EXHIBIT 2.5
CONFORMED COPY
SHAREHOLDERS AGREEMENT dated as of March 2, 2004, among
BRC, a corporation (societe anonyme) duly incorporated and
validly existing under the laws of Luxembourg, having its
registered office at 00, Xxxx x'Xxxx, X-0000, Xxxxxxxxxx
("XXX"), Xxxxxxx Xxxxx Sebastien SCA or EPS SCA, a corporation
(societe en commandite par actions) duly incorporated and
validly existing under the laws of Luxembourg having its
registered office at 000 Xxxxx x'Xxxx, X-0000 Xxxxxxxxx,
("XXX"), Rayvax Societe d'investissements SA, a corporation
(societe anonyme) organized under the laws of Belgium, having
its registered office at 00, xxxxxx Xxxxxxx, 0000 Xxxxxxxx,
Xxxxxxx ("Rayvax") and the Stichting Administratiekantoor
Interbrew, a foundation duly incorporated and validly existing
under the laws of the Netherlands, having its registered office
at 548, Herengracht, 1017, CG Amsterdam ("AK");
WHEREAS BRC and EPS are parties to a Contribution and Subscription
Agreement, dated as of March 3, 2004 (the "CSA"), pursuant to which BRC will
acquire 141,712,000 shares of capital stock ("Shares") of Interbrew, a
corporation (societe anonyme/naamloze vennootschap) organized under the laws
of Belgium (the "Company"), pursuant to the Contribution and Subscription;
WHEREAS , as of the date hereof, the AK is the owner of 275,056,026
Shares and upon Closing (this term and certain other terms used herein are
defined in Section 1.01) of the Contribution and Subscription, BRC and EPS
together will be the owners of 321,700,000 Certificates ;
WHEREAS, upon the Closing Date, BRC will transfer, or cause to be
transferred, 141,700,000 of the Shares acquired by BRC to the AK for
certification in accordance with the Conditions of Administration and will
receive in exchange therefor 141,700,000 Class B Certificates;
WHEREAS on or prior to the date hereof, EPS holds 176,000,000
certificates issued by the AK or Shares representing in the aggregate an
interest of 176,000,000 Shares;
WHEREAS prior to the date hereof, Rayvax shall, and shall cause the
Founders' Affiliates who are affiliated to Rayvax, to contribute 60,000,000
certificates issued by the AK to EPS;
WHEREAS BRC and EPS desire to exercise joint equal control over the
affairs of the AK and the Company, and to provide for certain rights and
restrictions with respect to the governance and management of the AK and the
Company, and certain restrictions upon the direct or indirect sale,
assignment, transfer, pledge or other disposition of the Certificates and the
Shares;
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WHEREAS any party to this Agreement is entitled at any time to
submit to the other parties any proposal relating to (i) the admission of a
new industrial or financial partner as a shareholder of the Company, (ii) a
modification of the commitments made pursuant to Section 2.01. and Section
2.02. hereof, (iii) a modification to the composition of the Company Board
and, in the event of any such proposal, the parties are prepared to discuss it
in good faith, it being understood that any decision relating thereto shall
have to be taken by each party hereto in its sole discretion and, if
applicable, by the AK Board in accordance with the AK By-laws and the
Conditions of Administration (including article 9.4 of the Conditions of
Administration).
Accordingly, the parties hereby agree as follows:
ARTICLE I
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Definitions
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SECTION 1.01. Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
"affiliate" or "affiliated" of any person other than an individual
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 and, in the case of an individual, (i) upon the death of
such individual, such individual's executors, administrators or testamentary
trustees, (ii) such individual's spouse, parents, siblings or descendants or
such parents', siblings' or descendants' spouses, (iii) a trust or similar
arrangement the beneficiaries of which include only such individual or any of
the relatives of such individual specified in clause (ii) or (iv) a charitable
foundation, charitable trust or similar charitable entity established by such
individual and administered by such individual or relatives of such individual
specified in clause (ii).
"AmBev" means Companhia de Bebidas das Americas - AmBev, a
corporation duly incorporated and validly existing under the laws of the
Federative Republic of Brazil, with head offices at Xxx Xx Xxxxxx Xxxx xx
Xxxxxx 0000, 0xx Xxxxx, 00000-000, Xxx Xxxxx (XX), enrolled in the taxpayers'
registry under number 02.808.708/0001-07.
"By-laws" means the By-laws of the AK, effective as of the Closing
Date, as amended from time to time.
"Certificate" means any Class A Certificate or Class B Certificate.
"Class", when used in reference to any Certificate, refers to
whether such Certificate is a Class A Certificate or a Class B Certificate.
"Class A Certificate" means a certificate issued by the AK to EPS or
any Permitted Successor or Permitted Transferee of EPS in accordance with
Section 2.01(a) in respect of a Share directly or indirectly owned by EPS or
such Permitted Successor or Permitted Transferee.
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"Class B Certificate" means a certificate issued by the AK to BRC or
any Permitted Successor or Permitted Transferee of BRC in accordance with
Section 2.02(a) in respect of a Share directly or indirectly owned by BRC or
such Permitted Successor or Permitted Transferee.
"Closing" means the closing of the Contribution and Subscription
that shall take place at the offices of Linklaters Xx Xxxxx, xxx Xxxxxxxxx 00,
0000 Xxxxxxxx, at 3:00 p.m. Brussels time on the fifth business day (the
"Closing Date") following the satisfaction (or, to the extent permitted, the
waiver) of the conditions set forth in Article XI of the Contribution and
Subscription Agreement, or at such other place, time and date as shall be
agreed between the Company and BRC.
"Conditions of Administration" means the Conditions of
Administration of the AK effective as of the Closing Date, as amended from
time to time.
"Contribution and Subscription" means the contribution, transfer and
delivery to the Company by BRC of all of the shares of Tinsel Investments SA,
a company duly incorporated and validly existing under the laws of Luxemburg,
with registered office at 00, Xxxx x'Xxxx, X-0000, Xxxxxxxxxx, and the
Company's issuance and transfer to BRC of 141,700,000 Shares of the Company,
upon the terms and subject to the conditions set forth in the Contribution and
Subscription Agreement and on the Closing Date.
