Exhibit 2.10
EXECUTION COPY
Escrow Agreement
THIS ESCROW AGREEMENT (the "Agreement") is entered into
as of January 31, 2003, by and among Beverage Associates
(BAC) Corp., a corporation organized and existing under the
laws of the British Virgin Islands ("BAC"), Companhia de
Bebidas das Americas-AmBev, a corporation organized and
existing under the laws of Brazil ("AmBev"), Quilmes
Industrial (Quinsa) Societe Anonyme, a corporation organized
and existing under the laws of Luxembourg (the "Company"),
and The Bank of New York, a New York banking corporation
(together with any successors, the "Escrow Agent").
Recitals
WHEREAS AmBev and the Company are parties to a Share Exchange
Agreement dated as of May 1, 2002, 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, 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, of the Company;
WHEREAS AmBev and BAC have also agreed in the Stock Purchase Agreement
to provide for the future exchange (the "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 and BAC have entered into a Shareholders
Agreement dated as of the date hereof (the "Shareholders Agreement") pursuant to
which the parties have provided for certain rights and restrictions with respect
to the governance and management of the Company and certain restrictions upon
the direct or indirect sale,
2
assignment, transfer, pledge or other disposition of the Remaining Shares;
WHEREAS pursuant to Section 5.08 of the Stock Purchase Agreement, BAC
agreed to enter into appropriate agreements for the benefit of AmBev to assure
delivery of the Remaining Shares to AmBev free and clear of all liens at the
time of the consummation of the Exchange;
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
WHEREAS pursuant to Section 5.09 of the Stock Purchase Agreement, BAC
has agreed that 60,000,000 of its Class A shares of the Company shall be voted
only upon the instructions of both BAC and AmBev to ensure that BAC's voting
rights in the Company are equal to AmBev's.
NOW THEREFORE, in consideration of the mutual covenants and
obligations set forth in this Agreement, the parties hereto agree as follows:
ARTICLE I
Creation of Escrow
SECTION 1.01. Deposit of Equalization Shares. On the date hereof, BAC
shall (i) assign and transfer in escrow to the Escrow Agent 60,000,000 Class A
Shares of Company (the "Initial Equalization Shares") and (ii) deliver to the
Escrow Agent and AmBev evidence (on which the Escrow Agent may conclusively rely
and be protected in so relying) of the registration of the Escrow Agent as
holder of the Initial Equalization Shares in the share register of the Company
or, as the case may be, in any shareholder register or account of the Company
held by a professional depository of securities within the meaning of the
Luxembourg law of August 1, 2001 on transfer of securities. If at any time the
number of Equalization Shares (as defined in Section 3.01) increases as provided
in Section 3.01, BAC shall assign and transfer the additional Equalization
Shares to the Escrow Agent in accordance with the foregoing provisions.
SECTION 1.02. Registration of Equalization Shares in the Name of
Escrow Agent. The Equalization Shares
3
transferred to the Escrow Agent pursuant to this Agreement shall be registered
in the share register of the Company or, as the case may be, in any shareholder
register or account of the Company held by a professional depository of
securities within the meaning of the Luxembourg law of August 1, 2001 on
transfer of securities in the name of the Escrow Agent. Such shares and any
other certificates for securities issued to the Escrow Agent pursuant to Section
2.03 hereof shall be endorsed by the Company with a legend to the effect that
they are issued by the Company pursuant to this Agreement and a similar notation
shall appear in the appropriate place in the share register of the Company or,
as the case may be, in any shareholder register or account of the Company held
by a professional depository of securities within the meaning of the Luxembourg
law of August 1, 2001 on transfer of securities.
SECTION 1.03. Share Certificates. If any time the Remaining Shares are
evidenced by share certificates, BAC shall promptly cause such share
certificates to be delivered to the Escrow Agent to be held by the Escrow Agent
or an affiliate of the Escrow Agent in Luxembourg solely as the agent of AmBev
as Pledgee under the Share Pledge Agreement.
SECTION 1.04. Acceptance of Escrow. The Escrow Agent accepts the
escrow created hereby in accordance with all of the terms and conditions
contained in this Agreement.
