Common use of Implementation of the Transaction Clause in Contracts

Implementation of the Transaction. 6.1 Without prejudice to its obligations under Clause 3.2 and the provisions of Clause 6.9, AB InBev shall use all reasonable endeavours to implement the Transaction in accordance with, and subject to, the terms and conditions (including the Pre-Conditions and the Conditions) of the Transaction set out in the Announcement and to dispatch or publish (as applicable) the Belgian Merger Documents, the Belgian Merger US Documents and the Belgian Offer Prospectus in accordance with the indicative timetable set out in the Announcement (save for any of the Newco Belgian Merger Documents, the Belgian Merger US Documents, the Newco Response Memorandum and the AB InBev Listing Documents which are to be despatched or published by Newco pursuant to the provisions of Schedule 3). 6.2 Prior to Completion, SABMiller shall (and shall procure that the other members of its Group shall) provide any assistance which may be required by AB InBev for the purposes of obtaining any authorisations or clearances from governmental or regulatory bodies in respect of the Key Conditions, including ensuring that reasonable assistance is provided by, their respective professional advisers. 6.3 Prior to Completion, each of AB InBev and SABMiller shall (and shall procure that the other members of their respective Groups shall) comply with their respective obligations set out in Schedule 3 in relation to Newco, provided that the parties acknowledge and agree: (a) that SABMiller shall not be in breach of any of its obligations under this Clause 6.3 or Part A of Schedule 3 to the extent that such breach has been caused by or is attributable to AB InBev’s failure to comply with its obligations under Part B of Schedule 3; (b) that AB InBev shall not be in breach of any of its obligations under this Clause 6.3 or Part B of Schedule 3 to the extent that such breach has been caused by or is attributable to SABMiller’s failure to comply with its obligations under Part A of Schedule 3; (c) that nothing in this Agreement shall require any director, officer or employee of SABMiller or any member of the SABMiller Group to become a director, officer or employee of Newco; and (d) that neither SABMiller, nor any member of the SABMiller Group, nor any of their respective directors, officers or employees, shall be required to take responsibility for any of the documents to be prepared, filed, submitted or published by Newco pursuant to Schedule 3. 6.4 Notwithstanding any other provision of this Agreement, SABMiller shall take (or procure that Newco shall take) such action as AB InBev may reasonably request: (i) in relation to or consequent upon the satisfaction of the Stamp Duty Condition, including (at AB InBev’s direction and subject to the provision of funds by AB InBev) payment of or the provision of an undertaking to pay (and subsequent payment of) any applicable stamp duty, and (ii) in relation to arrangements to pay and (at AB InBev’s direction and subject to the provision of funds by AB InBev) payment of or the provision of an undertaking to pay (and subsequent payment of) all South African securities transfer tax (STT) required to be paid in respect of the transfer of the SABMiller Shares to Newco. AB InBev shall have the exclusive right, if it wishes, to contact and correspond with any relevant Tax Authority in connection with the satisfaction of the Stamp Duty Condition and/or the payment of STT (including preparing and submitting all necessary documents and correspondence), and conducting all related negotiations and reaching all related agreements with any relevant Tax Authority. AB InBev shall keep SABMiller fully informed of any such matters and shall consult SABMiller in relation to them, including providing SABMiller with drafts of any written communications to be made to a Tax Authority for SABMiller to comment on promptly before they are finalised (but AB InBev shall retain final discretion as to the content of any such communications). SABMiller shall procure that: (a) SABMiller and/or Newco grant to AB InBev such authorisations as are reasonably required to enable AB InBev to deal with such matters, and that such authorisations are confirmed to any relevant Tax Authority if required; (b) SABMiller and/or Newco provide AB InBev with such information and assistance relating to SABMiller, Newco and the UK Scheme as AB InBev may reasonably request to ensure that the Stamp Duty Condition is satisfied and arrangements can be made for the payment of any applicable stamp duty and STT including, if applicable, ensuring that the duly executed stock transfer form or stock transfer forms in respect of the UK Scheme Shares are promptly provided to AB InBev; (c) SABMiller and/or Newco promptly provide to AB InBev copies of any correspondence relevant to the satisfaction of the Stamp Duty Condition or arrangements to pay STT received by SABMiller or Newco; and (d) no voluntary action is taken by SABMiller or Newco (including that no contact is made with, or correspondence or other document submitted to, a Tax Authority) in relation to the Stamp Duty Condition or arrangements to pay STT, without the prior written consent of AB InBev (other than where a failure to take such action would reasonably be expected to result in SABMiller and/or Newco failing to comply with any applicable Law). 