EXHIBIT 10.58
LIMITED NON-COMPETITION AGREEMENT
This Limited Non-Competition Agreement ("Agreement"), dated as of September
13, 2002, is entered into by and among Panamerican Beverages, Inc., a sociedad
anonima organized and existing under the laws of Panama ("Panamco"),
Embotelladora Panamco Tica, S.A., a sociedad anonima organized and existing
under the laws of the Republic of Costa Rica ("Panamco Tica"), Florida Ice and
Farm Co., a sociedad anonima organized and existing under the laws of the
Republic of Costa Rica ("FIFCO"), Florida Bebidas, S.A., a sociedad anonima
organized and existing under the laws of the Republic of Costa Rica ("CCR");
Heineken International B.V., a limited liability company organized and
existing under the laws of the Netherlands ("Heineken International"); and
Heineken Finance N.V., a limited liability company organized and existing
under the laws of the Netherlands Antilles ("Heineken Finance") (Panamco,
Panamco Tica, FIFCO, CCR, Heineken International and Heineken Finance are
collectively referred to herein as the "Parties" and each individually as a
"Party").
RECITALS:
A. Inter-American Financial Corporation (a wholly-owned subsidiary of
Panamco), FIFCO and Heineken Finance have entered into a Memorandum of
Understanding ("MOU"), dated as of the date hereof, pursuant to which such
parties have formed a special purpose vehicle to submit a single bid for the
purchase of Coca-Cola de Panama Compania Embotelladora, S.A. and Cerveceria
Baru-Panama, S.A.; and
B. As contemplated by Section 2.06 of the MOU, the Parties desire to
enter into this Agreement, pursuant to which Panamco, Panamco Tica (Panamco
and Panamco Tica are collectively referred to herein as the "Panamco
Entities") agree not to compete in the beer market in Costa Rica pursuant to
the terms and conditions set forth herein and pursuant to which FIFCO, CCR
(FIFCO and CCR are collectively referred to herein as the "FIFCO Entities");
Heineken Finance and Heineken International (Heineken Finance and Heineken
International are collectively referred to herein as the "Heineken Entities")
agree not to compete in the carbonated soft drink market in Costa Rica
pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set forth herein, the Parties agree as follows:
SECTION 1.01 NON-COMPETITION. The Parties agree that for a period of
twenty (20) years after the date hereof, (a) none of the FIFCO Entities or the
Heineken Entities or any of their respective current or future affiliates
(including parent and subsidiary companies), will engage, either directly or
indirectly, in producing, importing, bottling, distributing or selling
carbonated soft drinks (not including malt based beverages) in the Republic of
Costa Rica and (b) none of Panamco Entities or any of its current or future
affiliates, will engage, either directly or indirectly, in producing,
importing, bottling, distributing or selling beer (either alcoholic or
non-alcoholic) in the Republic of Costa Rica.
For purposes of this Section 1.01, "engage" shall mean to engage in, or
own, manage, operate or control, or actively participate in the ownership,
management, operation or control of a business or entity, as a proprietor,
partner, stockholder, director, executive, consultant, venturer
or in any other capacity, other than investments (A) in non-equity securities
of a publicly traded company not exceeding the lesser of (x) 15% of the
outstanding non-equity securities of any such company or (y) $10 million in
value of the outstanding non-equity securities of such company and (B) in
equity securities of a publicly traded company not exceeding the lesser of (x)
15% of the outstanding equity securities of any such company or (y) $10
million in value of the outstanding equity securities of such company.
It is the intent of the Parties that the provisions of this Section 1.01
be given the maximum force, effect and application permissible under
applicable law. The Parties agree that the provisions of this Section 1.01 are
reasonable with respect to the duration, geographical area and scope of the
matters addressed herein.
SECTION 1.02. REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Each Party
represents and warrants to the other Parties as follows:
(a) that it is a corporation duly organized, validly existing and in good
standing under the laws of the respective jurisdiction of incorporation and
has the full power and authority to carry on its business as contemplated
hereby and fully to perform its obligations under this Agreement;
(b) that the execution, delivery and performance by it of this Agreement
does not and will not (i) contravene, violate or conflict with its by-laws,
(ii) to the best of their knowledge, contravene, violate or conflict with any
law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award applicable to it, or (iii) result in any breach of, or
constitute a default (or event which with the giving of notice or lapse of
time, or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of any lien pursuant to, any note, bond, mortgage, indenture
contract, agreement, lease, license, permit, franchise or other agreement or
instrument to which it is a party; and
(c) this Agreement has been duly authorized, executed and delivered by it
and constitutes a legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms, except as
enforceability may be limited by bankruptcy laws and regulations and by
general equitable principles.
SECTION 1.03. NO IMPLIED WAIVERS. The failure of a Party to insist upon
or enforce strict performance of any of the provisions of this Agreement shall
not be construed as a waiver or relinquishment to any extent of such Party's
right to assert or rely upon any such provisions, rights and remedies in that
or any other instance; rather, the same shall be and remain in full force and
effect.
