FIRST AMENDMENT TO THE SHAREHOLDERS´ VOTING RIGHTS AGREEMENT AND OTHER COVENANTS This AMENDMENT NO. 1, dated as of March 23, 2007 (the “Amendment”), to the Shareholders' Voting Rights Agreement and Other Covenants, dated as of August 31, 2004 (the...
Exhibit
(S)
FIRST
AMENDMENT TO THE SHAREHOLDERS´ VOTING RIGHTS AGREEMENT
AND
OTHER COVENANTS
This
AMENDMENT NO. 1, dated as of March 23, 2007 (the “Amendment”), to the
Shareholders' Voting Rights Agreement
and
Other
Covenants, dated as of August 31, 2004 (the “Original Agreement”), is
by and among the following parties:
SANTA
XXXXX LTD., an International Business Company duly incorporated and
validly existing under the laws of the
Commonwealth
of the Bahamas, with registered office at One Montague Place, East Bay Street,
PO Box N-4906,
Nassau,
Bahamas and bears registration number 131,293 B,
SANTA
ROSELI LTD., an International Business Company duly incorporated and
validly existing under the laws of the
Commonwealth
of the Bahamas, with registered office at One Montague Place, East Bay Street,
PO Box N-4906,
Nassau,
Bahamas and bears registration number 131,292 B,
SANTA
HELOÍSA LTD., an International Business Company duly incorporated and
validly existing under the laws of the
Commonwealth
of the Bahamas, with registered office at One Montague Place, East Bay Street,
PO Box N-4906,
Nassau,
Bahamas and bears registration number 131,289 B, and
SANTA
PACIENCIA LTD., an International Business Company duly incorporated and
validly existing under the laws of the
Commonwealth
of the Bahamas, with registered office at One Montague Place, East Bay Street,
PO Box N-4906, Nassau,
Bahamas
and bears registration number 131,291 B,
And,
as
Intervening Parties,
SANTA
XXX C.V., a limited partnership (commanditaire vennootschap)
formed under the laws of the Netherlands,
with
registered office at Xxxxxxxxx 000, 0000 XX, Xxxxxxxxx, xxx
Xxxxxxxxxxx,
SANTA
VITORIA C.V., a limited partnership (commanditaire vennootschap)
formed under the laws of the Netherlands,
with
registered office at Xxxxxxxxx 000, 0000 XX, Xxxxxxxxx, xxx
Xxxxxxxxxxx,
INPAR
VOF, a general partnership under the laws of the Netherlands, having
its office address at Xxxxxxxxx
00
X-Xxxxx, 0x, 0000 XX Xxxxxxxxx, xxx Xxxxxxxxxxx, registered with the trade
register in Amsterdam, the Netherlands,
with
number 34231694,
SANTA
CAROLINA C.V., a limited partnership (commanditaire vennootschap)
formed under the laws of the Netherlands,
with
registered office at Xxxxxxxxx 000, 0000 XX, Xxxxxxxxx, xxx
Xxxxxxxxxxx,
SANTA
XXXXX XXXXXX C.V., a limited partnership (commanditaire
vennootschap) formed under the laws of the
Netherlands,
with registered office at Xxxxxxxxx 000, 0000 XX, Xxxxxxxxx, xxx
Xxxxxxxxxxx,
XXXXX
XXXXX
XXXXXX,
Brazilian citizen,
married, economist, holder of ID no. 1.566.020-IFP/RJ, enrolled in
the
CPF/MF under
nr. 000.000.000-00,
XXXXXX
XXXXXXX XX XXXXX SICUPIRA,
Brazilian citizen,
married, business manager, holder of
ID
no.
1.971.453-IFP/RJ, enrolled in the CPF/MF under nr. 000.000.000-00,
and
XXXXXX
XXXXXXXX XXXXXX,
Brazilian citizen,
married, economist, holder of ID no. 02.347.932-2-IFP/RJ,
enrolled
in the
CPF/MF under nr. 000.000.000-00,
With
the
acknowledgement and acceptance of:
S-BR
GLOBAL
INVESTMENTS LIMITED,
a company duly
incorporated and validly existing under the laws of the
Commonwealth
of the
Bahamas, with head offices at The Bahamas Financial Center, 4th
floor, on Xxxxxxx
and
Xxxxxxxxx
Streets,
Nassau, Bahamas (the “Company”),
BR
GLOBAL
INVESTMENTS LIMITED, a company duly incorporated and validly existing
under the laws of the
Commonwealth
of the
Bahamas, with head offices at The Bahamas Financial Center, 4th floor, on
Xxxxxxx and
Charlotte
Streets,
Nassau, Bahamas (“Br Global Investments Limited”), and
BRC
S.à.
X.X.,
a company duly
incorporated and validly existing under the laws of Luxembourg, with head
offices
at
73, Côte d´Xxxx,
X-0000, Xxxxxxxxxx.
WHEREAS:
| (i) |
The
Parties
have entered into and successfully implemented the Original
Agreement;
|
| (ii) |
On
August 9,
2006, BRACO
MANAGEMENT INC., a company duly incorporated and validly existing
under
the
laws of the Commonwealth of the Bahamas, with head offices at The
Bahamas
Financial
Center,
4th
floor, on
Xxxxxxx and Charlotte Streets, Nassau, Bahamas (“Braco Management Inc.”),
ROUGEVAL
LIMITED, an International Business Company duly incorporated and
validly
existing
under
the
laws of the Commonwealth of the Bahamas, with head offices at The
Bahamas
Financial Center,
4th
floor on
Xxxxxxx and Xxxxxxxxx Streets, Nassau, Bahamas, registered with the
Bahamas Company
Register
with
number 120485B (“Rougeval Limited”) and TÍNSEL INVESTMENTS INC., an
International
Business
Company duly incorporated and validly existing under the laws of
the
Commonwealth of the Bahamas,
with
head
offices at The Bahamas Financial Center, 4th
floor on
Xxxxxxx and Charlotte Streets, Nassau, Bahamas,
registered
with the Bahamas Company Register with number 3288B (“Tínsel Investments
Inc.”) merged with and
into
BR
Global Investments Limited, with BR Global Investments Limited as
the
surviving entity and successor by
merger
to
Braco
Management Inc., Rougeval Limited and Tínsel Investments Inc.; and
|
| (iii) |
The
Parties
desire to establish new provisions relating to (i) the essential
characteristics of the members of the
board
of
directors of the Controlled Companies; (ii) the distribution of dividends
by the Controlled Companies,
including
AK;
and (iii) the term and termination of the Original Agreement, as
set forth
herein.
|
NOW,
THEREFORE, in
consideration of the premises and the mutual terms, conditions and agreements
set forth herein,
the
Parties
hereby agree as follows:
Section
1 -
Terms and Definitions of the Original Agreement
1.1.
Except as
otherwise expressly provided for herein, capitalized terms used but not defined
herein shall have the meaning
ascribed
to them in
the Original Agreement.
Section
2 -
Representation on the Board of Directors of the Controlled
Companies:
2.1.
The
representation on the Board of Directors of the Controlled Companies in Section
3 of the Original Agreement is
hereby
amended and
restated to read as follows:
“3.
Representation on the Board of Directors of the Controlled
Companies:
3.1.
The Board
of the Company, BR Global and BRC shall each consist of four members. The number
of
Directors
constituting the Board of the AK and the Board of InBev shall be as set forth
in
the AK By-Laws,
the
Conditions
of Administration and the InBev Shareholders´ Voting Rights Agreement And Other
Covenants,
respectively. Each block of voting shares representing 25% (twenty-five percent)
of the voting
capital
stock
of the Company shall entitle its owner(s), at all times, to designate (i) one
member of the
Board
of each
of the Company, BR Global and BRC, and (ii) 25% (twenty-five percent) of the
members of
the
Board of
each of AK and InBev and the respective alternative members that BRC is entitled
to nominate,
if
any.
3.2.
The
Parties shall cause BRC to appoint the members of the Board of AK and of InBev
pursuant to the
provisions
set
forth herein and pursuant to the provisions set forth in the AK By-Lawys, the
Conditions of
Administration
and the InBev Shareholders´ Agreement.
3.3.
The
Parties hereby undertake to appoint and elect as members of the management
of
the Controlled
Companies
only
those persons who meet all the following requirements: (i) be at least 27 years
of age;
(ii)
not having
been convicted of any crime for which a final and non-appeallable judgment
has
been
rendered;
(iii)
hold a college degree; and (iv) not having used any substance that is unlawful
or prohibited
simultaneously
in Brazil and in the United States of America.”
Section
3 -
Unanimity for Certain Resolutions
3.1.
Item (i) of
Section 5.2 of the Original Agreement is hereby amended and restated to read
as
follows:
“5.
Unanimity for Certain Resolutions
(…)
5.2.
With
respect to each of the Company and/or the Controlled Companies (excluding AK
and
InBev, except
as
otherwise
provided below), the following matters are covered by this Section
5;
(…)
(i)
Change in
the following policies of the Company and/or of any of the Controlled Companies
including the AK:
Distribution
of
100% (one hundred percent) of any proceeds received, directly or indirectly,
from InBev, after:
(i)
Deducting
its current operational expenses,
(ii)
Establishing cash provisions for contingencies, tax and other liabilities and/or
after legally required
reserves
have
been made,
(iii)
The
respective company’s outstanding and payable financial obligations for the
following fiscal year
have
been
funded (i.e. through a cash reserve), and
(iv)
Withholding of 20% (twenty percent) of the proceeds available after the
deductions provided for in items
(i)
through
(iii)
of this
Section 5.2(i), in order to create an additional cash reserve; provided,
however, that
such
additional
cash reserve shall not exceed an amount equal to twice the average of the total
amount of
dividends
distributed by the respective company in the 3 (three) immediately preceding
years and shall
be
used to pay
an exceptional dividend in future years if the respective company has not had
a
positive net income.”
Section
4 -
Term and termination
4.1.
Section 13.1
of the Original Agreement is hereby amended and restated to read as follows:
“13.1.
This
Shareholders’ Voting Rights Agreement shall become effective on its execution
date, remaining in full force and
effect
during
(i) the corporate existence of the Company, (ii) the corporate existence of
its
legal successor, or (iii) no more than
one
(1) year
counted from the termination of the InBev Shareholders Agreement, whichever
firstly occurs.”
Section
5 -
Intervening Parties
5.1.
The
Intervening Parties execute this Amendment, in their capacity as controlling
shareholders of the Parties, for the purpose of
manifesting
their
consent to the obligations expressly assumed by them and the rights expressly
conferred upon them under this
Amendment.
Section
6 -
No Other Amendments
6.1.
Except as
expressly set forth herein, the Original Agreement remains in full force and
effect.
Section
7 -
Counterparts
7.1.
This Amendment
may be executed in one or more counterparts, and by the parties in separate
counterparts, each of which
when
executed shall
be deemed to be an original but all of which taken together shall constitute
one
and the same agreement.
Section
8 -
Governing Law
8.1.
This Amendment
shall be governed by and construed in accordance with the laws of the
Commonwealth of the Bahamas.
Section
9 -
Amendment and Waiver
9.1
Neither this
Amendment nor any term hereof may be amended or otherwise modified other than
by
an instrument in writing
signed
by the
parties. Except as otherwise expressly provided in this Amendment, no provision
of this Amendment may be waived,
discharged
or
terminated other than by an instrument in writing signed by the party against
whom the enforcement of such waiver,
discharge
or
termination is sought.
IN
WITNESS WHEREOF,
the Parties hereto have caused this AMENDMENT NO. 1 to the Original Agreement
to
be executed
as
of the
date first written above by their respective officers thereunto duly authorized.
Parties:
| /s/ Xxxxx Xxxxx Xxxxxx | /s/ Xxxxx Xxxxx Xxxxxx | |
| Santa Xxxxx Ltd. | Santa Roseli Ltd. | |
| By: Xxxxx Xxxxx Xxxxxx | By: Xxxxx Xxxxx Xxxxxx | |
| /s/ Xxxxxx Xxxxxxxx Xxxxxx | /s/ Xxxxxx Xxxxxxx xx Xxxxx Sicupira | |
| Santa Paciencia Ltd. | Santa Heloisa Ltd. | |
| By: Xxxxxx Xxxxxxxx Xxxxxx | By: Xxxxxx Xxxxxxx xx Xxxxx Sicupira | |
| Intervening Parties: | ||
| /s/ Xxxxx Xxxxx Xxxxxx | /s/ Xxxxx Paulo Xxxxxx | |
| Xxxxx Xxxxx Xxxxxx | Inpar VOF | |
| By: Xxxxx Xxxxx Xxxxxx | ||
| /s/ Xxxxxx Xxxxxxx xx Xxxxx Sicupira | /s/ Xxxxxx Xxxxxxxx Xxxxxx | |
| Xxxxxx Xxxxxxx xx Xxxxx Sicupira | Xxxxxx Xxxxxxxx Xxxxxx | |
| /s/ Xxxxx Xxxxx Xxxxxx | /s/ Xxxxx Xxxxx Xxxxxx | |
| Santa Vitória CV | Santa Xxx CV | |
| By: Xxxxx Xxxxx Xxxxxx | By: Xxxxx Xxxxx Xxxxxx | |
| /s/ Xxxxxx Xxxxxxxx Xxxxxx | /s/ Xxxxxx Xxxxxxx xx Xxxxx Sicupira | |
| Santa Xxxxx Xxxxxx CV | Santa Carolina CV | |
| By: Xxxxxx Xxxxxxxx Xxxxxx | By: Xxxxxx Xxxxxxx xx Xxxxx Sicupira | |
|
Agreed
and accepted by the Acknowledging
Parties:
|
||
| /s/
Xxxxxx Xxxxxxx xx Xxxxx
Sicupira Xxxxxxx Xxxxx Xxxxxxxx Xxxxx |
/s/ Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxxxx Xxxxx
|
|
| S-BR Global Investments Limited | BR Global Investments Limited | |
|
By:
Xxxxxx Xxxxxxx xx Xxxxx Sicupira Xxxxxxx Xxxxx Xxxxxxxx
Xxxxx
|
By: Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxxxx Xxxxx
|
|
|
/s/ Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxxxx Xxxxx
|
||
| BRC S.à. X.X | ||
|
By: Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxxxx Xxxxx
|
||
| 1. | /s/ Xxxxxx Xxxxx Xxxxxxxxx Xxxx | 2. | /s/ Xxxxxxx Xxxxxxxx de X. Xxxxxx | |
| Xxxxxx Xxxxx Xxxxxxxxx Xxxx | Xxxxxxx Xxxxxxxx de X. Xxxxxx | |||
[Second
Signature
Page of the First Amendment to the Shareholders´ Voting Rights Agreement and
Other Covenants
dated
March 23,
2007]
