to Transfer such assets and require each transferee to assume such
SB Group Company's obligations hereunder and under the Operative Documents and
agree in writing to be bound hereby and thereby.
SECTION 8.06. Operative Documents. Each of the Parties agrees to
execute and deliver prior to the Closing Date each of the Operative Documents
to which it is a party that has not been executed prior to the date hereof.
The Stichting and EPS agree to cause the Amended Stichting By-Laws and the
Amended Terms of Administration, respectively, such amendment to take effect
as of the Closing Date and the Stichting, EPS and Interbrew agree to cause the
Amended Interbrew By-Laws to take effect as of the Closing Date. The SB Group
Companies (other than AmBev) agree not to amend, or waive any terms or rights
under, the AmBev Shareholders' Agreement without the prior written consent of
Interbrew.
SECTION 8.07. Access to Information. (a) As of the date hereof, upon
reasonable notice and subject to Applicable Laws relating to the exchange of
information, the SB Group Companies shall afford Interbrew, the Stichting and
EPS and the subsidiaries and the officers, employees, counsel, financial
advisors, auditors, accountants and other authorized representatives of
Interbrew, the Stichting and EPS and their subsidiaries (collectively, the
"Interbrew Representatives"), such access throughout the period prior to the
Closing Date to the books, records, offices, properties and personnel of each
SB Group Company (other than AmBev) and to such other information as any
Interbrew Representative may reasonably request and, during such period, shall
furnish promptly to Interbrew and, at the request of Interbrew, to any
Interbrew Representatives (i) a copy of each material report, schedule and
other document filed by any SB Group Company (other than AmBev) pursuant to
the requirements of Applicable Law, and (ii) all other financial and operating
data and other information concerning the business, properties, assets and
personnel of any SB Group Company (other than AmBev) as any Interbrew
Representative may reasonably request.
(b) As of the date hereof, upon reasonable notice and subject to
Applicable Laws relating to the exchange of information, the Stichting and
Interbrew shall afford the SB Group Companies (other than AmBev) and their
respective subsidiaries and the officers, employees, counsel, financial
advisors, auditors, accountants and other authorized representatives of each
of the foregoing (collectively, the "SB Representatives"), such access
throughout the period prior to the Closing Date to the books, records,
offices, properties and personnel of each of the Stichting and Interbrew and
each of Interbrew's subsidiaries and to such other information as an SB
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Representative may reasonably request and, during such period, shall furnish
promptly to any SB Representative and, at the request of any SB
Representative, to any SB Representatives (i) a copy of each report, schedule
and other document filed by the Stichting and Interbrew or any subsidiary
thereof pursuant to the requirements of Applicable Law, and (ii) all other
financial and operating data and other information concerning the business,
properties, assets and personnel of the Stichting and Interbrew or any
subsidiary thereof as an SB Representative may reasonably request.
SECTION 8.08. Adjustment Upon Changes in Capitalization. (a) In the
event of any change in Interbrew's share capital by reason of a share
dividend, split-up, subdivision or combination of shares or any
recapitalization, reclassification, reorganization, consolidation, merger or
similar transaction, the type and number of Interbrew Shares to be delivered
by Interbrew pursuant to the Contribution and Subscription and the number of
shares of Interbrew Common Stock referred to in Sections 11.01(f) and 11.03(d)
shall be adjusted appropriately to give effect to such transaction; provided
that the foregoing shall not permit any transaction that is otherwise
prohibited, limited or restricted by the terms of this Agreement.
(b) In the event of any change in AmBev's share capital by reason of
a share dividend, split-up, subdivision or combination of shares or any
recapitalization, reclassification, reorganization, consolidation, merger or
similar transaction, the number of shares of AmBev Preferred Stock referred to
in Section 11.01(e) shall be adjusted appropriately to give effect to such
transaction; provided that the foregoing shall not permit any transaction that
is otherwise prohibited, limited or restricted by the terms of this Agreement.
SECTION 8.09. Restructuring. (a) Each of the SB Group Companies
shall take all action reasonably necessary to complete the Restructuring in
accordance with its terms prior to the Closing Date.
(b) The SB Group Companies shall have the right to make such changes
in the Restructuring as any of them (with the consent or waiver of Interbrew,
not to be unreasonably withheld) deem appropriate so long as such changes
could not impose on any of Interbrew, the Stichting or EPS or their respective
affiliates any Tax or other Liabilities that could not be imposed on any of
Interbrew, the Stichting or EPS or their respective affiliates under the
Restructuring, could not materially delay consummation of the Closing and
could not otherwise adversely affect any of Interbrew, the Stichting or EPS
(or any of their respective affiliates) or any SB Group Company (other than
BRC and affiliates by which it is controlled), provided that the Parties amend
Section 14.09(b) to the extent Interbrew so requests to give effect to the
original intent of the Parties.
(c) The SB Companies shall take all action necessary to ensure that,
immediately prior to the Closing each of Tinsel Lux, ECAP and Tinsel
Participacoes is free of any Liabilities.
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(d) Each of the SB Group Companies shall provide Interbrew, the
Stichting and EPS with any information and documentation reasonably requested
evidencing compliance with this Section 8.09 (including any Restructuring
changes made in accordance with Section 8.09(b)).
ARTICLE IX
No Solicitation; SB Transfer Restrictions
SECTION 9.01. No Solicitation. Each Party agrees that, without the
prior written consent of the board of directors (or equivalent body) of Tinsel
Lux, in the case of Interbrew, the Stichting or EPS, or Interbrew, in the case
of the SB Group Companies, for the period beginning on the date hereof and
ending on (a) if the Closing is completed in accordance herewith, the Closing
Date or (b) if the Closing is not completed in accordance herewith, the second
anniversary of the termination of this Agreement in accordance with its terms,
neither it nor any of its affiliates nor any officer, director or employee of
it or its affiliates or any investment banker, attorney, accountant or other
representative (the "Representatives"), acting alone or as part of a group,
will, directly or indirectly, (i) acquire or offer or agree to acquire,
directly or indirectly, by purchase or otherwise, any equity securities or
securities convertible into equity securities of any SB Group Company or any
of its affiliates or subsidiaries, with respect to Interbrew, the Stichting or
EPS, or Interbrew or any of its affiliates or subsidiaries with respect to the
SB Group Companies (each, a "Target"), (ii) propose to enter into, directly or
indirectly, any merger or business combination involving the Target, (iii)
otherwise seek to influence or control, in any manner whatsoever (including
proxy solicitation or otherwise), the management or policies of the Target,
(iv) solicit, initiate or encourage any Other Bid, (v) enter into any
agreement with respect to any Other Bid, (vi) participate in any discussions
or negotiations regarding, or furnish to any person any information with
respect to, or take any other action to facilitate any inquiries or the making
of any proposal that constitutes, or may reasonably be expected to lead to,
any Other Bid, (vii) assist, advise or encourage (including by knowingly
providing or arranging financing for that purpose) any other person in doing
any of the foregoing, or (viii) disclose any intention or plan inconsistent
with the foregoing. Without limiting the foregoing, it is understood that any
violation of the restrictions set forth in the preceding sentence by any
Representative, whether or not such person is purporting to act on behalf of
the Party it acts for or otherwise, shall be deemed to be a breach of this
Agreement by such Party. Each Party shall, and shall cause its affiliates to,
promptly advise the other Parties whose consent is required pursuant to the
preceding sentence orally and in writing of any Other Bid or any inquiry with
respect to, or which could lead to, any Other Bid and the identity of the
person making any such Other Bid or inquiry. The term "Other Bid" shall mean
any proposal for a merger or other business combination, sale of securities,
sale of substantial assets, joint venture, material agreement relating to
commercial matters, including distribution rights, or similar
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transaction involving Interbrew, the SB Group Company or any of their
respective subsidiaries.
