Exhibit 2.7
EXECUTION COPY
SHARE TRANSFER AGREEMENT dated as of
January 31, 2003, among BRACO S.A., a Brazilian
corporation ("Braco"), EMPRESA DE ADMINISTRACAO E
PARTICIPACOES S.A. ECAP, a Brazilian corporation
("ECAP"), FUNDACAO ANTONIO E XXXXXX XXXXXXXXX
INSTITUICAO NACIONAL DE BENEFICIENCIA (the
"Xxxxxxxxx Foundation"), BEVERAGE ASSOCIATES (BAC)
CORP., a British Virgin Islands corporation
("BAC"), and COMPANHIA DE BEBIDAS DAS
AMERICAS-AMBEV, a Brazilian corporation ("AmBev" or
the "Company").
WHEREAS, Braco, ECAP, and the Xxxxxxxxx Foundation and their
Permitted Transferees (collectively, the "AmBev Control Group") own 69.95% of
the common shares of the Company;
WHEREAS, pursuant to a Stock Purchase Agreement dated as of May 1,
2002 (the "Stock Purchase Agreement"), between the Company and BAC, BAC will
acquire a number of common shares and preferred shares of AmBev determined in
accordance with the Stock Purchase Agreement in exchange for all the Remaining
Shares (as defined in the Stock Purchase Agreement);
WHEREAS, the parties hereto desire to provide for certain rights and
obligations of BAC in connection with transfers of AmBev common shares by the
AmBev Control Group.
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:
"AmBev common shares" means the common shares of the Company.
"BAC Shareholder" means BAC and Permitted Transferees.
"Brazilian corporation law" means Brazilian Federal law no. 6.404/76
as amended from time to time, or any other law that supersedes the same.
"Members" means the ultimate beneficial owners of the shares of BAC
on May 1, 2002.
"Permitted Transferee" means, (1) with respect to any BAC
Shareholder, (a) any Member or (b)(i) upon the death of any Member, such
Member's executors, administrators or testamentary trustees, (ii) any Member's
spouse, parents, siblings or descendants or such parents', siblings' or
descendants' spouses, (iii) a trust the beneficiaries of which include only a
Member or any of the relatives of such Member specified in clause (b)(ii),
(iv) any affiliate of such Member and (v) any affiliate of the persons listed
in clauses (b)(i), (ii) or (iii); and (2) with respect to any member of the
AmBev Control Group, any affiliate of such person; provided in each instance
that each such transferee (unless already a party hereto) agrees in a written
instrument acceptable to the AmBev
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Control Group and the Company to be bound by the provisions of this Agreement
as if such transferee were an original signatory hereto.
"Rights" means, in respect of any AmBev common shares, any right,
warrant, option or other security, directly or indirectly, to purchase,
subscribe for or otherwise acquire, or which is convertible into or
exercisable or exchangeable for, or which represents an interest in, AmBev
common shares.
"Shareholders" means the AmBev Control Group and the BAC
Shareholders, collectively.
"Transfer", as to any AmBev common shares means to, directly or
indirectly, sell, or in any other way transfer, assign, pledge, distribute,
contribute to the legal capital of another company, 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.
(b) Certain other terms used in this Agreement are defined in
Section 4.06(b).
ARTICLE II
Transfer Provisions
Section 2.01. Transfers by BAC Shareholders. (a) No BAC Shareholder
shall Transfer any AmBev common shares (including any Rights to purchase,
subscribe for or otherwise acquire AmBev common shares) held by it now or
hereafter held other than in accordance with the provisions of this Article
II. Any purported Transfer by a BAC Shareholder of AmBev common shares not in
accordance with the provisions of this Article II shall be deemed null and
void and shall not be given effect or recognition by the Company. No BAC
Shareholder shall Transfer any of the AmBev common shares owned by it for
securities or other property except to a Permitted Transferee or pursuant to
Section 2.03 or Section 2.04.
(b) Any BAC Shareholder may Transfer AmBev common shares to any
other BAC Shareholder without compliance with the provisions of Section 2.02.