ARTICLE II
Dividends
SECTION 2.01. Cash Dividends. The Escrow Agent shall receive and hold,
subject to the terms of this Agreement, any cash dividends or cash distributions
declared and paid on the Equalization Shares and shall distribute any such
dividends or distributions to BAC by wire transfer to the account and account
number identified and set forth in Schedule 1 hereto promptly after the receipt
thereof by the Escrow Agent.
SECTION 2.02. Money Need Not Be Segregated. No moneys received by the
Escrow Agent need be segregated in any manner except to the extent required by
law and the Escrow Agent shall not be liable for any interest thereon.
4
SECTION 2.03. Share Dividends. The Escrow Agent shall receive and
hold, subject to the terms of this Agreement, any securities of the Company
issued in respect of the Equalization Shares by reason of any capital
reorganization, share split, combination or the like, which shall be released
together with the Equalization Shares as provided for in Article VI. The term
"Equalization Shares" as used in this Agreement shall include such securities.
ARTICLE III
The Escrow Agent
SECTION 3.01. Voting of Shares. (a) Until such time as either AmBev or
BAC has less than the Requisite Percentage (as defined in the Shareholders
Agreement) and AmBev and BAC jointly so notify the Escrow Agent in writing, the
Escrow Agent shall vote the Equalization Shares (as defined below) in accordance
with joint written instructions of both BAC and AmBev (which instructions shall
specify the number of Equalization Shares to be voted). "Equalization Shares"
means the number of voting shares of the Company representing a number of votes
equal to the difference between the number of votes represented by the Remaining
Shares at the time of the calculation, minus the number of votes represented by
the voting shares of the Company held by AmBev at the time of the calculation.
The purpose of the Equalization Shares is to maintain equivalence between the
voting rights of BAC and AmBev. In the event that as a result of any change in
the Company's share capital by reason of a share dividend, split-up, subdivision
or combination of shares or any recapitalization, reclassification,
reorganization, consolidation, merger or similar transaction, or any similar
change affecting the Company's shares, the type and number of Equalization
Shares shall be adjusted appropriately to reflect such change and to ensure that
the voting rights of BAC and AmBev are equal. If BAC or AmBev has less than the
Requisite Percentage and AmBev and BAC jointly so notify the Escrow Agent in
writing, the Escrow Agent shall vote all the Equalization Shares in accordance
with written instructions of BAC. The initial number of Equalization Shares
shall be 60,000,000 Class A shares. If the number of Equalization Shares changes
from the number set forth in the preceding sentence or from the last calculation
provided by BAC and AmBev by written notice to the Escrow Agent, BAC and AmBev
shall, as promptly as practicable prior to any meetings of the shareholders of
the Company or any questions submitted to such shareholders for a vote, deliver
to the Escrow Agent a written notice setting
5
forth the new number of Equalization Shares (a "Change Notice"). If the number
of Equalization Shares specified in any Change Notice represents an increase in
the number of Equalization Shares, BAC shall assign and transfer to the Escrow
Agent any additional Equalization Shares in accordance with Section 1.01 and
1.02. If the number of Equalization Shares specified in any Change Notice
represents a decrease in the number of Equalization Shares, AmBev and BAC
jointly shall notify the Escrow Agent in writing of such decrease and shall
provide written instructions to the Escrow Agent directing the Escrow Agent to
cause to be registered in the name of BAC (subject to the inscription in the
Company's shareholder register of the pledge under the Share Pledge Agreement in
favor of AmBev) the number of shares of the Company (the "Released Shares")
representing the difference between the number of Equalization Shares registered
in the name of the Escrow Agent prior to the delivery of such Change Notice and
the number of Equalization Shares specified in such Change Notice, and such
Released Shares shall cease to be Equalization Shares. In the event that either
BAC or AmBev has less than the Requisite Percentage, AmBev and BAC shall
promptly notify the Escrow Agent in writing of such fact.
(b) At all meetings of the shareholders of the Company, or upon any
questions submitted to such shareholders for a vote, the Escrow Agent shall vote
the Equalization Shares in accordance with the terms and conditions set forth
herein and such action by the Escrow Agent shall not be considered malfeasance
or in breach of any obligation which the Escrow Agent might otherwise have to
BAC, AmBev or the Company. The Escrow Agent may act through a proxy.
