June 22, 2004
EXHIBIT 10.9
June 22, 2004
Labatt Holding X.X.
Xxxxxxxxxxx 00
4811 CA Breda
The Netherlands
Companhia de Bebidas das Américas -- AmBev
Rua Xx. Xxxxxx Xxxx xx Xxxxxx 1017
04530-001, São Paulo, SP
Federative Republic of Brazil
Attn: Xxxxxx Xxxxx
Ladies and Gentleman:
Reference is hereby made to (i) the Letter Agreement, dated as of March 3, 2004 (the “Letter Agreement”), by and between Labatt Holding B.V., a corporation organized under the laws of the Netherlands (“Labatt Holdco”), and Interbrew International B.V., a corporation organized under the laws of the Netherlands (“IIBV”), and (ii) the Incorporação Agreement, dated as of March 3, 2004 (the “Incorporação Agreement”), by and among Companhia De Bebidas Das Américas - AmBev, a corporation organized under the laws of the Federative Republic of Brazil (“AmBev”), Interbrew S.A., a public limited liability company organized under the laws of Kingdom of Belgium (“Interbrew”), Labatt Brewing Canada Holding Ltd., a company organized under the laws of the Bahamas (“Mergeco”), and Labatt Brewing Company Limited, a corporation organized under the federal laws of Canada (“Labatt”). Capitalized terms used herein and not otherwise defined shall have the meanings assigned to them in the lncorporação Agreement.
Upon the execution and delivery of this side letter by the parties hereto, you and we agree that the Letter Agreement shall be irrevocably and unconditionally terminated in all respects and be of no further force and effect as of the date first written above. Upon such termination, Labatt Holdco and IIBV shall be released and discharged, irrevocably and unconditionally, from any and all obligations and liabilities under the Letter Agreement.
Interbrew shall be a third-party beneficiary to this side letter.
This side letter may be executed in one or more separate 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 side letter delivered by fax or other means of
electronic
transmission shall be deemed to be an original and shall be as effective for
all
purposes as delivery of a manually executed counterpart.
Arbitration.
(a) All
disputes arising out of or in connection with this side letter shall be finally
settled under the Rules of Arbitration of the ICC. 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 (Article 10, paragraph 2,
ICC
Rules, Edition 1998).
(c)
Any
party to the dispute submitted to arbitration in connection with this side
letter may assert a cross-claim against any other party to the dispute based
on
any breach of the Incorporação Agreement. Any party to the dispute shall have
access to all documents filed by any other party.
(d)
Any
party to the dispute submitted to arbitration may request that any party to
the
lncorporação Agreement which was not initially named as a party to the
proceedings be joined as a party to the proceedings, provided that the basis
asserted for such joinder is substantially related to the subject matter of
the
dispute in arbitration. Any party to the Incorporação Agreement or this side
letter which is not involved in the proceeding may request to join the existing
proceeding, provided that the basis asserted for such intervention is
substantially related to the subject matter of the dispute in arbitration.
The
parties to the Incorporação Agreement or this side letter have agreed to these
procedures. Any joined or intervening party shall be bound by any award rendered
by the arbitral tribunal even if it chooses not to participate in the arbitral
proceedings.
(e)
The
parties agree that the ICC Court of Arbitration shall fix separate advances
on
costs in respect of each claim, counterclaim or cross-claim.
(f)
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 side letter or the Incorporação Agreement, 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.
(e)
The
place of arbitration shall be Paris, France. The language of the arbitration
shall be English.
(f)
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 side letter.
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(g)
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.
This
side
letter shall be governed by and construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed
entirely within such State, without regard to the conflicts of law principles
of
such State.
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If you acknowledge, accept and agree to the foregoing, please so indicate by signing and returning to the undersigned the duplicate copies of this side letter enclosed herewith whereupon this will become a valid and binding agreement between us.
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Very truly yours,
INTERBREW INTERNATIONAL B.V.
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By: |
/s/ Xxxxxx Xxxxx |
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Name: Xxxxxx Xxxxx | |
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Title: Director | |
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By: |
/s/ Xxxxxx Beatove |
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Name: Xxxxxx Beatove | |
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Title: Director | |
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ACKNOWLEDGED AND AGREED
LABATT HOLDING B.V.
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By: |
/s/ Xxxxxx Xxxxx |
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Name: Xxxxxx Xxxxx | |
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Title: Director | |
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By: |
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If you acknowledge, accept and agree to the foregoing, please so indicate by signing and returning to the undersigned the duplicate copies of this side letter enclosed herewith whereupon this will become a valid and binding agreement between us.
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Very truly yours,
INTERBREW INTERNATIONAL B.V.
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By: |
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Name: | |
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Title: | |
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By: |
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Name: | |
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Title: | |
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ACKNOWLEDGED AND AGREED
LABATT HOLDING B.V.
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By: |
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Name: | |
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Title: | |
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By: |
/s/ J.H.M. van Erve |
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Name: J.H.M. van Erve | |
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Title: Director | |