SECTION 9.02. Transfer Restrictions. Except as provided in this
Agreement (including the Restructuring) or in any Operative Document, (a) none
of the SB Group Companies shall sell, transfer, pledge, assign or otherwise
dispose of (including by gift), directly or indirectly, or permit any Lien to
exist on (collectively, "Transfer"), or consent to or permit any Transfer of
any of the shares of the SB Group Companies, including the Tinsel Lux Shares
and AmBev Shares or any interest therein, or enter into any Contract, option
or other arrangement with respect to the Transfer (including any profit
sharing or derivative arrangement having an economic effect similar to the
Transfer) of any of the shares of the SB Group Companies, including the Tinsel
Lux Shares and AmBev Shares or any interest therein, to any person, and (b)
neither the Stichting nor EPS shall Transfer or consent to or permit any
Transfer of any of the Stichting Certificates or shares of Interbrew Common
Stock it owns, beneficially or of record, or other capital stock of Interbrew
or any interest therein, or enter into any Contract, option or other
arrangement with respect to the Transfer (including any profit sharing or
derivative arrangement having an economic effect similar to the Transfer) of
any such shares of Interbrew Common Stock or other capital stock of Interbrew
or any interest therein (each "Stichting Interests"), to any person; provided,
however, that the foregoing clause (b) shall only apply to 252,000,000
Stichting Interests, in the aggregate. This provision shall terminate on the
earlier of (i) the Closing Date, and (ii) the termination of this Agreement
pursuant to Section 12.01.
ARTICLE X
Additional Covenants
SECTION 10.01. Consolidation. The Parties shall use their reasonable
efforts and shall cooperate to ensure that AmBev is fully consolidated with
Interbrew under IFRS as of the Closing Date; it being understood that
reasonable efforts will not include any obligation to modify any of the
Operative Documents or the Transactions in any material respect.
SECTION 10.02. New Name, NYSE and EVA. Concurrently with the public
announcement of this Agreement, (i) SB and Interbrew shall make a public
announcement regarding the new name of Interbrew upon the Closing, and (ii)
Interbrew shall make a public announcement regarding its commitment to (x)
complete its examination of the feasibility and desirability of a New York
Stock Exchange listing by no later than the second anniversary of the Closing,
and (y) complete a study of the feasibility of the implementation of the
Economic Value Added model (or comparable management tool) as its principal
financial performance measure.
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SECTION 10.03. BAC Tag-Along Right. (a) To the extent a BAC
shareholder exercises its BAC Tag-Along Right, (a) Interbrew shall, at such
BAC shareholder's option, either (i) issue such BAC shareholder a number of
shares of Interbrew Common Stock issuable thereto pursuant to the BAC
Tag-Along Right, or (ii) purchase such BAC shareholder's shares of AmBev
Common Stock for cash at a purchase price equal to the implied value of the
consideration for each lot of 100 shares of AmBev Common Stock held by such
BAC shareholder, and (b) (x) BRC shall, simultaneously with Interbrew's
issuance or payment to such BAC shareholder pursuant to clause (a) of this
Section 10.03, pay to Interbrew a cash amount equal to all costs and expenses
incurred by Interbrew in satisfaction of its obligations set forth in clause
(a) of this Section 10.03 in excess of the Base Price with respect to each lot
of 100 shares of AmBev Common Stock sold to Interbrew by such BAC shareholder
(the "BAC Premium") or (y) to the extent the BAC Tag-Along Right is settled on
the Closing Date and BRC so elects, the Interbrew Shares will be reduced by a
number of shares of Interbrew Common Stock equal to the BAC Premium divided by
the closing price of the Interbrew Shares on the day immediately prior to the
Closing Date during which the Interbrew Common Stock is trading on Euronext
Brussels.
(b) The BAC Premium shall be increased to take account of any net
Tax cost actually incurred by Interbrew or any of its affiliates arising from
the receipt of such BAC Premium (as determined in accordance with Section
10.03(a)). In computing the amount of such Tax cost, Interbrew and its
affiliates shall be deemed to recognize all other items of income, gain, loss
deduction or credit before recognizing any item arising from the receipt of
any payment in respect of the BAC Premium.
SECTION 10.04. AmBev MTO. In accordance with Brazilian law,
Interbrew shall make a mandatory tender offer ("MTO") for any shares of AmBev
Common Stock, and the costs and expenses of such MTO (including any MTO by way
of exchange offer as may be required by the Brazilian Securities Commission of
the Federative Republic of Brazil) shall be borne by the Parties as follows:
(a) All of the costs and expenses incurred in connection with the
tender pursuant to the MTO of shares of AmBev Common Stock held by
shareholders other than FAHZ or BAC (subject to Section 10.03) shall be paid
by Interbrew.
(b) In the event a BAC shareholder elects not to exercise its BAC
Tag-Along Right but elects to tender its shares of AmBev Common Stock into the
MTO, BRC shall pay to Interbrew, simultaneously with Interbrew's satisfaction
of its MTO payment obligation vis-a-vis such BAC shareholder, a cash amount
equal to all of Interbrew's costs and expenses incurred (taking into account
any net Tax cost actually incurred by Interbrew or any of its affiliates
arising from the payment of such costs and expenses) in excess of the Base
Price with respect to each lot of 100 shares of AmBev Common Stock held by
such BAC shareholder.
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(c) In the event FAHZ elects to tender its shares of AmBev Common
Stock into the MTO, BRC shall reimburse Interbrew for any costs and expenses
Interbrew incurs (taking into account any net Tax cost actually incurred by
Interbrew or any of its affiliates arising from the payment of such costs and
expenses) in excess of the Base Price with respect to each share of AmBev
Common Stock held by FAHZ.
(d) Interbrew shall acquire shares of AmBev Common Stock in the MTO
through a legal entity resident in the Federative Republic of Brazil directly
or indirectly controlled by Interbrew at the time of the acquisition, which
legal entity may also receive other shares of AmBev Capital Stock for purposes
of consolidating partially or totally the different shareholding investments
of Interbrew in AmBev.
(e) For purposes of clauses (a), (b) and (c) of this Section 10.04,
in calculating any net Tax cost, Interbrew and its affiliates shall be deemed
to recognize all other items of income, gain, loss deduction of credit before
recognizing any item arising from the receipt of any payment of costs and
expenses.
(f) Each of the SB Group Companies shall be jointly and severally
liable for BRC's obligations under Section 10.03 and this Section 10.04.
SECTION 10.05. Listing of Shares. No later than three months
following the Closing Date, Interbrew shall file a listing application for the
Interbrew Shares with Euronext Brussels and use its reasonable best efforts to
cause the Interbrew Shares to be listed on the First Market of Euronext
Brussels.
SECTION 10.06. Information to and Consultation with the Works
Council. Prior to the Closing Date, Interbrew shall inform and consult with
(i) the Belgian Works Council on the Transactions in accordance with
applicable Belgian labor law and (ii) any other comparable or similar entity
in accordance with Applicable Law.
SECTION 10.07. Shareholder Meetings.
(a) As promptly as practicable but in no event later than the date
of the Interbrew Shareholders' Meeting, SB shall cause AmBev to convene the
AmBev Shareholders' Meeting in accordance with Brazilian law, and EPS shall
cause the Stichting to, and the Stichting shall cause its representatives on
the board of directors of Interbrew to, take all corporate action reasonably
necessary, to convene, and Interbrew shall convene, the Interbrew
Shareholders' Meeting in accordance with Belgian law as promptly as
practicable.
(b) If Interbrew shall not convene the Interbrew Shareholders'
Meeting in accordance with Section 10.07(a), EPS and the Stichting shall do so
in accordance with Belgian law. If AmBev shall not convene the Ambev
Shareholders' Meeting in accordance with Section 10.07(a), the SB Companies
shall do so in accordance with Brazilian law.
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SECTION 10.08. AmBev Co-Chairman. Prior to the Closing Date, the SB
Group Companies shall cause AmBev to appoint as Co-Chairman of AmBev the
individual designated by Interbrew to Braco prior to the date hereof, such
appointment to be effective as of the Closing Date.