SECTION 3.02. Removal. Subject to the requirement that a successor
Escrow Agent be appointed in accordance with Section 3.05 hereof to replace the
Escrow Agent whose removal is effected pursuant to this Section 3.02, any Escrow
Agent may be removed at any time with or without cause, by a written instrument
or instruments signed by BAC and AmBev. Upon such removal and the performance by
the removed Escrow Agent of its obligations under Section 3.04, the removed
Escrow Agent shall be fully released and relieved of all duties,
responsibilities and obligations under this Agreement.
SECTION 3.03. Resignation. Any Escrow Agent may resign at any time
upon giving sixty (60) days prior written notice of such resignation to all
other parties hereto. Such resignation shall take effect upon expiration of such
sixty (60) day period. Upon the effective date of such
6
resignation and the performance by the resigning Escrow Agent of its obligations
under Section 3.04, the resigning Escrow Agent shall be fully released and
relieved of all duties, responsibilities and obligations under this Agreement.
SECTION 3.04. Successor Escrow Agent. If any vacancy shall occur in
the position of the Escrow Agent by reason of the resignation or removal of the
Escrow Agent, such vacancy shall be filled by the appointment of a successor
pursuant to this Section. Promptly upon (a) receipt of a notice of resignation
from the Escrow Agent in accordance with Section 3.03 hereof, or (b) removal of
the Escrow Agent in accordance with Section 3.02 hereof, BAC and AmBev shall
jointly appoint a successor Escrow Agent, which shall be an internationally
recognized bank, within fifteen (15) days after the resignation or removal of
the Escrow Agent. If the vacancy has not been filled by the effective date of
the resignation or removal of an Escrow Agent, the board of directors of the
Company shall serve as Escrow Agent until the appointment of a successor Escrow
Agent becomes effective and the successor Escrow Agent accepts such appointment.
Any successor Escrow Agent appointed as herein provided shall indicate its
acceptance of such appointment by signing counterparts of this Agreement and
delivering such counterparts to BAC, AmBev, the Company and the former Escrow
Agent, and thereupon such successor shall be vested with all the rights, powers,
duties and immunities herein conferred upon the Escrow Agent as if such
successor had been originally a party to this Agreement as Escrow Agent. Upon
the payment of all fees and expenses due to the retiring Escrow Agent, the
retiring Escrow Agent shall transfer all the shares of the Company held pursuant
to this Agreement to the successor Escrow Agent, and such shares shall be
registered in the name of the successor Escrow Agent in the share register of
the Company or, as the case may be, in any shareholder register or account of
the Company held by a professional depository of securities within the meaning
of the Luxembourg law of August 1, 2001 on transfer of securities. Further, upon
the payment of all fees and expenses due to the retiring Escrow Agent, the
retiring Escrow Agent shall promptly transfer all other property held by it as
Escrow Agent to the successor Escrow Agent. The term "Escrow Agent" as used in
this Agreement shall apply to and mean the original Escrow Agent hereunder and
any successor.
SECTION 3.06. Fees. BAC shall (a) pay to the Escrow Agent such
compensation as shall be agreed upon in writing between the Escrow Agent and
BAC, and reimburse the Escrow Agent upon demand for all expenses, disbursements
and
7
advances (including without limitation, all reasonable fees and expenses of
counsel) incurred or made by the Escrow Agent hereunder, and (b) reimburse the
Escrow Agent for the cost of all transfer tax stamps required and all national,
state and local taxes payable in connection with the deposit of shares pursuant
to this Agreement and in connection with any transfer by the Escrow Agent of
shares to AmBev.
SECTION 3.07. Concerning the Escrow Agent. (a) The duties,
responsibilities and obligations of the Escrow Agent shall be limited to those
expressly set forth herein and no duties, responsibilities or obligations shall
be inferred or implied. The Escrow Agent shall not be subject to, or required to
comply with, any other agreement between or among any or all of the parties
hereto or to which any of the parties hereto is a party, even though reference
thereto maybe made herein, or to comply with any direction or instruction (other
than those contained herein or delivered in accordance with this Agreement) from
any party hereto or any entity acting on its behalf. The Escrow Agent shall not
be required to, and shall not, expend or risk any of its own funds or otherwise
incur any financial liability in the performance of any its duties hereunder.
