EXHIBIT 2.7
(A free translation of the original in Portuguese)
FIRST AMENDMENT TO THE SHAREHOLDERS' AGREEMENT OF
COMPANHIA DE BEBIDAS DAS AMERICAS - AMBEV
FUNDACAO ANTONIO E XXXXXX XXXXXXXXX INSTITUICAO NACIONAL DE BENEFICENCIA,
headquartered in the City of Sao Paulo, State of Sao Paulo, at Xxxxxxx
Xxxxxxxxxx Xxxxx Xxxx Xx. 0.000, 00xx floor, registered with the CNPJ under
No. 60.480.480/0001-67, and duly represented herein in accordance with its
association by-laws (hereinafter referred to as "FZ");
BRACO S.A., a corporation headquartered in the City of Sao Paulo, State of Sao
Paulo, at Xxxxxxx Xxxxxxxxxx Xxxxx Xxxx Xx. 0.000, 0xx xxxxx (xxxx),
registered with the CNPJ under No. 35.756.022/0001-60, and duly represented
herein in accordance with its corporate by-laws (hereinafter referred to as
"Braco");
EMPRESA DE ADMINISTRACAO E PARTICIPACOES S.A., a corporation headquartered in
the City of Sao Paulo, State of Sao Paulo, at Xxxxxxx Xxxxxxxxxx Xxxxx Xxxx
Xx. 0.000, 0xx xxxxx (xxxx), registered with the CNPJ under No.
27.098.946/0001-99, and duly represented herein in accordance with its
corporate by-laws (hereinafter referred to as "ECAP");
and, in the capacity of assenting intervenors,
COMPANHIA DE BEBIDAS DAS AMERICAS - AMBEV, a corporation headquartered in the
City of Sao Paulo, State of Sao Paulo, at Rua Xxxxxx Xxxx xx Xxxxxx No. 1017,
4th floor, Itaim Bibi, registered with the CNPJ under No. 02.808.708/0001-07,
and duly represented herein in accordance with its corporate by-laws
(hereinafter referred to as "AmBev" or "Company");
XXXXX XXXXX XXXXXX, a Brazilian citizen, married, economist, resident and
domiciled in the City of Sao Paulo, State of Sao Paulo, registered with the
Tax Registry (CPF) under No. 000.000.000-00 and bearer of identity card No.
1.566.020, issued by the IFP on 3/28/72 (hereinafter referred to as "JPL");
XXXXXX XXXXXXXX XXXXXX, a Brazilian citizen, married, economist, resident and
domiciled in the City of Sao Paulo, State of Sao Paulo, registered with the
Tax Registry (CPF) under No. 000.000.000-00 and bearer of identity card No.
02.347.932-2, issued by the IFP on 12/12/88 (hereinafter referred to as
"MHT"); and
XXXXXX XXXXXXX XX XXXXX SICUPIRA, a Brazilian citizen, married, business
administrator, resident and domiciled in the City of Sao Paulo, State of Sao
Paulo, registered with the Tax Registry (CPF) under No. 000.000.000-00 and
bearer of identity card No. 1.971.453, issued by the IFP on 9/15/64
(hereinafter referred to as "CAS");
and, in addition, as Intervening Third Party Beneficiary,
INTERBREW S.A., a company duly organized and validly existing under the laws
of Belgium, herein duly represented in accordance with its corporate by-laws
(hereinafter referred to as "Interbrew");
Whereas:
(i) FZ, Braco and ECAP (collectively referred herein as the "Parties")
are lawful holders and regular owners, jointly, of 11,159,903,166
(eleven billion, one hundred and fifty nine million, nine hundred
and three, one hundred and sixty six) common shares of the total
capital stock of the Company;
(ii) on 07/01/1999, FZ, Braco e ECAP, with JPL, MHT and CAS as
intervening parties, entered into a Shareholders Agreement
(hereinafter referred to as "Original Shareholders Agreement");
(iii) since the execution of the Original Shareholders Agreement, the
control of AmBev has been exercised in an extremely harmonious way
and has resulted in increasing development of the Company and in
substantial results for its shareholders;
(iv) the Parties to the Original Shareholders Agreement, in light of the
success obtained after its execution, have an interest in revising
certain provisions thereof, as well as deleting other provisions
which have proved to be unnecessary due to the fruitful relationship
between Braco and FZ;
(v) there is substantial interest of FZ in maintaining its investment in
AmBev and in continuing to share control with the ultimate Braco
Controlling Shareholders, as well as maintaining and, if possible,
increasing the dividend flow that will serve its permanent
institutional objectives;
(vi) FZ, on one hand, and Braco and Ecap, on the other hand, with a view
on revising the Original Shareholders Agreement in order to meet
FZ's permanent institutional objectives, agreed on the following
modifications: (a) extension of the term of the Original
Shareholders Agreement; (b) exclusion of the reciprocal sale and
purchase options; (c) restriction on the transfer of Shares held by
the Shareholders during the term of the Agreement; (d) connection
between the term of the Shareholders Agreement and the terms set out
in item 10.2.