SECTION 1.04. SEVERABILITY. The invalidity or unenforceability of any
provision, clause or part of this Agreement, or the application thereof under
certain circumstances, shall not affect the validity or enforceability of the
remainder of this Agreement, or the application of such provision, clause or
part under other circumstances.
SECTION 1.05. BINDING EFFECT UPON SUCCESSORS. This Agreement shall be
binding upon, and inure for the benefit of, the Parties and their respective
successors (including, without limitation, by means of acquisition or merger)
and permitted assigns. None of the Parties
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may assign its rights under this Agreement without the prior written consent
of the other Parties, provided that a Party may assign such rights to an
affiliate without obtaining such consent so long as such assignor remains
liable hereunder.
SECTION 1.06. NOTICES. All notices or other communications permitted or
required pursuant to this Agreement shall be in writing and shall be deemed
given on the date received, whether by personal delivery or by mail, postage
prepaid, certified with return receipt, to the following addresses:
If to the Panamco Entities:
c/o Panamco L.L.C
000 Xxxxxxxxx Xxx
Xxxxx 000
Xxxxx, Xx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: General Counsel
If to the FIFCO Entities:
Florida Bebidas, S.A.
Florida Ice and Farm Co.
APDO. 00000
Xxx Xxxx, Xxxxx Xxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
If to the Heineken Entities:
Heineken International B.V.
Tweede Xxxxxxxxxxxxxxxxx 00
X.X. Xxx 00, 0000 XX
Xxxxxxxxx, Xxxxxxxxxxx
Phone: x00-00-000-0000
Facsimile: x00-00-000-0000
Attention: Xxxx Xxxxx Graafland
and
Heineken Finance N.V.
Kaya W.F.G. (Jombi) Xxxxxxx 32
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxxx Antilles
Phone: 0000 000 0000
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Facsimile: 5999 461 5523
Attention: Managing Director
SECTION 1.07. GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the Republic of Costa Rica.
(b) Any claim, dispute or controversy arising in connection with this
Agreement shall be settled by final binding arbitration before the
International Chamber of Commerce in New York City, New York. The arbitration
shall be heard and determined by a panel of three arbitrators, with the
Panamco Entities selecting one arbitrator, the Heineken Entities and FIFCO
Entities selecting one arbitrator and the final arbitrator selected by the
first two arbitrators. The award rendered by the arbitrators shall be final,
and judgment may be entered upon it in accordance with law in any court having
jurisdiction thereof. The Parties waive, to the fullest extent permitted by
applicable law, and agree not invoke or exercise, any rights to appeal, review
or impugn such decision or award by any court or tribunal. Either Party shall
be entitled to seek interim measures of protection in the form of injunctive
relief. At any hearing of oral evidence, each Party shall have the right to
present and examine its witnesses and to cross-examine the witnesses of the
other Party or Parties and each Party shall have the right to conduct
reasonable discovery of the other party. This provision shall survive the
termination of this Agreement.
SECTION 1.08. STATUS OF RELATIONSHIP. No Party is hereby constituted an
agent or legal representative of any other Party hereto, and no Party is
granted any right or authority hereunder to assume or create any obligation,
expressed or implied, or to make any representation, covenant, warranty, or
guaranty on behalf of any other party or the SPV, except as provided herein.
SECTION 1.09. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior or contemporaneous negotiations or
agreements, whether oral or written.
SECTION 1.10. NON-DISCLOSURE. Each Party agrees to treat this Agreement
and its terms (including its existence) as strictly confidential, and to
protect this Agreement and its terms (including its existence) from disclosure
to any third party, in whole or part, without the prior written consent of the
other Parties. The Parties agree to cause their respective officers,
directors, employees, agents and representatives to maintain the
confidentiality of this Agreement and its terms in accordance with the
provisions of this paragraph. This paragraph shall be subject to any
disclosure that may be required by applicable law.
SECTION 1.11. EXECUTION IN COUNTERPARTS; FACSIMILE SIGNATURES. This
Agreement may be executed in two or more counterparts, each of which shall be
considered an original instrument, but all of which shall be considered one
and the same agreement. Facsimile signatures shall be treated as originals.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by
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their duly authorized representatives, effective as of the date first written
above.
PANAMERICAN BEVERAGES, INC.
By /s/ Xxxxxxx Frangui
-------------------------------
Name: Xxxxxxx Frangui
Title: Authorized Signatory
EMBOTELLADORA PANAMCO TICA, S.A.
By /s/ Xxxxxx Xxxxxxxxx-Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxx-Xxxxxxx
Title: Secretary
FLORIDA ICE AND FARM CO.
By /s/ Xxxxx Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxx Xxxxxxx
Title: Director General
FLORIDA BEBIDAS, S.A.
By /s/ Xxxxx Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxx Xxxxxxx
Title: Director General
HEINEKEN INTERNATIONAL B.V.
By /s/ Van Gitters
-------------------------------
Name: Van Gitters
Title: Director
HEINEKEN FINANCE N.V.
By /s/ RJJ Voorm
-------------------------------
Name: RJJ Voorm
Title: Director
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