SECTION 10.09. ECAP Minority Interests. Interbrew and BRC shall
enter into a put option agreement, to be effective as of the Closing Date,
pursuant to which Interbrew will grant BRC or an affiliate thereof an option
to put to Interbrew, or if Interbrew is unable to perform its obligations
thereunder in all material respects, then to an affiliate of Interbrew
designated by Interbrew, at specific times to be agreed by the parties, all of
the issued and outstanding ECAP Capital Stock, not currently held by any SB
Group Company in exchange for a cash amount proportional to the consideration
received pursuant hereto.
ARTICLE XI
Conditions Precedent
SECTION 11.01. Conditions to Each Party's Obligation. The obligation
of the Parties to complete the Contribution and Subscription is subject to the
satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(a) Labatt Merger. All of the conditions for the closing of the
Labatt Incorporacao shall have been satisfied or waived in accordance with the
Labatt Incorporacao Agreement.
(b) Governmental Approvals. All Consents (including, without
limitation, the authorizations required pursuant to the Antitrust Laws) of, or
declarations or filings with, or expirations of waiting periods imposed by,
any Governmental Entity necessary for the consummation of the Transactions
shall have been obtained or filed or shall have occurred.
(c) No Injunctions or Restraints. No Applicable Law or injunction
enacted, entered, promulgated, enforced or issued by any Governmental Entity
or other legal restraint or prohibition preventing the consummation of the
Transactions shall be in effect.
(d) Tax Ruling. Tinsel Lux shall have obtained (i) a binding written
confirmation from the tax authorities of its country of residence to the
effect that the Tinsel Participacoes Shares have, for Tinsel Lux income tax
purposes, a value that is equal to their fair market value as of Closing, and
(ii) confirmation from the tax authorities of its country of residence that
the acquisition of the Tinsel Participacoes Shares is not subject to capital
duty in such country.
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(e) AmBev Capital Stock. No Applicable Law shall be in effect that
would cause, or would have a reasonable likelihood of causing, the public
float in respect of preferred shares of AmBev capital stock to be less than
20,012,143,079.
(f) Interbrew Capital Stock. No Applicable Law shall be in effect
that would cause, or would have a reasonable likelihood of causing, the public
float in respect of shares of capital stock of Interbrew to be less than 90%
of the public float on the date hereof.
SECTION 11.02. Conditions to Obligation of Interbrew. The obligation
of Interbrew to purchase and pay for the Tinsel Lux Shares is subject to the
satisfaction of (or waiver by Interbrew), on or prior to the Closing Date, the
following conditions:
(a) Representations and Warranties. The representations and
warranties of the SB Group Companies made in this Agreement and shall be true
and correct in all respects as of the Closing Date as though made on the
Closing Date, except to the extent such representations and warranties
expressly relate to an earlier date (in which case such representations and
warranties shall be true and correct in all respects on and as of such earlier
date), with only such exceptions (disregarding the words "materially",
"material" or any modification or qualification based on such terms or based
upon the defined term "SB Material Adverse Effect" set forth in such
representations and warranties) as would not be reasonably expected to have,
individually or in the aggregate, a SB Material Adverse Effect, other than the
representations and warranties in Sections 4.03, 5.04, 5.05 and 5.06, which
shall be subject to the standard set forth in Section 11.02(g) (disregarding
the words "materially", "material" or any modification or qualification based
on such terms or based upon the defined term "SB Material Adverse Effect" set
forth in such representations and warranties). Interbrew shall have received a
certificate signed by an authorized officer of the SB Group Companies to such
effect.
(b) Performance of Obligations of SB. The SB Group Companies shall
have performed or complied in all material respects with all obligations and
covenants required by this Agreement to be performed or complied with by each
SB Group Company, and Interbrew shall have received a certificate signed by an
authorized officer of the SB Group Companies to such effect.
(c) Operative Documents; Restructuring. Each SB Group Company shall
have (i) executed and delivered on or prior to the Closing Date each of the
Operative Documents to which it is a party and each of the Operative Documents
shall be in full force and effect and (ii) completed the Restructuring.
(d) Shareholders' Notarized Positive Resolutions. The shareholders
of Interbrew, at a shareholders' meeting held before a notary public, shall
have adopted positive resolutions on (i) the contribution of the Tinsel Lux
Shares by, and the issuance
39
of the Interbrew Shares to, BRC, and (ii) the granting of a new capital
authorization to the board of directors of Interbrew.
(e) FAHZ Approval. FAHZ shall have voted in favor of the
Transactions at the AmBev Shareholders' Meeting.
(f) Amendment of AmBev By-Laws. The by-laws of AmBev shall have been
amended to provide for the appointment of two Co-Chief Executive Officers of
AmBev and AmBev shall not have amended the provision in the by-laws of AmBev
providing for two co-chairpersons.
(g) No Material Adverse Change. Since the date hereof, there shall
not have been any event, change, effect or development that, individually or
in the aggregate, has had or would reasonably be expected to have a material
adverse effect on the assets or properties of AmBev and its subsidiaries,
taken as a whole, other than any such event, change, effect or development
arising in whole or in part as a result of (i) general economic or capital or
financial markets conditions, (ii) political, governmental or regulatory
changes or actions (other than war, moratorium or the nationalization or
expropriation of assets), (iii) changes in the beer, soft drinks, beverage or
consumer products markets, (iv) changes or developments in monetary policy
(including currency devaluations) or inflation in the Federative Republic of
Brazil or any of the other jurisdictions in which AmBev and its subsidiaries
conduct business or (v) the announcement of the Transactions.
SECTION 11.03. Conditions to Obligation of the SB Group Companies.
The obligation of BRC to contribute the Tinsel Lux Shares is subject to the
satisfaction (or waiver by BRC) on or prior to the Closing Date of the
following conditions:
(a) Representations and Warranties. The representations and
warranties of the Stichting, EPS and Interbrew made in this Agreement shall be
true and correct in all respects as of the Closing Date as though made on the
Closing Date, except to the extent such representations and warranties
expressly relate to an earlier date (in which case such representations and
warranties shall be true and correct in all respects, on and as of such
earlier date), with only such exceptions (disregarding the words "materially",
"material" or any modification or qualification based on such terms or based
upon the defined term "Interbrew Material Adverse Effect" set forth in such
representations and warranties) as would not reasonably be expected to have,
individually or in the aggregate, an Interbrew Material Adverse Effect other
than the representations and warranties in Sections 6.05, 6.06, 6.07, and
7.03, which shall be subject to the standard set forth in Section 11.03(e)
(disregarding the words "materially", "material" or any modification or
qualification based on such terms or based upon the defined term "Interbrew
Material Adverse Effect" set forth in such representations and warranties).
BRC shall have received a certificate signed by an authorized officer of the
Stichting, EPS and Interbrew to such effect.
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(b) Performance of Obligations of the Stichting, EPS and Interbrew.
Interbrew shall have performed or complied in all material respects with all
obligations and covenants required by this Agreement to be performed or
complied with by the Stichting, EPS and Interbrew on or prior to the Closing
Date, and BRC shall have received a certificate signed by an authorized
officer of the Stichting, EPS and Interbrew to such effect.
(c) Operative Documents. Each of Interbrew, the Stichting and EPS
shall have executed and delivered on or prior to the Closing Date each of the
Operative Documents to which it is a party, and each of the Operative
Documents shall be in full force and effect.
(d) Stichting Shares. The number of shares of Interbrew Common Stock
on deposit with the Stichting shall be no less than 180,000,000, exclusive of
any Interbrew Shares to be deposited by BRC in accordance herewith.