FZ, Braco and ECAP resolve to amend the Original Shareholders' Agreement, for
the purposes and effects of Article 118 of Law No. 6,404 of December 15, 1976,
as follows:
CLAUSE 1 - TERMS AND DEFINITIONS OF THE ORIGINAL SHAREHOLDERS AGREEMENT
1.1. Except for the terms expressly defined herein, the definitions and
concepts contained in Clause I of the Original Shareholders Agreement shall
apply to this First Amendment to the Shareholders Agreement ("First
Amendment").
CLAUSE 2 - MANAGEMENT OF THE COMPANY
2.1. Clause IV of the Original Shareholders Agreement (Election of the
Management of the Company) shall read as follows:
CLAUSE IV - ELECTION OF THE MANAGEMENT OF THE COMPANY
4.1 The boards of directors of the Company and the Subsidiaries, when in
place, shall each be comprised of no fewer than 3 (three) and no more than 15
(fifteen) regular members and the same number of alternates, with a term of
office of 3 (three) years, reelection being permitted.
4.1.1 Each of the Shareholders may appoint up to 2 (two) observers to the
meetings of the Board of Directors of the Company, without the right to vote.
4.1.2 The Shareholders may, by consensus, establish committees within the
Company's board of directors, with the purpose of looking into specific
matters whose analysis presupposes that their members have specific technical
knowledge. The Financial Committee and the Audit Committee are hereby created.
4.2 Regardless of its interest in the voting capital, but provided that it
maintains at least the share ownership in the voting capital of the Company it
held as of 07/01/1999 in terms of the number of Shares (adjusted for stock
dividends, splits, reverse splits), FZ shall have the right to appoint 4
(four) regular members and respective alternates to the board of directors of
the Company and of each of the Subsidiaries, when in place.
4.2.1 Braco and ECAP shall jointly have the right to appoint regular members
and their respective alternates to the boards of directors of the Company and
of each Subsidiary in a number proportional to the number of members appointed
by FZ under item 4.2 above, based on the ratio between, on the one hand, the
interest of FZ and, on the other hand, the interests of Braco and ECAP in the
capital stock of the Company, relative to the total amount of their interests
(any fraction greater than 0.5 (half) being rounded to the next whole number).
Braco and ECAP shall have the right to elect, from among the directors whom
they are entitled to appoint in the manner provided for in item 4.2, one
effective member, and respective alternate, appointed by Interbrew.
4.3 The Company's board of directors will have 2 (two) co-chairmen with
identical rights and powers, it being the responsibility of FZ alone, on the
one hand, and Braco and ECAP jointly, on the other hand, to appoint each of
the co-chairmen of the Company's board of directors.
4.3.1 In the resolutions of the Company's boards [sic] of directors, neither
co-chairmen shall have the deciding vote.
4.4 Each of the Shareholders shall, at any time, have the right to petition
for the removal of any member of the boards of directors of the Company and/or
any of the Subsidiaries, appointed by it; the Shareholders undertake to
promptly take or, as the case may be, have the representatives of the Company
take all steps necessary towards the removal of said director.
4.5 In the event of removal, resignation, replacement or any other event
resulting in the vacancy of the position of any of the members of the board of
directors of the Company or any of the Subsidiaries, the Shareholder that has
appointed said member will have the right to appoint the respective
substitutes (or a new alternate, in the event that the Shareholder opts to
confirm the originally appointed alternate for the vacant position), the
Shareholders undertaking to exercise their voting right in the Company's
meeting of shareholders or, as the case may be, to have the representatives of
the Company exercise their voting right in the meetings of shareholders of the
Subsidiaries, in such a way as to bring about the election of the proposed
member.
4.6 In the resolutions relating to the election of members of the board of
directors, the Shareholders shall exercise their voting right in the Company's
meetings of shareholders and shall take the steps necessary to assure that the
Company's representatives exercise their voting right in the meetings of
shareholders of the Subsidiaries, availing themselves of all shares that they
hold, always with the objective of electing the largest possible number of
directors by the Shareholders.
4.6.1 In the event of adoption of the multiple vote procedure, the
Shareholders, in the Preliminary Meeting to be held during the 24
(twenty-four) hours preceding the respective meeting of shareholders of the
Company or any of the Subsidiaries, as the case may be, shall resolve on the
method of casting their votes so as to assure compliance with the objectives
set forth in item 4.6 above and in the other items of this Clause IV,
provided, however, that neither of the Shareholders shall request the adoption
of the multiple vote procedure without the prior express agreement of the
other Shareholder.
4.6.2 The Company's executive board shall consist of a General Officer, and
Officers without specific designation, all of them to be elected by the board
of directors.