"control" over any Person means the ability, by having a sufficient
amount of the voting securities, or other voting ownership or voting
interests, to elect directly or indirectly at least a majority of the board of
directors or other governing body of that person.
"Deadlock" means any situation as referred to in Section 4.02.(b) of
this Agreement.
"Founder" means, on the one hand, each of the founders of the
Company, being the descendants of Xxxxx de Spoelberch, Olivier de Spoelberch,
Guillaume de Spoelberch, Xxxxxxxxx de Pret Xxxxx de Calesberg, Xxxxxxx xx
Xxxxxx, Xxxxxxxxx xx Xxxx Xxxxxxx, Xxxxxx van der Straten Ponthoz and Xxxxxx
Xxx Xxxxx and, on the other hand, each of the controlling shareholders of
AmBev, being Xxxxx Paulo Xxxxxx, Xxxxxx Xxxxxxx xx Xxxxx Sicupira and Xxxxxx
Xxxxxxxx Xxxxxx.
"Founders' Affiliate" means any legal or natural person affiliated
to a Founder.
"Holders" means EPS, BRC and their respective Permitted Successors
or Permitted Transferees.
"Lien" means any mortgage, lien, pledge, security or other interest,
charge, covenant, option, claim, restriction or encumbrance of any kind or
nature whatsoever, other than mandatory liens.
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"Member" means, with respect to EPS or BRC, any ultimate direct or
indirect owner of Certificates or of Shares which are directly or indirectly
owned by BRC or EPS, as the case may be, as of the date hereof.
"Permitted Transferee" means any Founders' Affiliate; provided, that
the voting or economic interests held directly or indirectly in any such
Founders' Affiliate by Persons who are not Founders or Founders' Affiliates
shall not exceed 24.99%.
"Permitted Successor" means, with respect to EPS, any successor as
referred to in Section 2.01.(a) of this Agreement and, with respect to BRC,
any successor as referred to in Section 2.02.(a) of this Agreement.
"Person" means any individual, firm, corporation, partnership,
limited liability company, foundation, trust, joint venture, association,
unincorporated organization, governmental entity or other entity.
"Rights" means, in respect of any security, any right, warrant,
option or other security which, directly or indirectly, represents the right
to purchase or acquire, or is convertible into or exercisable or exchangeable
for, or otherwise represents an interest in, such security.
"Shares" means the shares of capital stock of the Company.
"Transfer", as to any Certificates, Shares or Rights in respect of
Certificates or Shares, means to sell, or in any other way transfer, assign,
pledge, distribute, encumber or otherwise dispose of, create any Rights in
respect of, or permit any Lien to exist on, such Certificates, Shares or
Rights, whether directly or indirectly, voluntarily or involuntarily or with
or without consideration, including, without limitation, any Transfer of
shares or other Rights in a Person that owns, directly or indirectly, such
Certificates, Shares or Rights.
ARTICLE II
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Transfer Restrictions Relating to the Certificates and the Shares
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SECTION 2.01. Restrictions Relating to EPS. (a) EPS shall at the
latest on the Closing Date directly hold at least 180,000,000 Class A
Certificates; provided, that EPS may Transfer the 180,000,000 Class A
Certificates in their entirety to any successor holding company that is
directly or indirectly owned solely by Members and Permitted Transferees of
EPS and that becomes a party to this Agreement. Subject to the previous
sentence, EPS shall not, and shall not permit any Member or Permitted
Transferee of EPS or any affiliate thereof to Transfer, or permit the Transfer
other than to EPS, a Permitted Transferee or BRC of any Class A Certificates
held by EPS, any Member, any Permitted Transferee or any affiliate thereof, or
any Rights in respect of such Class A Certificates, or any shares or other
Rights in EPS or any other Person that is a direct or indirect shareholder of
EPS.
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(b) EPS shall cause each Permitted Transferee of Class A
Certificates or Shares to become a party to this Agreement by executing a
signature page hereto or other instrument of joinder prior to or upon the
consummation of any Transfer of Class A Certificates or Shares to such
Permitted Transferee. By the execution of such signature page or other
instrument of joinder, such Permitted Transferee shall agree to be bound by,
and to comply with, all obligations applicable to EPS and its Permitted
Transferees under this Agreement. Without limiting the generality of the
foregoing, no Permitted Transferee of EPS shall Transfer, or permit the
Transfer, other than to EPS, another Permitted Transferee or BRC, of any Class
A Certificates or Shares held by such Permitted Transferee or any affiliate
thereof, or any Rights in respect of such Class A Certificates or Shares, or
any shares or other Rights in such Permitted Transferee or any other Person
that is a direct or indirect shareholder of such Permitted Transferee.
SECTION 2.02. Restrictions Relating to BRC. (a) BRC shall at all
times directly hold at least 141,700,000 Class B Certificates; provided, that
BRC may Transfer the 141,700,000 Class B Certificates in their entirety to any
successor holding company that is directly or indirectly owned solely by
Members and Permitted Transferees of BRC and that becomes a party to this
Agreement. Subject to the previous sentence, BRC shall not, and shall not
permit any Member or Permitted Transferee of BRC or any affiliate thereof to
Transfer, or permit the Transfer, other than to BRC, a Permitted Transferee or
EPS, of any Class B Certificates or Shares held by BRC, any Member, any
Permitted Transferee or any affiliate thereof, or any Rights in respect of
such Class B Certificates or Shares, or any shares or other Rights in BRC or
any other Person that is a direct or indirect shareholder of BRC.
(b) BRC shall cause each Permitted Transferee of Class B
Certificates or Shares to become a party to this Agreement by executing a
signature page hereto or other instrument of joinder prior to or upon the
consummation of any Transfer of Class B Certificates or Shares to such
Permitted Transferee. By the execution of such signature page or other
instrument of joinder, such Permitted Transferee shall agree to be bound by,
and to comply with, all obligations applicable to BRC and its Permitted
Transferees under this Agreement. Without limiting the generality of the
foregoing, no Permitted Transferee of BRC shall Transfer, or permit the
Transfer, other than to BRC, another Permitted Transferee or EPS, of any Class
B Certificates or Shares held by such Permitted Transferee or any affiliate
thereof, or any Rights in respect of such Class B Certificates or Shares, or
any shares or other Rights in such Permitted Transferee or any other Person
that is a direct or indirect shareholder of such Permitted Transferee.
