Exhibit 2.6
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
dated as of January 31, 2003, among
Beverage Associates (BAC) Corp., a British
Virgin Islands corporation ("BAC")and
Companhia de Bebidas das Americas-AmBev, a
Brazilian corporation (the "Company").
R E C I T A L S
WHEREAS, pursuant to the terms of the Stock Purchase Agreement dated as
of May 1, 2002, by and among the Company and BAC (the "Purchase Agreement"),
BAC and the Company have agreed, among other things, to provide for the future
exchange (the "Exchange") of certain shares of Quilmes Industrial (Quinsa)
Societe Anonyme for shares of the Company (the "Company Exchange Shares");
WHEREAS, the Company has agreed to grant BAC and the Holders (as
hereinafter defined) certain registration rights with respect to the Company
Exchange Shares or American Depositary Shares representing common or preferred
shares of the Company (collectively, the "Company Exchange Shares"); and
WHEREAS, the Company and BAC desire to define the registration rights of
BAC and the Holders on the terms and subject to the conditions herein set
forth.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the parties hereby agree as follows:
ARTICLE I
Definitions
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As used in this Agreement, the following terms have the meanings set
forth below:
"Commission" shall mean the United States Securities and Exchange
Commission or any other United States federal agency at the time administering
the Securities Act;
"Exchange Act" shall mean the United States Securities Exchange Act of
1934, as amended;
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"Family Member" means any Member and any affiliate thereof;
"Holder" shall mean BAC or any Member or Family Member who holds
Registrable Securities;
"Member" means the ultimate beneficial owners of the shares of BAC on the
date of the Purchase Agreement;
"Person" shall mean an individual, partnership, joint-stock company,
corporation, trust or unincorporated organization, and a government or agency
or political subdivision thereof;
"register", "registered" and "registration" shall mean a registration
effected by preparing and filing a registration statement in compliance with
the Securities Act (and any post-effective amendments filed or required to be
filed) and the declaration or ordering of effectiveness of such registration
statement;
"Registrable Securities" shall mean (a) Company Exchange Shares acquired
by any Holder pursuant to the Exchange and (b) any common or preferred shares
of the Company issued as a dividend or other distribution with respect to, or
in exchange for or in replacement of, the Company Exchange Shares;
"Registration Expenses" shall mean all expenses incurred by the Company
in connection with any registration pursuant to Section 2.01, including,
without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel for the Company, blue sky fees and expenses and
the expense of any special audits incident to or required by any such
registration;
"Securities Act" shall mean the United States Securities Act of 1933, as
amended; and
"Selling Expenses" shall mean all underwriting discounts, income or
transfer taxes if any, and selling commissions applicable to the sale of
Registrable Securities and all fees and disbursements of counsel for BAC, the
Holders and the Company.
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ARTICLE II
Registration Rights
-------------------
SECTION 2.01. Request for Registration. On any date after the date on
which the Company Exchange Shares have been issued to BAC but not later than
the fifth anniversary thereof, if the Company shall receive from BAC a written
request that the Company effect any registration with respect to the
Registrable Securities owned by the Holders (which request shall state the
number of shares of Registrable Securities to be disposed of and the intended
method of disposition thereof), the Company will as soon as practicable, use
all reasonable efforts to effect such registration (including, without
limitation, the execution of an undertaking to file post-effective amendments,
appropriate qualifications under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued under the
Securities Act) as may be so reasonably requested and as would permit or
facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request; provided that the
Company shall not be obligated to effect, or take any action to effect, any
such registration pursuant to this Agreement:
(a) During the period between March 1 and June 30 of each year, to
the extent that the Company has not filed the periodic reports required to be
filed before June 30 of each year pursuant to Section 12 or 15(d) of the
Exchange Act;
(b) If the Company has previously effected a registration at the
request of BAC within 180 days prior to BAC's request for registration
pursuant to this Section 2.01;
(c) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification or compliance, unless the Company is already
subject to service in such jurisdiction and except as may be required by the
Securities Act or applicable rules or regulations thereunder;
(d) After the Company has effected three (3) such registrations on
behalf of the Holders (the "Registrations"), pursuant to this Agreement and,
subject
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to the provisions below, such registrations have been declared or
ordered effective and the sales of such Registrable Securities shall have
