STOCK PURCHASE AGREEMENT
This
STOCK PURCHASE AGREEMENT (this "Agreement")
is
dated as of December 21, 2007 between
Companhia de Bebidas das Américas - AmBev, a Brazilian corporation (the
"Buyer"),
on
the one hand and Xxxxxxx and X. Xxxxxxxxxxxx Advisers, LLC, a Delaware limited
liability company (the "Seller"),
on
the other hand.
RECITALS
A. The
Buyer
owns, directly or indirectly, 604,440,000 Class A shares, 26,388,914 Class
B
shares, and 6,000,000
ADSs (each ADS representing two Class B shares)
of
Quilmes Industrial (Quinsa), Société Anonyme, a Luxembourg corporation (the
"Company").
B. The
Seller is deemed to beneficially own 564,702
ADSs (each ADS representing two Class B shares) (together
with any additional Class A shares, Class B shares and ADSs of which Seller
acquires beneficial ownership on or subsequent to the date hereof and prior
to
Closing Date, the “Shares”)
of the
Company.
C. The
Buyer
is willing to acquire the Shares from the Seller, and the Seller is willing
to
sell the Shares to the Buyer, all upon the terms and subject to the conditions
set forth in this Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants contained
in this Agreement and for other valuable consideration, the Buyer and the
Seller
agree as follows:
ARTICLE
ONE
TERMS
OF THE TRANSACTION
SECTION
1.1 Sale
and Purchase.
Subject
to the conditions set forth in Article Five, the Seller, on the Closing Date,
shall sell the Shares to the Buyer, by tendering (and not subsequently
withdrawing) the Shares in the Tender Offer (as defined below)
or
pursuant to Section 1.3 (c) below and
in
accordance with the terms of Section 1.4 below. Notwithstanding anything
in this
Agreement to the contrary, Seller shall not be obligated to sell or tender
(and,
if tendered, Seller may withdraw) up to 30,000 ADSs that are held in client
accounts, to the extent such client that terminates its account with Seller
after the date of this Agreement.
SECTION
1.2 Purchase
Price. As
consideration for the Shares, the Buyer shall pay to the Seller a purchase
price
of US$
4.0625
per
Class A share, US$ 40.625 per Class B share and US$ 81.25 per ADS (each such
price per share, the “Initial
Purchase Price”,
and,
as may be adjusted as provided in this Agreement, the respective "Purchase
Price");
provided,
however,
that if
the Tender Offer Price (as defined below) for any of such shares is greater
than
the Initial Purchase Price, the respective Purchase Price shall be increased
so
as to be equal to the Tender Offer Price . The Initial Purchase Price and
the
Purchase Price shall be appropriately adjusted to reflect any stock splits,
stock dividends or similar transactions.
SECTION
1.3 The
Tender Offer.
(a)
Subject to the terms hereof, on or before December 26, 2007, the Buyer
shall publicly announce its intent to make a tender offer (the "Tender
Offer")
to
acquire any and all of the outstanding Class A shares, Class B shares and
ADSs
(each ADS representing two Class B shares) not held by the Buyer or its
Affiliates (as defined in Section 6.6), in each case at the respective Purchase
Price of US$ 4.0625 per Class A share, US$ 40.625 per Class B share and US$
81.25 per ADS. The expiration date of the Tender Offer shall initially be
twenty
business days (as defined under the rules and regulations of the U.S. Securities
and Exchange Commission), which may be extended by the Buyer as it deems
appropriate subject to compliance with the other terms of this Agreement.
Each
such price per share or ADS, or any greater amount per share paid pursuant
to
the Tender Offer as it may be amended by the Buyer, is referred to as the
"Tender
Offer Price".