CLAUSE 3 - EXERCISE OF VOTING RIGHT
3.1. Clause V of the Original Shareholders Agreement (Preliminary Meetings and
Exercise of Voting Right) shall read as follows:
CLAUSE V - PRELIMINARY MEETINGS AND EXERCISE OF VOTING RIGHT
5.1 Except for resolutions relating to the election of members of the board of
directors, in relation to which the provisions of Clause IV above shall apply,
each of the Shareholders shall exercise its voting right in the shareholders'
meetings of the Company as well as have its representatives on the board of
directors of the Company and each of the Subsidiaries exercise their voting
rights in the respective corporate bodies, always
jointly with the other Shareholder (or, as the case may be, the
representatives of the other Shareholder) and in accordance with the
provisions of this Clause V.
5.2 Whenever duly called under the terms of this Clause V, the Shareholders
shall hold, prior to any meeting of shareholders of the Company and/or any of
the Subsidiaries and any meeting of the board of directors of the Company
and/or the Subsidiaries, a meeting (hereinafter referred to as "Preliminary
Meeting") with the purpose of discussing and determining the position to be
uniformly maintained by both Shareholders in the shareholders' meetings and/or
board meetings that such Preliminary Meetings may precede.
5.2.1 The Preliminary Meetings shall be held in the Company's headquarters or
at another address to be established in a timely manner by consensus between
the Shareholders.
5.2.2 Except for the Preliminary Meeting under item 4.6.1 above, the
Preliminary Meetings shall be held, on first notice, at least 3 (three) days
prior to the date of the shareholders' meeting or board of directors' meeting
where the decision reached in the respective Preliminary Meeting must be
expressed.
5.2.3 Preliminary Meetings may be called by any of the Shareholders or any
representative of the Shareholders on the board of directors of the Company
and/or any of the Subsidiaries, upon notice to the other Shareholder at least
4 (four) days prior to its stipulated date. The notice must be in writing and
set forth the agenda for the Preliminary Meeting to which it refers, and there
may only be resolutions regarding the matters on the agenda.
5.2.4 Regardless of the provisions of items 5.2.1 to 5.2.3 above, Preliminary
Meetings attended by at least 1 (one) representative of each Shareholder shall
be deemed regularly called and held.
5.2.5 Should any Shareholder fail to attend a regularly called Preliminary
Meeting, a second notice will be deemed automatically given for the same
Preliminary Meeting, which in such case shall be held at the same place, 24
(twenty-four) hours after the date and time stipulated in the first notice,
even if it is not a business day.
5.2.6 Preliminary Meetings shall be held, on first notice, with the attendance
of both Shareholders and, on second notice, with the attendance of either of
them.
5.3 The Shareholders hereby undertake to use their best efforts to define in
the Preliminary Meetings, always by consensus, the position to be adopted by
the Shareholders in the shareholders' meeting or board of directors' meeting
related to the respective Preliminary Meeting. Nevertheless, should a
consensus not be reached, the position to be adopted shall be defined by the
Shareholder with the greatest number of shares having voting rights issued by
the Company, provided that the matter under discussion is not (i) the election
of members of the board of directors, in connection with which the procedure
described in Clause IV above must be followed; or (ii) any of the
matters set forth in item 5.4 below, in connection with which the adoption of
any decision shall depend on consensus of the Shareholders.
5.4 The matters identified below must be necessarily submitted to the approval
of the general shareholders' meeting and/or the board of directors' meetings
of the Company and/or Subsidiaries, as the case may be, and shall be approved
in the Preliminary Meetings only by means of the affirmative vote of both
Shareholders:
(a) any amendment to the by-laws of the Company and/or any of the
Subsidiaries with the purpose of amending: (i) the corporate
objectives; (ii) the term of duration; and/or (iii) the composition,
powers and duties of the management bodies;
(b) approval of the annual investment budget of the Company and/or of
any of the Subsidiaries when the amount of the investments exceeds
8.7% (eight point seven per cent) of net sales of the Company
foreseen for the same fiscal year;
(c) designation, dismissal and substitution of the General Officer of
the Company;
(d) approval or amendment to the remuneration policy of the board of
directors and of the executive board of the Company as well as of
the Subsidiaries;
(e) approval of Stock Option Purchase Plans for the managers and
employees of the Company and/or Subsidiaries;
(f) change in the Company's and/or Subsidiaries' statutory dividends
policy;
(g) increases in the Company's and/or the Subsidiaries' capital, with or
without preference right, by subscription, creation of a new class
of shares or changes in the characteristics of the existing shares,
as well as decrease in capital, issuance of debentures, whether or
not convertible into shares, warrants and creation of beneficiary
bonds by the Company and/or any of the Subsidiaries, except when
such legal businesses are carried out between the Company and its
Subsidiaries or between the Subsidiaries;
(h) amalgamations, spin-offs, transformations, mergers, acquisitions and
divestments involving the Company and/or any of its Subsidiaries, in
the latter case, (x) when such operation involves a company that is