closed; provided that any requested registration commenced that is
subsequently withdrawn at the request of BAC (unless such withdrawal is due to
adverse market conditions) shall count towards the Registrations; provided
further that any registrations effected pursuant to Section 2.05 below shall
not count towards the Registrations;
(e) If the Registrable Securities requested by BAC to be registered
pursuant to such request do not represent at least 25% of the total
Registrable Securities held by the Holders as of the date of this Agreement;
(f) If at any time (i) while a registration statement relating to a
registration is effective, the Company provides written notice to BAC that the
Company has determined, in its reasonable business judgment, that it would be
materially disadvantageous to the Company (because the sale of Registrable
Securities covered by such registration statement or the disclosure of
information therein or in any related prospectus or prospectus supplement
would materially interfere with or otherwise adversely affect in any material
respect any acquisition, financing, corporate reorganization or other material
transaction or event, circumstance or development involving the Company (a
"Disadvantageous Condition")) for sales of Registrable Securities under such
registration statement to be permitted, the Company may on one occasion during
any six-month period refrain from maintaining current the prospectus contained
in such registration statement for a reasonable period of time specified in
such notice or until such Disadvantageous Condition no longer exists (notice
of which the Company shall promptly deliver to BAC) but in no event for more
than 90 days; and (ii) the Company provides written notice to BAC that the
Company has determined, in its reasonable business judgment, that it would be
materially disadvantageous to the Company (because of a Disadvantageous
Condition) for such a registration statement to be maintained effective, or to
be filed or to become effective, and setting forth in general terms the
reasons for such determination, the Company shall be entitled to cause such
registration statement to be withdrawn or the effectiveness of such
registration statement to be terminated, or, in the event no registration
statement has been filed, the Company shall be
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entitled to not file such registration statement, for a reasonable period of
time specified in the notice of the Disadvantageous Condition or until such
Disadvantageous Condition no longer exists (notice of which the Company shall
promptly deliver to BAC) but in no event for more than 90 days.
Upon receipt by BAC of any notice from the Company of a
Disadvantageous Condition, the Holders shall immediately discontinue use of
the prospectus and any prospectus supplement under such registration statement
and shall suspend sales of Registrable Securities for the period of time
specified in the notice of the Disadvantageous Condition or until such
Disadvantageous Condition no longer exists but in no event for more than 90
days. Furthermore, if so directed by the Company by such notice, the Holders
will deliver to the Company all copies then in its possession of the
prospectus and prospectus supplements then covering such Registrable
Securities at the time of receipt of such notice. In the event that the
Company makes an election under this Section 2.01, the Holders agree to keep
confidential the fact of such election and any information provided by the
Company in connection therewith. In the event any registration statement in
respect of a registration requested by BAC pursuant to Section 2.01(f) is
withdrawn or the effectiveness of such registration statement is terminated,
or a registration statement is not filed in respect of such request, in each
case pursuant to this Section 2.01(f), then BAC shall have the right to
withdraw its request for such registration at any time following receipt of
any notice from the Company of a Disadvantageous Condition, and, if the BAC so
withdraws its request, the Holders shall be deemed not to have used one their
rights to request a registration under this Agreement and shall continue to
have such right.
SECTION 2.02. Other Shareholders. The registration statement filed
pursuant to the request of BAC may, subject to the provisions of Section 2.05
below, include other securities of the Company that are not Registrable
Securities which are held by Persons who, by virtue of agreements with the
Company or otherwise, are entitled to include their securities in any such
registration ("Other Shareholders").
SECTION 2.03. Underwriting. If the Holders intend to distribute the
Registrable Securities by means of an
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underwriting, BAC shall so advise the Company as a part of its request made
pursuant to Section 2.01. If Other Shareholders request to include other
securities of the Company as part of the registration, BAC shall offer to
include the securities of such Other Shareholders in the underwriting and may
condition such offer on their acceptance of the further applicable provisions
of this Section 2.05. BAC and the Company shall (together with all Other
Shareholders proposing to distribute their securities through such
underwriting) enter into an underwriting agreement in customary form with the
representative of the underwriter or underwriters selected for such
underwriting by BAC and reasonably acceptable to the Company.
