This CONSENT AND INDEMNITY AGREEMENT (this
"Agreement") dated as of May 24, 2004, is made and
entered into by and among COMPANHIA DE BEBIDAS DAS
AMERICAS-AMBEV, a corporation organized under the
laws of the Federative Republic of Brazil ("AmBev"),
INTERBREW S.A., a public limited liability company
organized under the laws of the Kingdom of Belgium
("Interbrew"), LABATT BREWING CANADA HOLDING LTD., a
company organized under the laws of the Bahamas and a
wholly owned subsidiary of Interbrew ("Mergeco"), and
LABATT BREWING COMPANY LIMITED, a corporation
organized under the federal laws of Canada
("Labatt"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings
assigned to such terms in the Incorporacao Agreement
dated as of March 3, 2004 (the "Incorporacao
Agreement"), among AmBev, Interbrew, Mergeco and
Labatt.
WHEREAS the parties hereto are parties to the Incorporacao Agreement;
WHEREAS pursuant to Section 1.05 of the Incorporacao Agreement,
Interbrew and Labatt may not enter into certain commitments that would be
binding on Labatt or any of the Labatt Subsidiaries after Closing or that would
impose any liability on Labatt or any of the Labatt Subsidiaries after Closing
without the prior consent of AmBev; and
WHEREAS (a) Interbrew, Labatt, Stellamerica Holdings Limited, a company
organized under the federal laws of Canada and a wholly owned subsidiary of
Labatt ("Stellamerica"), Fomento Economico Mexicano, S.A. de C.V., a sociedad
anonima de capital variable organized under the laws of the United Mexican
States ("FEMSA"), Grupo Industrial Emprex, S.A. de C.V., a sociedad anonima de
capital variable organized under the laws of the United Mexican States
("Emprex"), and FEMSA Cerveza, S.A. de C.V., a sociedad anonima de capital
variable organized under the laws of the United Mexican States ("Cerveza"),
intend to enter into a Share Purchase Agreement dated as of the date hereof (the
"Share Purchase Agreement"), (b) Wisdom Import Sales Company L.L.C., a Texas
limited liability company and a wholly owned subsidiary of Cerveza, Cerveza,
Interbrew, Labatt Holdings, Inc., a Delaware corporation ("LH"), Labatt Holdings
II, Inc., a Delaware corporation ("XX XX"), Xxxxxx, XX Holdings I L.L.C., a
Delaware limited liability company and a subsidiary of Labatt ("LF Holdings I"),
and LF Holdings II L.L.C., a Delaware limited liability company and a subsidiary
of Labatt ("LF Holdings II") intend to enter into a Redemption Agreement dated
as of the date hereof (the "Redemption Agreement"), (c) Interbrew, Labatt,
Stellamerica, FEMSA, Emprex and Cerveza intend to enter into a Consent and
Waiver Agreement dated as of the date hereof (the "Consent and Waiver
Agreement") and (d) Cerveceria Xxxxxxxxxx Xxxxxxxxx, S.A. de C.V., a sociedad
anonima de capital variable organized under the laws of the United Mexican
States ("CCM"), and LUSA intend to enter into a Transition Agreement dated as of
the date hereof (the "Transition Agreement" and, together with the Share
Purchase Agreement, the Redemption Agreement and the Consent and Waiver
Agreement, the "Transaction Agreements");
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NOW, THEREFORE, in consideration of the mutual covenants contained
herein and intending to be legally bound hereby, the parties hereby agree as
follows:
SECTION 1. CONSENT. In accordance with the provisions of Section 1.05
of the Incorporacao Agreement, AmBev hereby consents to Labatt and the Labatt
Subsidiaries entering into, and performing their obligations under, (a) the
Share Purchase Agreement as set forth in Exhibit A-1 hereto, (b) the Redemption
Agreement as set forth in Exhibit A-2 hereto, (c) the Consent and Waiver
Agreement as set forth in Exhibit A-3 hereto and (d) the Transition Agreement as
set forth in Exhibit A-4 hereto, in the case of each of clauses (a) through (d)
as in effect on the date hereof (for the avoidance of doubt, including, in each
case, the exhibits and annexes thereto).