not a Subsidiary, directly or indirectly, of the Company, and (y)
provided that the transaction in question results in a reduction in
the average dividend paid by the Company in the past 5 (five) years,
adjusted by the IGP-M published by Fundacao Xxxxxxx Xxxxxx as of the
date of each payment;
(i) creation, acquisition, assignment, transfer, establishment of an
Encumbrance and/or Disposal, under any title or form, of shares,
quotas
and/or any securities issued by any of the Subsidiaries, except in
the benefit of the Company itself and/or of another Subsidiary;
(j) contracting by the Company and/or any of the Subsidiaries of a debt
transaction that results in a net debt/equity ratio greater than
60/40;
(k) entering into amendment, termination, renewal or cancellation of any
contracts, agreements or the like, involving the registered or
deposited trademarks in the name of the Company or the Subsidiaries;
(l) loans and offers of guarantees of any kind by the Company and/or the
Subsidiaries to any third parties in an amount greater than 1% (one
percent) of the Company's net worth as set forth in the last audited
balance sheet, except in favor of: (i) employees of the Company and
of its Subsidiaries; and (ii) the Subsidiaries themselves;
(m) election of members for the Company's board of directors'
committees;
(n) cancellation of the registration as a publicly traded company for
the Company and/or any of the Subsidiaries;
(o) petition for an arrangement with creditors or acknowledgement of
bankruptcy by the Company and/or any of the Subsidiaries;
(p) liquidation or dissolution of the Company and/or any of the
Subsidiaries; and
(q) appointment of the external auditors of the Company and/or any of
the Subsidiaries.
5.4.1 Due to the provisions of item 5.4 above, it is hereby expressly agreed
that if the Shareholders fail to arrive at a consensus regarding the position
to be adopted for the resolution of any of the above matters in a Preliminary
Meeting, they undertake henceforth to exercise or have their voting right so
exercised so as not to approve the matter that is the subject of the general
meeting or board of directors' meeting called at that time.
5.5 For each Preliminary Meeting, minutes shall be drawn up, to be signed by
the Shareholders present, summarizing the resolutions taken and establishing
the general direction that shall be respected by both Shareholders.
5.5.1 Each of the Shareholders undertakes to exercise its voting right in the
shareholders' meetings of the Company and to have its representatives on the
board of directors of the Company and each of the Subsidiaries exercise their
respective voting rights in such corporate bodies, always in accordance with
the prevailing direction on the respective matter, as approved in the
Preliminary Meeting if called, and, in such case, as a single block with the
other Shareholder.
5.5.2 The Shareholder that may have possibly failed to attend any Preliminary
Meeting duly called and held under this Clause V shall remain obligated to
exercise its voting right in the Company's shareholders' meetings as well as
to have its representatives on the board of directors of the Company and each
of the Subsidiaries exercise their respective voting rights in said corporate
bodies, always in accordance with the prevailing decision on the respective
matter as approved in the corresponding Preliminary Meeting.
5.5.3 In the event that the representative of any Shareholder fails to attend
the meetings of the board of directors of the Company and/or the Subsidiaries
or to cast his/her vote in accordance with the prevailing decision on the
respective matter as approved in the corresponding Preliminary Meeting
(including by abstention), the harmed party will have the right to vote the
shares of the Shareholder who is absent or fails to cast its vote (for
abstention or other reason), and, in the case of a member of the board of
directors who is absent or fails to cast his/her vote (for abstention or other
reason), such voting right shall be exercised by any member elected by the
other Shareholder.
5.6 The Shareholders hereby mutually grant each other irrevocable and
irreversible powers of attorney to represent each other, so that in the event
of the absence of one of the Shareholders in any shareholders' meeting of the
Company, the Shareholder present can represent the absent Shareholder,
pursuant to Article 126, ss.1, of the Corporation Law, casting the vote
strictly within the terms of the minutes of the corresponding Preliminary
Meeting.
5.6.1 The mandate referred to in item 5.6 above shall have the same term as
this Agreement, pursuant to ss. 7 of Article 118 of Law 6,404/76, as amended
by Law 10.303/01.
5.6.2 As an alternative, the Shareholders may appoint, by means of a specific
power of attorney, a controller of the voting agreement that is the subject of
this Agreement, with the specific function of:
(a) seeking to due compliance with its power of attorney;
(b) informing the Shareholders about decisions to be taken at the
shareholders' meeting of the Company and the Subsidiaries, in
accordance with the position adopted in the corresponding
Preliminary Meetings; and
(c) whenever necessary, acting as sole representative of the
Shareholders in the Company's and the Subsidiaries' shareholders'
meetings.
5.6.3 Any vote cast at a Company's shareholders' meeting or in a meeting of
the Board of Directors, contrary to the provisions of any of this Agreement
shall be deemed void and ineffective, and the chairman of the meeting or of
the meeting of the Board of Directors, as applicable, shall refrain from
counting the vote exercised in violation of such provisions.
