EXHIBIT 2.H
CONFORMED COPY
LOCK-UP AGREEMENT
LOCK-UP AGREEMENT, dated as of March 2, 2004 (this "Agreement"),
between Interbrew S.A., a public limited company organized under the laws of
the Kingdom of Belgium ("Interbrew"), and each person listed on Exhibit A
hereto (each, a "Shareholder" and collectively, the "Shareholders").
Whereas, Interbrew, the Stichting, EPS and the SB Group Companies
named therein are, concurrently with the execution and delivery of this
Agreement, entering into a Contribution and Subscription Agreement, dated as
of the date hereof (the "Contribution and Subscription Agreement");
WHEREAS, the parties desire to take all action necessary or
desirable to complete the transactions contemplated by the Contribution and
Subscription Agreement in accordance with the terms thereof as soon as
practicable;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
Section 1. Share Ownership. Each Shareholder hereby represents and
warrants, jointly and severally, to Interbrew, that the number of shares of
common stock (and, in each case, the name of the holder(s) of record thereof),
without par value, of Companhia de Bebidas das Americas-AmBev, a corporation
organized under the laws of the Federative Republic of Brazil ("AmBev", and
such common stock, the "AmBev Common Stock"), and preferred stock, without par
value, of AmBev (the "AmBev Preferred Stock") listed next to such
Shareholder's name on Annex A (with respect to each Shareholder, collectively,
the "AmBev Shares), are, and at the Closing Date, will be the number of AmBev
Shares (and, in each case, the name of the holder(s) of record thereof) (i) in
respect of which such Shareholder has, directly or indirectly, the right to
vote, or direct the voting (collectively, with respect to each Shareholder,
"AmBev Voting Shares") and (ii) in respect of which such Shareholder has,
directly or indirectly, to the right of disposition (collectively, with
respect to each Shareholder, "AmBev Disposition Shares").
Section 2. Transfer Restrictions. Each Shareholder hereby agrees,
jointly and severally, while this Agreement is in effect, except as expressly
contemplated hereby and under the Contribution and Subscription Agreement, not
to sell, transfer, pledge, encumber, assign or otherwise dispose of (including
by gift), directly or indirectly, or permit any lien, charge or other interest
to exist on (collectively, "Transfer"), or consent to or permit any Transfer
of, any of the AmBev Disposition 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 such AmBev Disposition Shares or any
interest therein, any AmBev Disposition Shares acquired by the Shareholder
after the date
hereof, any securities exercisable or exchangeable for or convertible into
AmBev Disposition Shares, any other capital stock of AmBev or any interest in
any of the foregoing to any person.
Section 3. Agreement to Vote in Favor of Transactions. Each
Shareholder agrees, jointly and severally, that, from and after the date
hereof and until the Termination Date, at any meeting of the shareholders of
any person through which such Shareholder, at any time prior to the
Termination Date, holds a direct or indirect interest in AmBev (each such
person, a "Shareholder Company"), however called, or in connection with any
written consent of the shareholders of any Shareholder Company, the
Shareholder shall, and shall cause each Shareholder Company to:
(a) appear at each such meeting or otherwise cause all such
Shareholder's AmBev Voting Shares to be counted as present thereat for
purposes of calculating a quorum; and
(b) vote (or cause to be voted), in person or by proxy, or deliver a
written consent (or cause a consent to be delivered) covering, all of such
Shareholder's AmBev Voting Shares, in favor of the Contribution and
Subscription Agreement and all other action, corporate or otherwise, requested
in furtherance of the transactions contemplated thereunder; and (ii) against
any action or agreement submitted for approval of such Shareholder Company
that would, to the best of such Shareholder's knowledge, result in a breach of
any covenant, representation or warranty or any other obligation or agreement
of a Shareholder Company contained in the Contribution and Subscription
Agreement or of the Shareholder contained in this Agreement.
Section 4. Termination. This Agreement shall terminate on the
earlier of (a) the Closing Date (as such term is defined in the Contribution
and Subscription Agreement), and (b) the date of termination of the
Contribution and Subscription Agreement pursuant to Section 12.01 thereof
except with respect to Section 2, which shall terminate on the earlier of (a)
the Closing Date (as such term is defined in the Contribution and Subscription
Agreement), (b) the date of termination of the Contribution and Subscription
Agreement pursuant to Section 12.01 thereof and (c) June 30, 2005.
Section 5. No Ownership Interest. Nothing contained in this
Agreement shall be deemed to vest in Interbrew any direct or indirect
ownership or incidence of ownership of or with respect to any AmBev Shares.
All rights, ownership and economic benefits of and relating to the AmBev
Shares shall remain vested in and belong to the Shareholder, and Interbrew
shall have no authority to manage, direct, superintend, restrict, regulate,
govern or administer any of the policies or operations of AmBev or exercise
any power or authority to direct the Shareholder in the voting of any of the
AmBev Shares, except as otherwise provided herein.
Section 6. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (with confirmation) or delivered by an overnight courier (with
confirmation) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
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(a) if to Interbrew to:
Interbrew S.A.
Xxxxxxxxxxx 00/0
0000 Xxxxxx
Xxxxxxx
Fax: x00.00.00.00.00
Attention of Senior VP Legal, Corporate Secretary
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
0 Xxx Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Fax: 000-0000-0000-0000
Attention: Xxxxxx X. Xxxxx
(b) if to Shareholder to the address listed below to the
Shareholder's name on Annex A hereto.