(b) This Agreement is for the exclusive benefit of the parties hereto
and their respective successors hereunder, and shall not be deemed to give,
either express or implied, any legal or equitable right, remedy, or claim to any
other entity or person whatsoever.
(c) If at any time the Escrow Agent is served with any judicial or
administrative order, judgment, decree, writ or other form of judicial or
administrative process which in any way affects securities, monies, documents or
other property deposited into the escrow account established hereunder (the
"Escrow Property") (including but not limited to orders of attachment or
garnishment or other forms of levies or injunctions or stays relating to the
transfer of Escrow Property), the Escrow Agent is authorized to comply therewith
in any manner as it or legal counsel of its own choosing deems appropriate, and
if the Escrow Agent complies with any such judicial or administrative order,
judgment, decree, writ or other form of judicial or administrative process, the
Escrow Agent shall not be liable to any of the other parties hereto or to any
other person or entity even though such order, judgment, decree, writ or process
may be subsequently modified or vacated or otherwise determined to have been
without legal force or effect.
(d) The Escrow Agent shall not be liable for any action taken or
omitted or for any loss or injury resulting
8
from its actions or its performance or lack of performance of its duties
hereunder in the absence of gross negligence or willful misconduct on its part.
In no event shall the Escrow Agent be liable (i) for acting in accordance with
or relying upon any instruction, notice, demand, certificate or document from
any party hereto or any entity acting on behalf of any party hereto, (ii) for
any consequential, punitive or special damages, (iii) for the acts or omissions
of its nominees, correspondents, designees, subagents or subcustodians, or (iv)
for an amount in excess of the value of the Escrow Property, valued as of the
date of deposit.
(e) If any fees, expenses or costs incurred by, or any obligations
owed to, the Escrow Agent hereunder are not promptly paid when due, the Escrow
Agent may reimburse itself therefor from the Escrow Property and may sell,
convey or otherwise dispose of any Escrow Property for such purpose.
(f) As security for the due and punctual performance of any and all
obligations to the Escrow Agent hereunder, now or hereafter arising, BAC, AmBev
and the Company, individually and collectively, hereby pledge, assign and grant
to the Escrow Agent a continuing security interest in, and a lien on, the Escrow
Property and all distributions thereon or additions thereto (whether such
additions are the result of deposits by the parties hereto or the investment of
Escrow Property). The security interest of the Escrow Agent shall at all times
be valid, perfected and enforceable by the Escrow Agent against the parties
hereto and all third parties in accordance with the terms of this Agreement.
(g) The Escrow Agent may consult with legal counsel at the expense of
BAC as to any matter relating to this Agreement, and the Escrow Agent shall not
incur any liability in acting in good faith in accordance with any advice from
such counsel.
(h) The Escrow Agent shall not incur any liability for not performing
any act or fulfilling any duty, obligation or responsibility hereunder by reason
of any occurrence beyond the control of the Escrow Agent (including but not
limited to any act or provision of any present or future law or regulation of
any governmental authority, any act of God or war, or the unavailability of the
Federal Reserve Bank wire or telex or other wire or communication facility).
(i) Unless otherwise specifically set forth herein, the Escrow Agent
shall proceed as soon as
9
practicable to collect any checks or other collection items at any time
deposited hereunder. All such collections shall be subject to the Escrow Agent's
usual collection practices or terms regarding items received by the Escrow Agent
for deposit or collection. The Escrow Agent shall not be required, or have any
duty, to notify anyone of any payment or maturity under the terms of any
instrument deposited hereunder, or to take any legal action to enforce payment
of any check, note or security deposited hereunder or to exercise any right or
privilege which may be afforded to the holder of any such security.
(j) The Escrow Agent shall not be responsible in any respect for the
form, execution, validity, value or genuineness of documents or securities
deposited hereunder, or for any description therein, or for the identity,
authority or rights of persons executing or delivering or purporting to execute
or deliver any such document, security or endorsement.
