Exhibit 2.5
Execution Copy
SHAREHOLDERS AGREEMENT dated as of January 31, 2003, among
QUILMES INDUSTRIAL (QUINSA) SOCIETE ANONYME, a Luxembourg
corporation (the "Company"), COMPANHIA DE BEBIDAS DAS
AMERICAS-AMBEV, a Brazilian corporation ("AmBev"), and BEVERAGE
ASSOCIATES (BAC) CORP., a British Virgin Islands corporation
("BAC").
WHEREAS AmBev and the Company are parties to a Share Exchange
Agreement dated as of May 1, 2002 (the "Share Exchange Agreement"), pursuant to
which AmBev has, on the date hereof, contributed to the Company or one of its
subsidiaries all the shares of capital stock of the subsidiaries of AmBev which
manufacture, market, sell or distribute beer in Argentina, Uruguay, Paraguay and
Bolivia in exchange for the issuance by the Company to AmBev of 26,388,914 Class
B shares, without par value ("Class B Shares"), of the Company;
WHEREAS AmBev and BAC are parties to a Stock Purchase Agreement dated
as of May 1, 2002 (the "Stock Purchase Agreement"), pursuant to which AmBev has,
on the date hereof, purchased from BAC 230,920,000 Class A shares, without par
value ("Class A Shares"), of the Company;
WHEREAS AmBev and BAC have also agreed in the Stock Purchase Agreement
to provide for the future exchange of the remaining 373,520,000 Class A Shares
of the Company owned by BAC on the date of the Stock Purchase Agreement (the
"Remaining Shares"), for shares of AmBev, upon the terms and subject to the
conditions set forth therein;
WHEREAS, the Company, AmBev, BAC and The Bank of New York have entered
into an escrow agreement (the "Escrow Agreement") dated as of the date hereof
pursuant to which The Bank of New York (i) agrees to hold the Equalization
Shares (as defined in the Escrow Agreement) in escrow until the occurrence of
certain events described therein, and (ii) is required to vote the Equalization
Shares deposited with The Bank of New York only upon the instruction of both BAC
and AmBev;
WHEREAS to secure BAC's obligation to deliver the Remaining Shares to
AmBev, BAC, AmBev and the Company have entered into a Share Pledge Agreement
dated as of the date hereof (the "Share Pledge Agreement") under Luxembourg law
pursuant to which BAC has pledged the Remaining Shares to AmBev; and
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WHEREAS the parties hereto desire to provide for certain rights and
restrictions with respect to the governance and management of the Company and
certain restrictions upon the direct or indirect sale, assignment, transfer,
pledge or other disposition of the Remaining Shares.
Accordingly, the parties hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. (a) For purposes of this Agreement, the
following terms shall have the following meanings:
"Articles" means the Co-ordinated Articles of Incorporation, as
amended through August 8, 2001, of the Company.
"BAC Shares" means any shares of BAC.
"Family Member" means any Member and any affiliate (as defined in the
Stock Purchase Agreement) thereof.
"Lien" means any mortgage, lien, pledge, security or other interest,
charge, covenant, option, claim, restriction or encumbrance of any kind or
nature whatsoever.
"Member" means the ultimate beneficial owners of the shares of BAC on
the date of the Stock Purchase Agreement.
"Permitted Transfer" means (a) in the case of the Remaining Shares,
any Transfer to AmBev and (b) in the case of BAC Shares, Transfers to AmBev, any
Member or Family Member.
"Requisite Percentage" means (a) in the case of AmBev, 40% or more of
the Voting Interest and (b) in the case of BAC, 40% or more of the Voting
Interest, provided that (i) if BAC's percentage share of the Voting Interest is
reduced to less than 50% as a result of the Transfer of Remaining Shares to
AmBev, then BAC shall be deemed not to have the Requisite Percentage and (ii)
for purposes of determining whether BAC owns the Requisite Percentage, BAC shall
be deemed to own, without duplication, all Remaining Shares held by the Escrow
Agent from time to time under the Escrow Agreement and all Remaining Shares
pledged to AmBev
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under the Share Pledge Agreement.
"Rights" means, in respect of any security, any right, warrant, option
or other security which, directly or indirectly, represents the right to
purchase or acquire, or is convertible into or exercisable or exchangeable for,
or otherwise represents an interest in, such security.
"Shareholders" means AmBev and BAC, collectively.
"Shares" means the Remaining Shares and the BAC Shares, collectively.
"Transfer", as to any Shares means to sell, or in any other way
transfer, assign, pledge, distribute, encumber or otherwise dispose of, or
permit any Lien to exist on such Shares or any Rights in respect of such Shares,
either voluntarily or involuntarily and with or without consideration.
"Voting Interest" means the aggregate number of votes entitled to be
cast at any meeting of shareholders of the Company by all the Voting Shares of
the Company owned by the Shareholders. For the purposes of determining BAC's
percentage of the Voting Interest, BAC shall be deemed to own, without
duplication, all Remaining Shares held by the Escrow Agent from time to time
under the Escrow Agreement and all Remaining Shares pledged to AmBev under the
Share Pledge Agreement.
"Voting Shares" means the Class A Shares, the Class B Shares and any
other shares of the Company having a right to vote at any meeting of
shareholders.
(b) Terms used herein and not otherwise defined have the meanings
assigned thereto in the Stock Purchase Agreement.
ARTICLE II
Restrictions Relating to the Shares
SECTION 2.01. No Transfer of Remaining Shares. BAC shall not, and
shall not permit the Members or any affiliate thereof to, directly or
indirectly, Transfer, or permit the Transfer of, the Remaining Shares or any BAC
Shares or any Rights in respect of the Remaining Shares or the BAC Shares,
except for Permitted Transfers (it being understood that a Transfer of BAC
Shares to Permitted Transferees will not be deemed to be an indirect Transfer of
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Remaining Shares).
