EXHIBIT 2.9
SHARE PLEDGE AGREEMENT
DATED AS OF: 31st January, 2003
AMONG: Beverage Associates (BAC) Corp., an international business
company duly organised and existing under the laws of the
British Virgin Islands, having its registered office at
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
(hereinafter the "Pledgor")
AND: Companhia de Bebidas Das Americas - Ambev, a corporation
duly organised and existing under the laws of Brazil and
having its registered office at ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ F, 6(degree) andar, salao 01, Sao Paulo, SP, Brazil
until February 3, 2003, and thereafter at Rua ▇▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇, n(degree) 1.017, 3(degree) andar cjs. ▇▇ ▇▇
▇▇, ▇▇▇▇▇-▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇
(hereinafter the "Pledgee")
AND: Quilmes Industrial (Quinsa) S.A., a company incorporated
under the laws of the Grand Duchy of Luxembourg, having its
registered office at 84, Grand-Rue in Luxembourg and being
registered with the Luxembourg Register of Commerce under
number B 32.501
(hereinafter the "Company").
WHEREAS
A. The Pledgor holds 373,520,000 registered Class A shares without par value
in the corporate capital of Company (the "Remaining Shares").
B. Pursuant to Section 5.08 of the Stock Purchase Agreement entered into as
of 1st May 2002 among the Pledgor as seller and the Pledgee as purchaser
(the "Stock Purchase Agreement"), the Pledgor agreed inter alia to enter
into pledge agreements for the benefit of the Purchaser, with terms and
conditions reasonably satisfactory to Purchaser, to assure delivery of
the Remaining Shares to Purchaser free and clear of all Liens and as
otherwise required by Sections 1.04 (d) (i) and 1.04(e) (i) thereof.
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NOW, THEREFORE, the Pledgor hereby agrees with the Pledgee as follows:
1. DEFINITIONS AND INTERPRETATION
Unless otherwise defined herein or the context otherwise requires, terms used in
this Agreement have the meanings provided in the Stock Purchase Agreement.
Nothing in this Agreement shall be construed as limiting any of the rights and
remedies under the Stock Purchase Agreement unless expressly set forth herein.
SECURED OBLIGATIONS MEANS: All obligations due by Pledgor to Pledgee under
sections 1.04 (d) (i) and 1.04 (e) (i) of the Stock Purchase Agreement dated as
of 1st May 2002, being the obligations to deliver the Remaining Shares to
Pledgee on the terms set forth in the Stock Purchase Agreement and any and all
amounts owing by the Pledgor to the Pledgee in respect of such obligation
whether arising as a result of default of such obligation or otherwise.
ESCROW AGREEMENT MEANS: The Escrow Agreement entered into on the date hereof
between the Pledgor, the Pledgee and the Bank of New York pursuant to which the
Pledgor and the Pledgee agree to put a portion of the Pledged Shares (as defined
below), such portion being defined in the Escrow Agreement as the "Equalisation
Shares", in escrow.
EVENT OF DEFAULT MEANS: The failure by Pledgor to perform the Secured
Obligations.
2. PLEDGE
(A) As security for the performance and discharge when due of the Secured
Obligations, the Pledgor hereby pledges to the Pledgee the Remaining Shares
(as such, the "Pledged Shares") and the Pledgor hereby grants to the
Pledgee, a first security interest in such Pledged Shares (the "Pledge") as
collateral security for the prompt and complete performance and discharge
of the Secured Obligations.
(B) The Pledgor shall simultaneously herewith procure the inscription of the
Pledge in favour of the Pledgee in the shareholders' register held by the
Company and present to the Pledgee a copy thereof from the Company
confirming that this inscription has been duly made. The Pledgee accepts
such inscriptions according to the terms thereof. The Pledgor shall also
procure that such inscription of the Pledge in favour of the Pledgee in the
shareholders' register held by the Company covers the shares subject to the
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Escrow Agreement and any shares released from the escrow created by the
Escrow during the term of the Pledge Agreement.
(C) The Pledgor and Company jointly instruct and appoint ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
secretary general of the Company, residing in Luxembourg as proxy to
register this Pledge in the shareholders' register of the Company.