(k) BAC, AmBev and the Company, jointly and severally, shall be liable
for and shall reimburse and indemnify the Escrow Agent and hold the Escrow Agent
harmless from and against any and all claims, losses, liabilities, costs,
damages or expenses (including reasonable attorneys' fees and expenses)
(collectively, "Losses") arising from or in connection with or related to this
Agreement or being the Escrow Agent hereunder (including but not limited to
Losses incurred by the Escrow Agent in connection with its successful defense,
in whole or in part, of any claim of gross negligence or willful misconduct, on
its part); provided, however, that nothing contained herein shall require the
Escrow Agent to be indemnified for Losses caused by its gross negligence or
willful misconduct.
(l) In the event of any ambiguity or uncertainty hereunder or in any
notice, instruction or other communication received by the Escrow Agent
hereunder, the Escrow Agent may, in its sole discretion, refrain from taking any
action other than to retain possession of the Escrow Property, unless the Escrow
Agent receives written instructions, signed by BAC and AmBev, which eliminates
such ambiguity or uncertainty.
(m) In the event of any dispute between or conflicting claims by or
among BAC, AmBev, the Company or any other person or entity with respect to any
Escrow Property, the Escrow Agent shall be entitled, in its sole discretion, to
refuse to comply with any and all claims, demands or instructions with respect
to such Escrow Property
10
so long as such dispute or conflict shall continue, and the Escrow Agent shall
not be or become liable in anyway to the BAC, AmBev or the Company for failure
or refusal to comply with such conflicting claims, demands or instructions. The
Escrow Agent shall be entitled to refuse to act until, in its sole discretion,
either (1) such conflicting or adverse claims or demands shall have been
determined by a final award, order, judgment or decree of an arbitration panel
or court of competent jurisdiction, which award, order, judgment or decree is
not subject to appeal, or shall have been settled by agreement between the
conflicting parties as evidenced in a writing satisfactory to the Escrow Agent
or (2) the Escrow Agent shall have received security or an indemnity
satisfactory to it sufficient to hold it harmless from and against any and all
Losses which it may incur by reason of so acting. The Escrow Agent may, in
addition, elect, in its sole discretion, to commence an arbitration proceeding,
interpleader action or seek other judicial relief or orders as it may deem, in
its sole discretion, necessary. The costs and expenses (including reasonable
attorneys' fees and expenses) incurred in connection with such proceeding shall
be paid by, and shall be deemed a joint and several obligation of BAC, AmBev and
the Company.
SECTION 3.08. Escrow Agent Not to Transfer or Encumber Shares. Except
as otherwise allowed herein, the Escrow Agent covenants and agrees that it will
not sell or otherwise dispose of, pledge or encumber the Equalization Shares, or
any interest therein, and that it will only transfer the Equalization Shares in
accordance with this Agreement or with the prior written consent of BAC and
AmBev. Notwithstanding anything to the contrary contained herein, however, the
Escrow Agent is authorized and directed to transfer all the Equalization Shares
to or upon the order of AmBev upon receipt of a written instruction from AmBev
certifying that an Event of Default has occurred under the Share Pledge
Agreement.
SECTION 3.09. Notice of Corporate Action. The Escrow Agent agrees that
it will notify BAC and AmBev promptly upon (i) the Escrow Agent's receipt of
written notice of the date of any proposed meeting of holders of shares of the
Company or (ii) the Escrow Agent's receipt of any request to consent, as a
holder of shares of the Company, to any act, omission or other matter
whatsoever.
11
ARTICLE IV
Termination
SECTION 4.01. Termination Date. The escrow created by this Agreement
shall terminate (1) at such time as all the Equalization Shares are transferred
to AmBev or its designee pursuant to Section 5.01 or (2) upon receipt by the
Escrow Agent and the Company of a written notice of termination signed by both
BAC and AmBev. Upon any such termination, all further obligations or duties of
the Escrow Agent under this Agreement or any provision hereof shall cease.
SECTION 4.02. Transfer of Shares. If any delivery of Equalization
Shares in accordance with Section 5.01 shall take place (i) after the record
date for establishing holders of shares of the Company entitled to vote at a
meeting of shareholders or entitled to a dividend or other distribution but (ii)
prior to the date of such meeting of shareholders or payment of such dividend or
other distribution, the Escrow Agent and/or BAC shall deliver to AmBev an
irrevocable proxy authorizing AmBev to vote such shares at such meeting or, upon
receipt by the Escrow Agent and/or BAC of such dividend or other distribution,
the amount of the dividend declared or distribution made in the exact form
received, together with any necessary endorsements or assignments, as
appropriate.