SECTION 2.03. Permitted Transfers of Shares by EPS and BRC. Each of
EPS, BRC and their respective Permitted Transferees shall be permitted to
Transfer Shares not certificated in accordance with the Conditions of
Administration to any Person provided that any such Transfers are effected in
an orderly manner of disposition that does not disrupt the market for the
Shares and in accordance with any conditions established by the Company to
ensure such orderly disposition.
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SECTION 2.04. Certificate Transfers. In the event of any Transfer of
a Certificate by a Holder of one Class to a Holder of the other Class in
accordance with Section 2.01 or 2.02, the Certificate to be transferred shall
be presented to the AK for cancellation and a Certificate in respect of such
other Class shall be issued to the transferee Holder in accordance with the
Conditions of Administration.
SECTION 2.05. Stop Transfer. Legend (a) The AK shall not register
the Transfer of any Certificates unless the Transfer is permitted by Sections
2.01 or 2.02. The Certificate register of the AK and any entry in the
Certificate register of the AK made upon any Transfer to a Permitted
Transferee shall include the following legend:
"THE CERTIFICATES REPRESENTED BY THIS REGISTRATION ARE SUBJECT TO
RESTRICTIONS ON TRANSFER IN ACCORDANCE WITH THE TERMS OF A
SHAREHOLDERS' AGREEMENT DATED AS OF MARCH 2, 2004, AND THE
CONDITIONS OF ADMINISTRATION OF THE ISSUER AS THE SAME MAY BE
AMENDED OR MODIFIED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE AT
THE PRINCIPAL EXECUTIVE OFFICE OF THE ISSUER. NO REGISTRATION OF
TRANSFER OF SUCH CERTIFICATES WILL BE MADE ON THE BOOKS OF THE
ISSUER UNLESS SUCH RESTRICTIONS ARE COMPLIED WITH."
(b) The parties agree that any purported Transfer of Certificates
not permitted by Sections 2.01 or 2.02 shall be deemed null and void and shall
not be given effect or recognition by the AK or the Company, as the case may
be.
SECTION 2.06. Restrictions on Acquisition of AmBev shares. (a) EPS
shall not, and shall not permit any Member or Permitted Transferee of EPS or
any affiliate thereof to, directly or indirectly, acquire any shares of
capital stock of AmBev, or any Rights in respect of such shares of capital
stock except for (i) any shares or Rights acquired on the date hereof, or to
be acquired, by the Company pursuant to the terms of the CSA, (ii) any shares
or Rights acquired or to be acquired pursuant to AmBev's board or executive
compensation plans and (iii) directors' qualifying shares, without the prior
approval of the AK.
(b) BRC shall not, and shall not permit any BRC Member, BRC
Permitted Transferee or any affiliate thereof to, directly or indirectly,
acquire any shares of capital stock of AmBev, or any Rights in respect of such
shares of capital stock, except for (i) any shares or Rights acquired on the
date hereof, or to be acquired, by the Company pursuant to the terms of the
CSA, (ii) any shares or Rights held by any such Person as of the date hereof,
(iii) any shares or Rights acquired or to be acquired pursuant to AmBev's
board or executive compensation plans and (iv) directors' qualifying shares,
without the prior approval of the AK.
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SECTION 2.07. Adjustments Upon Changes in Capitalization. For
purposes of Sections 2.01 and 2.02, the number of Certificates referred to in
the first sentence thereof shall be appropriately adjusted to give effect to
any share dividend, split-up, subdivision or combination of shares or any
recapitalization, reclassification, reorganization or similar transaction
involving the Company or the AK.
SECTION 2.08.
Call Option. (a) Should there be any violation by any Holder or
Member of the Transfer restrictions contained in Section 2.01., Section 2.02.
or Section 2.03., each Holder of Certificates of the other Class shall have an
irrevocable option to purchase all or any portion of the Offered Certificates
(as defined hereinafter) from the non-complying Holder (in the case of
violation by a Holder) or from the Holder of the same Class as the
non-complying Member (in the case of violations by a Member) (`the Selling
Holder'); provided, however, that such option may not be exercised (i) on all
or any portion of such Offered Certificates unless such non-complying Holder
or Member, as the case may be, has failed to cure such violation within 3
months, calculated from the time the notice of failure to comply is sent by
the AK Board (at the request of one or more of its members) to such
non-complying Holder or Member, as the case may be, or (ii) by any Holder if
such Holder is in violation of such Transfer restrictions at such time.
(b) The option referred to under Section 2.08.(a) relates,
as the case may be, to a number of Certificates (all such Certificates being
the "Offered Certificates") held by the Selling Holder, equal to the total
number of Certificates held by the Holder (in the case of violations by a
Holder) or the total number of Certificates indirectly held by such
non-complying Member (in the case of violations by a Member) at the time of
the violation of Section 2.01., 2.02. or 2.03., irrespective of the
circumstances surrounding such non-compliance.
As an illustration of such rules, the following example may be given:
Should the Selling Holder have 100 Certificates, the option referred to under
Section 2.08.(a) shall relate to these 100 certificates. Should the
non-complying Member indirectly have a 33% equity or ownership interest in a
Holder, in its capacity as ultimate direct or indirect owner of Certificates
or of Shares which are directly or indirectly owned by BRC or EPS, the option
referred to under Section 2.08.(a) shall only relate to 33% of these 100
certificates.
(c) The option price for each Offered Certificate shall be
an amount equal to 80% of the average closing price for a Share on the
principal stock exchange on which the Shares are then listed during the 20
business days immediately preceding the last day of the three month period
referred to above. Unless such violation has been cured in accordance with
Section 2.08.(a), by the end of such three month period, the AK Board shall
send a notice to each eligible Holder specifying that such call option may be
exercised on all or any portion of the Offered Certificate during the 30-day
period beginning on the date on which such notices are deemed delivered in
accordance with Section 8.05.
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(d) In order to validly exercise such call option, a
Holder must deliver to the AK Board, within the 30-day time period referred to
above, written notice stating such Holder's intention to exercise such call
option and specifying the number of Offered Certificates such Holder intends
to purchase. Such notices shall be irrevocable. If several Holders validly
exercise such option, the number of Offered Certificates available for
purchase by each Holder shall be such Holder's pro rata share of such number
of Offered Certificates (based on the percentage obtained by dividing the
number of Shares and/or Certificates held by such Holder at such time by the
number of Shares and/or Certificates held by all Holders validly exercising
such call option at such time and multiplying by 100).
(e) Within 8 days following the expiration of the 30-day
time period referred to above, the AK Board shall notify the non-complying
Holder and the Holders as to the number of Offered Certificates that shall be
allocated to any Holders for purchase in accordance with the immediately
preceding paragraph. The Transfer of the Offered Certificates shall be deemed
to have occurred on the date of such notices, and the AK Board shall ensure
that all applicable Transfer formalities in respect of such Offered
Certificates are completed as soon as practicable. The option price of the
Offered Certificates shall be paid to the Selling Holder as follows: 20% of
this price shall be paid within 15 days following such non-complying Holder's
receipt of notice of the completion of the transfer formalities with respect
to such Offered Certificates, with the balance payable in four equal annual
installments of 20% each on the first four anniversaries of the date of the
payment of the first installment. The unpaid portion of the purchase price
shall bear interest at a rate per annum equal to one-month LIBOR plus 1% from
the date on which the non-complying Holder shall have received notice of the
completion of the transfer formalities with respect to such Offered
Certificates.
ARTICLE III
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Governance and Management of the AK and the Company
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SECTION 3.01. Number of Directors. Subject to any limitation
provided by any applicable law, the number of directors constituting the board
of directors of the AK (the "AK Board") and the Company (the "Company Board"
and together with the AK Board, the "Boards" and each, a "Board") shall be
fixed from time to time by each Board or the certificate holders or
shareholders at a general meeting, as applicable, in accordance with their
respective By-laws, Conditions of Administration or applicable law, provided,
that, unless the Holders otherwise agree, the number of directors constituting
the AK Board shall be eight (8) and the number of directors constituting the
Company Board shall be not less than twelve (12) nor more than fourteen (14).
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SECTION 3.02. Nomination and Appointment of Directors. The
composition of each Board shall be determined in accordance with the following
provisions:
(a) The eight (8) members of the AK Board shall consist of four (4)
directors appointed by the Holders of the Class A Certificates and four (4)
directors appointed by the Holders of the Class B Certificates.
(b) The members of the Company Board shall be appointed by the
general meeting of shareholders of the Company upon proposal of the AK. Of the
members of the Company Board proposed by the AK, four (4) directors shall be
nominated exclusively by the Holders of the Class A Certificates, four (4)
directors shall be nominated exclusively by the Holders of the Class B
Certificates and four (4) to six (6) independent directors shall be nominated
by the AK Board.
SECTION 3.03. Election of Directors. At each annual or extraordinary
general meeting of shareholders of the Company called for the purpose, among
other things, of electing directors of the Company, the AK and, if applicable,
the Holders shall vote all of the Shares owned by them or their affiliates in
favor of the election to the Company Board of the nominees nominated in
accordance with Section 3.02 and against the election of persons nominated in
opposition to such nominees.
SECTION 3.04. Committees. The Audit Committee of the Company shall
be composed of four directors, one of whom shall be a director proposed by the
AK upon nomination by the Holders of the Class A Certificates, one of whom
shall be a director proposed by the AK upon nomination by the Holders of the
Class B Certificates and two of whom shall be independent directors. Any other
committee of each Board, including, without limitation, any "integration" or
"convergence" committee of the Company Board, shall be comprised of directors
nominated by EPS and BRC in, as nearly as practicable, the same proportion as
the representation of the nominees of the Holders of the Class A Certificates
and the Class B Certificates on the related Board.
SECTION 3.05. Removal; Vacancies. Subject to any applicable law,
each director shall serve until his or her death, disability, resignation or
removal. Subject to applicable law, the AK and, if applicable, each Holder
agrees to vote at the general meeting of the Company all the Shares owned by
it in favor of the removal or suspension of a director of the Company if the
Holder who nominated such director recommends his or her removal or
suspension. Subject to applicable law, each Holder agrees to cause the
directors of the AK nominated by such Holder to vote in favor of the removal
or suspension of a director of the AK if the Holder who nominated such
director recommends his or her removal or suspension. If a vacancy occurs
because of the death, disability, resignation or removal of a director, the
Holder who nominated the director shall nominate a successor, and each Board
shall elect such successor. In his or her capacity as a director, any such
successor shall serve until the next general meeting of shareholders of the
Company.
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SECTION 3.06. Meetings of Directors.
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(a) Regular Meetings. Unless otherwise decided by a majority of the
entire Company Board, the Company Board shall hold regular meetings at such
times as may be from time to time fixed by resolution of the Company Board,
and no notice (other than the resolution) need be given as to regularly
scheduled meeting. Special meetings of the Company Board may be called and
held at any time upon the call of either Chairman of the Board or at least two
members of the entire Company Board, by notice to each director at least three
business days before the meeting. Reasonable efforts shall be made to ensure
that each director actually receives timely notice of any such special
meeting. An annual meeting of the Company Board shall be held without notice
immediately following the annual general meeting of the Company.
(b) Telephonic Meetings. Any or all of the directors may participate
in a meeting of any Board by means of telephone, videoconference or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting by such means shall
constitute presence in person at such meeting.
(c) Written Consents. Any action required or permitted to be taken
at a meeting of any Board may be taken by unanimous written consent of all the
directors to the extent permitted by applicable law.