SECTION 2.02. Legends on Share Certificates. Except as otherwise
provided in the Escrow Agreement or the Share Pledge Agreement, BAC shall be the
registered holder of the Remaining Shares and the shareholders of BAC shall hold
all BAC Shares in certificated form or book-entry form. Each certificate
representing, or the share registry in respect of, the Remaining Shares or BAC
Shares, and any certificate issued, or any entry in the share registry made,
upon any Permitted Transfer (other than to AmBev), shall bear the following
legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE (OR BY THIS REGISTRATION,
AS THE CASE MAY BE) ARE SUBJECT TO RESTRICTIONS ON TRANSFER IN
ACCORDANCE WITH THE TERMS OF A SHAREHOLDERS' AGREEMENT DATED AS OF
January 31, 2003, AS THE SAME MAY BE AMENDED OR MODIFIED FROM TIME TO
TIME, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICE OF
THE ISSUER OF THESE SHARES. NO REGISTRATION OF TRANSFER OF SUCH SHARES
WILL BE MADE ON THE BOOKS OF THE ISSUER UNLESS SUCH RESTRICTIONS ARE
COMPLIED WITH."
SECTION 2.03. Stop Transfer. (a) BAC shall not register the Transfer
of any BAC Shares, unless the transfer is permitted by Section 2.01.
(b) The Company and BAC agree that any purported Transfer of Remaining
Shares or BAC Shares not permitted by Section 2.01 shall be deemed null and void
and shall not be given effect or recognition by the Company or BAC.
SECTION 2.04. No Acquisition of Company Shares. Except as provided in
Article III, (i) BAC will not directly or indirectly, purchase or otherwise
acquire, after the date hereof, any Class A Shares or Class B Shares, (ii) BAC
will not permit any Family Member to, directly or indirectly, purchase or
otherwise acquire, after the date hereof, more than 500,000 Class A Shares or
more than 500,000 Class B Shares and (iii) BAC will not, and will not permit any
Family Member to, directly or indirectly, purchase or otherwise acquire any
other shares of capital stock of the Company (or any interest in, or Rights in
respect of, any Class A Shares or Class B Shares (other than those permitted to
be acquired pursuant to clause (ii)) or any other shares) except by way of share
dividends or distributions on the Remaining Shares or as a result of a Permitted
Transfer.
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SECTION 2.05. Transfer of Shares Owned by AmBev. Until the Second
Stage Closing Date, (i) AmBev shall not, and shall not permit any of its
affiliates to, directly or indirectly Transfer or permit the Transfer (to any
person other than an affiliate of AmBev) of, any of the Class A Shares and Class
B Shares held by AmBev (including, without limitation the Class B Shares issued
pursuant to the Share Exchange Agreement) as of the date of this Agreement, or
(ii) create, assume or suffer to exist any Lien on any of the Class A Shares
owned by AmBev as of the date of this Agreement. Until the Second Stage Closing
Date, each certificate representing, or the share registry in respect of such
Class A Shares and any certificate issued or any entry in the share registry
made upon any Transfer of any such Class A Shares to an affiliate of AmBev shall
bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE (OR BY THIS REGISTRATION,
AS THE CASE MAY BE) ARE SUBJECT TO RESTRICTIONS ON TRANSFER IN
ACCORDANCE WITH A SHAREHOLDERS AGREEMENT DATED AS OF January 31, 2003,
AS THE SAME MAY BE AMENDED OR MODIFIED FROM TIME TO TIME, A COPY OF
WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICE OF THE ISSUER OF
THESE SHARES. NO REGISTRATION OF TRANSFER OF SUCH SHARES AND NO
PLEDGE, LIEN OR ENCUMBRANCE THEREON WILL BE MADE OR RECORDED ON THE
BOOKS OF THE ISSUER OR IN ANY REGISTRY UNLESS SUCH RESTRICTIONS ARE
COMPLIED WITH.
ARTICLE III
Preferential Purchase Rights
SECTION 3.01. AmBev's Preemptive Rights. (a) Until AmBev shall have
acquired, after the date hereof, an aggregate of 12 million Class B Shares (as
adjusted as provided in Section 3.04), whether under Sections 3.01 or 3.02, in
addition to the Class B Shares acquired by AmBev on the date hereof and the
Remaining Shares to be acquired by AmBev pursuant to the Exchange, the Company
shall not issue, sell or exchange, or agree to issue, sell or exchange, any
Class B Shares or Rights in respect of Class B Shares unless the Company shall
have first offered to sell such Class B Shares or Rights to AmBev, at a price
and on such other material terms and conditions as shall have been specified by
the Company to AmBev in a written notice. Any such notice shall constitute an
irrevocable offer to sell to AmBev such Class B Shares or Rights, which offer
shall remain open for a period of 30 days from the date it is
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delivered to AmBev. If AmBev shall not notify the Company of its acceptance of
the Company's offer and agreement to purchase all the Class B Shares or Rights
offered by the Company, the Company may, within the 90 days following the
expiration of the 30-day period mentioned above (or, in the case of a public
offering of such Class B Shares in any jurisdiction or any other sale which
requires regulatory approval in any jurisdiction, within 10 days following the
first date on which such Class B Shares may lawfully be sold), sell any or all
the Class B Shares or Rights not accepted by AmBev to any other person, but only
on terms and conditions (including price) in all material respects no more
favorable to the purchasers and no less favorable to the Company than those set
forth in the notice to AmBev. Any Class B Shares or Rights not so purchased by
AmBev or any other person may not be sold or otherwise disposed of until they
are again offered to AmBev in accordance with the provisions of this Section
3.01(a).
(b) In addition to AmBev's rights under Section 3.01(a), if the
Company at any time proposes to effect a capital increase through the issue of
shares or Rights of any class or series, AmBev will have the right to subscribe
for its "proportionate percentage" of such shares or Rights. For purposes of the
preceding sentence, AmBev's "proportionate percentage" shall be the proportion
(expressed as a percentage) of the total economic interest in the Company
represented by the shares of the Company owned by AmBev (on a fully diluted
basis) immediately prior to such issuance.