SECTION 2. TRANSFER OF SPECIFIED EQUITY INTERESTS.
(a) Subject to receipt of necessary third party consents and waivers
which remain valid and in full force and effect, Interbrew shall, and shall
cause Labatt and the other subsidiaries of Interbrew to, use its reasonable best
efforts to cause the Femsa Cerveza Interest and 100% of the shares of LH (such
equity interests, the "Specified Equity Interests") to be transferred to 6235867
Canada Inc., a corporation organized under the laws of Canada and an indirect
wholly owned subsidiary of Interbrew that is not a subsidiary of Labatt
("Canco"), as contemplated by the Share Purchase Agreement, the Redemption
Agreement and the Consent and Waiver Agreement, and in accordance with the
Restructuring Plan (as amended and restated pursuant to the Restructuring
Implementation Agreement and Consent dated as of the date hereof among the
parties hereto), on or prior to June 10, 2004, unless prohibited by applicable
law. In the event (i) the Specified Equity Interests have not been transferred
to Canco at or prior to Closing and (ii) the transactions contemplated by the
Redemption Agreement and the Share Purchase Agreement will not be consummated at
or prior to Closing, the parties shall agree prior to Closing to appropriate
amendments to the Incorporacao Agreement and to the Letter Agreement (including
the Promissory Notes) to ensure that AmBev is not required to issue any AmBev
Shares in respect of the Femsa Cerveza Interest at Closing.
(b) Reference is made to Section 5.3 of the Redemption Agreement and
Section 4 of the Consent and Waiver Agreement, contemplating that the Specified
Equity Interests that have been transferred from Labatt and its subsidiaries to
Canco may be transferred back to Labatt under certain circumstances. In the
event (i) the Specified Equity Interests have been transferred to Canco as
provided above and (ii) either (A) Closing has occurred or (B) the Incorporacao
Agreement has not been terminated, Interbrew agrees that it will not, and it
will cause its subsidiaries not to, transfer the Specified Equity Interests to
Labatt or any of its subsidiaries without the prior written consent of AmBev.
SECTION 3. INDEMNIFICATION. Notwithstanding Section 8.01 of the
Incorporacao Agreement and, for the avoidance of doubt, in addition to
Interbrew's obligations thereunder, Interbrew shall indemnify the AmBev
Indemnitees against and hold them harmless from any liability, claim, damage (to
the extent such damage is actually incurred) or expense, including reasonable
legal fees and expenses arising out of such liability, claim or damage, suffered
or
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incurred by the AmBev Indemnitees arising from, relating to or otherwise in
respect of (a) the Transaction Agreements and the transactions contemplated
thereby and (b) Cerveza, LH, XX XX, LF Holdings I, LF Holdings II and LUSA;
provided, however, that for the avoidance of doubt, the foregoing obligation is
not intended to, and shall not, apply with respect to (i) any loss of revenue,
income, synergy, cost saving, tax benefit, business opportunity or similar
attribute resulting from the fact that any of the interests or entities listed
in the preceding clause (b) will not be held by Labatt upon its acquisition by
AmBev pursuant to the Incorporacao Agreement and (ii) the expenses of AmBev,
including legal fees and expenses, in connection with the negotiation, execution
and delivery of the Transaction Agreements or the consummation of the
transactions contemplated thereby in accordance with the terms thereof. Unless
otherwise provided herein, the provisions of Sections 8.02, 8.03 and 8.04 of the
Incorporacao Agreement shall apply to Interbrew's obligations under this Section
3 as if such provisions were a part of this Agreement.
SECTION 4. INCORPORACAO AGREEMENT. Except as specifically consented to
or modified hereby, the Incorporacao Agreement shall continue unmodified and in
full force and effect in accordance with the provisions thereof as in existence
on the date hereof.
SECTION 5. 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 the other parties hereto. Notwithstanding
the foregoing, each of Interbrew, AmBev or Mergeco may, if it assigns its right
to consummate the Incorporacao Agreement in accordance with the second sentence
of Section 9.01 of the Incorporacao Agreement, assign its respective rights
under this Agreement to such affiliate without the prior written consent of the
other parties hereto. Any attempted assignment in violation of this Section
shall be void.