(d) Quorum and Approval Requirements. In the case of the AK Board,
the presence in person or by proxy of at least seven (7) directors shall be
necessary to constitute a quorum for the transaction of business and the
affirmative vote of a majority of the directors present, including at least
two (2) directors appointed by the Holders of the Class A Certificates and two
(2) directors appointed by the Holders of the Class B Certificates, shall be
required for any action of the AK Board; provided, however, that in the event
any meeting of the AK Board shall fail to achieve a quorum due in each case to
the absence of directors appointed by the Holders of the same Class of
Certificates, the quorum requirement shall not apply to the second meeting and
valid resolutions may be passed at such second meeting by the directors then
present. In the case of the Company Board, the presence of a majority of the
directors constituting the entire Board shall be necessary to constitute a
quorum for the transaction of business. EPS and BRC agree to cause the
respective directors nominated by them to duly appoint a proxy to attend any
meeting from which such directors will be absent so that all directors
nominated by EPS and BRC will be present in person or by proxy at all meetings
of each Board. Any adjournment of a meeting of the AK Board shall be held no
sooner than 48 hours after the time set for the related meeting or previous
adjournment.
(e) Chairman. The Chairman of the Company Board shall be an
independent director and shall not have a casting vote in the event of a tie.
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SECTION 3.07. Charter Documents. The AK and each Holder shall take
or cause to be taken all lawful action necessary to ensure at all times that
the Conditions of Administration and By-laws of the AK and the by-laws of the
Company are not at any time inconsistent with, and to the greatest extent
possible under the applicable laws give effect to, the provisions of this
Agreement.
ARTICLE IV
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Voting Provisions
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SECTION 4.01. Company Shareholders' Meetings. The AK Board will meet
prior to each shareholders' meeting of the Company in order to determine the
manner in which the Shares owned by the AK will be voted. One director
nominated by the Holders of the Class A Certificates and one director
nominated by the Holders of the Class B Certificates shall jointly represent
the AK at each ordinary or extraordinary shareholders' meeting of the Company.
Such representatives of the AK shall jointly vote at the shareholders'
meetings of the Company in accordance with the decisions of the AK Board and
the Conditions of Administration and By-laws of the AK. If any Ownership
Matter (as defined in Section 4.02) or Key Operational Matter (as defined in
Section 4.03) shall be considered at any ordinary or extraordinary
shareholders' meeting of the Company, the provisions of Sections 4.02 and 4.03
shall apply.
SECTION 4.02. Ownership Matters. (a) The Company's by-laws shall
require shareholders' approval with a qualified majority of 75% for the
following matters ("Ownership Matters"):
(i) any reduction in the number of outstanding Shares or Rights;
(ii) any issuance of Shares or Rights (being understood that any
such issue shall not be regarded as an Ownership Matter if it occurs
within the authorized capital of the Company and provided this authorized
capital does not relate to the issuance of a number of Shares higher than
3% of the number of outstanding Shares at the beginning of the period for
which the authorized capital shall remain valid);
(iii) any repurchase or buy-back of Shares or Rights not in the
ordinary course of business (being understood that any such repurchase or
buy-back shall only be regarded as being within the ordinary course of
business if it is not made in connection with stock option plans and is
of a size and scope customary in the market for companies of similar
size);
(iv) any merger or split-up of the Company;
(v) any amendment or modification to the by-laws of the Company that
would have a material adverse effect on the rights of BRC or EPS;
(vi) the delisting of the Company;
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(vii) the liquidation or dissolution of the Company;
(viii) any acquisition or disposal of tangible assets in excess of
1/3 of the Company's consolidated assets; and
(ix) any modification of the Company's dividend payout policy (25 to
33 % on average of the Company's consolidated net cash earnings i.e. net
earnings before goodwill amortization).
(b) The AK Board will meet prior to each shareholders' meeting of
the Company at which an Ownership Matter will be considered in order to
determine the manner in which the Shares owned by the AK will be voted. If the
AK Board takes action in accordance with Section 3.06(d) on the manner in
which the AK should vote with respect to any Ownership Matter, it will
instruct its representatives to vote the AK's shares accordingly. If the AK
Board cannot take action on the manner in which the AK should vote with
respect to any Ownership Matter because of a tie vote (a "Deadlock"), the AK
shall instruct its representatives to vote the AK's Shares against the
approval of the Ownership Matter. After the occurrence of a Deadlock on an
Ownership Matter, the Holders shall endeavor to resolve the Deadlock for a
period of 360 days (the "Cooling Off Period") from the date of the
shareholders' meeting at which the Ownership Matter was presented for
approval. Negotiations between the Holders shall be organized under the
supervision of the Chairman of the Board of the Company.
(c) If a Deadlock on an Ownership Matter has not been resolved
during the Cooling Off Period in accordance with Section 4.02(b), then,
subject to Section 4.02(d), the Holder that wished to approve the Ownership
Matter that resulted in the Deadlock (the "Proposing Holder") may deliver to
the other Holder an offer (the "Buy/Sell Offer") stating the price per
Certificate (which must be payable entirely in cash or immediately available
funds in accordance with Section 4.02(d) and which shall be adjusted for any
share dividend, split-up, subdivision or combination of Certificates occurring
after the date of the Buy/Sell offer and prior to the consummation of the sale
and purchase of the applicable Certificates) at which the Proposing Holder is
willing either to (i) sell all, but not less than all, the Certificates held
by the Proposing Holder and its Permitted Transferees to the other Holder (the
"Dissenting Holder") or (ii) purchase (or to cause a nominee or nominees
designed by it to purchase) from the Dissenting Holder and its Permitted
Transferees all, but not less than all, the Certificates held by the
Dissenting Holder and its Permitted Transferees. The Buy/Sell Offer shall be
irrevocable for a period of 90 days and shall preempt the right of the
Dissenting Holder to make such an offer. Any Buy/Sell Offer must be supported
by a valuation report of an internationally recognized investment bank based
on a multi-criteria valuation methodology customary in the industry.
(d) Within 60 days following receipt of the Buy/Sell Offer, the
Dissenting Holder shall, by notice to the Proposing Holder, elect either to
purchase (or to cause a nominee or nominees designated by the Dissenting
Holder to purchase) all, but not less than all, the Certificates held by the
Proposing Holder and its Permitted Transferees or to sell to the Proposing
Holder (or to a nominee or nominees designated by the Proposing
12
Holder) all, but not less than all, the Certificates held by the Dissenting
Holder and its Permitted Transferees, in either case at the price set forth in
the Buy/Sell Offer. In the event that the Dissenting Holder fails to make such
election within such 60-day period, the Proposing Holder may then elect
whether to buy all, but not less than all, the Certificates held by the
Dissenting Holder and its Permitted Transferees or to sell all, but not less
than all, the Certificates held by the Proposing Holder and its Permitted
Transferees to the Dissenting Holder at the price set forth in the Buy/Sell
Offer. Any election by a Dissenting Holder or Proposing Holder in accordance
with this Section 4.02(d) shall be deemed to constitute "acceptance" of a
Buy/Sell Offer. Once a Buy/Sell Offer is accepted, the Holders shall
consummate such purchase or sale of the applicable Certificates as promptly as
practicable, but in no case later than the end of the 90-day period referred
to in Section 4.02(b). If the Dissenting Holder has elected to purchase the
Certificates held by the Proposing Holder and its Permitted Transferees, and
fails to consummate such purchase for any reason within the period set forth
in the preceding sentence, the Proposing Holder shall have the right to
purchase all, but not less than all, the Certificates held by the Dissenting
Holder and its Permitted Transferees at the price stipulated in the Buy/Sell
Offer as soon as reasonably practicable. In connection with any sale and
purchase pursuant to a Buy/Sell Offer, the selling Holder and its Permitted
Transferees shall execute and deliver appropriate instruments and other
documents conveying good and valid title to the applicable Certificates, free
and clear of any Liens.
(e) The purchase price for the Certificates purchased pursuant to a
Buy/Sell Offer shall be paid 20% at the closing, with the balance payable in
four equal annual installments of 20% each on the first four anniversaries of
the date of the closing. The unpaid portion of the purchase price shall bear
interest at a rate per annum equal to one-month LIBOR plus 1% from the date of
the closing until the date of payment.
(f) Notwithstanding the foregoing, (i) neither Holder shall be
entitled to deliver a Buy/Sell Offer prior to the sixth anniversary of the
date of this Agreement and (ii) a Holder that is in default in any material
respect in the performance or observance of the terms and conditions of this
Agreement shall not be entitled to deliver a Buy/Sell Offer at any time.
SECTION 4.03. Key Operational Matters. (a) The Company's by-laws
will require shareholders' approval by an absolute majority (50% plus one) of
the votes cast at the related shareholders' meeting for the following matters
("Key Operational Matters"):
(i) appointment upon proposal by the Company Board and ratification
of the dismissal by the Company Board of the CEO;
(ii) modification of the Company's executive remuneration and
incentive compensation policy;
(iii) ratification of party transactions with affiliates;
13
(iv) modification of the Company's target capital structure and the
maximum level of net debt; and
(v) all other matters that under Belgian law must be approved by the
shareholders, including the nomination of directors, the distribution of
dividends, approval of the Company's accounts, appointment of auditors
and discharge of the Company Board.
14
(b) The AK Board will meet prior to each shareholders' meeting of
the Company at which a Key Operational Matter will be considered in order to
determine the manner in which the Shares owned by the AK will be voted. If the
AK Board takes action in accordance with Section 3.06(d) on the manner in
which the AK should vote with respect to any Key Operational Matter, it will
instruct its representatives to vote the AK's Shares accordingly. If the AK
Board is Deadlocked on the manner in which the AK should vote with respect to
any Key Operational Matter, then the directors appointed by the Holders of the
Class A Certificates or the directors appointed by the Holders of the Class B
Certificates shall have an alternating casting vote in accordance with Section
4.05 to break such Deadlock.
SECTION 4.04. Other Operational Matters. All other matters submitted
to Company Board approval (by Belgian law in accordance with the Company's
by-laws or internal corporate governance rules as modified where appropriate)
("Other Operational Matters") will be decided by simple majority of the
Company Board. If, prior to or during any meeting of the Company Board, it
becomes apparent that the nonindependent directors proposed by the AK are
Deadlocked as to how to vote with respect to Other Operational Matters, then
they will meet separately from the independent directors and endeavor to reach
a consensus. If a consensus cannot be reached, then the directors appointed by
the Holders of the Class A Certificates or the directors appointed by the
Holders of the Class B Certificates shall have an alternating casting vote in
accordance with Section 4.05 to break such Deadlock.
SECTION 4.05. Order of Alternating Casting Votes. In the event of
any Deadlock with respect to a Key Operational Matter or Other Operational
Matter, the directors appointed by the Holders of the Class A Certificates and
the directors appointed by the Holders of the Class B Certificates shall have
an alternating casting vote, with the first such casting vote being cast by
the directors appointed by the Holders of the Class [_] Certificates[1];
provided, however, that, notwithstanding the foregoing, if any Holder shall
default in any material respect in the performance or observance of the terms
and conditions of this Agreement, the directors appointed by the nondefaulting
Holder shall have the exclusive right to cast the casting vote for a period of
one (1) year after the date of the default.
SECTION 4.06. Shares Held by EPS and BRC. Each of EPS and BRC agrees
that it will vote, and that it will cause each of its Permitted Transferees
who shall have acquired Shares pursuant to a Transfer that would take place
after the Closing Date, to vote, all Shares owned by EPS or BRC, as the case
may be, or such Permitted Transferees, that are not certificated in accordance
with the Conditions of Administration of the AK, in the same manner as the
Shares owned by the AK.
-----------------------
1 EPS and BRC should flip a coin prior to Closing to determine whether the
first casting vote will be cast by the A directors or the B directors.
15
ARTICLE V
---------
Representations and Warranties
------------------------------
SECTION 5.01. Representations and Warranties of the Parties. Each
party hereby represents and warrants to each other party as follows:
(a) Execution and Delivery; Enforceability. This Agreement has been
duly and validly executed and delivered by such party and constitutes -
to the extent permitted by any applicable law - the legal, valid and
binding obligation of such party, enforceable against it in accordance
with its terms.
(b) No Conflicts. The execution and delivery by such party of this
Agreement do not, and the consummation of the transactions contemplated hereby
and compliance with the terms hereof will not, conflict with, or result in any
violation of or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation, or to increased, additional, accelerated or guaranteed rights
or entitlements of any person under, or result in the creation of any Lien
upon any of the Shares or Certificates under, any provision of (i) any note,
bond, mortgage, indenture, deed of trust, license, lease, contract,
commitment, agreement or arrangement binding upon such party or any of its
properties or assets or (ii) any applicable laws or any judgments, orders or
decrees of any court or governmental agency or body, being understood that
some provisions of this Agreement could conflict with provisions of the AK
By-laws and of the Conditions of Administration as currently into force.
(c) Legal Proceedings. There are no judgments, orders or decrees of
any kind against such party that are unpaid or unsatisfied, nor is there any
legal action, suit or other legal or administrative proceeding pending,
threatened or reasonably anticipated that could be filed against such party,
that would adversely affect the ability of such party to perform its
obligations under this Agreement.
(d) Bankruptcy or Insolvency. Such party has not filed or commenced,
or suffered or submitted to the filing or commencement of, any bankruptcy or
insolvency proceeding under applicable law.
(e) Affiliated Party Transactions. Neither such party nor any of its
affiliates or Members has engaged in any material transaction with the Company
except, in the case of BRC and its affiliates, the transactions contemplated
in the CSA, since the Company's shares listing on the First Market of Euronext
Brussels.
SECTION 5.02. Representations and Warranties of the AK, EPS and
Rayvax. The AK represents and warrants that until the Closing Date, no
Transfer of Shares or Certificates shall take place that would violate the AK
By-laws or the Conditions of Administration as in force on the date hereof.
The AK also represents and warrants that upon the date hereof, it is the owner
of 275,056,026 Shares. EPS represents and warrants that on or prior to the
date hereof, it holds in the aggregate 176,000,000
16
Certificates issued by the AK or Shares. Rayvax represents and warrants that
it shall cause the Founders' Affiliates who are affiliated to Rayvax to
contribute on or before the Closing Date 60,000,000 certificates issued by the
AK to EPS.
ARTICLE VI
----------
Additional Covenants
--------------------
SECTION 6.01. Information Rights. Each director of the Company shall
be entitled to receive as promptly as practicable after such information is
available (i) quarterly consolidated unaudited financial statements and
reports of the Company and its subsidiaries, (ii) consolidated annual audited
financial statements and reports of the Company and its subsidiaries, and
(iii) such other information relating to the business, affairs, prospects or
condition (financial or otherwise) of the Company and its subsidiaries as is
available to the Company that such director may reasonably request.
SECTION 6.02. Redomiciliation. The parties shall complete an
examination of the feasibility and desirability of redomiciling the Company to
another jurisdiction by no later than the first anniversary of the Closing.
Among the factors that will be considered in such examination will be the tax
consequences to the Company and its shareholders, the enforceability of
agreements such as this Agreement and the Conditions of Administration under
the laws of such jurisdiction, the acceptability of such jurisdiction to the
capital markets, the corporate governance environment of such jurisdiction and
the corporate law regime of such jurisdiction. If the result of such
examination is positive, the Company will be redomiciled as soon as
practicable. In connection with such redomiciliation, the parties will modify
this Agreement and the Conditions of Administration and By-laws of the AK, or
enter into agreements and other arrangements substantially the same as this
Agreement, the Conditions of Administration and By-laws of the AK, in each
case making only such changes as may be necessary to conform such agreements
and arrangements to the laws of the Company's new jurisdiction of domicile.
SECTION 6.03. Audits. The financial statements and accounts of the
AK shall be audited on an annual basis by internationally recognized
independent public accountants.
SECTION 6.04. Purpose of Agreement. The purpose of this Agreement
and the Conditions of Administration are to provide a means by which the
Holders of Class A Certificates on the one hand and Holders of Class B
Certificates on the other hand may exercise joint equal control over the
business and affairs of the AK and the Company. Each Holder agrees not to take
any action, or omit to take any action, if such action or omission would
adversely affect the Holders' joint equal control of the AK and the Company,
except to the extent such action or omission is expressly permitted or
contemplated by this Agreement or the Conditions of Administration.
17
SECTION 6.05. Further Assurances. From time to time, as and when
requested by any party, each party shall execute and deliver, or cause to be
executed and delivered, all such documents and instruments and shall take, or
cause to be taken, all such further or other actions as such other party may
reasonably deem necessary or desirable to further assure or give effect to the
provisions of this Agreement.
ARTICLE VII
-----------
Condition Precedent
-------------------
SECTION 7.01. Subject to Section 7.02., the effectiveness of the
obligations of the parties under this Agreement is subject to the condition
precedent that Closing of the Contribution and Subscription shall have
occurred.
SECTION 7.02. The condition precedent specified in Section 7.01,
however, does not apply to the obligations contained under Section 2.06,
Articles V, Section 6.02, Section 6.03 and Article VIII , all of which shall
become effective immediately upon execution of this Agreement, being
understood, however, that, should the CSA be terminated, the obligations
referred to in this Agreement would automatically elapse.
ARTICLE VIII
------------
General Provisions
------------------
SECTION 8.01. Survival; Effective Date; Term; Termination. The
representations and warranties in this Agreement and in any certificate
delivered pursuant hereto shall survive the execution and delivery of this
Agreement. Except for the provisions of Section 2.06, Article V, Section 6.02,
Section 6.03 and Article VIII , all of which shall become effective
immediately upon execution of this Agreement, this Agreement shall become
effective as of the Closing of the Contribution and Subscription under the
CSA, being understood, however, that, should the CSA be terminated for any
reason, the obligations referred to in this Agreement shall elapse. Upon
becoming fully effective, this Agreement shall remain in effect for an initial
term of twenty (20) years from the date of the Closing and shall thereafter be
automatically renewed for successive renewal terms of ten (10) years each
unless, not later than two (2) years prior to the expiration of the initial or
any renewal term, either party notifies the other in writing of its election
to terminate the Agreement. In the event of any such election to terminate,
the Agreement shall terminate upon the expiration of the then current term.
SECTION 8.02. Specific Performance. The parties 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 of the other parties 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
18
securing or posting of any bond in connection with the obtaining of any such
injunctive or other equitable relief.
SECTION 8.03. Assignment. This Agreement and the rights and
obligations hereunder shall not be assignable or transferable by any party
(including by operation of law in connection with a merger or consolidation of
such party) except to a successor holding company as provided in Section
2.01(a) and 2.02(a) without the prior written consent of the other parties
hereto. Any attempted assignment in violation of this Section 8.03 shall be
void.