Section 2.02. Rights of First Refusal. (a) No BAC Shareholder shall
Transfer any of the AmBev common shares owned by it (except to a Permitted
Transferee) for consideration other than cash (including deferred payments of
cash) and then only if the BAC Shareholder desiring to make the Transfer
(hereinafter referred to as the "Transferor") shall have first offered to sell
such AmBev common shares to Braco and ECAP (collectively, the "Offerees") as
contemplated by this Section 2.02, and such offers shall not have been
accepted.
(b) Offer by Transferor. Copies of the Transferor's offer shall be
given to the Offerees and shall consist of an offer to sell to the Offerees,
all of the shares then proposed to be transferred by the Transferor (the
"Subject Shares") pursuant to a bona fide written offer of a third party for
payment in cash, to which copies shall be attached a statement of intention to
Transfer to such third party, the name and address of the prospective
third-party transferee, the number of Subject Shares involved in the proposed
Transfer, and the material terms of such Transfer (including price and payment
terms).
(c) Acceptance of Offer. Within forty-five (45) days after the
receipt of the offer described in Section 2.02(b), the Offerees may elect to
purchase all, but not less than all, of the Subject Shares by giving notice
thereof to the Transferor and to the Company. The Offerees shall purchase the
Subject Shares pro rata among themselves (based on the number of AmBev
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common shares then owned by each such Offeree) or as they shall otherwise
agree upon among themselves. The Offerees shall also have a right of
oversubscription such that if any other such Offeree declines to purchase its
pro rata portion of the Subject Shares, the oversubscribers shall, among
themselves, have the right to purchase up to the balance of the Subject
Shares. Such right of oversubscription shall be exercised by an oversubscriber
in its notice by stating its desire to purchase more than its pro rata
portion. If as a result thereof such oversubscriptions exceed the total number
of Subject Shares available in respect of such oversubscription privilege, the
oversubscribers shall be cut back with respect to their oversubscription on a
pro rata basis (based on the number of AmBev shares held by each such Offeree
at the time the offer is received) or as they shall otherwise agree among
themselves. Within ten (10) days after receipt of notice from the Offerees
electing to purchase the Subject Shares the Company shall inform each such
Offeree of the amount of shares each such Offeree is entitled to purchase in
accordance with this Section 2.02(c) and the date for the closing of the
purchase.
(iii) The closing of the purchase of the Subject Shares shall be as
soon as practicable but in any event not later than, thirty (30) days after
the notice referred to in clause (c).
(d) Purchase Price. The purchase price per share for the Subject
Shares shall be the price per share offered to be paid by the prospective
transferee described in the offer, which price shall be paid in cash or, if so
provided in the offer of the prospective transferee, cash plus deferred
payments of cash in the same proportions, and with the same terms of deferred
payment as therein set forth.
(e) Closing of Purchase. The closing of the purchase shall take
place at a mutually agreeable location and the purchase price, to the extent
comprised of cash, shall be paid at the closing, and cash equivalents and
documents evidencing any deferred payments of cash permitted pursuant to
Section 2.02(d) above shall be delivered at the closing. At the closing, the
Transferor shall deliver to the purchaser(s) any required instruments of
transfer for the Subject Shares to be sold and shall pay any required transfer
taxes.
(f) Release from Restriction; Termination of Rights. If the offer to
sell is not accepted by the Offerees, the Transferor may make a bona fide
Transfer to the prospective transferee named in the statement attached to the
offer on terms no more favorable to the Transferor than those set forth in the
offer, provided that the transferee agrees, in writing, to be bound by the
provisions of this Agreement to which the Transferor is subject. If the
Transferor shall fail to make such Transfer within seventy-five (75) days
following the expiration of the time provided for above the election by the
Offerees or, in the event the Offerees revoke an election to purchase the
Subject Shares pursuant to Section 2.02(c), within seventy-five (75) days of
the date of such notice of revocation, such Shares shall again become subject
to all the restrictions of this Section 2.02.