6.5 AB InBev shall use all reasonable endeavours to convene the AB InBev General Meeting by no later than the AB InBev Shareholder Approval Longstop Date and, so far as is practicable, on the same date as the UK Scheme Court Meeting and the SABMiller General Meeting and at such time as to enable: (i) the AB InBev General Meeting to have concluded prior to the start of the UK Scheme Court Meeting and the SABMiller General Meeting; and (ii) the UK Scheme Court Meeting and the SABMiller General Meeting to have concluded prior to the start of the Newco General Meeting (or such later date as may be agreed by both parties in writing). Once the AB InBev General Meeting has been convened, AB InBev shall not adjourn or postpone the AB InBev General Meeting without SABMiller’s prior written consent (not to be unreasonably withheld, delayed or conditioned) unless: (a) in the view of the AB InBev Board (acting in good faith): (i) such adjournment or postponement is required by applicable Law; (ii) it is not reasonably practicable to seek such consent because the adjournment or postponement is on account of a force majeure event or an emergency adjournment or postponement; (iii) such adjournment or postponement is reasonably necessary for the proper conduct of, or proper consideration of any matter at, the AB InBev General Meeting; or (iv) the motion to adjourn or postpone is only moved at the AB InBev General Meeting by AB InBev Shareholders (other than members of the AB InBev Board or AB InBev Shareholders who are party to AB InBev Shareholder Irrevocables); or (b) SABMiller convenes, or adjourns or postpones once convened, the UK Scheme Court Meeting or the SABMiller General Meeting to a date after the proposed date of the AB InBev General Meeting in which case AB InBev shall be entitled to also adjourn or postpone the AB InBev General Meeting to the same later date but at such time as to enable (i) the AB InBev General Meeting to have concluded prior to the start of the UK Scheme Court Meeting and the SABMiller General Meeting; and (ii) the UK Scheme Court Meeting and the SABMiller General Meeting to have concluded prior to the start of the Newco General Meeting (it being acknowledged by the parties that AB InBev shall not be obliged to convene the AB InBev General Meeting on a date earlier than the date of the UK Scheme Court Meeting and the SABMiller General Meeting). Notwithstanding the foregoing, if: (i) there is an adjournment or postponement of the AB InBev General Meeting after it has been convened; and (ii) the UK Scheme Court Meeting or the SABMiller General Meeting are postponed or adjourned so as to be held as soon as practicable following any postponed or adjourned AB InBev General Meeting, then AB InBev shall (if necessary, with the consent of the Panel) extend the deadlines referred to in Conditions (a)(i), (ii) and (iii) of Part A of Appendix 2 of the Announcement accordingly and the references in Clause 11.1(b)(iii) shall be construed accordingly. 6.6 Where the Transaction is being implemented by way of, among other steps, the UK Scheme, AB InBev undertakes that, before the UK Sanction Hearing, it shall deliver a notice in writing to SABMiller either: (a) confirming the satisfaction or waiver of all Pre-Conditions and Conditions (other than the Post Scheme Sanction Conditions (as defined in the Announcement) and Condition (a)(iii) of Part A of Appendix 2 of the Announcement); or (b) confirming its intention to invoke a Pre-Condition or Condition (if permitted by the Panel and, as applicable, BFSMA) and providing reasonable details of the event which has occurred, or circumstances which have arisen, which AB InBev reasonably considers entitle it to invoke the Pre-Condition or Condition. 6.7 If the AB InBev Board becomes aware of any fact, matter or circumstance that the AB InBev Board reasonably considers would entitle it to invoke (and, applying the test set out in Rule 13.5 of the UK Takeover Code, the Panel and, if applicable, BFSMA would permit it to so invoke) any of the Pre-Conditions or Conditions, AB InBev shall (subject to applicable Law) inform SABMiller as soon as is reasonably practicable. 