SECTION 6. NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole
benefit of the parties hereto and their permitted assigns and 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 7. ATTORNEY FEES. A party in breach of this Agreement shall, on
demand, indemnify and hold harmless the other party 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 8. NOTICES. All communications and notices hereunder shall be
in writing and given in the manner provided in Section 9.04 of the Incorporacao
Agreement.
SECTION 9. COUNTERPARTS. This Agreement may be executed in one or more
separate 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
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other means of electronic transmission shall be deemed to be an original and
shall be as effective for all purposes as delivery of a manually executed
counterpart.
SECTION 10. ENTIRE AGREEMENT. This Agreement and the Incorporacao
Agreement, as consented to and modified hereby, contain the entire agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersede all prior agreements and understandings relating to such subject
matter. None of the parties shall be liable or bound to any other party in any
manner by any representations, warranties or covenants relating to such subject
matter except as specifically set forth herein or in the Incorporacao Agreement.
SECTION 11. ARBITRATION. All disputes arising out of or in connection
with this Agreement shall be settled in accordance with Section 9.09 of the
Incorporacao Agreement.
SECTION 12. SEVERABILITY. If any provision of this Agreement (or any
portion thereof) or the application of any such provision (or any portion
thereof) to any person or circumstance shall be held invalid, illegal or
unenforceable in any respect by an arbiter or arbitration panel established in
accordance with Section 9.09 of the Incorporacao Agreement, such invalidity,
illegality or unenforceability shall not affect any other provision hereof (or
the remaining portion thereof) or the application of such provision to any other
persons or circumstances.
SECTION 13. 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 INCORPORACAO AND ANY CORPORATE ACTION REQUIRED TO
COMPLETE THE INCORPORACAO AS CONTEMPLATED BY THE INCORPORACAO AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE FEDERATIVE REPUBLIC OF BRAZIL.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
COMPANHIA DE BEBIDAS DAS AMERICAS - AMBEV
by /s/ XXXXXXX XXXX XXXXX
------------------------------------
Name: Xxxxxxx Xxxx Ferro
Title: Director
by /s/ XXXXX XX XXXXX XXXXXXX
------------------------------------
Name: Xxxxx xx Xxxxx Xxxxxxx
Title: Director
WITNESSES:
/s/ XXXXXX XX XXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxx Xx Xxxxxx Xxxxxxx
X.X.: 18984698-7
CPF: 000.000.000-00
/s/ XXXXX XXXXXX XXXXX XXXXXX
-------------------------------------
Name: Xxxxx Xxxxxx Xxxxx Xxxxxx
X.X.: 7350876
CPF: 000.000.000-00
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INTERBREW S.A.,
by /s/ XXXX XXXXX
------------------------------------
Name: Xxxx Xxxxx
Title: Chief Executive Officer
by /s/ XXXXXX XXXXXXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxxxxxx
Title: Zone President US-Latin America
WITNESSES:
/s/ XXXX XXXXXXXXXXX
-------------------------------------
Name: Xxxx Xxxxxxxxxxx
ID Card:
/s/ XXXXXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxxxxx Xxxxxxx
ID Card:
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LABATT BREWING COMPANY LIMITED,
by /s/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Corporate Secretary
by /s/ XXXXXX XXXXXXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxxxxxx
Title: Zone President US-Latin America
WITNESSES:
/s/ XXXX X. XXXXX
-------------------------------------
Name: Xxxx X. Xxxxx
Driver License I.D. Number:
/s/ XXXXXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Driver License I.D. Number:
8
LABATT BREWING CANADA HOLDING LTD.,
by /s/ XXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
by /s/ XXXXX X. XXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
WITNESSES:
/s/ XXXXXX XXXXX
-------------------------------------
Name: Xxxxxx Xxxxx
Driver License I.D. Number: 45352
/s/ XXXXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Driver License I.D. Number: 46422