(g) Public Market Transactions. Notwithstanding the above provisions
of this Section 2.02, the following provisions shall apply to any proposed
sale by the BAC Shareholders of AmBev common shares in the public market
pursuant to ordinary trading activity or an underwritten public offering (but
shall not apply to block trades or other prearranged transactions that are the
functional equivalent of privately negotiated sales). Prior to selling any
AmBev common shares in the public market, the BAC Shareholders shall first
offer Braco and ECAP the opportunity to purchase such shares for a cash price
equal to the Market Price (as defined below) as of the date such offer is
delivered to Braco and ECAP; provided that, if the BAC Shareholders propose to
sell the AmBev common shares in a registered public offering, the price at
which such AmBev common shares shall be offered to Braco and ECAP shall be
determined by reference to the Market Price as of the fifth business day prior
to the date on which any registration statement or prospectus relating to such
public offering is declared effective or otherwise approved by applicable
governmental authorities (the "Pre-Offering Market Price"). Braco and ECAP
shall have a period of five business
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days to either accept or reject the BAC Shareholders' offer to sell at such
price. If Braco or ECAP accepts the offer, the closing of the sale and
purchase shall occur on the fifth business day after the expiration of the
5-business day period referred to in the preceding sentence. If Braco and ECAP
decline the offer, the BAC Shareholders shall have the right to sell the AmBev
common shares subject to such offer for cash either (i) in open market
transactions or (ii) pursuant to such underwritten public offering at the
public offering price determined by such BAC shareholders and the underwriters
within 15 business days after the expiration of such 5-business day period,
provided the price is no more than 5% less than the Market Price offered to
Braco and ECAP, in the case of trades in the open market, or 10% less than the
Pre-Offering Market Price offered to Braco and ECAP, in the case of an
underwritten public offering. In connection with any proposed underwritten
public offering, the BAC Shareholders may also offer to sell the shares
proposed to be sold in such public offering to Braco and ECAP before
commencement of the registration process, for a cash price equal to the Market
Price as of the date such offer is delivered to Braco and ECAP. If Braco and
ECAP decline to purchase the shares, and thereafter, when the BAC Shareholders
again offer to sell such shares in connection with such public offering to
Braco and ECAP at the Pre-Offering Market Price as provided above, if the
Pre-Offering Market Price is equal to or higher than the Market Price offered
to Braco and ECAP prior to the commencement of the registration process, and
Braco and/or ECAP accept such offer at the Pre-Offering Market Price, then
Braco and/or ECAP, as the case may be, shall reimburse the BAC Shareholders
for the Registration Expenses (as defined in the Registration Rights Agreement
between the Company and BAC) incurred in connection with such registration.
The term "Market Price" means, as of any date of determination, the weighted
average closing price of AmBev's common shares on the BOVESPA or on any other
securities exchange upon which the AmBev common shares (or American Depositary
Shares representing such shares on a per-common share equivalent basis) may,
at such time, be traded, as specified by the BAC Shareholders, over the 15
trading days ending on the day prior to such date.
(h) Limitations. The provisions of this Section 2.02 shall not apply
to sales pursuant to Section 2.03 or 2.04 or Transfers to Permitted
Transferees.
Section 2.03. BAC Shareholders' Tag-Along Rights. (a) If Braco
and/or ECAP, individually or together (individually, a "Selling Shareholder"
and collectively, the "Selling Shareholders"), intends to Transfer in a single
transaction or a series of related transactions (other than to any of their
respective affiliates; provided in each instance that each such transferee
agrees in a writing to be bound by the provisions of this Agreement as if such
transferee were an original signatory hereto) AmBev common shares owned by
such Selling Shareholder, such Selling Shareholder shall notify the BAC
Shareholders (for purposes of this Section 2.03, the "Tag-Along
Shareholder(s)"), in writing, of such proposed Transfer and its terms and
conditions. Within ten (10) business days following the date of such notice,
each Tag-Along Shareholder shall notify the Selling Shareholder if it elects
to participate in such Transfer. Notwithstanding the foregoing, the Tag-Along
Shareholder(s) shall be permitted to participate in such Transfer only at such
time as (i) Braco and/or ECAP shall have Transferred or shall propose to
Transfer AmBev common shares, in a single transaction or a series of related
transactions, in an amount equal to (or convertible into) more than fifty
percent (50%) of the AmBev common shares owned by Braco and ECAP on the date
of the Initial Closing (as defined in the Stock Purchase Agreement) (the
"Initial Threshold"), or (ii) a majority of the outstanding shares of Braco
and ECAP shall have been Transferred or is proposed to be Transferred.