3. VOTING RIGHTS AND OTHER RIGHTS OF THE PLEDGEE
Until the occurrence of an Event of Default, the Pledgor shall be entitled (i)
except as otherwise provided in the Escrow Agreement in respect of the
Equalisation Shares to exercise any and all voting and consensual rights and
powers accruing to the owner of the Pledged Shares for any purpose consistent
with the terms of the Shareholders Agreement and (ii) to receive and retain any
and all cash dividends paid in respect of the Pledged Shares. Upon the
occurrence of an Event of Default, all such voting and consensual rights and
powers and dividend rights shall cease immediately and thereafter be vested in
the Pledgee, which shall thereafter have the sole and exclusive right and
authority to exercise such voting and consensual rights and powers and to
receive and retain any and all cash dividends paid in respect of the Pledged
Shares and solely for such purpose the Pledgor hereby grants a proxy to exercise
any such voting rights and undertakes to take all necessary action and issue all
relevant proxies necessary to allow the Pledgee to exercise its rights.
4. RIGHTS OF THE PLEDGEE
The Pledgee shall not be liable for any failure to collect or realise the
Secured Obligations or any collateral security or guarantee therefor, or any
part thereof, or for any delay in so doing nor shall the Pledgee be under any
obligation to take any action whatsoever with regard thereto.
5. REMEDIES IN CASE OF A DEFAULT
Upon the occurrence and the continuation of an Event of Default, the Pledgee
may, without any demand, advertisement or notice of any other kind, other than
the notice specified in clause 6 below, but without notice to any other person,
realise the Pledged Shares pursuant to this agreement or any part thereof with
the right for the Pledgee:
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(i) in respect of such Pledged Shares that constitutes securities (including
transferable securities) listed on a stock exchange or dealt in on one of
the markets defined by article 118 of the Code de Commerce, either to
cause the sale thereof on the stock exchange or on the aforesaid market
through the intermediary of a person whom it may designate, or to
appropriate such Pledged Shares in exchange for AmBev Shares in accordance
with the Stock Purchase Agreement;
(ii) in respect of any Pledged Shares not listed or quoted on a stock exchange
nor dealt in one of the markets defined by article 118 of the Code the
Commerce, to cause the sale thereof at a stock exchange by public auction
held by a public officer designated by the Pledgee; and
(iii) in respect of any Pledged Shares consisting of claims for sums of money,
if a sum is owed by itself, to set off the amount due by the Pledgor and
the amount due by it and, if the sum is owed by a third party, to require
that third party to make payment of the amount due by such third party
directly to it, upon maturity of the third party debt.
It is expressly agreed among the parties that upon Event of Default the Pledgee
may subject to the notice referred to in clause 6 below proceed to appropriate
the Pledged Shares as long as they comply with the conditions set out in (i)
above and that upon transfer free and clear of all liens other than any
contemplated in the Stock Purchase Agreement of all of the Pledged Shares to the
Pledgee, the Pledgor shall be deemed to have fulfilled its delivery obligations
of the Remaining Shares to the Pledgee under Sections 1.04 (d) (i) and 1.04 (e)
(i) of the Stock Purchase Agreement. In consideration therefor the Pledgee shall
deliver to the Pledgee the relevant AmBev Shares (as defined in the Stock
Purchase Agreement) in exchange as provided for in the Stock Purchase Agreement.
The Pledgor hereby irrevocably authorizes the Pledgee and irrevocably appoints
the Pledgee as the Pledgor's attorney-in-fact, with full power of substitution,
to execute any share transfer forms relating to any or all the Pledged Shares
required by Luxembourg law in order to effect any appropriation or realization
of the Pledged Shares in accordance with this Agreement upon an Event of
Default.
6. FORMAL NOTICE
Upon an Event of Default, the Pledgee may, after having formally given 2
business days' written notice to the Pledgor and to the Company in accordance
with clause 15 below, exercise its remedies pursuant to clause 5. hereof.
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For the purpose of the preceding paragraph, a business day shall be a day where
banks are open for business in Luxembourg.
7. NO DISPOSITION, ETC.
The Pledgor agrees that, without the prior written consent of the Pledgee, it
will not sell, assign, transfer, exchange, or otherwise dispose of, or grant any
option with respect to, the Pledged Shares, nor will it create, incur or permit
to exist any encumbrance (other than with the prior and express approval of the
Pledgee) whether by law or by contract or as a result of a court order with
respect to any of the Pledged Shares, or any interest therein, or any proceeds
thereof, except for the security provided for by this Agreement.
8. RELEASE
The Pledgor shall not be entitled to give any release of the Pledged Shares. The
Pledgee shall not be obliged to give any release until discharge in full of all
Secured Obligations.