6.8 Where the Transaction is being implemented by way of, among other steps, the UK Scheme, AB InBev shall (subject to SABMiller having complied with its obligations in Clause 6.3 and Schedule 3) instruct counsel to appear on its behalf at the UK Sanction Hearing and undertake to the UK Court to: (a) be bound by the terms of the UK Scheme in so far as it relates to AB InBev or (following completion of the Belgian Offer) Newco; and (b) satisfy Conditions (c)(iii), (c)(iv) and (c)(v) of Part A of Appendix 2 to the Announcement, to the extent that all the Conditions (other than those referred to in Clause 6.6(a) above) have been satisfied or waived prior to or on the date of the UK Sanction Hearing. 6.9 AB InBev shall be entitled, with the consent of the Panel, to implement the Transaction by way of (among other steps) the UK Offer rather than the UK Scheme and, subject to applicable Law and regulation, to otherwise change the Proposed Structure (any such election being a Switch) only if: (a) SABMiller provides its prior written consent (an Agreed Switch), in which case Clause 6.10 shall apply; (b) a third party announces a firm intention to make an offer for the issued and to be issued ordinary share capital of SABMiller (whether including or excluding any SABMiller Shares held in treasury) which is recommended in whole or in part by the board of directors of SABMiller; or (c) the Relevant SABMiller Directors withdraw their unanimous and unconditional recommendation (as to Cash Consideration) of the Transaction. 6.10 In the event of any Agreed Switch involving the implementation of the Transaction by way of (among other steps) the UK Offer rather than the UK Scheme, unless otherwise agreed with SABMiller or required by the Panel: (a) the Acceptance Condition shall be set at 90 per cent. of the SABMiller Shares to which the UK Offer relates (or such other percentage as may be agreed between the parties in writing after, to the extent necessary, consultation with the Panel, being in any case more than 50 per cent. of the SABMiller Shares to which the UK Offer relates); (b) AB InBev shall not take any action which would cause the UK Offer not to proceed, to lapse or to be withdrawn in each case for non-fulfilment of the Acceptance Condition prior to the 60th day after publication of the UK Offer Document and AB InBev shall ensure that the UK Offer remains open for acceptances until such time; (c) AB InBev shall ensure that the only pre-conditions of the UK Offer shall be the Pre-Conditions and that the only conditions of the UK Offer shall be the Conditions (subject to replacing Condition (a) of Part A of Appendix 2 with the Acceptance Condition referred to in Clause 6.10(a) and the inclusion, if required, of a condition in relation to the filing of any registration statements with the SEC, to any such registration statements being declared effective by the SEC and to the obtaining of any other documents or approvals required in relation to the issue of offeror shares pursuant to the UK Offer) (unless the parties agree otherwise in writing); and (d) AB InBev shall keep SABMiller informed, on a confidential basis and within two Business Days following receipt of a written request from SABMiller, of the number of holders of SABMiller Shares that have validly returned their acceptance or withdrawal forms or incorrectly completed their withdrawal or acceptance forms and the identity of such shareholders. 6.11 In the event of any Agreed Switch: (a) involving the implementation of the Transaction by way of (among other steps) the UK Offer rather than the UK Scheme the parties agree: (i) that all provisions of this Agreement shall continue to apply save as set out in this Clause 6.11(a); (ii) all provisions of this Agreement relating to the UK Scheme and its implementation shall apply to the UK Offer or its implementation mutatis mutandis; and (iii) AB InBev’s obligations under Clause 5.2 shall apply to the UK Offer Document as if references in such Clause to the Belgian Merger Documents, Belgian Merger US Documents and Belgian Offer Prospectus included the UK Offer Document; and (b) involving changes to the structure other than the use of a UK Offer: (i) that all provisions of this Agreement shall continue to apply save as set out in this Clause 6.11(b); (ii) AB InBev’s obligations under Clause 5.2 shall apply to such new, additional or amended documents as are required to be published or posted to AB InBev Shareholders pursuant to the new structure; and (iii) SABMiller’s obligations under Clause 5.3 shall apply to such new, additional or amended documents, other than the UK Offer Document, as are required to be published or posted to SABMiller Shareholders pursuant to the new structure. 6.12 AB InBev shall use all reasonable endeavours to satisfy Conditions (r) to (z) of Part B to Appendix 2 to the Announcement by the Long Stop Date.