Section 7. 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 counterparts have been signed by
each of the parties to this Agreement and delivered to the other parties, it
being understood that all parties to this Agreement need not sign the same
counterpart. An executed counterpart of this Agreement delivered by fax or
other means of electronic communication shall be deemed to be an original and
shall be as effective for all purposes as delivery of a manually executed
counterpart.
Section 8. Entire Agreement. This Agreement (together with the
Contribution and Subscription Agreement) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
between the parties to this Agreement with respect to the subject matter
hereof.
Section 9. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Federative Republic of Brazil.
Section 10. Amendment. This Agreement may not be amended in respect
of any Shareholder except by an instrument in writing signed by or on behalf
of such Shareholder.
Section 11. Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms. It is accordingly agreed
that the parties shall be entitled to specific performance of the terms
hereof, this being in addition to any other remedy to which they are entitled
at law or in equity. Each of the parties to this Agreement further agrees to
waive any
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requirements for the securing or posting of any bond in connection
with obtaining any such equitable relief.
Section 12. Severability. Any term or provision of this Agreement
which is determined by an arbitrator or 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
contemplated hereby is affected in any manner materially adverse to any party
or its shareholders or limited partners. Upon any such determination, the
parties to this Agreement 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 to this Agreement.
Section 13. Arbitration. 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 in accordance with the
procedures set forth in the Contribution and Subscription Agreement.
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IN WITNESS WHEREOF, the parties to this Agreement have signed or
have caused this Agreement to be signed by their respective officers or other
authorized persons thereunto duly authorized as of the date first written
above.
Interbrew S.A.
by
/s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. XXXXX
Title: Chief Executive Officer
by
/s/ Francois Jaclot
-----------------------------------
Name: Francois JACLOT
Title: Chief Financial Officer
WITNESSES:
/s/ Xxxx Xxxxx Van de Perre
------------------------------------
Name: Xxxx Xxxxx Van xx Xxxxx
ID Card: 161 0029528 54
/s/ Xxxxxxxxx Noirfalisse
------------------------------------
Name: Xxxxxxxxx Noirfalisse
ID Card: 161 0019803 29
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/s/ Xxxxxx Xxxxxxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxxxxx Xxxxxx
WITNESSES
/s/ Marcio Xxxxxxxxx Xxxxx Xxxxxx
--------------------------------------------
Name: Marcio Xxxxxxxxx Xxxxx Xxxxxx
X.X.: 14.114.166
CPF: 000.000.000-00
/s/ Xxxxxxx Xxxxxxx de Xxxxxxx x Xxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx xx Xxxxxxx e Xxxxx
X.X.: 6.122.637-0 SSP/PR
CPF: 000.000.000-00
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/x/ Xxxxxx Xxxxxxx Xx Xxxxx Sicupira
------------------------------------
Xxxxxx Xxxxxxx Xx Xxxxx Sicupira
WITNESSES
/s/ Marcio Xxxxxxxxx Xxxxx Xxxxxx
--------------------------------------------
Name: Marcio Xxxxxxxxx Xxxxx Xxxxxx
X.X.: 14.114.166
CPF: 000.000.000-00
/s/ Xxxxxxx Xxxxxxx de Xxxxxxx x Xxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx xx Xxxxxxx e Xxxxx
X.X.: 6.122.637-0 SSP/PR
CPF: 000.000.000-00
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/s/ Xxxxx Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxx Xxxxxx
WITNESSES
/s/ Marcio Xxxxxxxxx Xxxxx Xxxxxx
--------------------------------------------
Name: Marcio Xxxxxxxxx Xxxxx Xxxxxx
X.X.: 14.114.166
CPF: 000.000.000-00
/s/ Xxxxxxx Xxxxxxx de Xxxxxxx x Xxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx xx Xxxxxxx e Xxxxx
X.X.: 6.122.637-0 SSP/PR
CPF: 000.000.000-00
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Annex A
AmBev Common Stock[1] AmBev Preferred Stock
------------------ ---------------------
Xxxxxx Xxxxxxxx Xxxxxx 8,253,913,260 213,145,000
Rua Xx. Xxxxxx Xxxx xx Xxxxxx
1017, 04530-001, Sao Paulo, SP,
Brazil
Xxxxxx Xxxxxxx Xx Xxxxx Sicupira 8,253,913,260
Xxxxxxx Xxxxxxxxxx Xxxxx Xxxx,
0000 - 0x. andar, CEP 00000-000,
Xxx Xxxxx, XX, Xxxxxx
Xxxxx Xxxxx Xxxxxx 8,253,913,260
Xxxxxxx Xxxxxxxxxx Xxxxx Xxxx,
0000 - 0x. andar, CEP 04538-905,
Sao Paulo, SP, Brazil
1. Of the AmBev Common Stock included in the AmBev Disposition Shares the
record owners are as follows: (i) S-Braco Participacoes S.A. owns 888,214,820
AmBev common shares, Braco S.A. owns 3,326,130,215 AmBev common shares,
Empresa de Administracao e Participacoes S.A. - Ecap owns 4,039,568,225 AmBev
common shares.
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