(e) No Material Adverse Change. Since the date hereof, there shall
not have been any event, change, effect or development that, individually or
in the aggregate, has had or would reasonably be expected to have a material
adverse effect on the assets or properties of Interbrew and its subsidiaries,
taken as a whole, other than any such event, change, effect or development
arising in whole or in part as a result of (i) general economic or capital or
financial markets conditions, (ii) political, governmental or regulatory
changes or actions (other than war, moratorium or the nationalization or
expropriation of assets), (iii) changes in the beer, soft drinks, beverage or
consumer products markets, (iv) changes or developments in monetary policy
(including currency devaluations) or inflation in the Kingdom of Belgium or
any of the other jurisdictions in which Interbrew and its subsidiaries conduct
business or (v) the announcement of the Transactions.
SECTION 11.04. Postponement of Closing. Each of BRC and Interbrew
shall have the right to postpone the Closing if in such Party's reasonable
opinion, (i) compliance with any conditions to approval required by any
Governmental Entity or Antitrust Authorities pursuant to Applicable Laws would
be burdensome or unduly expensive, or (ii) any Governmental Entity or
Antitrust Authority shall have expressed its intention or threatened to take
action to impose remedies pursuant to Applicable Laws, which remedies, if
imposed, would be burdensome or unduly expensive. In the event of any such
postponement, the Parties shall, as promptly as practicable, jointly use their
reasonable best efforts to negotiate a mutually acceptable arrangement with
such Governmental Entity or Antitrust Authority or a mutually acceptable
restructuring of the Transactions so as to satisfy such conditions or avoid
the imposition of such remedies. For purposes of this Section 11.04, a
condition required by the Governmental Entity or Antitrust Authorities shall
be burdensome or unduly expensive only if, such condition seeks (x) (A) to
prohibit or limit the ownership or operation by AmBev or any of its
subsidiaries of any material portion of the business or assets of AmBev and
its subsidiaries, taken as a whole (as if the Transactions had been
completed), or to compel
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AmBev or any of its subsidiaries to dispose of or hold separate any material
portion of the business or assets thereof, taken as a whole (as if the
Transactions had been completed), (B) to prohibit Interbrew or any of its
subsidiaries from effectively controlling in any material respect the business
or operations of AmBev and its subsidiaries, taken as a whole (as if the
Transactions had been completed) or (C) to prohibit or limit the ownership or
operation by Interbrew or any of its subsidiaries of any material portion of
the business or assets thereof, or to compel Interbrew or any of its
subsidiaries to dispose of or hold separate any material portion of the
business or assets thereof, taken as a whole (as if the Transactions had been
completed), (y) in the case of BRC, to impose limitations on the ability of
BRC to acquire or hold, or exercise full rights of ownership of, the Interbrew
Shares or the Stichting Certificates, including the right to vote on all
matters properly presented to the shareholders of Interbrew or the Stichting,
as the case may be, and (z) in the case of Interbrew, to impose limitations on
the ability of Interbrew to acquire or hold, or exercise full rights of
ownership of, the Tinsel Lux Shares or the AmBev Shares, including the right
to vote on all matters properly presented to the shareholders of Tinsel Lux or
AmBev, as the case may be.
SECTION 11.05. Frustration of Closing Conditions. Neither Interbrew
nor BRC may rely on the failure of any condition set forth in this Article XI
to be satisfied if such failure was caused by a breach of this Agreement or
any Operative Document by an SB Group Company in the case of Interbrew, the
Stichting or EPS, or in the case of BRC, by Interbrew, the Stichting or EPS.
ARTICLE XII
Termination, Amendment and Waiver
SECTION 12.01. Termination. (a) Notwithstanding anything to the
contrary in this Agreement, this Agreement may be terminated and the
Transactions abandoned at any time prior to the Closing:
(i) by mutual written consent of BRC and Interbrew; or
(ii) by BRC or Interbrew if, at any time prior to the Closing,
the Labatt Incorporacao Agreement is terminated in accordance with
its terms;
provided, however, that the Party seeking termination pursuant to clause (ii)
is not then in material breach of any of its representations, warranties,
covenants or agreements contained in this Agreement.
(b) In the event of termination by BRC or Interbrew pursuant to this
Section 12.01, written notice thereof shall forthwith be given to the other
and the
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Transactions shall be terminated, without further action by any Party. If the
Transactions are terminated as provided herein, (i) each Party shall return
all documents and other material received from the other Parties relating to
the Transactions, whether so obtained before or after the execution hereof;
and (ii) all confidential information received by Interbrew with respect to
the business of AmBev and its subsidiaries, or by any SB Group Company with
respect to the business of Interbrew and its subsidiaries, shall be subject to
the Confidentiality Agreement, which shall remain in full force and effect for
a period of 2 years notwithstanding the termination of this Agreement; each SB
Group Company shall be bound by the terms of the Confidentiality Agreement as
though it were a party thereto.
SECTION 12.02. Effect of Termination. If this Agreement is
terminated and the Transactions are abandoned as described in Section 12.01,
this Agreement shall become null and void and of no further force and effect,
except for the provisions of (a) Sections 4.04 and 6.08 relating to finders'
and brokers' fees, (b) Section 8.03 relating to certain expenses, (c) Section
8.04 relating to publicity, (d) Article IX relating to solicitations and
transfer restrictions, (e) Section 12.01 and this Section 12.02 relating to
termination, (f) Article XIII, (g) Article I to the extent applicable to any
of the foregoing and (h) Article XIV; nothing in this Section 12.02 shall be
deemed to release any Party from any liability for any breach by such Party of
the terms and provisions of this Agreement or to impair the right of any Party
to compel specific performance by any other Party of its obligations under
this Agreement.
SECTION 12.03. Amendments and Waivers. (a) This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
Parties hereto whose interests may be adversely effected by such amendment. By
an instrument in writing, the Parties whose interests may be adversely
effected by such waiver, may waive compliance by a Party with any term or
provision of this Agreement that such Party was or is obligated to comply with
or perform.
(b) No failure or delay by any Party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or future exercise thereof or
the exercise of any other right, power or privilege.
ARTICLE XIII
Indemnification
SECTION 13.01. Indemnification relating to SB Group Companies. (a)
From and after the Closing, Interbrew (as provided in clause (i) below) or the
Stichting and EPS, severally but not jointly (as provided in clause (ii)
below), as the case may be (each, an "Indemnifying Party") shall indemnify
each SB Group Company, its
43
affiliates (other than AmBev and its subsidiaries) and each of their
respective officers, directors, employees, stockholders, agents and
representatives (the "SB Indemnitees") against and hold it harmless from, any
loss, claim, damage expense or other Liability, including reasonable legal
fees and expenses (collectively, "SB Losses"), suffered or incurred by such SB
Indemnitee arising from, relating to or otherwise in respect of:
(i) with respect to Interbrew, any breach of any representation
or warranty relating to Interbrew contained in this Agreement or in
any certificate delivered pursuant hereto;
(ii) with respect to the Stichting and EPS, any breach of any
representation or warranty relating to the Stichting or EPS
contained in this Agreement or in any certificate delivered pursuant
hereto;
(iii) any breach of any covenant of such Indemnifying Party
contained in this Agreement; and
(iv) the Excluded Taxes;
provided, however, that the rights of each SB Indemnitee under Sections
13.01(a)(i) and (ii) after the Closing shall not be affected by any knowledge
at or prior to the execution of this Agreement or at or prior to the Closing
of any breach of representation or warranty, whether such knowledge came from
Interbrew, the Stichting or EPS, or any other person, or any waiver of Section
11.03.
(b) Other than with respect to SB Losses resulting from breaches by
such Indemnifying Party set forth in any of Sections 6.01, 6.02, 6.03, 6.04 or
6.05 or Sections 7.03 or 7.04, as the case may be, no Indemnifying Party shall
be required to indemnify the SB Indemnitees and shall not have any Liability:
(i) under clause (i) or (ii) of Section 13.01(a), as the case
may be, unless the aggregate amount of all SB Losses for which such
Indemnifying Party would, but for this clause (i) be liable, exceeds
on a cumulative basis an amount equal to US$150,000,000 in the case
of clause (i) or (ii), as the case may be, of Section 13.01(a);
(ii) under clause (i) or (ii) of Section 13.01(a), as the case
may be, in each case for any SB Loss relating to an individual item
or series of related items that is less than US$11,000,000 (provided
that the amounts of any individual items which are substantially
similar or substantially related shall be aggregated for purposes of
satisfying such US$11,000,000 threshold), in which case such items
shall not be aggregated for purposes of clause (i) of this Section
13.01(b); and
44
(iii) under clause (i) or (ii) of Section 13.01(a), as the case
may be, in excess of US$5,700,000,000 in the aggregate for all
Indemnifying Parties.