ARTICLE V
Release and Transfer of Shares
SECTION 5.01. Release of Equalization Shares. The Equalization Shares
shall be released by the Escrow Agent from the escrow created by this Agreement
only (a) upon receipt by the Escrow Agent of (1) a certificate signed by both
BAC and AmBev, substantially in the form of Exhibit A attached hereto (the
"Instruction Letter") or (2) a written instruction from AmBev certifying that an
Event of Default has occurred under the Share Pledge Agreement (a "Default
Notice") and (b) as contemplated with respect to Released Shares in Section
3.01(a), in either case instructing the Escrow Agent to transfer to AmBev or its
designee all or a portion of the Equalization Shares. BAC and AmBev shall sign
the Instruction Letter (i) at any time, to assure a transfer of Equalization
Shares agreed by BAC and AmBev and (ii) on the First Stage Closing Date and
Second Stage Closing Date (as such terms are defined in the Stock Purchase
Agreement) to assure that the transfers
12
described in Sections 1.04(d) and 1.04(e) of the Stock Purchase Agreement take
place. Upon receipt by the Escrow Agent of an Instruction Letter or Default
Notice, the Escrow Agent shall promptly release and request the Company to
effect the transfer to AmBev of the number of Equalization Shares specified in
such Instruction Letter or Default Notice in accordance with Section 5.02
hereof. The Escrow Agent agrees to execute and deliver to the Company the share
transfer forms contemplated in Section 5.02 hereof. The Company agrees promptly
to effect registration of transfers requested by the Escrow Agent to permit such
release by the Escrow Agent.
SECTION 5.02. Transfer or Encumbrance of Equalization Shares. The
Company shall not, and shall not permit any depository to, register any transfer
of Equalization Shares unless it receives from AmBev a copy of the Instruction
Letter signed by BAC and AmBev or a copy of the Default Notice signed by AmBev,
and a share transfer form from the Escrow Agent in accordance with Luxembourg
law, in which case the Company shall register the transfer of the number of
Equalization Shares specified in the Instruction Letter and the share transfer
form, in the name of AmBev. BAC hereby irrevocably authorizes the Escrow Agent
and irrevocably appoints the Escrow Agent as BAC's attorney-in-fact, with full
power of subsitution, to execute any share transfer forms relating to any or all
the Equalization Shares required by Luxembourg law in order to effect any
transfer of the Equalization Shares in accordance with this Agreement. Except
for the Share Pledge Agreement, the Company shall not, and shall not permit any
depository to, register any pledge or encumbrance of the Equalization Shares.
ARTICLE VI
General Provisions
SECTION 6.01. 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 transfer of all the Equalization Shares to AmBev or its
designee.
SECTION 6.02. Specific Performance. The parties 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 party damages
would not be an adequate remedy, and each party
13
shall be entitled to specific performance and injunctive and other equitable
relief to 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 parties
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 6.03. 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,
except, in the case of the Escrow Agent, as provided in Section 3.04 and except
that AmBev shall have the right to designate any affiliate of AmBev to be the
transferee of the Equalization Shares. Any attempted assignment in violation of
this Section 6.03 shall be void.
SECTION 6.04. 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 6.05. Notices. All notices in connection with this Agreement
shall be in writing and shall be given by registered mail, cable, telex,
teletype or personal delivery, addressed as follows:
Escrow Agent: The Bank of New York
000 Xxxxxxx, Xxxxx 00X
Xxx Xxxx, XX 00000
Attention: Corporate Trust
Administration
Company: Xxxxxxxx General Xxxxx 667,
Buenos Aires, Argentina, 1038
Attention: Xxxxxxx Xxxxxx Xxxxxxxx
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention of Xxxxx Xxxx
14
BAC: Societe International de Finance
Lowenstrasse, Zurich,
Xxxxxxxxxxx 00 XX-0000
Xxxxxxxxx of Giovanni Pasqualotti
with a copy to:
Xxxx Xxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx
LLP
Alder Castle
00 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention of Xxxx Xxxxxxx
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention of Xxxxx Xxxx
AmBev: Companhia de Bebidas das Americas-AmBev
Rua Xx. Xxxxxx Xxxx
xx Xxxxxx, n(0)1.017
3(0)Andar cjs. 31 e 32
Sao Paulo, Brazil
Attention of Xxxxxx Xxxxx
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention of Xxxxx Xxxxxxx
or, to such other address as such party shall from time to time designate by
written notice to the other parties. The effective date of any notice given in
connection with this Agreement shall be the date on which it is received by the
addressee.