Notwithstanding any other provision of this Article II, if such
representative advises BAC in writing that marketing factors (including
pricing) require a limitation on the number of shares to be underwritten, the
securities of the Company held by Other Shareholders shall first be excluded
from such registration to the extent so required by such limitation, before
any Registrable Securities are excluded. No Registrable Securities or any
other securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. If any Other
Shareholder who has requested inclusion in such registration as provided above
disapproves of the terms of the underwriting, such person may elect to
withdraw therefrom by written notice to the Company, the underwriter and BAC.
The securities so withdrawn shall also be withdrawn from registration. If the
underwriter has not limited the number of Registrable Securities or other
securities to be underwritten, the Company and officers and directors of the
Company may include its or their securities for its or their own account in
such registration if the representative so agrees and if the number of
Registrable Securities and other securities which would otherwise have been
included in such registration and underwriting will not thereby be limited.
SECTION 2.04. Form S-3 or Form F-3. Notwithstanding anything to the
contrary in Section 2.01, so long as the Company qualifies for registration on
Form S-3 or F-3 for secondary sales, any request for registration by BAC shall
be a request for registration on Form S-3 or F-3, and shall be subject to the
conditions and limitations set forth in Section 2.01.
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SECTION 2.05. Company Registration. (a) Inclusion in Registration. If the
Company shall determine to register any of its equity securities either for
its own account or for the account of Other Shareholders, other than a
registration relating solely to employee benefit plans, or a registration
relating solely to a Commission Rule 145 transaction, or a registration on any
registration form which does not permit secondary sales or does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of Registrable Securities, the
Company will:
(i) promptly give BAC a written notice thereof (which shall include a list of
the jurisdictions in which the Company intends to attempt to qualify such
securities under the applicable blue sky or other state securities laws);
and
(ii) include in such registration (and any related qualification under blue
sky laws or other compliance), and in any underwriting involved therein,
all the Registrable Securities specified in a written request made by BAC
within fifteen (15) days after receipt of the written notice from the
Company described in Section 2.05(a)(i) above, except as set forth in
Section 2.05(b)(ii) below. Such written request may specify all or a part
of the Holders' respective Registrable Securities.
(b) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise BAC as a part of the written notice given pursuant to
Section 2.05(b)(i). In such event, the right of each of the Holders to
registration pursuant to this Section 2.05 shall be conditioned upon such
Holders' participation in such underwriting and the inclusion of such Holders'
Registrable Securities in the underwriting to the extent provided herein. The
Holders whose shares are to be included in such registration shall (together
with the Company and the Other Shareholders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the representative of the underwriter or underwriters selected for
underwriting by the Company. Notwithstanding any other provision of this
Section 2.05, if such representative determines that marketing factors
(including pricing) require a limitation on the number of shares to be
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underwritten, the representative may (subject to the limitations and the
allocation priority set forth below) limit the number of Registrable
Securities to be included in, or exclude the Registrable Securities from, the
registration and underwriting. The Company shall immediately advise all
holders of securities of the Company requesting registration of such
limitation or exclusion. In the case of a limitation, the number of shares of
such securities that are entitled to be included in the registration and
underwriting shall be allocated in the following manner: The securities of the
Company held by officers, directors and Other Shareholders of the Company
(other than Registrable Securities and other than securities held by holders
who by contractual right demanded such registration ("Demanding Holders"))
shall be excluded from such registration and underwriting to the extent
required by such limitation, and, if a limitation on the number of shares is
still required, the number of shares that may be included in the registration
and underwriting by each of the Holders and Demanding Holders shall be
reduced, on a pro rata basis (based on the number of shares held by each such
Holder), by such minimum number of shares as is necessary to comply with such
limitation. If any of the Holders or any officer, director or Other
Shareholder disapproves of the terms of any such underwriting, it may elect to
withdraw therefrom by written notice to the Company and the underwriter. Any
Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
SECTION 2.06. No Assignment. The registration rights set forth in
this Article II may not be assigned, in whole or in part, to any transferee of
Registrable Securities, other than a Member or a Family Member.