SECTION 8.04. No Third-Party Beneficiaries. This Agreement is for
the sole benefit of the parties hereto and their permitted assigns and nothing
herein expressed or implied shall give or be construed to give to any person,
other than the parties hereto and such assigns, any legal or equitable rights
hereunder.
SECTION 8.05. Notices. All notices or other communications required
or permitted to be given hereunder shall be in writing and shall be delivered
by hand or sent by fax or sent, postage prepaid, by registered, certified or
express mail or overnight courier service and shall be deemed given when so
delivered by hand or fax, or if mailed, three days after mailing (one business
day in the case of express mail or overnight courier service), as follows:
(i) if to the AK,
Stichting Administratie Kantoor Interbrew
548, Herengracht, 1017, CG Amsterdam, the Netherlands
Attention: The Board
with a copy at the following address:
Zarf Trust, Xxxxxxxxxxxxx 00, 0000 XX Xxxxxxxxx
(xx) if to EPS,
EPS SCA 398 Route x'Xxxx, X-0000 Xxxxxxxxx
Attention: The Board
(iii) if to BRC,
BRC SA
00, Xxxx x'Xxxx, X-0000, Xxxxxxxxxx
Attention : Xxxxx Paulo Xxxxxx, Xxxxxx Xxxxxxx xx Xxxxx Sicupira
and Xxxxxx Xxxxxxxx Xxxxxx
19
(iv) if to Rayvax,
Xxxxxx XX
00, Xxxxxx Xxxxxxx
0000 Xxxxxxxx
Attention : The Board
SECTION 8.06. Interpretation; Exhibits and Schedules; Certain
Definitions. The headings contained in this Agreement or in any Exhibit or
Schedule hereto are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. Any capitalized terms
used in any Exhibit or Schedule but not otherwise defined therein, shall have
the meaning as defined in this Agreement. When a reference is made in this
Agreement to a Section, Exhibit or Schedule, such reference shall be to a
Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
SECTION 8.07. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to the other parties. An
executed counterpart of this Agreement delivered by fax shall be deemed to be
an original and shall be as effective for all purposes as delivery of a
manually executed counterpart.
SECTION 8.08. Entire Agreement. This Agreement, together with the
CSA, the Conditions of Administration and By-laws of the AK and the other
agreements contemplated in the CSA to which the parties to the present
Agreement are parties, along with the Schedules and Exhibits thereto, contain
the entire agreement and understanding among the parties hereto with respect
to the subject matter hereof and supersede all prior agreements and
understandings relating to such subject matter. None of the parties shall be
liable or bound to any other party in any manner by any representations,
warranties or covenants relating to such subject matter except as specifically
set forth herein or in such other agreements.
SECTION 8.09. Severability. If any provision of this Agreement (or
any portion thereof) or the application of any such provision (or any portion
thereof) to any person or circumstance shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other
provision hereof (or the remaining portion thereof) or the application of such
provision to any other persons or circumstances. In such case the parties
shall negotiate in good faith in order to replace such term or provision by
another term or provision with a similar legal and economic effect, to the
extent permitted by applicable
20
law. Also, should any new legal or regulatory provision, or any case-laws
development render this Agreement invalid, illegal or unenforceable in any
respect, the parties shall negotiate in good faith in order to replace such
term or provision by another term or provision with a similar legal and
economic effect, to the extent permitted by applicable law.
SECTION 8.10. Arbitration. (a) All disputes arising out of or in
connection with this Agreement shall be finally settled under the Rules of
Arbitration of the International Chamber of Commerce. Judgment on the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
(b) The number of arbitrators shall be three, one appointed by the
plaintiff party or parties, one by the respondent party or parties and a
chairman appointed jointly by the first two arbitrators. In the event that, in
multiple party proceedings, the plaintiff parties or the respondent parties
are not able to reach consensus on the appointment of their arbitrator, such
(and only such) arbitrator shall be appointed by the International Chamber of
Commerce.
(c) Any party to the dispute submitted to arbitration in connection
with this Agreement may assert a counterclaim or cross-claim against any other
party to the dispute based on any breach of this Agreement. Any party to the
dispute shall have access to all documents filed by any other party.
(d) The parties agree that the ICC Court of Arbitration shall fix
separate advances on costs in respect of each claim, counterclaim or
cross-claim.
(e) The parties agree that if a dispute raises issues which are the
same as or substantially connected with issues raised in a related dispute
arising in connection with this Agreement, the CSA or any other Operative
Document (as defined in the CSA) such dispute and such related dispute shall
be finally settled by the first appointed arbitral tribunal, provided a
joinder of proceedings is requested by at least one party to any of the
disputes.
(f) The place of arbitration shall be Paris, France. The language of
the arbitration shall be English.
(g) The arbitrators will have no authority to award punitive damages
or any other damages not measured by the prevailing party's actual damages,
and may not, in any event, make any ruling, finding or award that does not
conform to the terms and conditions of this contract.
(h) Any party may make an application to the arbitrators seeking
injunctive relief to maintain the status quo until such time as the
arbitration award is rendered or the controversy is otherwise resolved. Any
party may apply to any court having jurisdiction hereof to seek injunctive
relief in order to maintain the status quo until such time as the arbitration
award is rendered or the controversy is otherwise resolved.
21
SECTION 8.11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of Belgium.
[the remainder of this page is intentionally left blank]
22
Done in Brussels, on March 2, 2004 in four originals. Each of the
parties acknowledges having received its own original.
AK,
By /s/ Xxxxxxxx xx Xxxxxx
/s/ Xxxxxxxxx Xxx Xxxxx
-------------------------
By /s/ Xxxxxxx Adriaenson
-------------------------
EPS,
By /s/ Xxxxxxxx xx Xxxxxx
/s/ Xxxxxxxxx Xxx Xxxxx
-------------------------
By /s/ Xxxxxxx Adriaenson
-------------------------
BRC,
By /s/ Xxxxx Xxxxx Xxxxxx
--------------------------
By /s/ Xxxxxxx MosesThompson
Xxxxx
--------------------------
Rayvax,
By /s/ Arnoud de Pret Xxxxx
de Callsberg
--------------------------
By /s/ Xxxxxxx Adriaenssen
--------------------------
23