SECTION 6.06. 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 Schedules annexed hereto or referred to herein
are hereby
15
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 6.07. 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 6.08. Entire Agreement. This Agreement, along with the
Schedules and Exhibits hereto, contains the entire agreement and understanding
among the parties hereto with respect to the subject matter hereof and
supersedes 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.
SECTION 6.09. 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 6.10. 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 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
16
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 6.10(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 such 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. Notwithstanding the foregoing, the Escrow Agent
shall not be responsible for, and BAC and AmBev jointly and severally, shall
indemnify the Escrow Agent and hold it harmless against, the expenses of any
arbitration hereunder (including the Escrow Agent's legal fees and expenses)
except to the extent that any act or omission of
17
the Escrow Agent shall be determined by the arbitrators to have constituted
gross negligence or willful misconduct.
(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
6.10. 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 6.05 shall be effective service for purposes of any such enforcement
action.
SECTION 6.11. 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.
18
IN WITNESS WHEREOF, the respective parties have caused this Agreement
to be executed as of the date first above written.
QUILMES INDUSTRIAL (QUINSA) SOCIETE
ANONYME,
by /s/ Xxxxxxx Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx Xxxxxxxx
Title: Chief Executive Officer
by /s/ Xxxxxxx-Xxxxx de Montalembert
----------------------------------
Name:
Title:
BEVERAGE ASSOCIATES (BAC) CORP.,
by /s/ X. Xxxxxxx
----------------------------------
Name: X. Xxxxxxx
Title: Chairman of the Board
of Directors
COMPANHIA DE BEBIDAS DAS AMERICAS-
AMBEV,
by /s/ Xxxxxx Xxxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx Xxxxxx
Title: Attorney-in-fact
by /s/ Xxxxxxx Xxxxx Xxxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx Xxxxx
Title: Attorney-in-fact
THE BANK OF NEW YORK,
by /s/ Xxxxxx Xxxxxxx
----------------------------------
Name:
Title:
EXHIBIT A
Form of Instruction Letter
This instruction letter is delivered by Beverage Associates (BAC)
Corp. ("BAC") and Companhia de Bebidas das Americas-AmBev ("AmBev"), to [The
Bank of New York], acting in its capacity as Escrow Agent (the "Escrow Agent"),
pursuant to the terms of that certain Escrow Agreement, dated as of January 31,
2003,(the "Escrow Agreement"), among BAC, AmBev, Quilmes Industrial (Quinsa)
Societe Anonyme (the "Company") and the Escrow Agent. Additional terms used
herein and not defined herein shall have the meanings given them in the Escrow
Agreement.
Pursuant to the terms of Section 5.01 of the Escrow Agreement, we
hereby instruct the Escrow Agent to distribute [ ] shares of the Company to
AmBev by registering such shares in the share registry of the Company.
We hereby represent that (i) the share transfer form attached hereto
constitutes a true and correct copy in accordance with the Escrow Agreement and
(ii) all conditions to the transfer of Equalization Shares requested hereby set
forth of the Escrow Agreement have been satisfied.
This instruction letter is made for the purpose of certifying to the
Escrow Agent that the transfer of Equalization Shares to AmBev as requested
hereby complies with the terms and conditions of the Escrow Agreement.
In witness whereof, this instruction letter is executed by the
authorized officer of AmBev and BAC as of the ___ day of _________, 20[ ].
COMPANHIA DE BEBIDAS DAS
AMERICAS-AMBEV,
by
--------------------------
Name:
Title:
BEVERAGE ASSOCIATES (BAC)
CORP.,
by
--------------------------
Name:
Title:
SCHEDULE 1
BAC Wire Transfer Instructions