The
Buyer's obligation to accept for payment and to pay for any Class A shares,
Class B shares or ADSs (each ADS representing two Class B shares) pursuant
hereto shall be subject to no conditions other than those set forth in Article
Five hereof. The Buyer expressly reserves the right to increase the Tender
Offer
Price, and it may decrease the Tender Offer Price provided it shall not decrease
the Tender Offer Price below the Initial Purchase Price set forth in Section
1.2
hereof above. The Buyer and Seller agree that if more than 5,968,722 Class
B
shares (including Class B shares held in the form of ADSs) are tendered (and
not
withdrawn) as of the expiration of the Tender Offer (as that date may be
adjusted in accordance herewith), the Tender Offer Price shall be adjusted
by
the Buyer to US$ 4.125 per Class A share, US$ 41.25 per Class B share and
US$
82.50 per ADS. Each condition set forth in the Tender Offer may be waived
by the
Buyer, in whole or in part at any time and from time to time, in its sole
discretion.
(b) As
soon
as practicable following the announcement of its intent to make the Tender
Offer, the Buyer shall file with the Luxembourg
Commission de Surveillance du Secteur Financier
(“CSSF”)
a
draft offer to purchase and ancillary documents. Once the CSSF has completed
its
review of the offer to purchase and ancillary documents, the Buyer will file
with the Securities and Exchange Commission a Tender Offer Statement on Schedule
TO (together with all amendments and supplements thereto, and including all
exhibits thereto, the "Schedule
TO")
with
respect to the Tender Offer. The Buyer will cause the Schedule TO, the offer
to
purchase and all amendments or supplements thereto (which together constitute
the "Offer
Documents")
to
comply in all material respects with the Exchange Act and the rules and
regulations thereunder.
(c) If
(i)
the Buyer terminates or abandons the Tender Offer, (ii)
the
Tender Offer is terminated by Buyer pursuant to Section 6.1(b)
(without
Buyer having been instructed to do so by Seller), in each case for any reason
other than the failure of the Tender Offer to have been consummated by the
Termination Date as a result of one of the conditions in Section 5.1 or Section
5.2 (insofar as applicable to the Tender Offer) hereof,
or
(iii)
this Agreement is terminated by Seller pursuant to Section 6.1(a)(iii) following
a material default by Buyer of Buyer’s covenants, representations and warranties
set forth in this Agreement, then in each case (subject to the other conditions
hereunder as applicable to the purchase and sale outside the Tender Offer)
the
Seller shall sell the Shares to Buyer, and the Buyer shall purchase the Shares
from Seller, at the respective Purchase Price of US$ 4.125 per Class A share,
US$ 41.25 per Class B share and US$ 82.50 per ADS. Furthermore,
if (i) for any reason, following the commencement of the Tender Offer, the
Seller does not tender, or the Seller withdraws, the Shares from the Tender
Offer (except as provided in the second sentence of Section 1.1), (ii) the
Tender Offer is terminated by Buyer at the instruction of the Seller pursuant
to
Section 6.1(b), or (iii) the Tender Offer is terminated by Buyer pursuant
to
Section 6.1(b) due to failure of the conditions in Section 5.1 or Section
5.2
(insofar as applicable to the Tender Offer), then in each case (subject to
the
other conditions hereunder as applicable to the purchase and sale outside
the
Tender Offer) the Seller shall sell the Shares to Buyer, and the Buyer shall
purchase the Shares from Seller, at the respective Purchase Price of US$
4.0625
per Class A share, US$ 40.625 per Class B share and US$ 81.25 per
ADS.
2
SECTION
1.4 The
Closing. The
closing of the purchase and sale of the Shares pursuant hereto (the
“Closing”)
shall
be effected in accordance with the terms set forth in this Agreement. If
the
Shares are sold pursuant to the Tender Offer, Seller shall deliver the Shares
and the Buyer shall deliver the Tender Offer Price in accordance with the
Offer
Documents. If the Shares are not sold by the Seller as part of the Tender
Offer,
the Seller, on the Closing Date (as defined below), shall deliver, or cause
to
be delivered, certificates for the Shares (or book entry transfer of the
Shares)
for the account of the Buyer and the Buyer shall wire transfer to Seller
the
amount of the aggregate Purchase Price therefor. If the Shares are not purchased
and sold as part of the Tender Offer, and if nevertheless the Seller is
obligated to sell the Shares to Buyer, and the Buyer is obligated to purchase
the Shares from Seller pursuant to Section 1.3 (c) hereof, then the purchase
and
sale of the Shares shall take place at the offices of Xxxxxx, Xxxx &
Xxxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx or at such other place
as the
parties may agree upon, at 10:00 A.M., local time on the third business day
following the earliest event that requires the Closing under Section 1.3
(c) (in
each case, the “Closing
Date”).