(b) Any Tag-Along Shareholder that fails to notify the Selling
Shareholder within such ten (10) business day period shall be deemed to have
waived its rights hereunder. Each Tag-Along Shareholder that so notifies the
Selling Shareholder shall have the right to sell, at the same price and on the
same terms and conditions as the Selling Shareholder, an amount of AmBev
common shares equal to the number of AmBev common shares the third party
actually proposes to purchase
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multiplied by a fraction, the numerator of which shall be the number of AmBev
common shares owned by such Tag-Along Shareholder and the denominator of which
shall be the aggregate number of AmBev common shares owned by the Selling
Shareholders plus each Tag-Along Shareholder exercising its rights under this
Section 2.03 and each shareholder exercising tag-along rights with the Selling
Shareholders pursuant to any other agreement with the Selling Shareholders.
(c) If a Tag-Along Shareholder does not elect to participate in a
Transfer in accordance with Section 2.03(a) above, the Selling Shareholder may
make a bona fide Transfer to the prospective transferee named in the notice
provided by such Selling Shareholder in accordance with the material terms of
such proposed Transfer.
(d) At the closing, each Tag-Along Shareholder that elects to
participate in a Transfer shall deliver to the purchaser any required
instruments of transfer and/or other documents and shall pay any required
transfer taxes.
Section 2.04. Braco's and ECAP's Drag-Along Right. (a) If, at any
time and from time to time, Braco and/or ECAP, individually or together (for
purposes of this Section 2.04, the "Transferring Shareholders"), wish to
Transfer in a bona fide arm's-length sale all or any portion of their AmBev
common shares to any Person or Persons who are not affiliates of such
Shareholders (for purposes of this Section 2.04, the "Proposed Transferee"),
and such sale constitutes a Transfer of AmBev common shares in an amount equal
to more than 50% of the AmBev common shares (on a fully diluted basis) then
issued and outstanding, then the Transferring Shareholders shall have the
right (for purposes of this Section 2.04, the "Drag-Along Right") to require
each BAC Shareholder to sell to the Proposed Transferee all or a portion of
such BAC Shareholder's AmBev common shares (including any Rights) for the same
per share consideration, in the same pro rata portion (as described below) and
on the same terms and conditions as proposed to be received by the
Transferring Shareholders (less, in the case of Rights, the exercise price for
such Rights) then held by such BAC Shareholder. Each BAC Shareholder agrees to
take all steps necessary to enable such BAC Shareholder to comply with the
provisions of this Section 2.04 to facilitate the Transferring Shareholders'
exercise of a Drag-Along Right. The "pro rata portion" each BAC Shareholder
shall be required to sell under this Section 2.04 shall be equal to the number
of AmBev common shares actually issued to and owned by such BAC Shareholder
(or which such Shareholder shall have the Right to acquire) multiplied by a
fraction, the numerator of which shall be the number of AmBev common shares
(or Rights) the Transferring Shareholders wish to Transfer and the denominator
of which shall be the aggregate number of AmBev common shares issued to and
beneficially owned by the Transferring Shareholders (or which the Transferring
Shareholders shall have the Right to acquire).