9. COVENANTS
(A) The Pledgor covenants and agrees that it will use its best endeavours to
assist in the defense of the Pledgee's right, title and security in and to
the Pledged Shares and the proceeds thereof against the claims and demands
of all persons whomsoever and will defend the Pledgee's right to and
security in any other property at any time hereafter pledged to the Pledgee
as Pledge hereunder.
(B) The Pledgor undertakes to the Pledgee that without the prior written
consent of the Pledgee, it will not do or cause or permit to be done
anything which may adversely affect the interests of the Pledgee hereunder
or the validity or enforceability of this Pledge.
(C) The Pledgor covenants and agrees to enter the particulars of this agreement
on its register of mortgages, charges and other encumbrances and submit the
same for registration by the Registrar of Companies (British Virgin
Islands) in accordance with the law of the British Virgin Islands.
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(D) If any time the Pledged Shares are evidenced by share certificates, the
Pledgor shall promptly cause such share certificates to be delivered to an
agent of the Pledgee in Luxembourg.
10. FURTHER ASSURANCES
The Pledgor agrees that at any time and from time to time upon the written
request of the Pledgee, the Pledgor will execute and deliver such further
documents and do such further acts and things as the Pledgee may reasonably
request in order to give effect to the purpose of this agreement.
Any cost or expense incurred by the Pledgee in connection with any such further
document shall be for the account of the Pledgor and shall be paid promptly upon
demand by the Pledgor to the Pledgee.
11. SEVERABILITY
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
12. NO WAIVER; CUMULATIVE REMEDIES
The Pledgee shall not by any act, delay, omission or otherwise be deemed to have
waived any of its rights or their remedies hereunder and no waiver shall be
valid unless in writing, signed by or on behalf of the Pledgee, and then only to
the extent therein set forth. A waiver by or on behalf of the Pledgee of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which the Pledgee would otherwise have on any future
occasion. No failure to exercise nor any delay in exercising on the part of the
Pledgee, any right, power or privileges hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided are cumulative and in addition to or concurrent with the rights and
remedies
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of the Pledgee under the Stock Purchase Agreement and may be exercised singly or
concurrently, and are not exclusive of any rights or remedies provided by law.
The obligations of the Pledgor under this Agreement are in addition to or
concurrent with its obligations under the Stock Purchase Agreement, and no
obligation of the Pledgor hereunder shall be deemed to replace any of the
Pledgor's obligations under the Stock Purchase Agreement.
13. WAIVERS, AMENDMENTS
Neither this Agreement nor any terms or conditions hereof may be amended,
changed, waived, discharged, terminated or otherwise modified unless such
amendment, change, waiver, discharge, termination or modification is in writing
and signed by both parties. This Agreement and all obligations of the Pledgor
hereunder shall be binding upon the successors and assigns of the Pledgor, and
shall, together with the rights and remedies of the Pledgee hereunder, inure to
the benefit of the Pledgee and the successors and assigns thereof.
14. ASSIGNMENT
The Pledgor may not assign or transfer all or any part of its rights or
obligations hereunder. The Pledgee may assign or transfer all or any of its
respective rights and obligations hereunder to the extent that such assignment
or transfer is consistent with its rights, under the Stock Purchase Agreement.
15. NOTICES
Every notice, request, demand or other communication under this agreement shall
be given in accordance with the provisions of section 6.05. of the Escrow
Agreement.
16. GOVERNING LAW; JURISDICTION CLAUSE
This Agreement shall be governed by, and construed in accordance with the laws
of Luxembourg.
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The parties hereby irrevocably submit to the exclusive jurisdiction of the
Luxembourg courts in connection with any disputes arising under this Agreement
by signing hereunder for acceptance, the Company acknowledges and accepts the
existence of this Agreement and security interest created thereunder over the
Pledged Shares for the purposes of article 114 (3) (c) of the Luxembourg
Commercial Code, takes notice of the terms thereof and undertakes to duly
register forthwith this Pledge in its share register.
IN WITNESS WHEREOF, each party has executed and delivered this agreement in
three originals by its duly authorised officer as of the day and year first
above written.
PLEDGOR: /s/ ▇. ▇▇▇▇▇▇▇
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By:
PLEDGEE: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
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By:
COMPANY: /s/ ▇▇▇▇▇▇▇-▇▇▇▇▇ de Montalembert
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By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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By:
