19.12.2008
FIRST ADDENDUM TO AMENDED AND RESTATED
AMENDMENT NO. 1 TO SHAREHOLDERS AGREEMENT
This FIRST ADDENDUM TO AMENDED AND RESTATED AMENDMENT NO. 1 (this
"First Addendum") is made and entered into in as of December 19, 2008 by and
among BRC, a corporation (societe a responsabilite limitee) duly incorporated
and validly existing under the laws of Luxembourg, having its registered office
at 00-00 Xxxxxx xx xx Xxxxxxx X-0000, Xxxxxxxxxx ("XXX"), Xxxxxxx Xxxxx
Sebastien SA or EPS SA, a corporation (societe anonyme) duly incorporated and
validly existing under the laws of Luxembourg having its registered office at 0,
xxx Xxxxxxxxx Xxxxx, X-0000, Xxxxxxxxxx (formerly, Xxxxxxx Xxxxx Sebastien SCA)
("EPS"), Rayvax Societe d'Investissements SA, a corporation (societe anonyme)
duly incorporated and validly existing under the laws of Belgium, having its
registered office at 00, xxxxxx Xxxxxxx, 0000 Xxxxxxxx, Xxxxxxx ("Rayvax") and
the Stichting Anheuser-Xxxxx InBev, a foundation (stichting) duly incorporated
and validly existing under the laws of the Netherlands, having its legal seat in
Rotterdam and its registered office at Xxxxxxxx 00, 0000 XX Xxxxxxxxx, xxx
Xxxxxxxxxxx (formerly, Stichting Administratiekantoor Interbrew) (the "AK", and
each of the AK, BRC, EPS and Rayvax, a "Party" and collectively, the "Parties"),
to amend certain clauses mentioned herein of the Amended and Restated Amendment
No. 1, dated November 14, 2008 (the "Amended and Restated Amendment No. 1"), to
that certain Shareholders Agreement, dated as of March 2, 2004 (as amended,
restated or otherwise modified from time to time, the "Agreement") among the
Parties. Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Agreement.
WHEREAS, in order to partially finance the acquisition of
Anheuser-Xxxxx Companies, Inc., the Company (which has been renamed
Anheuser-Xxxxx InBev SA/NV) has conducted the Rights Offering;
WHEREAS, the Parties desire to partly amend the Amended and
Restated Amendment No.1 and the Conditions of Administration, in each case, to
make the amendments as are specified herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements set forth herein and in the Agreement, the
Parties agree as follows:
1. Amendments to Amended and Restated Amendment No. 1.
(a) Clause 1 (a) of the Amended and Restated Amendment No. 1 shall be
amended and restated in its entirety to read as follows:
The AK will, promptly following the attribution thereof, distribute the
subscription rights attributable to the Shares represented by Class A
Certificates to EPS. EPS agrees to
(A) use its reasonable best endeavors to secure Financing Arrangements
on commercially reasonable terms which will enable EPS and certain
affiliates of the Belgian Founders to invest approximately EUR 1.3
billion (the "EPS Commitment") to subscribe for Shares in the
Rights Offering, it being understood that this amount will be
subscribed as follows:
(i) EPS: an amount of approximately EUR 1,117,500,000;
(ii)certain affiliates of the Belgian Founders: an amount of
approximately EUR 182,500,000;
and
(B) to the extent it can secure adequate Financing Arrangements in
accordance with Clause (A), invest upon the distribution by the AK
of subscription rights attributable to Shares represented by Class
A Certificates
(i) the net funds available to it pursuant to such Financing
Arrangements (up to an amount equal to approximately EUR 1.3
billion) plus
(ii) the proceeds of the Tail Swallowing pursuant to paragraph (c)
below, to subscribe for Shares in the Rights Offering.
Immediately following such subscription EPS will transfer
268,451,200 Shares to the AK for certification as Class A
Certificates in accordance with the Conditions of Administration,
(b) Clause 2 (b) of the Amended and Restated Amendment No. 1 shall be
amended and restated in its entirety to read as follows:
"(b) The AK will, promptly following the attribution thereof, distribute
the subscription rights attributable to the Shares represented by Class B
Certificates to BRC. BRC agrees to
(A) use its reasonable best endeavors to secure a Financing
Arrangement on commercially reasonable terms which will enable it
to invest approximately EUR 1.5 billion (the "BRC Commitment") to
subscribe for Shares in the Rights Offering, and
(B) to the extent it can secure an adequate Financing Arrangement in
accordance with clause (A), invest, upon the distribution by the
AK of subscription rights attributable to Shares represented by
Class B Certificates
(i) the net funds available to it pursuant to such Financing
Arrangement (up to an amount equal to approximately EUR 1.5
billion) plus
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(ii) the proceeds of the Tail Swallowing, if any, pursuant to
paragraph (c) below, to subscribe for Shares in the Rights
Offering.
Immediately following such subscription, BRC will transfer
226,739,200 Shares to the AK for certification as Class B
Certificates, in accordance with the Conditions of Administration.
(C) Article II, Section 2.01 (a) of the Agreement shall be amended and
restated in its entirety to read as follows:
"SECTION 2.01. Restrictions Relating to EPS. (a) Subject to
Section 8.12 hereof, EPS shall at the latest upon the
completion of the Third Certification (as defined in the
Conditions of Administration) directly hold a number of Class
A Certificates which will be equal to at least 342,000,000;
provided that EPS may transfer such aggregate number of Class
A Certificates in its 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 of 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."
(D) Article II, Section 2.02 (a) of the Agreement shall be amended and
restated in its entirety to read as follows:
"SECTION 2.02. Restrictions relating to BRC. (a) Subject to
Section 8.12 hereof, BRC shall at the latest upon the
completion of the Third Certification (as defined in the
Conditions of Administration) directly hold a number of Class
B Certificates which will be equal to at least 342,000,000;
provided that BRC may transfer such aggregate number of Class
B Certificates in its 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
Transfer, other than to BRC, a Permitted Transferee of 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 of Shares, or
any shares or other Rights in BRC or any other Person that is
a direct or indirect shareholder of BRC."
2. Conditions of Administration. The Parties agree to cause the [Second
Amended and Restated] Conditions of Administration to be amended and
restated as set forth in Annex A to this First Addendum promptly upon the
execution of this First Addendum.
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3. Agreement Confirmed. The Agreement, as amended by the Amended and Restated
Amendment No. 1 and by this First Addendum, is hereby ratified and
confirmed in all other respects.
4. Miscellaneous. Sections 8.02 (Specific Performance), 8.03 (Assignment),
8.04 (No Third Party Beneficiaries), 8.07 (Counterparts), 8.10
(Arbitration) and 8.11 (Governing Law) of the Agreement are hereby
incorporated by reference into this First Addendum as if set forth in their
entirety herein (except that references to "the Agreement" or "this
Agreement" contained in such sections shall be deemed to be references to
"First Addendum" or "this First Addendum" when used in relation to this
First Addendum).
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IN WITNESS WHEREOF, the Parties have caused this First Addendum to Amended and
Restated Amendment No. 1 to be executed as of the date first above written.
BRC SARL
By: /s/ Xxxxxxx Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxx Xxxxxxxx
Title:
By: /s/ Xxxxxx Xxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx Xxxxxx
Title:
Xxxxxxx Xxxxx Sebastien SA
By: /s/ A. du Pret
---------------------------------
Name: A. du Pret
Title: Director
By: /s/ A. Van Damme
---------------------------------
Name: A. Van Damme
Title: Director
By: /s/ X. xx Xxxxxx
---------------------------------
Name: X. xx Xxxxxx
Title: Director
Rayvax Societe d'Investissements SA
By: /s/ A. du Pret
---------------------------------
Name: Arnoud Du Pret
Title:
By: /s/ Xxxxxxx Xxxx-Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxx-Xxxxxxx
Title:
Stichting InBev
By: /s/ A. du Pret
---------------------------------
Name: Arnoud Du Pret
Title:
By: /s/ Xxxxxxx Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxx Xxxxxxxx
Title:
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