(b) To exercise a Drag-Along Right, the Transferring Shareholders
shall give each BAC Shareholder a written notice (for purposes of this Section
2.04, a "Drag-Along Notice") containing (1) the name and address of the
Proposed Transferee and (2) the proposed purchase price, terms of payment and
other material terms and conditions of the Proposed Transferee's offer. If the
proposed purchase price consists in whole or in part of consideration other
than cash, the Transferring Shareholders shall provide such information
relating to such consideration as the BAC Shareholders may reasonably request
in order to evaluate such non-cash consideration. Each BAC Shareholder shall
have the right, as a condition to the sale pursuant to the Drag-Along Right,
to receive all documentation relating to the sale pursuant to the Drag-Along
Right at least ten (10) days prior to the consummation of the sale or within
three business days after such later time as the Transferring Shareholders
shall have first received such information. Each BAC Shareholder shall
thereafter be obligated to sell such BAC Shareholder's pro rata portion of
Shares (including any Rights held by such Shareholder), provided that the sale
to the Proposed Transferee is consummated within 90 (ninety) days of delivery
of the Drag-Along Notice. If the sale is not consummated within such
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90-day period, then each BAC Shareholder shall no longer be obligated to sell
such BAC Shareholder's AmBev common shares pursuant to that specific
Drag-Along Right but shall remain subject to the provisions of this Section
2.04.
Section 2.05. Preemptive Subscription Right. If at any time after
the date hereof the Company proposes to issue AmBev common shares, the BAC
Shareholders shall be entitled to the preemptive rights set forth in Article
171 of the Brazilian corporation law, and such issuance shall be conducted in
accordance with the provisions thereof.
ARTICLE III
Additional Covenants
Section 3.01. Information Rights. Each BAC Shareholder shall be
entitled to receive, and the AmBev Control Group shall cause the Company to
provide to each such BAC Shareholder 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 and
which legally may be disclosed that such BAC Shareholder may reasonably
request.
Section 3.02. 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.
Section 3.03. Exchange of Common Shares for Preferred. If at any
time the BAC Shareholders desire to exchange all or any portion of their AmBev
common shares for AmBev preferred shares, Braco agrees to consider such
request in good faith and to use reasonable efforts to accommodate such
desire, provided that Braco shall not be obligated to exchange any AmBev
preferred shares it may own or expend any funds.
Article IV
General Provisions
Section 4.01. Effective Date; Termination. This Agreement shall be
effective as of the consummation of the First Stage Exchange as defined in the
Stock Purchase Agreement). This Agreement shall terminate when the BAC
Shareholders no longer own any AmBev common shares.
Section 4.02. 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 including pursuant to
Article 118 of the Brazilian corporation law in addition to any damages or any
other remedy to which it may be entitled. 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 4.03. Assignment. This Agreement and the rights and
obligations hereunder shall not be assignable or transferable by any party
(including by operation of law in
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connection with a merger or consolidation of such party) without the prior
written consent of the other parties hereto, except that all Permitted
Transferees shall be entitled to the benefits and be bound by and subject to
the terms hereof. Any attempted assignment in violation of this Section 4.03
shall be void.
Section 4.04. 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, the Permitted Transferees and such assigns, any
legal rights hereunder.
Section 4.05. 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,
Rua Xx. Xxxxxx Xxxx xx Xxxxxx, no 1.017, 3o 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;
(ii) if to Braco or ECAP,
Av. Brigadeiro Xxxxx Lima, no 3729, 7o andar parte
04538-905 Sao Paulo, SP
Brazil
Attention: Xxxxxxx Xxxxxxx
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx;
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(iii) if to Xxxxxxxxx Foundation,
Alameda Itu, 852, 19(0) andar, Sao Paulo, Sao Paulo
01421-001 Sao Paulo, SP
Brazil
Attention: General Counsel
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx; and
(iv) if to the BAC Shareholders,
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
Section 4.06. Interpretation; Exhibits and Schedules; Certain
Definitions. (a) 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 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.
(b) For all purposes hereof:
"affiliate" of any person means another person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first person. For the purposes of this
definition, control shall mean the direct or indirect participation superior
to fifty percent (50%) of the voting capital of a person, entitling the holder
to cast the majority of votes in decisions taken in any shareholders meetings,
as well as the power to elect the majority of the directors or other
administrators in such meeting.
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"including" means including, without limitation.
"person" means any individual, firm, corporation, partnership,
limited liability company, trust, joint venture, governmental agency or body
or other entity.