(c) This Section 3.01 and Section 3.05 shall not apply to (i) any
issuance of Class B Shares to employees of the Company or any subsidiary of the
Company pursuant to employee benefit plans or arrangements approved by the Board
of Directors (and shareholders, if required) of the Company (including upon
exercise of stock options or any purchase of Class B Shares pursuant to the
terms of any such plan or arrangement), (ii) any issuance of Class B Shares in
connection with the conversion of Class A Shares to Class B Shares, and (iii)
any issuance of Class B Shares in connection with any bona fide merger,
acquisition or similar transaction approved by the Board of Directors and
shareholders of the Company.
SECTION 3.02. Third Party Shares. The Company will not, directly or
indirectly, purchase any shares of capital stock of the Company (or any Rights
in respect of any such shares) or, except pursuant to the exercise of the call
option under the letter agreement dated January 13, 2003 among the Company, BAC
and AmBev (the
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"Heineken Letter Agreement"), any shares (or any Rights in respect of any such
shares) of QIB (collectively, "Third Party Shares") until the earlier of (a) the
second anniversary of the date of this Agreement or (b) the date on which AmBev
shall have acquired an aggregate of 12 million Class B Shares (as adjusted as
provided in Section 3.04), whether under Sections 3.01 or 3.02, in addition to
the Class A Shares acquired by AmBev on the date hereof and the Remaining Shares
to be acquired by AmBev pursuant to the Exchange. If, after the second
anniversary of the date of this Agreement, AmBev has not yet acquired an
additional 12 million Class B Shares (as adjusted as provided in Section 3.04),
the Company may acquire Third Party Shares provided it first offers AmBev the
opportunity to acquire such Third Party Shares, to the extent of the difference
between 12 million and the additional Class B Shares previously acquired by
AmBev. If AmBev declines the opportunity to purchase such Third Party Shares,
the Company may acquire them, but only on terms and conditions (including price)
no less favorable to the sellers and no more favorable to the Company than those
offered to AmBev. Any Third Party Shares not acquired by AmBev or the Company
may not subsequently be acquired by the Company unless AmBev is first offered
the opportunity to acquire them to the extent required by, and in accordance
with, the provisions of this Section 3.02.
SECTION 3.03. No Further Purchases by AmBev. Other than the Remaining
Shares, AmBev shall not acquire any additional Class A Shares or any interest
therein. After AmBev has acquired an additional 12 million Class B Shares (as
adjusted as provided in Section 3.04), AmBev shall not purchase or otherwise
acquire any Third Party Shares. As among the parties to this Agreement, only the
Company may thereafter purchase or otherwise acquire any Third Party Shares.
SECTION 3.04. Adjustments Upon Changes in Capitalization. For purposes
of Sections 3.01, 3.02 and 3.03, the 12 million Class B Shares to be purchased
by AmBev shall be appropriately adjusted to give effect to any share dividend,
split-up, subdivision or combination of shares or any recapitalization,
reclassification, reorganization, consolidation, merger or similar transaction
involving the Company.
SECTION 3.05. BAC's Preemptive Rights. After AmBev has acquired 12
million Class B Shares (adjusted as provided in Section 3.04) as provided in
Sections 3.01 and 3.02 and subject to Section 3.01(c), if the Company at any
time proposes to effect a capital increase through the
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issue of shares or Rights of any class or series other than in connection with
any exercise by the Company of the call option set forth in paragraph 6 of the
Heineken Letter Agreement, BAC will have the right to subscribe for its
"proportionate percentage" of such shares or Rights. For purposes of the
preceding sentence, BAC's "proportionate percentage" shall be the proportion
(expressed as a percentage) of the total economic interest in the Company
represented by the shares of the Company owned by BAC (on a fully diluted basis)
immediately prior to such issuance and any shares held under the Escrow
Agreement.
ARTICLE IV
Governance and Management of the Company
SECTION 4.01. Number of Directors. The number of directors
constituting the board of directors of the Company (the "Company Board") and the
boards of directors of the subsidiaries of the Company (a "Subsidiary Board" and
together with the Company Board, the "Boards" and each, a "Board") shall be
fixed from time to time by each Board or the shareholders at a general meeting,
as applicable, in accordance with their respective charter documents or By-laws
or the applicable law, provided that so long as AmBev and BAC each have the
Requisite Percentage the number of directors constituting the Company Board
shall be an even number (initially 10).
SECTION 4.02. Nomination of Directors. The composition of each Board
shall be determined in accordance with the following provisions:
(a) For so long as AmBev and BAC each have the Requisite Percentage,
each of AmBev and BAC shall have the right to nominate 50% of the directors (and
their respective alternates) constituting the Company Board and, in the case of
each Subsidiary Board, 50% of the number of directors (and their respective
alternates) that BAC is entitled to nominate under such subsidiary's charter
documents or by-laws, any existing shareholders agreement or applicable law;
(b) If either AmBev or BAC has less than the Requisite Percentage,
then each of AmBev and BAC shall have the right to nominate a number of
directors proportionate to their percentage share of the Voting Interest,
determined by multiplying their percentage share of the Voting Interest by the
number of directors constituting the entire Board (or, in the case of any
Subsidiary Board, the number of directors BAC is entitled to nominate) and
rounding upward or downward
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to the nearest whole number. In the circumstances contemplated in this clause
(b), the number of directors constituting each entire Board shall be fixed at
such number, subject to the limitations contained in the charter documents or
by-laws of the Company or the applicable subsidiary, as will result in AmBev's
and BAC's representation on each Board being as close to proportional as
possible; and
(c) Notwithstanding the foregoing, upon the occurrence of the Second
Stage Closing Date, all rights of BAC to nominate directors shall terminate
immediately, the directors nominated by BAC shall resign effective upon the
Second Stage Closing Date and, as promptly as practicable thereafter, including
by means of calling a shareholders' meeting, each Board shall be reconstituted
to include only directors nominated or approved by AmBev, subject to the rights
of any other shareholders under any subsidiary's charter or By-laws or any
existing shareholders agreement to nominate directors.