Implementation of the Transaction. 6.1 Without prejudice to its obligations under Clause 3.2 and the provisions of Clause 6.9, AB InBev shall use all reasonable endeavours to implement the Transaction in accordance with, and subject to, the terms and conditions (including the Pre-Pre- Conditions and the Conditions) of the Transaction set out in the Announcement and to dispatch or publish (as applicable) the Belgian Merger Documents, the Belgian Merger US Documents and the Belgian Offer Prospectus in accordance with the indicative timetable set out in the Announcement (save for any of the Newco Belgian Merger Documents, the Belgian Merger US Documents, the Newco Response Memorandum and the AB InBev Listing Documents which are to be despatched or published by Newco pursuant to the provisions of Schedule 3). 6.2 Prior to Completion, SABMiller shall (and shall procure that the other members of its Group shall) provide any assistance which may be required by AB InBev for the purposes of obtaining any authorisations or clearances from governmental or regulatory bodies in respect of the Key Conditions, including ensuring that reasonable assistance is provided by, their respective professional advisers. 6.3 Prior to Completion, each of AB InBev and SABMiller shall (and shall procure that the other members of their respective Groups shall) comply with their respective obligations set out in Schedule 3 in relation to Newco, provided that the parties acknowledge and agree: (a) that SABMiller shall not be in breach of any of its obligations under this Clause 6.3 or Part A of Schedule 3 to the extent that such breach has been caused by or is attributable to AB InBev’s failure to comply with its obligations under Part B of Schedule 3; (b) that AB InBev shall not be in breach of any of its obligations under this Clause 6.3 or Part B of Schedule 3 to the extent that such breach has been caused by or is attributable to SABMiller’s failure to comply with its obligations under Part A of Schedule 3; (c) that nothing in this Agreement shall require any director, officer or employee of SABMiller or any member of the SABMiller Group to become a director, officer or employee of Newco; and (d) that neither SABMiller▇▇▇▇▇▇▇▇▇, nor any member of the SABMiller Group, nor any of their respective directors, officers or employees, shall be required to take responsibility for any of the documents to be prepared, filed, submitted or published by Newco pursuant to Schedule 3. 6.4 Notwithstanding any other provision of this Agreement, SABMiller shall take (or procure that Newco shall take) such action as AB InBev may reasonably request: (i) in relation to or consequent upon the satisfaction of the Stamp Duty Condition, including (at AB InBev’s direction and subject to the provision of funds by AB InBev) payment of or the provision of an undertaking to pay (and subsequent payment of) any applicable stamp duty, and (ii) in relation to arrangements to pay and (at AB InBev’s direction and subject to the provision of funds by AB InBev) payment of or the provision of an undertaking to pay (and subsequent payment of) all South African securities transfer tax (STT) required to be paid in respect of the transfer of the SABMiller Shares to Newco. AB InBev shall have the exclusive right, if it wishes, to contact and correspond with any relevant Tax Authority in connection with the satisfaction of the Stamp Duty Condition and/or the payment of STT (including preparing and submitting all necessary documents and correspondence), and conducting all related negotiations and reaching all related agreements with any relevant Tax Authority. AB InBev shall keep SABMiller fully informed of any such matters and shall consult SABMiller in relation to them, including providing SABMiller with drafts of any written communications to be made to a Tax Authority Authorit y for SABMiller to comment on promptly before they are finalised (but AB InBev shall retain final discretion as to the content of any such communications). SABMiller shall procure that: (a) SABMiller and/or Newco grant to AB InBev such authorisations as are reasonably required to enable AB InBev to deal with such matters, and that such authorisations are confirmed to any relevant Tax Authority if required; (b) SABMiller and/or Newco provide AB InBev with such information and assistance relating to SABMiller, Newco and the UK Scheme as AB InBev may reasonably request to ensure that the Stamp Duty Condition is satisfied and arrangements can be made for the payment of any applicable stamp duty and STT including, if applicable, ensuring that the duly executed stock transfer form or stock transfer forms in respect of the UK Scheme Shares are promptly provided to AB InBev; (c) SABMiller and/or Newco promptly provide to AB InBev copies of any correspondence relevant to the satisfaction of the Stamp Duty Condition or arrangements to pay STT received by SABMiller or Newco; and (d) no voluntary action is taken by SABMiller or Newco (including that no contact is made with, or correspondence or other document submitted to, a Tax Authority) in relation to the Stamp Duty Condition or arrangements to pay STT, without the prior written consent of AB InBev (other than where a ▇ failure to take such action would reasonably be expected to result in SABMiller and/or Newco failing to comply with any applicable Law). 