ARTICLE
TWO
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
The
Seller represents and warrants to the Buyer, as of the date hereof and as
of the
Closing Date, as follows:
SECTION
2.1 Power
and Capacity. (a) The
Seller is duly organized and validly existing under the laws of Delaware
and has
full power and legal right to execute and deliver this Agreement, to perform
its
respective obligations hereunder and to consummate the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by
the
Seller, constitutes the legal, valid and binding agreement of the Seller
and is
enforceable against the Seller in accordance with its terms.
(b) The
execution and delivery by the Seller of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, (i) violate
any
provision of the Seller’s organizational documents, (ii) conflict with or result
in a breach of, create an event of default (or an event that, with the giving
of
notice or lapse of time or both, would constitute an event of default) under,
or
give any third party the right to accelerate any obligation under, any
agreement, mortgage, license, lease, indenture, instrument, order, arbitration
award, judgment or decree to which the Seller is a party or by which the
Seller
or any asset or property of the Seller is bound or affected.
3
SECTION
2.2 The
Shares.
As of
the date hereof, the Seller is the beneficial owner of 564,702 ADSs (each
ADS
representing two Class B shares). As of the date hereof, the Seller does
not
beneficially own any other shares of the Company. The Shares of the Company
beneficially owned by the Seller as of the date hereof are held, and the
Shares
beneficially owned by the Seller as of the Closing Date will be held, to
the
best knowledge of Seller, free and clear of all liens, charges, encumbrances,
equities and claims whatsoever (except to the extent of margin claims with
respect to Shares held in client margin accounts) and are not and will not
be
subject to any restriction with respect to their transferability. No third
party
has a basis for any claim against (or with respect to) the shares of the
Company
held by the Seller. Upon the payment by the Buyer of the Purchase Price as
provided for herein and the delivery of the certificates for the Shares by
the
Seller, the Buyer will possess good and marketable title to all of the Shares,
free and clear of all liens, charges, encumbrances, equities and claims
whatsoever.
SECTION
2.3 Finders
or Brokers. In
connection with the consummation of the transactions contemplated hereby,
the
Seller has not employed any investment banker, broker, finder or intermediary
in
connection with the transactions contemplated hereby who might be entitled
to a
fee or commission in connection with this Agreement and the transactions
contemplated hereby, except as set forth in the Seller’s Statement on Schedule
13D filed with the Securities and Exchange Commission on November 27, 2007
(the
“Schedule
13D”).
SECTION
2.4 Tender
of the Shares.
The
Seller will tender its Shares into the Tender Offer in accordance with the
terms
thereof as promptly as practicable following the commencement of the Tender
Offer, and for so long as this Agreement remains in effect the Seller will
not
withdraw its Shares from the Tender Offer.
ARTICLE
THREE
REPRESENTATIONS
AND WARRANTIES OF THE BUYER
The
Buyer
represents and warrants to the Seller, as of the date hereof and as of the
Closing Date, that:
SECTION
3.1 Power
and Capacity. (a) The
Buyer
is duly organized and validly existing under the laws of Brazil and has full
power and legal right to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
This Agreement has been duly authorized, executed and delivered by the Buyer,
constitutes the legal, valid and binding agreement of the Buyer and is
enforceable against the Buyer in accordance with its terms.
(b) The
execution and delivery by the Buyer of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, (i) violate
any
provision of the articles of incorporation or by-laws of the Buyer, (ii)
conflict with or result in a breach of, create an event of default (or an
event
that, with the giving of notice or lapse of time or both, would constitute
an
event of default) under, or give any third party the right to accelerate
any
obligation under, any agreement, mortgage, license, lease, indenture,
instrument, order, arbitration award, judgment or decree to which the Buyer
is a
party or by which the Buyer or any asset or property of the Buyer is bound
or
affected.
4
ARTICLE
FOUR
COVENANTS
OF THE SELLER AND THE BUYER
SECTION
4.1 Publicity;
Confidentiality.
Except
as required by law, the Seller may not, prior to the Closing Date, directly
or
indirectly issue any press release or otherwise make any public statement
or
disclosure with respect to the existence or terms of this Agreement, the
transactions contemplated hereby or the Tender Offer without first consulting
with the Buyer and obtaining the written consent thereof; provided,
however,
that as
soon as practicable after the announcement by the Buyer of its intent to
make
the Tender Offer, the Seller shall (i) cause to be filed an amendment to
the
Seller’s Schedule 13D that includes disclosure substantially
to the effect of that attached hereto as Annex
A,
a copy
of this Agreement and such other matters as are required to be disclosed
in such
filing by the rules and regulations of the Securities and Exchange Commission,
and (ii) cause to be disseminated via press release or newswire a statement
substantially to the effect of that attached hereto as Annex
A.
SECTION
4.2 Solicitation.
From
the
date hereof until the Closing Date, the Seller may not, directly or indirectly,
challenge the legality, fairness or attractiveness of any provision of the
Tender Offer consistent
in all material respects with this Agreement or
solicit
or provide any information for the purpose of soliciting any challenge to
the
legality, fairness or attractiveness of any provision of the Tender Offer
consistent in all material respects with this
Agreement.
SECTION
4.3 Standstill.
The
Seller agrees that it will neither purchase nor sell, directly or indirectly,
Class A shares, Class B shares or ADSs (each ADS representing two Class B
shares) of the Company, or any options, warrants, puts, calls, swaps or other
derivative instruments with respect thereto, (i) during the period commencing
on
the date hereof and concluding on the earlier of December 26, 2007 and the
date
following the date on which the Buyer publicly announces its intent to make
a
Tender Offer and (ii) at any time during the period commencing on the date
of
the sale of the Shares pursuant hereto and terminating five years thereafter.
Seller shall not be deemed to be in violation of this Section 4.3 as a result
of
any decision by a client of Seller to establish (after the date of this
Agreement) or terminate any account with Seller, and, notwithstanding clause
(ii) of the immediately preceding sentence, Seller may sell any Class A shares,
Class B shares or ADSs (each ADS representing two Class B shares) of the
Company
that are held in such account at the time the account was
established.
SECTION
4.4 Further
Assurances. The
Buyer
and the Seller, at their sole cost and expense and without expense to the
other
parties, will do such further acts and execute and deliver such further
documents regarding their obligations hereunder as may be reasonably required
solely for the purpose of (i) accomplishing the purposes of this Agreement
or (ii) assuring and confirming unto the other party, the validity of any
documents of conveyance to be delivered at Closing.
5
ARTICLE
FIVE
CONDITIONS
TO THE BUYER'S AND SELLER’S OBLIGATIONS
The
obligations of the Buyer and Seller hereunder shall be subject to the
satisfaction, as of the Closing Date, of certain conditions as specifically
set
forth below (any of which may be waived only by the party entitled to the
benefit of such condition in its sole discretion):
SECTION
5.1 Governmental
Action.
There
shall not be pending any action or proceeding by any government or governmental,
regulatory or administrative agency, authority or tribunal of the United
States
or any non-United States jurisdiction, before any court, authority, agency
or
tribunal that directly or indirectly (i) challenges the making of the Tender
Offer or the acquisition of some or all of the Class A shares or Class B
shares
or ADSs pursuant to the Tender Offer or (ii) in Buyer’s reasonable judgment,
could materially and adversely affect the Buyer’s or its subsidiaries’ business,
condition (financial or otherwise), income, operations or prospects, taken
as a
whole, or otherwise could materially impair in any way the contemplated future
conduct of the business of the Buyer or its subsidiaries, taken as a whole,
or
could materially impair the Buyer’s ability to purchase any and all outstanding
Class A shares, Class B shares or ADSs of the Company in the Tender Offer.