5.7 Notwithstanding the other provisions of this Clause V, resolution at a
Preliminary Meeting shall not require the vote of the Shareholders or the
members appointed by them to the board of directors of the Company and any of
the Subsidiaries, on matters relating to:
(a) review of the accounts of the managers of the Company and any of the
Subsidiaries;
(b) examination, discussion and resolutions on the management report and
the financial statements of the Company and any of the Subsidiaries;
(c) cases categorized as an abusive exercise of power, as set forth in
Article 117, ss.1, of the Corporation Law; and
(d) practices inherent to the duty of diligence and loyalty and other
duties of the managers, as established in Articles 153 to 158 of the
Corporation Law.
5.8 The Strategic Five-Year Plan of the Company shall be the subject of mutual
consultation between FZ and Braco.
5.9 FZ undertakes, in view of the fact that the amendments to the Agreement
were made contemplating the 2004 Restructuring, as foreseen in item 6.4.(e),
to (x) cause AmBev's directors it appointed to vote favorably to the corporate
resolutions related or arising from the implementation of the 2004
Restructuring in the board of directors and in the general meeting, as well as
(y) vote favorably to the same 2004 Restructuring (and to the same corporate
resolutions referred to above) in AmBev's general meeting. It also undertakes
to cause the members of FZ in the board of directors and in the extraordinary
general meetings of the Company, as well as in the preliminary meetings
possibly necessary under this Agreement, to analyze and vote favorably and
without remarks on the proposal of the Incorporacao, which general conditions
appear in the draft of the Incorporacao Agreement submitted to the board of
directors of the Company on March 1 and 2, 2004.
CLAUSE 4 - RESTRICTIONS ON THE TRANSFER OF SHARES
4.1. Clause VI of the Original Shareholders Agreement (Transfer of Shares)
shall read as follows:
CLAUSE VI - TRANSFER OF SHARES
6.1 Being recognized by the Shareholders that it is entirely in accordance
with their investment objectives, and, in the case of FZ, also in accordance
with its permanent institutional objectives, that seeks its participation in
Company's capital, FZ, Braco and Ecap hereby agree: (i) not to Dispose,
directly or indirectly, of their Shares, through private trades, on the stock
market or on the over-the-counter market, including by way of tender offers,
either voluntary or mandatory, except as provided in this Clause VI, during
the term of this Agreement and (ii) not to create any type of Encumbrance on
its Shares, in both cases, without the prior written consent of the other
Shareholder.
6.2 In the event that the Shares owned by any of the Shareholders become
subject to seizure, attachment, judicial surety or any other restrictive
measure, and that such restriction on the Shares is not waived within 30
(thirty) days after the imposition of the restrictive measure, such fact must
be communicated by the Shareholder holding the Shares subject to the
restrictive measure, to the other Shareholder by means of a notification, with
a copy sent to the two co-chairmen of the Company's board of directors, with
such notification being considered as an offer to sell the Shares subject to
the restriction to the other Shareholder. For purposes of this item,
irrespective of the notification mentioned above, the acknowledgement of the
restrictive measure by the other Shareholder shall be equally considered as
being an offer for sale of the Shares subject to the restrictive measure, and
such offer will be considered effective 30 (thirty) days after the imposition
of the restrictive measure, provided that the Shares have not been released
from such restrictive measure by such date. In the case of an offer to sell,
pursuant to the terms of this item, the price of the Shares subject to the
restrictive measure must be the Stipulated Price and the Shareholder accepting
the offer may pay such price in court to acquire such Shares. Such value as
may be in excess shall be paid to the Shareholder whose Shares have been
subject to the restriction. However, in the event that the obligations
guaranteed by the legal restriction exceed the Stipulated Price set out in
item 11.4, the Shareholder whose Shares have been subject to the restriction
shall be held liable, vis-a-vis the other Shareholder, for the difference in
the amount that the other Shareholder may be required to deposit in order to
acquire the Shares. Failure to repay such difference within 5 (five) days
shall subject the Shareholder whose Shares were subject to the restriction to
an extra-judicial foreclosure.
6.3 The Shareholders hereby agree to exercise the subscription rights
corresponding to the Shares each of them holds, or to transfer such
subscription right to the other Shareholder, for market price, according to
the following:
(a) each Shareholder must confirm to the other Shareholder, by means of
notification with a copy sent to the co-chairmen of the Company's
board of directors, that it intends to exercise the right of first
refusal to subscribe the new shares to be issued by the Company
within 10 (ten) days of the beginning of the expiration period set
for the exercise of such right;
(b) if after the lapse of the period established in letter (a) of this
item 6.3 no positive statement was made by one of the Shareholders,
the other Shareholder may, within 10 (ten) days thereafter, also
state in writing its intent to subscribe the new shares that will
not be subscribed by the silent Shareholder, by depositing the
amount referred to in item 6.3 at the Company's headquarters;
(c) after the 10 (ten) day period established for the other Shareholder
to make a statement according to letter (b) of this item 6.3 has
elapsed, without such Shareholder having made the statement, the
Shareholder that holds the right to subscribe may transfer such
right to third parties.