(c) In computing the amount of any SB Loss due to a breach of
representation or warranty, no effect shall be given to the words "materially"
or "material" or any modification or qualification based on such terms or
based on the defined term "Interbrew Material Adverse Effect".
SECTION 13.02. Calculation of Losses. The amount of any SB Loss for
which indemnification is provided under this Article XIII shall be net of any
amounts actually recovered by the SB Indemnitees under insurance policies with
respect to such SB Loss and any indemnity, contribution or other similar
payment recoverable by any SB Indemnitee from a third party with respect
thereto and shall be (i) increased to take account of any net Tax cost
actually incurred by such SB Indemnitee arising from the receipt of indemnity
payments hereunder (grossed up for such increase), and (ii) reduced to take
account of any net Tax benefit actually realized by an SB Indemnitee arising
from the incurrence or payment of any such SB Loss. In computing the amount of
any such Tax cost or Tax benefit, such SB Indemnitee shall be deemed to
recognize all other items of income, gain, loss deduction or credit before
recognizing any item arising from the receipt of any indemnity payment
hereunder or the incurrence or payment of any indemnified SB Loss.
SECTION 13.03. Termination of Indemnification. The obligations to
indemnify and hold harmless the SB Indemnitees (i) pursuant to Sections
13.01(a)(i) and (ii) shall terminate when the applicable representation or
warranty terminates pursuant to Section 14.01, and (ii) pursuant to Section
13.01(a)(iii) shall terminate when the applicable covenant terminates pursuant
to Section 14.01; provided, however, that such obligations to indemnify and
hold harmless shall not terminate with respect to any item as to which any SB
Indemnitee shall have, before the expiration of the applicable period,
previously made a claim by delivering a notice of such claim (stating in
reasonable detail the basis of such claim) pursuant to Section 13.04 to the
relevant Indemnifying Party.
SECTION 13.04. Procedures. (a) Third Party Claims. In order for a
person (the "indemnified party") to be entitled to any indemnification
provided for under Section 13.01 in respect of, arising out of or involving a
claim made by any person against any SB Indemnitee (a "SB Third Party Claim"),
such indemnified party must notify the relevant Indemnifying Party in writing
(and in reasonable detail) of the SB Third Party Claim within 10 business days
after receipt by such indemnified party of written notice of the SB Third
Party Claim; provided, however, that failure to give such notification shall
not affect the indemnification provided hereunder except to the extent any
Indemnifying Party shall have been actually and materially prejudiced as a
result of such failure (except that no Indemnifying Party shall be liable for
any expenses incurred during the period in which the indemnified party failed
to give such notice). Thereafter, the indemnified party shall deliver to the
Indemnifying Parties, within five business
45
days' time after the indemnified party's receipt thereof, copies of all
notices and documents (including court papers) received by such indemnified
party relating to the SB Third Party Claim.
(b) Assumption. If a SB Third Party Claim is made against an
indemnified party, each Indemnifying Party shall be entitled to participate in
the defense thereof and, if it so chooses, to assume the defense thereof with
counsel selected by the Indemnifying Parties; provided, however, that such
counsel is not reasonably objected to by such indemnified party. Should any
Indemnifying Party so elect to assume the defense of an SB Third Party Claim,
none of the Indemnifying Parties shall be liable to any indemnified party for
any legal expenses subsequently incurred by such indemnified party in
connection with the defense thereof. If any Indemnifying Party assumes such
defense, such indemnified party shall have the right to participate in the
defense thereof and to employ counsel (not reasonably objected to by the
Indemnifying Parties), at its own expense, separate from the counsel employed
by the Indemnifying Parties it being understood that the Indemnifying Parties
shall control such defense. The relevant Indemnifying Party shall be liable
for the fees and expenses of counsel employed by such indemnified party for
any period during which the Indemnifying Parties have not assumed the defense
thereof (other than during any period in which such indemnified party shall
have failed to give notice of the SB Third Party Claim as provided above). If
any Indemnifying Party chooses to defend or prosecute a SB Third Party Claim,
all the indemnified parties shall cooperate in the defense or prosecution
thereof. Such cooperation shall include the retention and (upon any
Indemnifying Party's request) the provision to the Indemnifying Parties of
records and information that are reasonably relevant to such SB Third Party
Claim, and making employees available on a mutually convenient basis to
provide additional information and explanation of any material provided
hereunder. Whether or not any Indemnifying Party assumes the defense of a SB
Third Party Claim, no indemnified party shall admit any liability with respect
to, or settle, compromise or discharge, such SB Third Party Claim without the
indemnified parties' prior written consent (which consent shall not be
unreasonably withheld). If any Indemnifying Party assumes the defense of an SB
Third Party Claim, the indemnified party shall agree to any settlement,
compromise or discharge of an SB Third Party Claim that such indemnified party
may recommend and that by its terms obligates Interbrew to pay the full amount
of the liability in connection with such SB Third Party Claim, which releases
the indemnified party completely in connection with such SB Third Party Claim
and that could not otherwise adversely affect the indemnified party.
Notwithstanding the foregoing, no indemnified party shall be entitled to
assume the defense of any SB Third Party Claim (and shall be liable for the
reasonable fees and expenses of counsel incurred by the indemnified party in
defending such SB Third Party Claim) if the SB Third Party Claim seeks an
order, injunction or other equitable relief or relief for other than money
damages against the indemnified party that the indemnified party reasonably
determines, after conferring with its outside counsel, cannot be separated
from any related claim for money damages. If such equitable relief or other
relief portion of the SB Third Party
46
Claim can be so separated from that for money damages, the relevant
indemnified party shall be entitled to assume the defense of the portion
relating to money damages.
(c) Other Claims. In the event an indemnified party should have a
claim against any Indemnifying Party under Section 13.01 that does not involve
an SB Third Party Claim being asserted against or sought to be collected from
such indemnified party, such indemnified party shall deliver notice of such
claim with reasonable promptness to the Indemnifying Parties. Subject to
Sections 13.03 and 14.01, the failure by the indemnified party so to notify
the Indemnifying Parties shall not relieve any Indemnifying Party from any
liability that it may have to such indemnified party under Section 13.01,
except to the extent that Interbrew demonstrates that it has been materially
prejudiced by such failure.
(d) Mitigation. The Parties shall cooperate with each other with
respect to resolving any claim or liability with respect to which any
Indemnifying Party is obligated to indemnify any SB Indemnitee hereunder,
including by making commercially reasonably efforts to mitigate or resolve any
such claim or liability.
(e) Shareholder Materials. Notwithstanding anything to the contrary
herein, Interbrew on the one hand and each of the Stichting and EPS, severally
but not jointly, on the other hand, agree to indemnify, defend and hold
harmless each SB Group Company, its respective directors and officers, and any
person who controls such SB Group Company, and the successors and assigns of
all of the foregoing persons from and against any loss, damage, expense, claim
or other Liability (including the reasonable cost of investigation) which such
SB Group Company or any such person may incur under Applicable Law or
otherwise, insofar as such loss, damage, expense, claim or other Liability
arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in and in conformity with information
(including financial statements) furnished by or on behalf of such Party to
such SB Group Company for use in any AmBev Shareholders' Meeting Material, or
(ii) any omission or alleged omission to state a material fact in connection
with such written information specified in clause (i) of this paragraph
required to be stated in such AmBev Shareholders' Meeting Materials necessary
to make such information not misleading with respect to such Party.
(f) Sole Remedy. Except in the case of fraud, this Article XIII
shall be the sole and exclusive remedy of each SB Indemnitee following the
Closing Date for any SB Losses incurred or suffered by such SB Indemnitee
arising out of, or related to, or in connection with breaches of any
representations, warranties or the failure to perform any of the covenants and
agreements of Interbrew, the Stichting or EPS contained in this Agreement.
SECTION 13.05. Indemnification Relating to Interbrew. (a) From and
after the Closing, each SB Group Company (other than AmBev) (each, an
"Indemnifying SB Party"), jointly and severally, shall indemnify Interbrew,
the Stichting, EPS, their respective affiliates and each of their respective
officers, directors,
47
employees, stockholders, agents and representatives (the "Interbrew
Indemnitees") against and hold it harmless from, any loss, claim, damage,
expense or other Liability, including reasonable legal fees and expenses
(collectively, "Interbrew Losses"), suffered or incurred by such Interbrew
Indemnitee arising from, relating to or otherwise in respect of:
(i) any Pre-Closing Liabilities;
(ii) any breach of any representation or warranty relating to
any SB Group Company contained in this Agreement or in any
certificate delivered pursuant hereto; and
(iii) any breach of any covenant of an SB Group Company
contained in this Agreement.
provided, however, that the rights of each Interbrew Indemnitee under Section
13.05(a)(ii) and (iii) after the Closing shall not be affected by any
knowledge at or prior to the execution of this Agreement or at or prior to the
Closing of any breach of representation or warranty, whether such knowledge
came from an SB Group Company or any other person, or any waiver of Section
11.02.
(b) Other than with respect to Interbrew Losses resulting from
breaches by any SB Group Company of its representations and warranties set
forth in any of Sections 4.01, 4.02, 4.03, 5.01, 5.02 or 5.03, the
Indemnifying SB Parties shall not be required to indemnify the Interbrew
Indemnitees and shall not have any liability:
(i) under clause (ii) of Section 13.05(a) unless the aggregate
amount of all Interbrew Losses for which any Indemnifying SB Party
would, but for this clause (i), be liable, exceeds on a cumulative
basis an amount equal to US$150,000,000;
(ii) under clause (ii) of Section 13.05(a) for any Interbrew
Loss relating to an individual item or series or related items that
is less than US$11,000,000 (provided that the amounts of any
individual items which are substantially similar or substantially
related shall be aggregated for purposes of satisfying such
US$11,000,000 threshold), in which case such items shall not be
aggregated for purposes of clause (i) of this Section 13.05(b); and
(iii) under clause (ii) of Section 13.05(a) in excess of
US$5,700,000,000 in the aggregate.
(c) In computing the amount of any Interbrew Loss due to a breach of
representation or warranty, no effect shall be given to the words "materially"
or
48
"material" or any modification or qualification based on such terms or based
on the defined term "SB Material Adverse Effect".
SECTION 13.06. Calculation of Losses. The amount of any Interbrew
Loss for which indemnification is provided under this Article XIII shall be
net of any amounts actually recovered by the Interbrew Indemnitee under
insurance policies with respect to such Interbrew Loss and any indemnity,
contribution or other similar payment recoverable by any Interbrew Indemnitee
from a third party with respect thereto and shall be (i) increased to take
account of any net Tax cost actually incurred by the Interbrew Indemnitee
arising from the receipt of indemnity payments hereunder (grossed up for such
increase) and (ii) reduced to take account of any net Tax benefit actually
realized by an Interbrew Indemnitee arising from the incurrence or payment of
any such Interbrew Loss. In computing the amount of any such Tax cost or Tax
benefit, an Interbrew Indemnitee shall be deemed to recognize all other items
of income, gain, loss deduction or credit before recognizing any item arising
from the receipt of any indemnity payment hereunder or the incurrence or
payment of any indemnified Interbrew Loss.
SECTION 13.07. Termination of Indemnification. The obligations to
indemnify and hold harmless the Interbrew Indemnitees (i) pursuant to Section
13.05(a)(ii) shall terminate when the applicable representation or warranty
terminates pursuant to Section 14.01, and (ii) pursuant to Section
13.05(a)(iii) shall terminate when the applicable covenant terminates pursuant
to Section 14.01; provided, however, that such obligations to indemnify and
hold harmless shall not terminate with respect to any item as to which any
Interbrew Indemnitee shall have, before the expiration of the applicable
period, previously made a claim by delivering a notice of such claim (stating
in reasonable detail the basis of such claim) pursuant to Section 13.08 to
BRC.
SECTION 13.08. Procedures. (a) Third Party Claims. In order for a
person (the "indemnified party") to be entitled to any indemnification
provided for under Section 13.05 in respect of, arising out of or involving a
claim made by any person against any Interbrew Indemnitee (an "Interbrew Third
Party Claim"), such indemnified party must notify BRC in writing (and in
reasonable detail) of the Interbrew Third Party Claim within 10 business days
after receipt by such indemnified party of written notice of the Interbrew
Third Party Claim; provided, however, that failure to give such notification
shall not affect the indemnification provided hereunder except to the extent
the Indemnifying SB Parties shall have been actually and materially prejudiced
as a result of such failure (except that the Indemnifying SB Parties shall not
be liable for any expenses incurred during the period in which the indemnified
party failed to give such notice). Thereafter, the indemnified party shall
deliver to BRC, within five business days' time after the indemnified party's
receipt thereof, copies of all notices and documents (including court papers)
received by such indemnified party relating to the Interbrew Third Party
Claim.
49
(b) Assumption. If an Interbrew Third Party Claim is made against an
indemnified party, BRC, on behalf of the other Indemnifying SB Parties, shall
be entitled to participate in the defense thereof and, if it so chooses, to
assume the defense thereof with counsel selected by BRC; provided, however,
that such counsel is not reasonably objected to by such indemnified party.
Should BRC so elect to assume the defense of an Interbrew Third Party Claim,
BRC shall not be liable to the indemnified party for any legal expenses
subsequently incurred by such indemnified party in connection with the defense
thereof. If BRC assumes such defense, such indemnified party shall have the
right to participate in the defense thereof and to employ counsel (not
reasonably objected to by BRC), at its own expense, separate from the counsel
employed by BRC, it being understood that BRC shall control such defense. BRC
shall be liable for the fees and expenses of counsel employed by such
indemnified party for any period during which BRC has not assumed the defense
thereof (other than during any period in which such indemnified party shall
have failed to give notice of the Interbrew Third Party Claim as provided
above). If BRC chooses to defend or prosecute an Interbrew Third Party Claim,
all the indemnified parties shall cooperate in the defense or prosecution
thereof. Such cooperation shall include the retention and (upon BRC's request)
the provision to BRC of records and information that are reasonably relevant
to such Interbrew Third Party Claim, and making employees available on a
mutually convenient basis to provide additional information and explanation of
any material provided hereunder. Whether or not BRC assumes the defense of an
Interbrew Third Party Claim, the indemnified party shall not admit any
liability with respect to, or settle, compromise or discharge, such Interbrew
Third Party Claim without BRC's prior written consent (which consent shall not
be unreasonably withheld). If BRC assumes the defense of an Interbrew Third
Party Claim, the indemnified party shall agree to any settlement, compromise
or discharge of an Interbrew Third Party Claim that BRC may recommend and that
by its terms obligates BRC to pay the full amount of the Liability in
connection with such Interbrew Third Party Claim, which releases such
indemnified party completely in connection with such Interbrew Third Party
Claim and that could not otherwise adversely affect such indemnified party.
Notwithstanding the foregoing, BRC shall not be entitled to assume the defense
of any Interbrew Third Party Claim (and shall be liable for the reasonable
fees and expenses of counsel incurred by Interbrew in defending such Interbrew
Third Party Claim) if the Interbrew Third Party Claim seeks an order,
injunction or other equitable relief or relief for other than money damages
against Interbrew that Interbrew reasonably determines, after conferring with
its outside counsel, cannot be separated from any related claim for money
damages. If such equitable relief or other relief portion of the Interbrew
Third Party Claim can be so separated from that for money damages, BRC shall
be entitled to assume the defense of the portion relating to money damages.
(c) Other Claims. In the event an indemnified party should have a
claim against any Indemnifying SB Party under Section 13.05 that does not
involve an Interbrew Third Party Claim being asserted against or sought to be
collected from such indemnified party, such indemnified party shall deliver
notice of such claim with reasonable promptness to BRC. Subject to Sections
13.07 and 14.01, the failure by the
50
indemnified party so to notify BRC shall not relieve any Indemnifying SB Party
from any liability that it may have to such indemnified party under Section
13.05, except to the extent that such Indemnifying SB Party has been
materially prejudiced by such failure.
(d) Mitigation. The Parties shall cooperate with each other with
respect to resolving any claim or Liability with respect to which any
Indemnifying SB Party is obligated to indemnify an indemnified party
hereunder, including by making commercially reasonably efforts to mitigate or
resolve any such claim or Liability.
(e) Shareholder Materials. Notwithstanding anything to the contrary
herein, each of the SB Group Companies, jointly and severally, agrees to
indemnify, defend and hold harmless Interbrew, its directors and officers, and
any person who controls Interbrew, and the successors and assigns of all of
the foregoing persons from and against any loss, damage, expense, claim or
other Liability (including the reasonable cost of investigation) which
Interbrew or any such person may incur under Applicable Law or otherwise,
insofar as such loss, damage, expense, claim or other Liability arises out of
or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information (including
financial statements) furnished by or on behalf of such SB Group Company to
Interbrew for use in the Interbrew Listing Prospectus or in any amendment or
supplement thereto or in Interbrew Shareholders' Meeting Materials, or (ii)
any omission or alleged omission to state a material fact in connection with
such written information specified in clause (i) of this paragraph required to
be stated in such Interbrew Listing Prospectus or in such Shareholders'
Meeting Materials necessary to make such information not misleading with
respect to any such SB Group Company.
SECTION 13.09. Responsibility for Interbrew Listing Prospectus. (a)
Notwithstanding anything to the contrary herein, Interbrew shall assume
responsibility for the Interbrew Listing Prospectus with respect to any third
party claims in connection therewith except that:
(i) the SB Group Companies (other than AmBev) shall assume such
responsibility for any information concerning any SB Group Company
contained in any section, sub-section or paragraph of the Interbrew
Listing Prospectus or the Interbrew Shareholders' Meeting Materials,
and, jointly, with the Stichting, for any information on the
Interbrew shareholders arrangements between SB and the Stichting
contained in any section, sub-section or paragraph of the Interbrew
Listing Prospectus;
(ii) the Stichting shall assume such responsibility for any
information concerning it contained in any section, sub-section or,
for any information on the Interbrew shareholders arrangements
between the Stichting and SB, paragraph of the Interbrew Listing
Prospectus, and,
51
jointly, with SB contained in any section, sub-section or paragraph
of the Interbrew Listing Prospectus.
(b) Each of Interbrew, SB and the Stichting shall be mentioned in
the Interbrew Listing Prospectus, in the following terms or similar terms, as,
being represented by their respective board of directors to that effect,
assuming responsibility for the respective information mentioned above (and,
with respect to SB, that of AmBev) and declaring that "this information is
factually accurate in all material respects and that there is no omission that
would make it materially misleading."
SECTION 13.10. ECAP Claims. Notwithstanding anything to the contrary
herein, and without giving effect to any of the limitations set forth in
Section 13.05(b), each of the SB Group Companies, jointly and severally,
agrees to indemnify, defend and hold harmless, the Stichting, EPS and
Interbrew, its directors and officers, and any person who controls the
Stichting, or EPS or Interbrew, and the successors and assigns of all of the
foregoing persons from and against any loss, damage, expense, claim or other
Liability (including the reasonable cost of investigation) which the
Stichting, EPS or Interbrew or any such person may incur in connection with
any claims against any SB Group Company or affiliate thereof made by or on
behalf of the ECAP minority interest holders in their capacity as shareholders
of ECAP for acts or omissions occurring before the Closing or otherwise in
respect of the period ending on the Closing Date.
SECTION 13.11. Sole Remedy. Except in the case of fraud, this
Article XIII shall be the sole and exclusive remedy of each Interbrew
Indemnitee following the Closing Date for any Interbrew Losses incurred or
suffered by such Interbrew Indemnitee arising out of, or related to, or in
connection with breaches of any representations, warranties or the failure to
perform any of the covenants and agreements of any SB Group Company contained
in this Agreement.
ARTICLE XIV
General Provisions
SECTION 14.01. Survival. The representations and warranties in this
Agreement and in any certificate delivered pursuant hereto shall survive for
six years following the Closing, except with respect to any Pre-Closing
Liabilities or Sections 5.01, 5.02, 5.03, 6.02, 6.03, 7.01, 7.02 and 7.03
which shall survive indefinitely; provided, however, that if a Party gives
notice to another Party of any action, suit or proceeding or any claim in
connection with the Transactions that is pending or threatened as of the
expiration of such survival period, such representations and warranties shall
survive until the resolution of such action, suit, proceeding or claim and
provided, further, however that any claims in respect of Taxes (other than in
respect of
52
Taxes that constitute Pre-Closing Liabilities, which will survive
indefinitely) shall survive until the 90th day following the expiration of the
statute of limitations under Applicable Law.
SECTION 14.02. Assignment. This Agreement and the rights and
obligations hereunder shall not be assignable or transferable by any Party
(including by operation of law in connection with a merger or consolidation of
such Party) without the prior written consent of Interbrew, in the case of the
SB Group Companies, or BRC, in the case of Interbrew, the Stichting or EPS.
Any attempted assignment in violation of this Section 14.02 shall be void.
SECTION 14.03. No Third-Party Beneficiaries. This Agreement is for
the sole benefit of the Parties hereto and their permitted assigns and except
for Article XIII, with respect to SB Indemnities and Interbrew Indemnities,
nothing herein expressed or implied shall give or be construed to give to any
person, other than the Parties hereto and such assigns, any legal or equitable
rights hereunder.
SECTION 14.04. Attorneys' Fees. A Party in breach of this Agreement
shall, on demand, indemnify and hold harmless the other Parties for and
against all reasonable out-of-pocket expenses, including legal fees, incurred
by such other Party by reason of the enforcement and protection of its rights
under this Agreement. The payment of such expenses is in addition to any other
relief to which such other Party may be entitled.
SECTION 14.05. Notices. 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:
(a) if to Interbrew,
Interbrew S.A.
▇▇▇▇▇▇▇▇▇▇▇ ▇▇/▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Tel:
Fax: ▇▇▇.▇▇.▇▇.▇▇.▇▇
Attention of Senior VP Legal, Corporate Secretary
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
53
▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(b) if to any SB Group Company,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇, ▇▇▇▇-▇(▇▇▇▇▇▇)▇▇▇▇▇
▇▇▇▇▇-▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇, ▇▇▇▇▇▇
Tel: ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Cravath, Swaine & ▇▇▇▇▇ LLP
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America,
Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇
(c) if to the Stichting,
Stichting Interbrew
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Fax: ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Attention of Sedde Peutz
(d) if to EPS,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Sebastien
398 Route ▇'▇▇▇▇, ▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇
54
Attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SECTION 14.06. Counterparts. This 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 one or more such counterparts have
been signed by each of the Parties and delivered to the other Parties. An
executed counterpart of this Agreement delivered by fax or other means of
electronic communications shall be deemed to be an original and shall be as
effective for all purposes as delivery of a manually executed counterpart.
SECTION 14.07. Entire Agreement. This Agreement and the Operative
Documents collectively 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 in this Agreement or the Operative Documents.
SECTION 14.08. Severability. Any term or provision of this Agreement
that is determined by a court of competent jurisdiction to be invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction, and if any provision
of this Agreement is determined to be so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable, in all
cases so long as neither the economic nor legal substance of the Transactions
is affected in any manner materially adverse to any Party or its shareholders.
Upon any such determination, the Parties shall negotiate in good faith in an
effort to agree upon a suitable and equitable substitute provision to effect
the original intent of the Parties.
SECTION 14.09. Subsidiary or Other Action; SB Group Company
Liability. (a) To the extent that action on the part of an entity in which a
Party has an interest, whether controlling or not, is necessary in order for
such Party to fulfill any of its obligations under this Agreement or any
Operative Document, then each such obligation shall be deemed to include an
undertaking on the part of such Party to, and to cause its representatives in
such entity to, use its and their best efforts to cause such entity, or, with
respect to a subsidiary or an entity in which such Party has a controlling
interest, to cause such entity, to take such necessary action.
(b) Notwithstanding anything to the contrary herein or in any
Operative Document, from and after the Closing Date, neither Tinsel Lux,
Tinsel Participacoes nor ECAP shall be held liable for any obligations
hereunder or other Liabilities of any SB Group Company or any of their
respective affiliates, and none of the
55
SB Group Companies shall have any rights to contribution vis-a-vis any of
Tinsel Lux, Tinsel Participacoes or ECAP in respect of any Liabilities,
whether incurred hereunder or otherwise.
(c) Interbrew will consult with BRC (or its successor) in the event
it desires to take any action in respect of any SB Group Company (or any
successor of any thereof) after the Closing that would adversely affect the
tax position of BRC (or its successor) or its affiliates (or any of their
successors) and will not take any such action to which BRC (or its successor)
reasonably objects.
SECTION 14.10. Governing Law. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York,
provided, however, that the shares of capital stock and any corporate action
(which, for the avoidance of doubt, will not include SB's undertaking to cause
BRC to contribute the Tinsel Lux Shares to Interbrew and Interbrew's
undertaking to issue the Interbrew Shares upon the contribution of such Tinsel
Lux Shares to Interbrew) required to complete the Transactions shall be
governed by the laws of the jurisdiction in which the person which issued such
shares or takes such action is organized.
SECTION 14.11. Arbitration. (a) All disputes arising out of or in
connection with this Agreement 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.
(b) 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
(any only such) arbitrator shall be appointed by the International Chamber of
Commerce (Article 10, paragraph 2, ICC Rules, Edition 1998).
(c) Any party to the dispute submitted to arbitration in connection
with this Agreement may assert a cross-claim against any other party to the
dispute based on any breach of this Agreement, the Incorporacao Agreement, the
LST Lock-Up Agreement or the EPS Lock-up Agreement. Any party to the dispute
shall have access to all documents filed by any other party.
(d) Any party to the dispute submitted to arbitration may request
that any party to the Incorporacao Agreement, the LST Lock-Up Agreement or the
EPS Lock-up Agreement which was not initially named as a party to the
proceedings be joined as a party to the proceedings, provided that the basis
asserted for such joinder is substantially related to the subject matter of
the dispute in arbitration. Any party to the abovementioned agreements which
is not involved in the proceeding may request to join the existing proceeding,
provided that the basis asserted for such intervention is substantially
related to the subject matter of the dispute in arbitration. The parties to
56
those abovementioned agreements have agreed to these procedures. Any joined or
intervening party shall be bound by any award rendered by the arbitral
tribunal even if it chooses not to participate in the arbitral proceedings.
(e) The Parties agree that the ICC Court of Arbitration shall fix
separate advances on costs in respect of each claim, counterclaim or
cross-claim.
(f) 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 this Agreement, the Incorporacao Agreement, the LST
Lock-Up Agreement or the EPS Lock-up Agreement, 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.
(g) The place of arbitration shall be Paris, France. The language of
the arbitration shall be English.
(h) 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 any event, make any ruling, finding or award that does not
conform to the terms and conditions of this Agreement.
(i) 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.
57
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written above.
S-BRACO PARTICIPACOES S.A.,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
WITNESSES:
/s/ Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇.: 14.114.166
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ de ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ e ▇▇▇▇▇
▇.▇.: 6.122.637-0 SSP/PR
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
58
ROUGEVAL LIMITED,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
WITNESSES:
/s/ Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇.: 14.114.166
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ de ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ e ▇▇▇▇▇
▇.▇.: 6.122.637-0 SSP/PR
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
59
TINSEL INVESTMENTS INC.,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
WITNESSES:
/s/ Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇.: 14.114.166
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ de ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ e ▇▇▇▇▇
▇.▇.: 6.122.637-0 SSP/PR
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
60
BRACO S/A,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Sicupira
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Sicupira
Title: Director
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
WITNESSES:
/s/ Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇.: 14.114.166
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ de ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ e ▇▇▇▇▇
▇.▇.: 6.122.637-0 SSP/PR
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
61
TINSEL PARTICIPACOES LTDA.,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Sicupira
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Sicupira
Title: Director
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
WITNESSES:
/s/ Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇.: 14.114.166
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ de ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ e ▇▇▇▇▇
▇.▇.: 6.122.637-0 SSP/PR
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
PARTICIPACOES S.A.-ECAP,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Sicupira
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Sicupira
Title: Director
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
WITNESSES:
/s/ Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇.: 14.114.166
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ de ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ e ▇▇▇▇▇
▇.▇.: 6.122.637-0 SSP/PR
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
63
TINSEL INVESTMENTS S/A,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
WITNESSES:
/s/ Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇.: 14.114.166
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ de ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ e ▇▇▇▇▇
▇.▇.: 6.122.637-0 SSP/PR
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
64
BRC S/A,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
WITNESSES:
/s/ Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇.: 14.114.166
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ de ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ e ▇▇▇▇▇
▇.▇.: 6.122.637-0 SSP/PR
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
65
BRACO MANAGEMENT INC.,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
WITNESSES:
/s/ Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇.: 14.114.166
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ de ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ e ▇▇▇▇▇
▇.▇.: 6.122.637-0 SSP/PR
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
66
BRACOPAR S.A.,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
WITNESSES:
/s/ Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: Marcio ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇.: 14.114.166
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ de ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ e ▇▇▇▇▇
▇.▇.: 6.122.637-0 SSP/PR
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
67
INTERBREW S.A.,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
by
/s/ Francois Jaclot
------------------------------------
Name: Francois JACLOT
Title: Chief Financial Officer
WITNESSES:
/s/ ▇▇▇▇ ▇▇▇▇▇ Van de Perre
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ Van ▇▇ ▇▇▇▇▇
ID Card: 161 0029528 54
/s/ ▇▇▇▇▇▇▇▇▇ Noirfalisse
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ NOIRFALISSE
ID Card: 161 0019803 29
68
STICHTING INTERBREW,
by
/s/ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇▇▇▇ Adriaenssen
--------------------------------------
Name: ▇▇▇▇▇▇▇ Adriaenssen
Title: Director
by
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: Director
WITNESSES:
/s/ ▇▇▇▇ ▇▇▇▇▇ Van de Perre
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ Van ▇▇ ▇▇▇▇▇
ID Card: 161 0029528 54
/s/ ▇▇▇▇▇▇▇▇▇ Noirfalisse
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ NOIRFALISSE
ID Card: 161 0019803 29
69
▇▇▇▇▇▇▇ ▇▇▇▇▇ SEBASTIEN,
by
/s/ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Title: Director
by
/s/ ▇▇▇▇▇▇▇ Adriaenssen
------------------------------------
Name: ▇▇▇▇▇▇▇ Adriaenssen
Title: Director
by
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: Director
WITNESSES:
/s/ ▇▇▇▇ ▇▇▇▇▇ Van ▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ Van de Perre
ID Card: 161 0029528 54
/s/ ▇▇▇▇▇▇▇▇▇ Noirfalisse
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ NOIRFALISSE
ID Card: 161 0019803 29
70