If
the
purchase and sale of the Shares shall not occur pursuant to the Tender Offer,
and if nevertheless in accordance with Section 1.3 (c) hereto the Seller
is
obligated to sell the Shares to Buyer, and the Buyer is obligated to purchase
the Shares from Seller, then the provisions of this Section referencing the
Tender Offer shall instead refer to the purchase and sale of the Shares pursuant
to this Agreement.
SECTION
5.2 Legal
Proceedings.
There
shall not have been any action threatened, pending or taken, or approval
withheld, or any statute, rule, regulation, judgment, order or injunction
threatened, proposed, sought, promulgated, enacted, entered, amended, enforced
or deemed to be applicable to the Tender Offer or the Buyer or any of its
subsidiaries, by any court or any authority, agency or tribunal that, in
the
Buyer’s reasonable judgment, could directly or indirectly (i) make the
acceptance for payment of, or payment for, some or all of the Class A shares,
Class B shares or ADSs illegal or otherwise restrict or prohibit completion
of
the Tender Offer, (ii) delay or restrict the Buyer’s ability, or render the
Buyer unable, to accept for payment or pay for some or all of the Class A
shares, Class B shares or ADSs, or (iii) materially and adversely affect
the
Buyer’s or its affiliates’ business, condition (financial or otherwise), income,
operations or prospects, taken as a whole, or otherwise materially impair
in any
way the contemplated future conduct of the business of the Buyer or its
affiliates. If the purchase and sale of the Shares shall not occur pursuant
to
the Tender Offer, and if nevertheless in accordance with Section 1.3 (c)
hereto
the Seller is obligated to sell the Shares to Buyer, and the Buyer is obligated
to purchase the Shares from Seller, then the provisions of this Section
referencing the Tender Offer shall instead refer to the purchase and sale
of the
Shares pursuant to this Agreement.
SECTION
5.3 Representation
and Warranties.
The
representations and warranties of the Seller set forth in Article Two shall
be
true and complete in all material respects as of the date hereof and the
Closing
Date. The representations and warranties of the Buyer set forth in Article
Three
shall be true and complete in all material respects as of the date hereof
and
the Closing Date.
6
ARTICLE
SIX
MISCELLANEOUS
SECTION
6.1 Termination.
(a) This
Agreement and the transactions contemplated hereby may be terminated at any
time
on or prior to the consummation thereof as follows:
(i) by
the
written consent of both of the Buyer and the Seller;
(ii) by
the
Buyer if (x) there is or occurs an inaccuracy in any of the representations
and warranties or the breach of any covenant of the Seller set forth in this
Agreement, which inaccuracy or breach is not capable of being cured before
the
Closing Date, or (y) the conditions to the Buyer's obligations under this
Agreement set forth in Sections 5.1 or 5.2 have not been satisfied or waived
by
the Buyer as of the Closing Date; provided, however, in the event the agreement
is terminated in accordance with this clause (ii)(x) the Buyer's right, but
not
obligation, to purchase the Shares from Seller under Section 1.3(c) shall
remain
in full force and effect; or
(iii) by
the
Seller if (x) there is or occurs an inaccuracy in any of the
representations and warranties or the breach of any covenant of the Buyer
set
forth in this Agreement, which inaccuracy or breach is not capable of being
cured before the Closing Date; (y) the Buyer shall not have announced its
intent
to make the Tender Offer as provided in Section 1.3 by December 26, 2007
or
(z) the conditions to the Seller's obligations under this Agreement set
forth in Sections 5.1 or 5.2 have not been satisfied or waived by the Seller as
of the Closing Date; provided, however, in the event this agreement is
terminated in accordance with this clause (iii)(x) and (y), the Seller's
right,
but not obligation, to sell the Shares to Buyer under Section 1.3(c) shall
remain in full force and effect.
(b) In
the
event the Tender Offer has not been consummated on or before February 15,
2008
(the “Termination
Date”),
the
Buyer may, and if instructed in writing to do so by Seller, the Buyer shall,
terminate the Tender Offer.