6.4 The obligation not to dispose of the Shares set forth in this Clause VI
shall not apply to the following:
(a) the fiduciary Disposal of 1 (one) Share by any Shareholder to any
member of the Company's board of directors as they may indicate; or
(b) the Disposal of Shares by any of the Shareholders to any person (i)
exercising Corporate Control over such Shareholder; (ii) under the
Corporate Control of such Shareholder; or (iii) under the same
Corporate Control as such Shareholder; or
(c) the Disposal of the Shares of any Shareholder causa mortis [Lat.: by
reason of death]; or
(d) any transfer of Shares between the Braco Controlling Shareholders
and/or between corporations over which Corporate Control is
exercised by the Braco Controlling Shareholders.
(e) the indirect Disposal of Shares by the Braco Controlling
Shareholders, through the Disposal of Shares of Braco or Ecap,
directly or through entities under common control (direct or
indirect) by the Braco Controlling Shareholders or companies
controlled by any of them, if (i) among themselves or (ii) to
Interbrew or to entities or foundations (stichting) that control
Interbrew (the "2004 Restructuring"), in which case such entities
will be considered to be "Braco Controlling Shareholders" for the
purposes of this Agreement.
6.4.1 Subject to the provisions of item 6.4.2 below, the Shares of any of the
Shareholders which are Disposed of under the events of letters (a) through (d)
of item 6.4 above shall remain entirely subject to this Agreement, which shall
be extended to the acquirer of such Shares (hereinafter to be referred to
simply as "Acquirer") with all their rights and obligations, including the 20
(twenty)-year period set forth in item 10.1 below.
6.4.2 A condition precedent for the validity of the Disposal of Shares under
the events provided for in letters (a), (b) and (d) of item 6.4 above shall be
the prior signing, by the respective Acquirer, of an instrument by which it
adheres to this Agreement, irrevocably and irreversibly binding itself to
unconditionally comply with all its terms and provisions. In the event of the
Disposal of Shares set forth in letter (c) of item 6.4 above, acceptance of
this Agreement by the successor shall be automatically assumed.
6.4.3 In the event that any of the Shareholders Disposes of its Shares in
accordance with the provisions contained in letters (a), (b), (c) and (d) of
item 6.4 to more than one Acquirer, such Acquirers (together with the selling
Shareholder, in the event that such Shareholder still holds a portion of
Shares) shall all be treated as one single party for the purposes of this
Agreement, in which case the term "Shareholder" as defined in letter (b) of
item 1.1 above shall come to mean all Acquirers jointly (as well as the
selling Shareholder, in the event that it still holds a portion of the
Shares).
6.4.4 In the case of letters (b), (c) and (d) of item 6.4 above, in the event
that the selling Shareholder fails to maintain any ownership interest in the
Company's voting capital, the Acquirers shall indicate, by means of
notification to the other Shareholder with a copy sent to the two co-chairmen
of the Company's board of directors, to occur within a period not to exceed 5
(five) days from the date on which the selling Shareholder ceased to have
Shares in the Company, the name and address of such Acquirer who will
individually represent all other Acquirers vis-a-vis the other Shareholder
with respect to any and all issues relating to this Agreement, including, but
not limited to, summons and notifications, whether judicial or extra-judicial,
in any way relating to the capacity of the Acquirers as Company shareholders.
6.4.5 In the event of (i) sale of Shares between the Braco Controlling
Shareholders; or (ii) a division between the Braco Controlling Shareholders
(and/or their successors) by means of a spin-off or any other form of
corporate reorganization of the share interests held thereby, directly or
indirectly, in Braco and/or in ECAP; the provisions contained in items 6.4 to
6.4.4 shall be applied, with the Braco Controlling Shareholders (and/or their
successors) to be treated as Acquirers of the Shares.
6.5 Any Disposal of Shares, share subscription rights or the creation of any
Encumbrance inconsistent with the provisions of this Clause VI shall not be
valid, and the Company managers shall be prohibited from posting them to the
corresponding corporate ledgers under penalty of personal liability.
CLAUSE 5 - PURCHASE OR SALE OPTION
5.1. Clause VII (Purchase or Sale Option) of the Original Shareholders
Agreement is hereby terminated.
CLAUSE 6 - INTERVENING PARTIES
6.1. Clause VIII of the Original Shareholders Agreement (Intervening Parties)
shall read as follows:
CLAUSE VIII - INTERVENING PARTIES
8.1 The Company hereby enters into this Agreement in the capacity of an
intervening party, acknowledging all its terms and undertaking to comply with
all its provisions and, in particular, to file it in accordance with the
provisions of article 118 of the Corporation Law.