6.5 AB InBev shall use all reasonable endeavours to convene the AB InBev General Meeting by no later than the AB InBev Shareholder Approval Longstop Date and, so far as is practicable, on the same date as the UK Scheme Court Meeting and the SABMiller General Meeting and at such time as to enable: (i) the AB InBev General Meeting to have concluded prior to the start of the UK Scheme Court Meeting and the SABMiller General Meeting; and (ii) the UK Scheme Court Meeting and the SABMiller General Meeting to have concluded prior to the start of the Newco General Meeting (or such later date as may be agreed by both parties in writing). Once the AB InBev General Meeting has been convened, AB InBev shall not adjourn or postpone the AB InBev General Meeting without SABMiller’s prior written consent (not to be unreasonably withheld, delayed or conditioned) unless: (a) in the view of the AB InBev Board (acting in good faith): (i) such adjournment or postponement is required by applicable Law; (ii) it is not reasonably practicable to seek such consent because the adjournment or postponement is on account of a force majeure event or an emergency adjournment or postponement; (iii) such adjournment or postponement is reasonably necessary for the proper conduct of, or proper consideration of any matter at, the AB InBev General Meeting; or (iv) the motion to adjourn or postpone is only moved at the AB InBev General Meeting by AB InBev Shareholders (other than members of the AB InBev Board or AB InBev Shareholders who are party to AB InBev Shareholder Irrevocables); or (b) SABMiller convenes, or adjourns or postpones once convened, the UK Scheme Court Meeting or the SABMiller General Meeting to a date after the proposed date of the AB InBev General Meeting in which case AB InBev shall be entitled to also adjourn or postpone the AB InBev General Meeting to the same later date but at such time as to enable (i) the AB InBev General Meeting to have concluded prior to the start of the UK Scheme Court Meeting and the SABMiller General Meeting; and (ii) the UK Scheme Court Meeting and the SABMiller General Meeting to have concluded prior to the start of the Newco General Meeting (it being acknowledged by the parties that AB InBev shall not be obliged to convene the AB InBev General Meeting on a date earlier than the date of the UK Scheme Court Meeting and the SABMiller General Meeting). Notwithstanding the foregoing, if: (i) there is an adjournment or postponement of the AB InBev General Meeting after it has been convened; and (ii) the UK Scheme Court Meeting or the SABMiller General Meeting are postponed or adjourned so as to be held as soon as practicable following any postponed or adjourned AB InBev General Meeting, then AB InBev shall (if necessary, with the consent of the Panel) extend the deadlines referred to in Conditions (a)(i), (ii) and (iii) of Part A of Appendix 2 of the Announcement accordingly and the references in Clause 11.1(b)(iii) shall be construed accordingly. 6.6 Where the Transaction is being implemented by way of, among other steps, the UK Scheme, AB InBev undertakes that, before the UK Sanction Hearing, it shall deliver a notice in writing to SABMiller either: (a) confirming the satisfaction or waiver of all Pre-Conditions and Conditions (other than the Post Scheme Sanction Conditions (as defined in the Announcement) and Condition (a)(iii) of Part A of Appendix 2 of the Announcement); or (b) confirming its intention to invoke a Pre-Condition or Condition (if permitted by the Panel and, as applicable, BFSMA) and providing reasonable details of the event which has occurred, or circumstances which have arisen, which AB InBev reasonably considers entitle it to invoke the Pre-Condition or Condition. 6.7 If the AB InBev Board becomes aware of any fact, matter or circumstance that the AB InBev Board reasonably considers would entitle it to invoke (and, applying the test set out in Rule 13.5 of the UK Takeover Code, the Panel and, if applicable, BFSMA would permit it to so invoke) any of the Pre-Conditions or Conditions, AB InBev shall (subject to applicable Law) inform SABMiller as soon as is reasonably practicable. 