(c) Except
for obligations set forth in Sections 4.1, 6.3 and 6.4, in the event that
this Agreement is terminated pursuant to the provisions of
Section 6.1(a)(i), Section 6.1(a)(ii)(y) or Section 6.1(a)(iii)(z), the
Seller shall have no obligation to the Buyer and the Buyer shall have no
obligation to the Seller under this Agreement. In the event that the Buyer
terminates this Agreement pursuant to Section 6.1(a)(ii)(x), the right of
the Buyer to pursue any and all rights it may have at law or equity or hereunder
shall survive unimpaired, and in the event that the Seller terminates this
Agreement pursuant to Section 6.1(a)(iii)(x) or Section 6.1(a)(iii)(y), the
right of the Seller to pursue any and all rights it may have at law or equity
or
hereunder shall survive unimpaired.
7
SECTION
6.2 Notice.
All
notices, requests and other communications under this Agreement will be in
writing and will be deemed to have been duly given if delivered personally,
or
sent by either certified or registered mail, return receipt requested, postage
prepaid, by overnight courier guaranteeing next day delivery or by telecopier
or
email (with telephonic or machine confirmation by the sender), addressed
as
follows:
| (a) |
If
to the Seller:
Xxxxxxx
and S. Bleichroeder Advisers, LLC
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
General Counsel
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
Xxxx.Xxxxxxxxx@xxxxx.xxx and Xxxxx.Xxxx@xxxxx.xxx
With
a copy to:
Xxxxxx
X. Xxxxxxxx
Bartlit
Xxxx Xxxxxx Xxxxxxxxx & Xxxxx LLP
0000
Xxxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
Email: xxxxxx.xxxxxxxx@xxxxxxx-xxxx.xxx
|
or
at
such other address, telecopy number or email address as the Seller may have
advised the Buyer in writing; and
| (b) |
If
to the Buyer:
Companhia
de Bebidas das Américas - AmBev
Attention:
General Counsel
Rua
Xx. Xxxxxx Xxxx xx Xxxxxx,
1017,
4º andar
Sao
Paulo, SP
CEP
00000 000
Brazil
Tel: +
00 00 0000 0000
Fax: +
00 00 0000 0000
With
a copy to:
Xxxxx
X. Xxxxxx, Esq.
Xxxxxx,
Xxxx & Xxxxxxxx LLP
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
email: xxxxxxx@xxxxxxxxxx.xxx
|
8
or
at
such other address, telecopy number or email address as the Buyer may have
advised the Seller in writing. All such notices, requests and other
communications shall be deemed to have been received on the date of delivery
thereof (if delivered by hand), on the third day after the mailing thereof
(if
mailed), on the next day after the sending thereof (if by overnight courier)
and
when receipt is confirmed as provided above (if telecopied or sent via
email).
SECTION
6.3 Fees
and Expenses.
Each
party will pay the fees and expenses of its counsel, accountants, financial
advisors or other experts retained by such party and all expenses incurred
by it
incident to the negotiation, preparation, execution, consummation, and
performance of this Agreement and the transactions contemplated
hereby.
SECTION
6.4 Governing
Law. This
Agreement and all disputes arising hereunder or controversies related hereto
shall be governed by and construed and enforced in accordance with the internal,
substantive laws of the State of New York, without giving effect to the conflict
of laws rules thereof that would apply the law of any other jurisdiction.
Legal
proceedings commenced by the Seller or the Buyer arising out of any of the
transactions or obligations contemplated by this Agreement shall be brought
exclusively in the federal courts, or in the absence of federal jurisdiction
in
state courts, in either case in New York, New York. The Buyer and the Seller
irrevocably and unconditionally submit to the jurisdiction of such courts
and
agree to take any and all future action necessary to submit to the jurisdiction
of such courts. The Buyer and the Seller irrevocably waive any objection
that
they now have or hereafter may have to the laying of venue of any suit, action
or proceeding brought in any such court and further irrevocably waive any
claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Final judgment against the Seller or the
Buyer
in any such suit shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment, a certified or true copy of which shall be conclusive
evidence of the fact and the amount of any indebtedness or liability of the
Seller or the Buyer therein described.