SECTION 4.03. Election of Directors. At each annual or extraordinary
general meeting of shareholders called for the purpose, among other things, of
electing directors of the Company or its subsidiaries, as the case may be, the
Shareholders shall vote all of their shares of the Company owned by them or
their affiliates in favor of the election to each Board of the nominees of AmBev
and BAC nominated in accordance with Section 4.02 and against the election of
persons nominated in opposition to such nominees.
SECTION 4.04. Committees. Any committee of each Board shall be
comprised of directors nominated by AmBev and BAC in, as nearly as practicable,
the same proportion as the representation of the nominees of AmBev and BAC on
each entire Board.
SECTION 4.05. Removal; Vacancies. Each director shall serve until his
or her death, disability, resignation or removal. Subject to applicable law, a
director may only be removed by a vote of the Shareholders at a general meeting
following a recommendation to that effect by the Shareholder who nominated the
director, and each Shareholder agrees to vote at the general meeting all the
Shares owned by it in favor of such removal or suspension. If a vacancy occurs
because of the death, disability, resignation or removal of a director, the
Shareholder who nominated the director shall nominate, and each Board shall
elect, a successor to serve until the next general meeting of shareholders.
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SECTION 4.06. Meetings of Directors.
(a) Regular Meetings. Unless otherwise decided by a majority of the
entire Company Board, the Company Board shall hold regular meetings monthly at
such times as may be from time to time fixed by resolution of the Company Board,
and no notice (other than the resolution) need be given as to regularly
scheduled meeting. Special meetings of the Company Board may be called and held
at any time upon the call of either Co-Chairmen of the Board or at least two
members of the entire Company Board, by notice to each director at least three
business days before the meeting. Reasonable efforts shall be made to ensure
that each director actually receives timely notice of any such special meeting.
An annual meeting of the Company Board shall be held without notice immediately
following the annual general meeting of the Company.
(b) Telephonic Meetings. Any or all of the directors may participate
in a meeting of any Board by means of telephone, videoconference or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting by such means shall
constitute presence in person at such meeting.
(c) Written Consents. Any action required or permitted to be taken at
a meeting of any Board may be taken by unanimous written consent of all the
directors to the extent permitted by Luxembourg law.
(d) Quorum and Approval Requirements. So long as each Board is
composed of directors nominated in accordance with Section 4.02(a), the presence
in person or by proxy of at least a majority of the directors constituting the
entire Board, including at least three AmBev Directors and three BAC Directors,
shall be necessary to constitute a quorum for the transaction of business by
each Board and the affirmative vote of a majority of the directors shall be
required for any action of each Board, except for those actions which, pursuant
to Section 5.01, when applicable, require the affirmative vote of the AmBev
Directors and the BAC Directors. So long as the Board is composed of directors
nominated in accordance with Section 4.02(b), the presence in person or by
electronic means of at least a majority of the directors constituting the entire
Board, including at least two AmBev Directors and two BAC Directors, shall be
necessary to constitute a quorum for the transaction of business by each Board
and the affirmative vote of a majority of the directors shall be required for
any action of each Board except for those actions which,
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pursuant to Section 5.02, Section 5.03 or Section 5.04, when applicable, require
the affirmative vote of the AmBev Directors or the BAC Directors, as the case
may be.
(e) Election of Co-Chairmen. For so long as AmBev and BAC each have
the Requisite Percentage, each of AmBev and BAC shall have the right to elect a
Co-Chairman of the Company Board. For so long as AmBev and BAC each have the
Requisite Percentage, AmBev and BAC shall jointly appoint a Chairman of each
Subsidiary Board.
SECTION 4.07. Compensation of Directors. The Company may continue the
Board compensation policy adopted by resolution dated March 1993. All directors
will share equally in any compensation paid to directors in their capacity as
such.
SECTION 4.08. Replacement of CEO. Each of the AmBev Directors and the
BAC Directors shall have the right to cause the Board to replace the Company's
chief executive officer in the event of "significant under performance" versus
the agreed upon operating targets over a period of two consecutive fiscal years.
For each fiscal year, the Board and the chief executive officer will agree upon
a set of operating targets for such fiscal year and the weight to be assigned to
each target. "Significant under performance" means a weighted grade of less than
70% over each of two consecutive fiscal years (reasonably adjusted to reflect
any materially adverse effect on the business of the Company and its
subsidiaries arising as a result of general economic conditions, political or
governmental or regulatory actions, changes or developments in monetary policy
(including currency devaluations) or inflation in Argentina or any of the other
jurisdictions in which the Company and its subsidiaries conduct business or any
merger, material acquisition or divestiture or other extraordinary corporate
transaction).
SECTION 4.09. Articles and By-laws. The Company and each Shareholder
shall take or cause to be taken all lawful action necessary to ensure at all
times that the Articles of the Company or the charter documents or By-laws of
its subsidiaries (subject to the existing rights of shareholders of each
subsidiary) are not at any time inconsistent with, and to the greatest extent
possible under the applicable laws give effect to, the provisions of this
Agreement, it being understood that in the event of any conflict between this
Agreement and the Articles, charter documents or By-laws, the Articles, charter
documents or By-laws, as applicable, shall control.
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SECTION 4.10. Springing Proxy. BAC agrees that in the event that it is
not present in person or by proxy at a duly called meeting of the shareholders
of the Company, it shall be deemed to have granted to AmBev who is so present at
such meeting a proxy to vote all of its shares in AmBev's discretion in
accordance with the provisions of the Shareholders Agreement. BAC agrees to
execute separate proxies, powers of attorney or other instruments conforming to
the requirements of Luxembourg law to evidence and give effect to the foregoing
proxy.
SECTION 4.11. Exercise of Company's Rights. (a) If the Company or any
of its subsidiaries has asserted any rights, claims or defenses under any of its
agreements or under applicable law against AmBev or any of its affiliates or if
the BAC Directors determine that the Company could reasonably be expected to
have any unasserted rights, claims or defenses under any of its agreements or
under applicable law against AmBev or any of its affiliates, any decision of the
Board with regard to such rights, claims or defenses or with regard to any
proceeding at which such rights, claims or defenses are asserted, shall be
determined solely by the BAC Directors on behalf of the Company and its
subsidiaries.
(b) If the Company or any of its subsidiaries has asserted any rights,
claims or defenses under any of its agreements or under applicable law against
BAC or any of its affiliates or if the AmBev Directors determine that the
Company could reasonably be expected to have any unasserted rights, claims or
defenses under any of its agreements or under applicable law against BAC or any
of its affiliates, any decision of the Board with regard to such rights, claims
or defenses or with regard to any proceeding at which such rights, claims or
defenses are asserted, shall be determined solely by the AmBev Directors on
behalf of the Company and its subsidiaries.
SECTION 4.12. Appointment of Officers. (a) The Chief Executive Officer
of the Company shall nominate and the Company Board shall have the right to
approve the appointment of the executive officers of the Company and the general
manager (or other chief officer) of each operating subsidiary of the Company.
(b) The chief executive officer of the Company shall have the right to
appoint all officers of each subsidiary of the Company (other than the general
manager (or other chief officer) of each operating subsidiary) without the
approval of the Company Board or the applicable Subsidiary Board.
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ARTICLE V
Protective Provisions
SECTION 5.01. First Threshold Protective Provisions. For so long as
each of AmBev and BAC owns the Requisite Percentage, the Company shall not, and
shall not permit any of its subsidiaries to, take, and neither the Company Board
nor any committee of the Company Board nor any Subsidiary Board shall approve,
any of the actions specified on Schedule I without the affirmative written
consent or vote of a majority of the AmBev Directors and a majority of the BAC
Directors, in the case of action by the Company Board or any Subsidiary Board,
and the affirmative vote of AmBev and BAC, in the case of any action taken at a
meeting of shareholders.
SECTION 5.02. Second Threshold Protective Provisions. In the event
that either AmBev or BAC owns less than the Requisite Percentage but more than
30% of the Voting Interest, the Company shall not, and shall not permit any of
its subsidiaries to, take, and neither the Company Board nor any committee of
the Company Board nor any Subsidiary Board shall approve, any of the actions
specified on Schedule II, without the affirmative written consent or vote of the
AmBev Directors or the BAC Directors, as the case may be, in the case of action
by the Company Board or any Subsidiary Board, and the affirmative vote of AmBev
or BAC, as the case may be, in the case of any action taken at a meeting of
shareholders. The provisions of this Section 5.02 shall terminate immediately
upon the First Stage Closing Date.
SECTION 5.03. Third Threshold Protective Provisions. In the event that
either AmBev or BAC owns less than 30% of the Voting Interest but at least 15%
of the Voting Interest, the Company shall not, and shall not permit any of its
subsidiaries to, take, and neither the Company Board nor any committee thereof
nor any Subsidiary Board shall approve, any of the actions specified on Schedule
III without the affirmative written consent or vote of the AmBev Directors or
the BAC Directors, as the case may be, in the case of action by the Company
Board or any Subsidiary Board, and the affirmative vote of AmBev or BAC, as the
case may be, in the case of any action taken at a meeting of shareholders. The
provisions of this Section 5.03 shall terminate immediately upon the Second
Stage Closing Date.
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SECTION 5.04. Other Protective Provisions. In addition, so long as
either AmBev or BAC owns one-third or more of the Voting Interest, the
affirmative vote of AmBev or BAC, as the case may be, shall be required to
approve any capital increase of the Company.
ARTICLE VI
Representations and Warranties
SECTION 6.01. Representations and Warranties of the Parties. Each
party hereby represents and warrants to each other party as follows:
(a) Execution and Delivery; Enforceability. This Agreement has been
duly and validly executed and delivered by such party and constitutes the legal,
valid and binding obligation of such party, enforceable against it in accordance
with its terms.
(b) No Conflicts. The execution and delivery by such party of this
Agreement do not, and the consummation of the transactions contemplated hereby
and compliance with the terms hereof will not, 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, cancelation or acceleration of
any obligation, or to increased, additional, accelerated or guaranteed rights or
entitlements of any person under, or result in the creation of any Lien upon any
of the shares of the Company or BAC owned by such party under, any provision of
(i) any note, bond, mortgage, indenture, deed of trust, license, lease,
contract, commitment, agreement or arrangement binding upon such party or any of
its properties or assets or (ii) any applicable laws or any judgments, orders or
decrees of any court or governmental agency or body.
(c) Legal Proceedings. There are no judgments, orders or decrees of
any kind against such party that are unpaid or unsatisfied, nor is there any
legal action, suit or other legal or administrative proceeding pending,
threatened or reasonably anticipated that could be filed against such party,
that would adversely affect the ability of such party to perform its obligations
under this Agreement.
(d) Bankruptcy or Insolvency. Such party has not filed or commenced,
or suffered or submitted to the filing or commencement of, any bankruptcy or
insolvency proceeding under applicable law.
15
SECTION 6.02. Representations and Warranties of BAC. BAC represents
and warrants to AmBev that, as of the date of this Agreement:
(a) Subject to the Escrow Agreement and the Share Pledge Agreement,
BAC owns directly, and has good and valid title to, all the Remaining Shares,
free and clear of all Liens.
(b) None of the Members or any Family Members owns, directly or
indirectly, any shares of the Company other than the Remaining Shares owned by
BAC and no more than 3,000,000 Class A Shares and 2,000,000 Class B Shares.
ARTICLE VII
Additional Covenants
SECTION 7.01. Information Rights. Each director shall be entitled to
receive as promptly as practicable after such information is available (i)
quarterly consolidated unaudited financial statements and reports of the
Company, (ii) consolidated annual audited financial statements and reports of
the Company, and (iii) such other information relating to the business, affairs,
prospects or condition (financial or otherwise) of the Company as is available
to the Company that such director may reasonably request.
SECTION 7.02. Restrictions on BAC's Activities. BAC covenants and
agrees: (a) not to engage in any other business or activity other than the
ownership and disposition of the Remaining Shares in accordance with this
Agreement, the Stock Purchase Agreement, the Escrow Agreement, the Share Pledge
Agreement and any activities reasonably incidental thereto and the ownership and
disposition of the shares of QIB acquired by BAC pursuant to the Heineken Letter
Agreement in accordance with the terms thereof and any activities reasonably
incidental thereto; (b) not to create, incur or permit to exist any Debt or
other monetary liability to third parties other than the Members and their
permitted transferees or any Lien upon any of the Remaining Shares except for
Liens for the benefit of AmBev; and (c) not to liquidate or dissolve, or merge
into or consolidate with, or sell or otherwise Transfer all or substantially all
of its assets to, any other person.
SECTION 7.03. Non-Petition Covenant. BAC covenants and agrees that it
will not institute any bankruptcy, reorganization, arrangement, insolvency or
16
liquidation proceeding, or other proceeding under any bankruptcy, insolvency or
similar law.
SECTION 7.04. Investment Opportunities. (a)Subject to Section 7.04(d),
during the period from the Initial Closing through the tenth anniversary of the
date of this Agreement, AmBev will not, and will not permit any of its
subsidiaries (other than the Company and its subsidiaries) to, acquire, directly
or indirectly, any equity or other ownership interest in, or any substantial
assets of, any business involving the manufacture, marketing, sale or
distribution of beverages in Argentina, Paraguay, Uruguay, or Bolivia, other
than through the Company or one or more of its subsidiaries.
(b) Subject to Section 7.04(d), during the period from the Initial
Closing until the Second Stage Closing Date, AmBev will not, and will not permit
any of its subsidiaries to, acquire, directly or indirectly, any equity or other
ownership interest in, or any substantial assets of, any beverage or
beverage-related business involving the manufacture, marketing, sale or
distribution of beverages in Peru or Chile without first offering to the Company
and its subsidiaries the opportunity to make such acquisition. If an acquisition
opportunity in Peru or Chile should arise, AmBev and BAC will (i) cause to be
called, within 30 days of a request therefor by either BAC or AmBev, a meeting
of the Company Board to consider the opportunity, (ii) cause to be presented at
such meeting a complete description of the acquisition opportunity, including,
without limitation, the price proposed to be paid and all other material terms
and conditions thereof, (iii) cause management of the Company to present at such
meeting its recommendation as to whether the Company and its subsidiaries should
pursue the acquisition and, if so, how the acquisition should be financed by the
Company and its subsidiaries, and (iv) if the Company's management recommends
that the Company pursue the acquisition and that the acquisition should be
financed, in whole or in part, through the issuance of the Company's capital
stock, cause an investment banking firm of recognized international standing
selected by the chief executive officer of the Company and approved by the
Company Board, (x) to determine the fair value of the Company and its
subsidiaries, as a whole and, based thereon, the cash price per Class B share
that should be paid by a person unaffiliated with the Company in connection with
a purchase of such shares from the Company; provided that, if the investment
banking firm specifies a range for such per share price, the per share price
determined by such banker shall be deemed to be the midpoint in the range
specified by the investment banking firm (the "Fair Per Share Price") and (y)
17
to present to the Company Board at such meeting a written report of its
conclusions. If any AmBev Director votes against pursuit of such an acquisition
opportunity by the Company and its subsidiaries, then, subject to Section
7.04(c), AmBev and its subsidiaries (other than the Company and its
subsidiaries) shall not thereafter pursue the opportunity or make the proposed
acquisition. If the Company Board determines not to pursue the acquisition
opportunity but no AmBev Director votes against pursuit thereof, then AmBev and
its subsidiaries will have the right, for a period of 12 months from the date on
which the Board determines not to pursue the acquisition opportunity, to
negotiate and consummate such acquisition on terms no more favorable to AmBev
and its subsidiaries than those offered to the Company. If AmBev fails to
consummate such acquisition during such 12-month period, the provisions of this
Section 7.04 shall again apply to any other acquisition opportunity subject
hereto.
(c) If the Company determines to pursue an acquisition of any capital
stock or assets of any business involving the manufacture, marketing, sale or
distribution of beverages in Peru, AmBev shall either (i) contribute to the
Company cash equal to 50% of the aggregate cash consideration agreed to be paid
by the Company for such stock or assets in exchange for the number of Class B
shares of the Company determined as set forth below or (ii) pay 50% of the cash
consideration agreed to be paid by the Company directly to the person or persons
from whom such stock or assets are being acquired in exchange for a 50%
ownership interest in such stock or assets. If AmBev elects to make the
contribution contemplated by clause (i) above, AmBev shall be entitled to
receive the number of Class B shares determined by dividing the aggregate cash
contribution required to be made by AmBev by the Fair Per Share Price. If AmBev
elects to pay the consideration contemplated by clause (ii) above, AmBev and the
Company shall enter into a shareholders agreement with respect to the acquired
company or acquisition vehicle containing corporate governance provisions
substantially identical to Articles IV and V of this Agreement.
(d) Notwithstanding the other provisions of this Section 7.04, (i)
AmBev and its subsidiaries will not be required to offer to the Company and its
subsidiaries an opportunity to acquire, and will not be prohibited from
acquiring, directly or indirectly, any equity or other ownership interest in, or
any substantial assets of, any person if the primary business of such person is
not the manufacture, marketing, sale or distribution of beverages in Argentina,
Paraguay, Uruguay, Bolivia, Peru or Chile, and
18
(ii) the other provisions of this Section 7.04 shall not apply to any
acquisition by AmBev of shares of QIB pursuant to the Heineken Letter Agreement
or any acquisition by the Company of any shares of QIB pursuant to its call
option under the Heineken Letter Agreement.
(e) Nothing in this Section 7.04 shall be deemed to require any AmBev
Director or AmBev to approve any such acquisition.
SECTION 7.05. Restrictions on BAC's Activities in the United States
and the United Kingdom. BAC will not maintain any properties or assets
(including bank accounts) in the United States or the United Kingdom or
otherwise conduct any activity in the United States or the United Kingdom that
would subject BAC to the jurisdiction of any bankruptcy or insolvency laws or
proceedings in the United States or the United Kingdom.
SECTION 7.06. Further Assurances. 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 and instruments and shall take, or
cause to be taken, all such further or other actions as such other party may
reasonably deem necessary or desirable to further assure or give effect to the
provisions of this Agreement.
ARTICLE VIII
General Provisions
SECTION 8.01. Survival; Termination. The representations and
warranties in this Agreement and in any certificate delivered pursuant hereto
shall survive the execution and delivery of this Agreement. This Agreement shall
terminate upon the earlier of (i) the consummation of the Second Stage Exchange
(as defined in the Stock Purchase Agreement) and (ii) the expiration of 20 years
from the date of this Agreement (or if applicable, the maximum period permitted
under applicable law).
SECTION 8.02. Specific Performance. The Shareholders hereto agree that
the obligations imposed on them in this Agreement are special, unique and of an
extraordinary character, and that in the event of breach by any Shareholder
damages would not be an adequate remedy, and each of the other Shareholders
shall be entitled to specific performance and injunctive and other equitable
relief to
19
the extent permitted by applicable law in addition to any damages or any other
remedy to which it may be entitled, at law or in equity. The Shareholders
further agree to waive any requirement for the securing or posting of any bond
in connection with the obtaining of any such injunctive or other equitable
relief.
SECTION 8.03. 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. Any
attempted assignment in violation of this Section 8.03 shall be void.
SECTION 8.04. 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 8.05. 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:
(i) if to the Company,
Xxxxxxxx General Xxxxx 667
Buenos Aires, Argentina, 1038
Attention: Chief Executive Officer
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx;
20
(ii) if to AmBev,
Companhia de Bebidas das Americas - AmBev
Rua Xx. Xxxxxx Xxxx xx Xxxxxx, n(0)1.017, 3(0)
andar cjs. 31 e 32
04530-000 Sao Paulo, SP
Brazil
Attention: Xxxxxx Xxxxx
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx; and
(iii) if to BAC,
Societe International de Finance
Lowenstrasse
Zurich, Switzerland 19 CH-8001
Attention: Giovanni Pasqualotti
with a copy to:
Xxxx Xxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
Alder Castle
00 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Xxxx Xxxxxxx
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxx Xxxx.
SECTION 8.06. Interpretation; Exhibits and Schedules; Certain
Definitions. 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
21
Schedules 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.
SECTION 8.07. 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 shall be deemed to be an original
and shall be as effective for all purposes as delivery of a manually executed
counterpart.
SECTION 8.08. Entire Agreement. This Agreement, together with the
Escrow Agreement, the Stock Purchase Agreement and the other Operative
Agreements contemplated therein, along with the Schedules and Exhibits thereto,
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 such other Operative Agreements.
SECTION 8.09. 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 a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof (or the remaining portion thereof) or the application of such provision
to any other persons or circumstances.
SECTION 8.10. Arbitration. (a) Any and all differences, controversies
and disputes of any nature whatsoever arising out of or relating to this
Agreement, including without limitation any dispute relating to its validity,
interpretation, performance or termination, shall be finally settled under the
Rules of Arbitration of the International Chamber of Commerce by three
arbitrators appointed in accordance with said Rules. The arbitration
22
proceedings shall be conducted in the English language and the seat of the
arbitration shall be New York City (United States of America). The arbitrators
appointed in connection herewith shall be knowledgeable in the laws of the State
of New York and fluent in the English language.
(b) All submissions and awards in relation to arbitration under this
Agreement shall be made in English, and all arbitration proceedings and all
pleadings shall be in English. Witnesses not fluent in English may give evidence
in their native tongue (with appropriate translation). Original documents in a
language other than English shall be submitted as evidence in English
translation accompanied by the original or true copy thereof.
(c) The procedural rules governing arbitration hereunder shall be
established by the arbitrators; provided that (1) each party may call upon the
other party to supply the arbitrators with documents in such other party's
control relevant to the dispute; (2) each party shall be entitled to present the
oral testimony of witnesses as to fact and expert witnesses; (3) each party
shall be entitled to question directly any witnesses who present testimony to
the arbitrators; and (4) at the request of any party, a written transcript in
English shall be made of each hearing before the arbitrators and shall be
furnished to the parties. The arbitrators may, at the request of any party,
order provisional or conservatory measures; provided that to the extent
necessary to prevent irreparable damage any party may petition any court of
competent jurisdiction for a preliminary injunction, temporary restraining order
or other interim equitable relief pending the appointment of the arbitrators in
accordance with Section 8.10(a) and action by the arbitrators upon any request
for provisional or conservatory measures.
(d) Each party participating in such arbitration shall pay its own
legal fees and expenses incurred in connection with the arbitration and the
expense of any witness produced by it. The cost of any stenographic record and
all transcripts thereof shall be pro-rated equally among all parties ordering
copies and shall be paid by the parties directly to the reporting agency. All
other expenses of the arbitration, including required traveling and other
expenses and fees of the arbitrators and the expenses of any witness or the cost
of any proof produced at the request of the arbitrators, shall be borne as
determined by the arbitrators.
23
(e) Any award shall be final and not subject to appeal and the parties
waive all rights to challenge any award of the arbitrators under this Section
8.10. Any award may be entered or presented by any of the parties for
enforcement in any court of competent jurisdiction sitting in New York, New
York, and the parties hereby consent to the jurisdiction of such court solely
for purposes of enforcement of any award. Each party further agrees that service
of any process, summons, notice or document in the manner provided for notices
in Section 8.05 shall be effective service for purposes of any such enforcement
action.
SECTION 8.11. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State, except to the
extent that the internal governance of the Company is governed by the laws of
Luxembourg or the internal governance of any subsidiary of the Company is
governed by the laws of the jurisdiction in which such subsidiary is organized,
in which case the laws of Luxembourg or such jurisdiction, as the case may be,
shall apply to such matter of internal governance.
[the remainder of this page is intentionally left blank]
24
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written above.
QUILMES INDUSTRIAL (QUINSA) SOCIETE ANONYME,
by /s/ Xxxxxxx Xxxxxx Xxxxxxxx
-----------------------------------
by /s/ Xxxxxxx-Xxxxx de Montalembert
-----------------------------------
COMPANHIA DE BEBIDAS DAS
AMERICAS-AMBEV,
by /s/ Magim Xxxxxxxxx Xxxxxx
-----------------------------------
by /s/ Xxxx Xxxxxx Xxxxxxx Xxxxx Xxxxx
-------------------------------
BEVERAGE ASSOCIATES (BAC) CORP.,
by /s/ X. Xxxxxxx
-----------------------------------
SCHEDULE I
First Threshold Protective Provisions
(a) Operating Issues:
(i) approval of annual operating and capital budgets and any amendments and
deviations therefrom, exceeding US$5,000,000 in the case of expense items or
US$15,000,000 in the case of balance sheet items;
(ii) approval of capital expenditures or lease commitments exceeding
US$15,000,000, which were not included in the budget previously approved;
(iii) entering into any material and/or multi-year contracts or other
commitments exceeding US$5,000,000 in the aggregate, including, without
limitation, licensing of trademarks or technology;
(iv) entering into any business outside of beverages or outside South America;
and
(v) increases or decreases in product pricing (x) of more than 5% on a
cumulative basis, monitored on a monthly basis, if the annual inflation rate in
Argentina is up to 15% and (y) of more than 5% on a cumulative basis in real
terms (i.e., adjusted for inflation), monitored on a monthly basis, if the
annual inflation rate in Argentina is higher than 15%.
(vi) approval of annual operating targets referred to in Section 4.08.
(b) Management Compensation:
Changes in senior management overall compensation and variable compensation
policy of the Company, it being contemplated that the Company's and its
subsidiaries' compensation scheme will be gradually adapted to AmBev's
compensation scheme in terms of base salary, bonus and stock ownership plan(s),
during a period of 5 years.
26
(c) Capital Structure:
(i) issuances, repurchases and any reduction in the number of outstanding
shares, options, warrants or rights to acquire shares in (x) the Company or (y)
the Company's subsidiaries when such issuance, repurchase or reduction is not
contemplated by the approved budget, in the case of the Company's subsidiaries
in excess of US$15,000,000 in the aggregate per year or US$ 5,000,000 in any
instance;
(ii) the incurrence of debt or guarantees that would on a pro forma basis result
in net debt to EBITDA ratio to exceed 2.5x and EBITDA to interest expense ratio
to be lower than 5.0x, provided that in the event of a material acquisition,
these ratios will be adjusted for a period of time after such acquisition as
approved by the Company Board to 5.0x for the net debt to EBITDA ratio and 2.5x
for the EBITDA to interest expense ratio;
(iii) the granting of liens or mortgages in excess of US$15,000,000;
(iv) changes in dividend policy or shareholders' distribution policy; and
(v) delisting of the Company.
(d) Mergers and Acquisitions:
(i) merger or sale of the Company or any significant subsidiary;
(ii) any material asset sales or spin-offs exceeding US$15,000,000; and
(iii) material acquisitions of businesses or assets located in Argentina,
Paraguay, Uruguay or Bolivia, which were not contemplated in the budget
previously approved.
(e) Other Consent Rights:
(i) transactions with either AmBev, or the Company's or AmBev's affiliates,
other than transactions on an arms'-length basis;
(ii) change of the external auditors;
(iii) any material changes in accounting principles or policies;
(iv) institution of litigation and similar proceedings outside of the ordinary
course of business and waivers of
27
material rights or settlement of litigation outside of the ordinary course of
business;
v) changes in the charter or by-laws of the Company or its significant
subsidiaries; and
(vi) filing for bankruptcy, liquidation or dissolution of the Company or any of
its significant subsidiaries.
SCHEDULE II
Second Threshold Protective Provisions
(a) delisting of the Company;
(b) filing for bankruptcy, liquidation or dissolution of the Company or any of
its significant subsidiaries;
(c) transactions with either AmBev, or the Company's or AmBev's affiliates,
outside the ordinary course of business or other than on an arms'-length basis;
(d) any material changes in accounting principles or policies that would have an
adverse effect on any component of the valuation formulas in Schedule 1.04 of
the Stock Purchase Agreement;
(e) changes in the charter or by-laws of the Company that would have an adverse
effect on BAC's rights under this Agreement;
(f) the incurrence of debt or guarantees that would on a pro forma basis result
in net debt to EBITDA ratio to exceed 2.5x and EBITDA to interest expense ratio
to be lower than 5.0x, provided that in the event of a material acquisition,
these ratios will be adjusted for a period of time after such acquisition as
approved by the Company Board to 5.0x for the net debt to EBITDA ratio and 2.5x
for the EBITDA to interest expense ratio;
(g) acquisitions and divestitures outside the beverage industry;
(h) change of the external auditors to any firm other than an internationally
recognized public accounting firm; and
(i) changes in dividend policy or shareholders' distribution policy.
SCHEDULE III
Third Threshold Protective Provisions
(a) delisting of the Company;
(b) filing for bankruptcy, liquidation or dissolution of the Company or any of
its significant subsidiaries;
(c) transactions with either AmBev, or the Company's or AmBev's affiliates,
outside the ordinary course of business or other than on an arms'-length basis;
(d) any material changes in accounting principles or policies that would have an
adverse effect on any component of the valuation formulas in Schedule 1.04 of
the Stock Purchase Agreement; and
(e) changes in the charter or by-laws of the Company that would have an adverse
effect on BAC's rights under this Agreement.