"subsidiary" of any person means another person, an amount of the
voting securities, other voting ownership or voting partnership interests of
which is sufficient to elect at least a majority of its Board of Directors or
other governing body (or, if there are no such voting interests, 50% or more
of the equity interests of which) is owned directly or indirectly by such
first person or by another subsidiary of such first person.
Section 4.07. 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 4.08. Entire Agreement. This Agreement, together with the
Share Exchange Agreement, the Stock Purchase Agreement and the Operative
Agreements, contains 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, provided,
however, that it (i) shall not supersede or modify any other shareholders'
agreement executed by and among shareholders of the Company, and (ii) except
as expressly set forth in this Agreement, shall not be deemed to extend any
rights or obligations granted pursuant to other agreements to the signatories
hereof. 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.
Section 4.09. 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 4.10. Registration. This Agreement shall be (i) filed and
kept in the Company's headquarters and (ii) registered with the depositary
agent of the AmBev common shares, which depositary agent shall observe and
enforce its provisions. The depositary agent shall include in the registry of
the shares held by the BAC Shareholders, and in the respective share
certificates, the following paragraph:
"The shares represented by this Certificate (or by this
registration, as the case may be) shall not be sold, transferred,
assigned, pledged, or encumbered and the rights of the holder of
such shares are subject to the terms and conditions of a Governance
Agreement and a Share Transfer Agreement, each dated as of [...],
2003 and filed with the company's headquarters, as such agreement
may be amended, modified or supplemented from time to time."
Section 4.11. Intervening Parties. The Company executes this
Agreement for the purpose of consenting to all its terms and conditions, and
hereby declares to have filed the Agreement in its headquarters, and
undertakes to observe and enforce its provisions in accordance with the
Brazilian corporation law. The Company undertakes, further, to send immediate
notice to the
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shareholders in case it becomes aware of any agreement, fact or omission that
can entail violation to this Agreement, as well as to take all the necessary
actions to maintain this Agreement in full force and effect. The Company shall
not be bound by any amendment hereof unless such amendment is filed with the
Company. Pursuant to article 118, Paragraph 10 of the Brazilian corporation
law, the Parties hereto appoint as their representatives before the Company,
the same individuals referred to in Section 4.05 above.
Section 4.12. 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 referred to
three arbitrators, one of them appointed by the claimants, another appointed
by the defendants and the third one appointed by the Court of Arbitration of
the International Chamber of Commerce. The arbitrators shall proceed according
to the Rules of Arbitration of the International Chamber of Commerce. The
arbitration proceedings shall be conducted in the English language and the
seat of the arbitration shall be New York, New York. 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 equitably relief pending the appointment of the
arbitrators in accordance with Section 4.12(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.
(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 4.12. 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 4.05 shall be effective service for purposes of any such
enforcement action.
11
Section 4.13. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State f New York without
regard to the conflicts of law principles of such State.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written above.
BRACO S.A.,
by /s/ Xxxxxx Xxxxxxxx Xxxxxx
--------------------------------
by /s/ Xxxxxxx Xxxxx Xxxxxxxx Xxxxx
--------------------------------
EMPRESA DE ADMINISTRACAO E PARTICIPACOES
S.A. - ECAP,
by /s/ Xxxxxx Xxxxxxxx Xxxxxx
--------------------------------
by /s/ Xxxxxxx Xxxxx Xxxxxxxx Xxxxx
--------------------------------
BEVERAGE ASSOCIATES (BAC) CORP.,
by /s/ X. Xxxxxxx
--------------------------------
COMPANHIA DE BEBIDAS DAS AMERICAS-AMBEV,
by /s/ Xxxxxx Xxxxxxxx Xxxxxx
--------------------------------
by /s/ Magim Xxxxxxxxx Xxxxxx
--------------------------------
FUNDACAO ANTONIO E XXXXXX XXXXXXXXX
INSTITUICAO NACIONAL DE BENEFICIENCIA,
by /s/ Xxxxxx Xxxxxxxx Xxxxxx
--------------------------------
by /s/ Xxxx Xxxxxx Xxxxxx Gracioso
--------------------------------
by /s/ Xxxxxxxx Xxxxxx xx Xxxxxx
--------------------------------