6.8 Where the Transaction is being implemented by way of, among other steps, the UK Scheme, AB InBev shall (subject to SABMiller having complied with its obligations in Clause 6.3 and Schedule 3) instruct counsel to appear on its behalf at the UK Sanction Hearing and undertake to the UK Court to: (a) be bound by the terms of the UK Scheme in so far as it relates to AB InBev or (following completion of the Belgian Offer) Newco; and (b) satisfy Conditions (c)(iii), (c)(iv) and (c)(v) of Part A of Appendix 2 to the Announcement, to the extent that all the Conditions (other than those referred to in Clause 6.6(a) above) have been satisfied or waived prior to or on the date of the UK Sanction Hearing. 6.9 AB InBev shall be entitled, with the consent of the Panel, to implement the Transaction by way of (among other steps) the UK Offer rather than the UK Scheme and, subject to applicable Law and regulation, to otherwise change the Proposed Structure (any such election being a Switch) only if: (a) SABMiller provides its prior written consent (an Agreed Switch), in which case Clause 6.10 shall apply; (b) a third party announces a firm intention to make an offer for the issued and to be issued ordinary share capital of SABMiller (whether including or excluding any SABMiller Shares held in treasury) which is recommended in whole or in part by the board of directors of SABMiller; or (c) the Relevant SABMiller Directors withdraw their unanimous and unconditional recommendation (as to Cash Consideration) of the Transaction. 6.10 In the event of any Agreed Switch involving the implementation of the Transaction by way of (among other steps) the UK Offer rather than the UK Scheme, unless otherwise agreed with SABMiller or required by the Panel: (a) the Acceptance Condition shall be set at 90 per cent. of the SABMiller Shares to which the UK Offer relates (or such other percentage as may be agreed between the parties in writing after, to the extent necessary, consultation with the Panel, being in any case more than 50 per cent. of the SABMiller Shares to which the UK Offer relates); (b) AB InBev shall not take any action which would cause the UK Offer not to proceed, to lapse or to be withdrawn in each case for non-fulfilment of the Acceptance Condition prior to the 60th day after publication of the UK Offer Document and AB InBev shall ensure that the UK Offer remains open for acceptances until such time; (c) AB InBev shall ensure that the only pre-conditions of the UK Offer shall be the Pre-Conditions and that the only conditions of the UK Offer shall be the Conditions (subject to replacing Condition (a) of Part A of Appendix 2 with the Acceptance Condition referred to in Clause 6.10(a) and the inclusion, if required, of a condition in relation to the filing of any registration statements with the SEC, to any such registration statements being declared effective by the SEC and to the obtaining of any other documents or approvals required in relation to the issue of offeror shares pursuant to the UK Offer) (unless the parties agree otherwise in writing); and (d) AB InBev shall keep SABMiller informed, on a confidential basis and within two Business Days following receipt of a written request from SABMiller, of the number of holders of SABMiller Shares that have validly returned their acceptance or withdrawal forms or incorrectly completed their withdrawal or acceptance forms and the identity of such shareholders. 6.11 In the event of any Agreed Switch: (a) involving the implementation of the Transaction by way of (among other steps) the UK Offer rather than the UK Scheme the parties agree: (i) that all provisions of this Agreement shall continue to apply save as set out in this Clause 6.11(a); (ii) all provisions of this Agreement relating to the UK Scheme and its implementation shall apply to the UK Offer or its implementation mutatis mutandis; and (iii) AB InBev’s obligations under Clause 5.2 shall apply to the UK Offer Document as if references in such Clause to the Belgian Merger Documents, Belgian Merger US Documents and Belgian Offer Prospectus included the UK Offer Document; and (b) involving changes to the structure other than the use of a UK Offer: (i) that all provisions of this Agreement shall continue to apply save as set out in this Clause 6.11(b); (ii) AB InBev’s obligations under Clause 5.2 shall apply to such new, additional or amended documents as are required to be published or posted to AB InBev Shareholders pursuant to the new structure; and (iii) SABMiller’s obligations under Clause 5.3 shall apply to such new, additional or amended documents, other than the UK Offer Document, as are required to be published or posted to SABMiller Shareholders pursuant to the new structure. 6.12 AB InBev shall use all reasonable endeavours to satisfy Conditions (r) to (z) of Part B to Appendix 2 to the Announcement by the Long Stop Date.