8.2 The Company shall only be required to comply with any changes in the terms
of this Agreement that have been determined by a written instrument, executed
by both Shareholders and by the Company itself, in the capacity of intervening
party.
8.3 The Company promises to immediately inform the Shareholders of any act,
fact or omission that may constitute a violation of this Amendment, as well as
to take any measure that may be required by subsequent laws as a condition for
maintaining the validity and effectiveness of this Agreement.
8.4 The Braco Controlling Shareholders hereby sign this Agreement in their
capacity as intervening parties, acknowledging all its terms and irreversibly
and irrevocably promising to comply with all its provisions, particularly
those relating to the right of first refusal for the direct or indirect
acquisition of Shares.
8.5 The Parties acknowledge that the provisions contained in this Agreement
represent a benefit in favor of a third party, Interbrew, pursuant to art. 436
of the Brazilian Civil Code, and hereby wave the right to modify such benefit
to the prejudice of such third party beneficiary without its prior written
consent. The Parties also grant Interbrew the right to demand compliance of
the obligation pursuant to art. 437 of the Brazilian Civil Code.
8.6 Interbrew, in turn, intervenes in this Agreement in order to acknowledge
the validity of this Agreement and the provisions contained herein, and
undertakes to comply with such provisions, for Itself, its Affiliates and
their respective successors.
CLAUSE 7 - NOTIFICATIONS
7.1. Clause IX of the Original Shareholders Agreement (Notifications) shall
read as follows, due to the modification in the parties' addresses:
CLAUSE IX - NOTIFICATIONS
9.1 Any communication, notification and/or notice to be made in connection
with the provisions of this Agreement shall necessarily be in writing and sent
to the addresses specified below, and will be considered as having been duly
made (i) 48 (forty-eight) hours after dispatch, if sent by special courier
with confirmation of receipt; (ii) 24 (twenty-four) hours after transmission
by fax, provided there is an express confirmation of receipt; or (iii) on the
date stated in the delivery confirmation, in the case of registered letters:
(a) if sent to FZ, at:
Xxxxxxx Xxxxxxxxxx Xxxxx Xxxx Xx. 0.000, 00xx xxxxx
Xxx Xxxxx - SP
CEP 00000-000
fax: (000) 0000-0000
Attn.: Xxxxxxxx Xx Xxxxxx
(b) if sent to Braco and/or to ECAP, at:
Xxxxxxx Xxxxxxxxxx Xxxxx Xxxx Xx. 0000 - 7(degree) andar
Sao Paulo - SP
CEP 00000-000
fax: (000) 0000-0000
Attn.: Xxxxxx Xxxxxxxx Xxxxxx
(c) if sent to the Company, at:
Xxx Xxxxxx Xxxx xx Xxxxxx 0000, 0xx xxxxx
Xxx Xxxxx - SP
CEP 00000-000
fax: (000) 0000-0000
Attn.: Luiz Xxxxxx Xxxxx Xxxxx
(d) if sent to the Braco Controlling Shareholders, at:
Xx. Xxxxxxxxxx Xxxxx Xxxx Xx. 0000 - 0(xxxxxx) andar Sao
Paulo - SP CEP 00000-000
fax: (000) 0000-0000
Attn.: Xxxxxx Xxxxxxxx Xxxxxx
(e) if sent to Interbrew, at:
Xxxxxxxxxxx 00
X-0000 Xxxxxx
Xxxxxxx
fax: 00 00 00 00 00
Attn.: Corporate Secretary
9.2 Any of the parties may change the notification address set forth in item
9.1 above, provided that they notify the other parties, reporting such change
of address in accordance with the provisions contained in this Clause IX.
CLAUSE 8 - TERM
8.1. Clause X of the Original Shareholders Agreement (Term) shall read as
follows:
CLAUSE X- TERM
10.1 This Agreement shall be effective until July 1, 2019, and, subject to
item 10.2, shall be automatically extended for successive 10 (ten) year
periods, provided that none of the Shareholders expressly waives it with a
minimum of 180 (one hundred eighty) days in advance of the end of the 10
(ten)-year period, or its respective extensions, as the case may be.
10.2 Braco and Ecap shall have the unilateral option to accelerate the
termination of the Shareholders Agreement if the current procedure set out in
the bylaws for the election of the members of the Board of Trustees of FZ is
modified or ceases to be followed for any reason other than a change in the
law or regulations applicable to private law foundations.
CLAUSE 9 - SPECIFIC PERFORMANCE
9.1. Clause XI of the Original Shareholders Agreement (Specific Performance)
shall read as follows:
CLAUSE XI - SPECIFIC PERFORMANCE
11.1 The Shareholders acknowledge and declare that the mere payment of losses
and damages shall not constitute sufficient compensation for breaches of any
obligation undertaken herein.
11.2 The provisions of this Agreement shall be subject to specific
performance, pursuant to article 118, paragraph 3 of the Corporation Law, with
the Shareholders acknowledging that this instrument constitutes an
extra-judicial executive title for the enforcement of the provisions of
articles 461, 462, 639 and subsequent articles of the Code of Civil Procedure.
11.3 The Shareholders shall not waive but, conversely, may resort to any legal
action or measure (including the collection of losses and damages) to which
they may be entitled pursuant to the law, and they expressly promise to accept
such penalties, court orders and other claims of such nature as are intended
to prohibit or prevent breaches of this Agreement.
11.4 Without limiting the generality of the other items of this Clause and in
item 6.1, it is hereby agreed that any measure that violates, directly or
indirectly, by action or omission, the bilateral obligation of the
Shareholders not to Dispose of the Shares (or to create an Encumbrance on
them), even if such obligation is declared invalid, shall give the innocent
Shareholder the option (non revocable if the defaulting Shareholder does not
carry out such Disposal) to, instead of declaring the transaction invalid and
inneffective, exercise the right of first refusal over the Shares offered for
Disposal, for the market price of such Shares (adjusted according to item
11.4.1), calculated as the average weighted price of the Shares over the 20
days immediately preceding the date in which the Shares were offered for
Disposal, in the stock exchange in which the Shares have a greater volume of
trading (being understood that, if the shares are not traded in at least half
of the trading days, the period for calculation shall be increased to 40 days;
and if the lack of trading in less than one half of those trading days, shall
be, consecutively, (x) adopted the average weighted price of the preferred
shares of the Company in the same stock exchange, during the same 20 or 40
trading days, depending on whether there is trading on more than half of the
trading days or (y) adopted the average weighted price of the Shares or the
preferred shares of the Company in another stock exchange, during the same
trading days).
11.4.1 The market price calculated pursuant to item 11.4 shall be multiplied
by 0.9 (nine tenths) to determine a penalty for the arrears.
11.4.2 For the purposes of this Clause, the management of the Company shall,
without prejudice of its obligation not to register the proposed (or effected)
Disposal made in violation of the terms of this Agreement, notify the other
Shareholder.
11.4.3 The market price defined pursuant to the terms of item 11.4 shall
correspond to the Stipulated Price for purposes of item 6.2 above.
CLAUSE 10 - CONFIRMATION OF THE OTHER PROVISIONS AND RESTATEMENT
10.1. The remaining provisions of the Original Shareholders Agreement shall
remain in full force and effect, which is hereby restated and signed by the
parties in the form of Annex I.
CLAUSE 11 - BY-LAWS OF THE COMPANY
11.1. The mandatory minimum dividend foreseen in the bylaws of the Company
shall be increased to 35% (thirty five percent), and the current rule that
provides for the stability of this percentage during a period of 30 years
shall be maintained, the parties undertaking to effect such amendment in the
first shareholders meeting to be held.
Being thereby in due agreement, the Shareholders hereby sign this instrument
in 5 (five) identical copies.
[execution page of the First Amendment to Companhia de Bebidas das
Americas - AMBEV executed on the date below]
Sao Paulo, March 2, 2004.
/s/ Xxxx Xxxxxx Xxxxxx Gracioso /s/ Xxxxxxxx Xxxxxx xx Xxxxxx
Fundacao Antonio e Xxxxxx Xxxxxxxxx
Instituicao Nacional de Beneficencia
/s/ Xxxxxx Xxxxxxxx Xxxxxx /s/ Xxxxx Xxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxx xx Xxxxx Sicupira /s/ Xxxxxxx Xxxxxxxx Xxxxx Xxxxx
Braco S.A.
/s/ Xxxxxx Xxxxxxxx Xxxxxx /s/ Xxxxx Xxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxx xx Xxxxx Sicupira /s/ Xxxxxxx Xxxxxxxx Xxxxx Xxxxx
Empresa de Administracao e Participacoes S.A.
/s/ Xxxx Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxx Xxxxx
Companhia de Bebidas das Americas - Ambev
/s/ Xxxxx Paulo Xxxxxx
Xxxxx Xxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxx xx Xxxxx Sicupira
Xxxxxx Xxxxxxx xx Xxxxx Sicupira
/s/ Francois Jaclot /s/Xxxx X. Xxxxx
----------------------- ---------------------
Francois Jaclot Xxxx X. Xxxxx
Interbrew S.A.
Witnesses:
/s/ Marcio Xxxxxxxxx Xxxxx Xxxxxx /s/ Xxxxxxx Xxxxxxx de Xxxxxxx x Xxxxx
--------------------------------- --------------------------------------
Name: Marcio Xxxxxxxxx Xxxxx Xxxxxx Name: Xxxxxxx Xxxxxxx xx Xxxxxxx e Xxxxx
X.X.: 14.114.166 R.G.: 6.122.637-0 SSP/PR
CPF: 000.000.000-00 CPF: 000.000.000-00