SECTION 2.07. Expenses of Registration. All Registration Expenses
and Selling Expenses incurred in connection with any registration,
qualification or compliance pursuant to this Article II shall be borne by BAC;
provided that in connection with any registration pursuant to Section 2.05,
the Company shall be responsible for the Registration Expenses incurred in
connection with any such registration and BAC shall be responsible for the
Holders' proportionate share of the Selling Expenses.
SECTION 2.08. Registration Procedures. In the case of each
registration effected by the Company pursuant to
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Article II, the Company will keep BAC advised in writing as to the initiation
of each registration and as to the completion thereof. At BAC's expense, the
Company will:
(a) keep such registration effective for a period of one hundred
twenty (120) days or until BAC has completed the distribution described in the
registration statement relating thereto, whichever first occurs; provided,
however, that (i) such 120-day period shall be extended for a period of time
equal to the period during which BAC is prohibited from selling any securities
included in such registration as a result of a Disadvantageous Condition; and
(ii) in the case of any registration of Registrable Securities on Form S-3 or
F-3 which are intended to be offered on a continuous or delayed basis, such
120-day period shall be extended until all such Registrable Securities are
sold, provided that Rule 415, or any successor rule under the Securities Act,
permits an offering on a continuous or delayed basis, and provided further
that applicable rules under the Securities Act governing the obligation to
file a post-effective amendment permit, in lieu of filing a post-effective
amendment which includes any prospectus required by Section 10(a) of the
Securities Act or reflects facts or events representing a material or
fundamental change in the information set forth in the registration statement,
the incorporation by reference in the registration statement of such
information included in periodic reports filed pursuant to Section 12 or 15(d)
of the Exchange Act;
(b) furnish such number of prospectuses and other documents incident
thereto as BAC from time to time may reasonably request;
(c) notify BAC at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances then existing; and
(d) furnish, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being sold
through underwriters or, if such securities are not being sold
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through underwriters, on the date that the registration statement with respect
to such securities becomes effective, (i) an opinion, dated as of such date,
of the counsel representing the Company for the purposes of such registration,
in form and substance as is customarily given to underwriters in an
underwritten public offering, addressed and reasonably satisfactory to the
underwriters, if any, and to BAC and (ii) a letter, dated as of such date,
from the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants
to underwriters in an underwritten public offering addressed and reasonably
satisfactory to the underwriters, if any, and if permitted by applicable
accounting standards, to BAC.
SECTION 2.09. Indemnification.
(a) The Company will indemnify BAC and each Holder, each of its
officers and directors, and each person controlling BAC or such Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, with respect to each registration which has been effected pursuant to
this Article II, and each underwriter, if any, and each person who controls
any underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any registration under which the Registrable Securities were registered under
the Securities Act, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or based on any omission (or
alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, or any
violation by the Company of the Securities Act or the Exchange Act or any rule
or regulation thereunder applicable to the Company and relating to action or
inaction required of the Company in connection with any such registration,
qualification or compliance, and will reimburse BAC and each Holder, each of
its officers, directors and partners, and each person controlling BAC or such
Holder, each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred (as
incurred) in connection with investigating and defending any such claim, loss,
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damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company by BAC, any
Holder or any underwriter and stated to be specifically for use therein.
(b) BAC and each Holder will indemnify the Company, each of its
directors and officers and each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, each Other Shareholder and
each of their officers and directors, and each person controlling such Other
Shareholder within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any registration
under which the Registrable Securities were registered under the Securities
Act, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof made by BAC or such Holder in writing, or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements by BAC or such Holder
therein not misleading, and will reimburse the Company and such Other
Shareholders, directors, officers, underwriters or control persons for any
legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action,
in each case to the extent, but only to the extent, that such untrue statement
(or alleged untrue statement) or omission (or alleged omission) is made in
such registration statement, prospectus, offering circular or other document
in reliance upon and in conformity with written information furnished to the
Company by BAC or such Holder and stated to be specifically for use therein.