SECTION
6.5 Entire
Agreement; Amendments; Waivers. This
Agreement represents the entire agreement between the parties as to the subject
matter hereof and supersedes and cancels any prior oral or written agreement,
letter of intent or understanding related to the subject matter hereof. No
provision of this Agreement may be terminated, amended, supplemented, waived
or
modified other than by an instrument in writing signed by the party against
whom
the enforcement of the termination, amendment, supplement, waiver or
modification is sought.
9
SECTION
6.6 Binding
Effect; Assignment. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. The Buyer
and
the Seller may not assign or transfer any right hereunder without the prior
written consent of the other parties, and any assignment without such consent
shall be void and without effect; provided, however, that the Buyer may assign
its rights and obligations hereunder to any wholly-owned Affiliate of the
Buyer.
"Affiliate"
shall
have the meaning ascribed to such term under Rule 144 of the Securities Act
of
1933, as amended.
SECTION
6.7 Specific
Performance.
The
parties agree that irreparable damage would occur in the event that any of
the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, the parties shall
be
entitled to specific performance of the terms hereof, including an injunction
or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any
other
remedy to which they are entitled at law or in equity.
SECTION
6.8 No
Third Party Beneficiaries.
Nothing
contained herein, express or implied, is intended to confer upon any person
or
entity other than the parties hereto and their successors in interest and
permitted assignees any rights or remedies under or by reason of this
Agreement.
SECTION
6.9 Counterparts;
Headings. This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed to be an original and all of which together shall be deemed to be
one and
the same instrument, and shall become effective when one or more counterparts
have been signed by each of the parties. The headings of the Articles and
Sections of this Agreement have been inserted for convenience of reference
only,
are not to be considered a part of this Agreement, and shall in no way modify
or
restrict any of the terms or provisions of this Agreement.
[The
remainder of this page has intentionally been left blank.]
10
IN
WITNESS WHEREOF,
this
Agreement has been duly executed by the parties hereto as of the day and
year
first above written.
|
Companhia
de Bebidas das Américas - AmBev, a Brazilian
corporation
|
||||
|
By:
|
/s/
Xxxxxx Xxxxxx
|
|||
|
Name:
|
Xxxxxx
Xxxxxx
|
|||
|
Title:
|
Officer
|
|||
|
By:
|
/s/
Xxxxx Xxxxxxx
|
|||
|
Name:
|
Xxxxx
Xxxxxxx
|
|||
|
Title:
|
Officer
|
|||
|
|
||||
|
Xxxxxxx
and X. Xxxxxxxxxxxx Advisers, LLC,
a
Delaware limited liability company
|
||||
|
By:
|
/s/
Xxxx Xxxxxxxxx
|
|||
|
Name:
|
Xxxx
Xxxxxxxxx
|
|||
|
Title:
|
Senior
Vice President
|
|||
11
ANNEX
A
New
York, December [•], 2007 - Xxxxxxx
and S. Bleichroeder Advisers, LLC (“ASBA”)
announced today that it is filing an amendment to its Schedule
13D
filed
with the Securities and Exchange Commission on November 27, 2007, in which
ASBA
discloses that it has entered into a Stock Purchase Agreement with Companhia
de
Bebidas das Américas - AmBev (“AmBev”) pursuant to which ASBA has agreed to sell
its American Depositary Shares (“ADSs”) in Quilmes Industrial (Quinsa), Société
Anonyme (“Quinsa”) to AmBev in the voluntary offer announced today by AmBev for
the outstanding Class A shares and Class B shares (and Class B shares
held as ADSs) of Quinsa that are not owned by AmBev or its
subsidiaries.
ASBA
believes that the purchase price of U.S.$ 4.0625 per Class A share, U.S.
$40.625
per Class B share (U.S. $81.25 per ADS) is fair to Quinsa’s shareholders other
than AmBev and its subsidiaries.
12