(c) Each party entitled to indemnification under this Section 2.09
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has knowledge of any claim as to
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which indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting therefrom;
provided that counsel for the Indemnifying Party, who shall conduct the
defense of such claim or litigation, shall be approved by the Indemnified
Party (whose approval shall not unreasonably be withheld) and the Indemnified
Party may participate in such defense at such party's expense (unless the
Indemnified Party shall have reasonably concluded that there may be a conflict
of interest between the Indemnifying Party and the Indemnified Party in such
action, in which case the fees and expenses of counsel shall be at the expense
of the Indemnifying Party), and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 2.09 unless the
Indemnifying Party is materially prejudiced thereby. No Indemnifying Party, in
the defense of any such claim or litigation shall, except with the consent of
each Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with the defense of such claim and
litigation resulting therefrom.
(d) If the indemnification provided for in this Section 2.09 is held
by a court of competent jurisdiction to be unavailable to an Indemnified Party
with respect to any loss, liability, claim, damage or expense referred to
herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and of the Indemnified Party on the
other in connection with the statements or omissions which resulted in such
loss, liability, claim, damage or expense, as well as any other relevant
equitable considerations. The relative fault of the Indemnifying Party and of
the Indemnified Party shall be determined by reference to, among other things,
whether the untrue (or
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alleged untrue) statement of a material fact or the omission (or alleged
omission) to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with any underwritten public offering contemplated
by this Agreement are in conflict with the foregoing provisions, the
provisions in such underwriting agreement shall control.
(f) The foregoing indemnity agreement of the Company, BAC and the
Holders is subject to the condition that, insofar as they relate to any loss,
claim, liability or damage made in a preliminary prospectus but eliminated or
remedied in the amended prospectus on file with the Commission at the time the
registration statement in question becomes effective or the amended prospectus
filed with the Commission pursuant to Commission Rule 424(b) (the "Final
Prospectus"), such indemnity or contribution agreement shall not inure to the
benefit of any underwriter, BAC or any Holder if a copy of the Final
Prospectus was furnished to the underwriter and was not furnished to the
person asserting the loss, liability, claim or damage at or prior to the time
such action is required by the Securities Act.
SECTION 2.10. Information by BAC and the Holders. BAC and the Holders
shall furnish to the Company such information regarding BAC and the Holders
and the distribution proposed by BAC and the Holders as the Company may
reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Article II.
SECTION 2.11. Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may permit
the sale of restricted securities to the public without registration, the
Company agrees to:
(a) make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act ("Rule 144");
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(b) use its reasonable best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act; and
(c) so long as BAC or any Holder owns any Registrable Securities,
furnish to BAC or such Holder upon request, a written statement by the Company
as to its compliance with the reporting requirements of Rule 144, and of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so filed
as BAC or such Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing the Holders to sell any such securities
without registration.
SECTION 2.12. Termination. The registration rights set forth in this
Article II shall not be available to any Holder if all of the Registrable
Securities then owned by such Holder could be sold in any 90-day period
pursuant to Rule 144.
ARTICLE III
General Provisions
------------------
SECTION 3.01. Assignment. Subject to Section 2.06, this Agreement and the
rights and obligations hereunder shall not be assignable or transferable by
any party (including, in the case of the Holders, by operation of law in
connection with a merger or consolidation of any Holder) without the prior
written consent of the other party hereto.
SECTION 3.02. 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 3.03. Attorney Fees. A party in breach of this Agreement shall,
on demand, indemnify and hold harmless the other party for and against all
reasonable out-of-pocket expenses, including legal fees, incurred by such
other party by reason of the enforcement and protection of its rights under
this Agreement. The payment
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of such expenses is in addition to any other relief to which such other party
may be entitled.
SECTION 3.04. 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:
(a) if to the Company,
Companhia de Bebidas das Americas - AmBev
Rua Xx. Xxxxxx Xxxx xx Xxxxxx, n(0)1.017, 3(0)
andar cjs. 31 e 32
04530-000 Sao Paulo, SP
Brazil
Attention: Xxxxxx Xxxxx
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx; and
(b) if to BAC or any Holder,
Societe International de Finance
Lowenstrasse
Zurich, Switzerland 19 CH-8001
Attention: Giovanni Pasqualotti
with a copy to:
Xxxx Xxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
Alder Castle
00 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Xxxx Xxxxxxx
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx.
SECTION 3.05. Interpretation; Exhibits and Schedules; Certain
Definitions. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Capitalized terms used but not otherwise defined herein shall
have the meaning as defined in the Purchase Agreement. When a reference is
made in this Agreement to a Section, such reference shall be to a Section of
this Agreement unless otherwise indicated. SECTION 3.06. 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 3.07. Entire Agreement. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter. None of the parties shall be liable or bound
to any other party in any manner by any representations, warranties or
covenants relating to such subject matter except as specifically set forth
herein.
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SECTION 3.08. Severability. If any provision of this Agreement (or any
portion thereof) or the application of any such provision (or any portion
thereof) to any person or circumstance shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other
provision hereof (or the remaining portion thereof) or the application of such
provision to any other persons or circumstances.
SECTION 3.09. Arbitration.
(a) Any and all differences, controversies and disputes of any
nature whatsoever arising out of or relating to this Agreement, including
without limitation any dispute relating to its validity, interpretation,
performance or termination, shall be finally settled under the Rules of
Arbitration of the International Chamber of Commerce by three arbitrators
appointed in accordance with said Rules. The arbitration proceedings shall be
conducted in the English language and the seat of the arbitration shall be New
York City (United States of America). The arbitrators appointed in connection
herewith shall be knowledgeable in the laws of the State of New York and
fluent in the English language.
(b) All submissions and awards in relation to arbitration under this
Agreement shall be made in English, and all arbitration proceedings and all
pleadings shall be in English. Witnesses not fluent in English may give
evidence in their native tongue (with appropriate translation). Original
documents in a language other than English shall be submitted as evidence in
English translation accompanied by the original or true copy thereof.
(c) The procedural rules governing arbitration hereunder shall be
established by the arbitrators; provided that (i) each party may call upon the
other party to supply the arbitrators with documents in such other party's
control relevant to the dispute; (ii) each party shall be entitled to present
the oral testimony of witnesses as to fact and expert witnesses; (iii) each
party shall be entitled to question directly any witnesses who present
testimony to the arbitrators; and (iv) at the request of any party, a written
transcript in English shall be made of each hearing before the arbitrators and
shall be
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furnished to the parties. The arbitrators may, at the request of any
party, order provisional or conservatory measures.
(d) Each party participating in such arbitration shall pay its own
legal fees and expenses incurred in connection with the arbitration and the
expense of any witness produced by it. The cost of any stenographic record and
all transcripts thereof shall be pro-rated equally among all parties ordering
copies and shall be paid by the parties directly to the reporting agency. All
other expenses of the arbitration, including required traveling and other
expenses and fees of the arbitrators and the expenses of any witness or the
cost of any proof produced at the request of the arbitrators, shall be borne
as determined by the arbitrators.
(e) Any award shall be final and not subject to appeal and the
parties waive all rights to challenge to any award of the arbitrators under
this Section 3.09. Any award may be entered or presented by any of the parties
for enforcement in any court of competent jurisdiction sitting in New York,
New York, and the parties hereby consent to the jurisdiction of such court
solely for purposes of enforcement of any award. Each party further agrees
that service of any process, summons, notice or document in the manner
provided for notices in Section 3.04 shall be effective service for purposes
of any such enforcement action.
SECTION 3.10. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.
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IN WITNESS WHEREOF, BAC and the Company have duly executed this Agreement
as of the date first written above.
BEVERAGE ASSOCIATES (BAC) CORP.,
by /s/ X. Xxxxxxx
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Name:
Title:
COMPANHIA DE BEBIDAS DAS
AMERICAS-AMBEV,
by /s/ Xxxxxx Xxxxxxxx Xxxxxx
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Name:
Title:
by /s/ Xxxx Xxxxxx Xxxxxxx Xxxxx Xxxxx
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Name:
Title:
