EXHIBIT 10.57
MEMORANDUM OF UNDERSTANDING
Dated as of September 13, 2002
between
INTER-AMERICAN FINANCIAL CORPORATION
FLORIDA ICE AND FARM CO.
and
HEINEKEN FINANCE N.V.
This Memorandum of Understanding (the "MOU"), dated as of September 13,
2002, is entered into by and among Inter-American Financial Corporation, a
Panamanian corporation and wholly-owned subsidiary of Panamerican Beverages,
Inc. (referred to herein as "Panamco"), Florida Ice and Farm Co., a sociedad
anonima organized and existing under the laws of the Republic of Costa Rica
("FIFCO"); and Heineken Finance N.V., a limited liability company organized
and existing under the laws of the Netherlands Antilles ("Beer").
RECITALS:
A. Certain shareholders of Coca-Cola de Panama Compania Embotelladora,
S.A. ("Coca-Cola") and Cerveceria Baru-Panama, S.A. ("CBP") have initiated a
process to sell Coca-Cola and CBP (the "Transaction");
B. Panamco, FIFCO and Beer (each a "Party", and collectively, the
"Parties") desire to establish a Panamanian company as a special purpose
vehicle ("SPV") to submit a joint bid for the purchase of Coca-Cola and CBP;
C. If the SPV is successful in the acquisition of control of Coca-Cola
and CBP, then, subject to local laws and regulations, the shares of Coca-Cola
will promptly thereafter be sold to Panamco and the shares of CBP will be sold
to Beer and FIFCO, as provided herein. If such sales are not permissible under
such local laws and regulations, then the Parties shall mutually agree upon an
alternative transaction structure, as provided herein;
D. If the SPV is successful in the acquisition of control of Coca-Cola
and CBP, the Parties will work cooperatively to jointly operate those services
that are currently operated on a shared basis by Coca-Cola and CBP; and
E. The Parties intend for the SPV to be an initial step in the creation
of a broader joint venture in Panama and throughout Central America and to
work cooperatively towards that end.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set forth herein, the Parties agree as follows:
ARTICLE I
THE BID
SECTION 1.01. THE BID. Panamco, FIFCO and Beer will work cooperatively to
timely submit a joint offer through the SPV for the purchase of the Soft Drink
Business and the Beer Business (as each such term is defined below). The offer
may specify both the aggregate price for the Soft Drink Business and the Beer
Business and the component prices for each of the Soft Drink Business and the
Beer Business. In addition, the initial offer may indicate the price that
Panamco, acting in its individual capacity and not as part of the SPV, would
be willing to pay for the Soft Drink Business and the price that FIFCO and
Beer, acting in their individual capacities and not as part of the SPV, would
be willing to pay jointly for the Beer Business. The Contrato de Promesa de
Compraventa de Acciones ("Contrato") to be submitted with the bid will be made
in the name of the SPV.
SECTION 1.02. Valuation. Panamco has valued Coca-Cola (i.e., 100% of the
capital stock of Coca-Cola, but not including: (i) the 43.39% interest
Coca-Cola holds in CBP; and (ii) the 8.15% interest that Coca-Cola's
subsidiary, Crecimientos y Desarrollo, S.A. holds in CBP) (referred to herein
as the "Soft Drink Business") in the amount (the "Soft Drink Price") as agreed
among the Parties and the SPV. FIFCO and Beer have valued CBP (i.e., 100% of
the capital stock of CBP and referred to herein as the "Beer Business") in the
amount (the "Beer Price") as agreed among the Parties and the SPV. The SPV's
bid for 100% of the capital stock of Coca-Cola and 100% of the capital stock
of CBP will be equal to the sum of the amount for the Soft Drink Business and
the amount for the Beer Business, as such amounts may be amended as provided
above.
SECTION 1.03. GENERAL RESPONSIBILITIES OF THE PARTIES REGARDING THE BID.
In furtherance of the intent of the Parties set forth in this MOU, the Parties
agree as follows:
(a) Negotiations: The Parties will provide each other with copies of all
draft agreements related to the Transaction and shall use their commercially
reasonable efforts to negotiate jointly all material points thereto raised by
the other Party in good faith. The Parties shall promptly advise each other of
the substance of all past and future contact and communications with
Coca-Cola, CBP, its selling shareholders or representatives thereof with
respect to the Transaction. The final Contrato to be signed by the SPV will be
approved in writing in advance by each Party.
(b) Due Diligence: Each Party agrees to involve the other Parties in the
due diligence process and to advise the other Parties of the results of their
due diligence investigation.
(c) Exclusivity: Each Party agrees to work exclusively with the other
Parties and to cease negotiations or discussions with all other parties other
than the selling shareholders, Coca-Cola, CBP and their representatives with
respect to the Transaction. Except as set forth below, no Party shall submit a
separate bid (either on their own or with a third party) with respect to the
Transaction if the SPV submits a bid. In the event that the Parties decide not
to enter a joint bid with respect to the Transaction, then Panamco shall have
the right (with prior written notice to the other Parties) to individually
submit a bid for the purchase of the Soft Drink Business and FIFCO and Beer
shall have the right (with prior written notice to the other Parties) to
individually or jointly submit a bid for the purchase of the Beer Business. In
the event that the Parties, through the SPV, enter a joint bid with respect to
the Transaction but, after the entry of such bid, the Sellers notify the
Parties that the Sellers intend to terminate or materially delay the sale
process with respect to either the Soft Drink Business or the Beer Business,
then Panamco shall have the right (with prior written notice to the other
Parties) to individually submit a bid for the purchase of the Soft Drink
Business outside the SPV and FIFCO and Beer shall have the right (with prior
written notice to the other Parties) to jointly submit a bid for the purchase
of the Beer Business outside the SPV. Furthermore, in the event that the
Parties, through the SPV, enter a joint bid with respect to the Transaction
but the Sellers indicate that the bid for either the Soft Drink Business or
the Beer Business is insufficient, then the Parties shall work cooperatively
outside of the SPV to improve the bid through the SPV and failing an agreement
of the Parties to so improve the bid, then Panamco shall have the right (with
prior written notice to the other Parties) to individually submit a bid for
the purchase of the Soft Drink Business outside the SPV and FIFCO and Beer
shall have the right (with prior written notice to the other Parties) to
jointly submit a bid for the purchase of the Beer Business outside the SPV.
Such individual
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bids do not preclude either party from cooperating or teaming up in the course
of the bid with any third party with respect to the Soft Drink Business or the
Beer Business, provided that the bid of such third party for the relevant
business is higher than the highest bid of the other Party to this MOU, and
provided further that before a Party teams up with any such third party, that
Party shall have given written notice to the applicable other Party or Parties
of the higher bid and a full opportunity for the applicable other Party or
Parties to match the higher bid of the third party.
ARTICLE II
SPECIAL PURPOSE VEHICLE
SECTION 2.01. FORMATION OF SPV. On (or prior to) the execution of this
MOU, the Parties will immediately cause the SPV to be established as a
corporation under the laws of Panama and in accordance with the terms and
conditions of this MOU. The Parties will make contributions in the aggregate
amount of $10,000. Of such amount, Panamco will make a contribution equal to
the percentage that the Soft Drink Price represents to the sum of the Soft
Drink Price and the Beer Price. Beer and FIFCO will make a contribution equal
to the percentage that the Beer Price represents to the sum of the Soft Drink
Price and the Beer Price. Beer will be responsible for 75% of the Beer/FIFCO
contribution and FIFCO will be responsible for the remaining 25% of the
Beer/FIFCO contribution. To the extent that the Soft Drink Price and/or the
Beer Price is amended from time to time as contemplated by Section 1.02 above,
then the Parties shall, if necessary, increase the capital of the SPV and make
such additional contributions as necessary so that the relative contributions
and equity interests of the Parties shall be based on the relative value of
the Soft Drink Price and the Beer Price, as so amended.
The SPV will use such funds to initially establish the company. All
contributions will be paid in cash in U.S. dollars in immediately available
funds. Each of the Parties will receive a number of shares of the equity
capital of the SPV proportional to the total value of its respective
contributions. The Parties will hold their equity participation in the SPV in
the most tax efficient manner for each of the Parties, taking into
consideration the particular features of the legislation to which each of the
Parties is subject. In connection with the formation of the SPV, the Parties
will cause mutually acceptable Articles of Incorporation and Bylaws of the SPV
to be adopted. All costs directly related to the formation of the SPV will be
borne pro rata by the Parties based upon their respective equity interests in
the SPV. No Party shall transfer any of its shares of the equity capital of
the SPV to any third party (other than to such Party's affiliates that are
controlled by the transferring Party) without the prior written consent of
each of the other Parties.
SECTION 2.02. PURPOSE OF SPV. The purpose of the SPV will be to submit:
(i) the bid for the acquisition of the Soft Drink Business and the Beer
Business as provided by Section 1.01 above; and (ii) if the SPV is awarded the
winning bid, to enforce its rights and perform its obligations under the
Contrato, including, without limitation, the public offers (collectively,
"OPA") for 100% of the outstanding shares of Coca-Cola and CBP. If the SPV is
not awarded the winning bid with respect to the Transaction, the Parties will,
unless otherwise decided by the Board of Directors of the SPV, cause the SPV
to be liquidated and dissolved.
SECTION 2.03. OPERATION OF THE SPV. The Board of Directors of the SPV
will be
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comprised of one representative appointed by Panamco, one representative
appointed by Beer and one representative appointed by FIFCO. All acts of the
SPV shall require the prior unanimous approval by the full Board of Directors.
SECTION 2.04. FUNDING OF THE OPA. The SPV will fund the OPA through debt
financing as follows. Panamco will loan the SPV an amount ("Soft Drink
Purchase Price") equal to 100% of the amount of the Soft Drink Business. FIFCO
will loan the SPV an amount equal to 25% of the amount ("Beer Purchase Price")
of the Beer Business and Beer will loan the SPV an amount equal to 75% of the
Beer Purchase Price. Such loans shall be evidenced by promissory notes
mutually acceptable to the Parties and shall be made at such time as is
necessary and appropriate to effect the OPA and/or consummate the Transaction.
To the extent funds lent to the SPV by any Party pursuant to this Section 2.04
are not used by the SPV in the acquisition of the Soft Drink Business or the
Beer Business, as the case may be, then such amounts shall be returned to such
Party. The Parties acknowledge and agree that they will provide any funding
requirements or credit enhancements, including without limitation guarantees,
to the SPV on terms required by applicable law and to be mutually agreed by
all of the Parties.
SECTION 2.05. CONTINUED OPERATION OF SHARED SERVICES. If the SPV is
successful in the acquisition of control of the Soft Drink Business and the
Beer Business, the Parties (through Coca-Cola and CBP) will work cooperatively
to jointly operate those services that are currently operated on a shared
basis by Coca-Cola and CBP. During the six month period following the
acquisition, the Parties will review and evaluate such shared services and
will formalize the provision of such services pursuant to mutually acceptable
agreements and terms, including the distribution of malt products; provided
that, during such six month period, the Parties shall operate such shared
services on substantially the same terms and conditions under which they
currently are operated.
SECTION 2.06. FUTURE COOPERATION. The SPV will be initially formed for
the purposes set forth in Section 2.02 above. The Parties however intend for
this MOU to be an initial step for further cooperation in Panama and in the
countries in which Panamco operates in Central America. Towards that end, the
Parties (and certain of their affiliates) will, contemporaneous with the
execution and as a condition precedent of this MOU, enter into a
mutually-acceptable non-competition agreement with respect to beer and
carbonated soft drinks in Costa Rica. In addition, the Parties agree to use
their best efforts to evaluate alternatives to expand the scope of the
cooperation between the Parties, which may include among others: (i) the joint
distribution of beer and Non-Alcoholic Beverages (as defined below); and (ii)
the distribution of Tropical in countries in which Panamco operates in Central
America and in Panama. If Panamco is precluded from distributing Tropical in
Panama, then the Parties will use their best efforts to enter into a
profit-sharing arrangement for the distribution of Tropical by CBP; it being
understood that, absent such agreement, the non-competition provision set
forth in Section 2.09 below precludes the distribution of Tropical in Panama
by FIFCO or Beer (and their affiliates).
SECTION 2.07. SPV'S TRANSFER OF COCA-COLA AND CBP. If the SPV is
successful in the acquisition of control of the Soft Drink Business and/or the
Beer Business, then promptly after such acquisition the SPV shall sell the
Soft Drink Business to Panamco for the Soft Drink Purchase Price and shall
sell FIFCO and Beer the Beer Business for the Beer Purchase Price;
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provided that if such sales are not permissible under local laws and
regulations, then the Parties shall mutually agree upon an alternative
transaction structure (including, as a first alternative, the
liquidation/dissolution of the SPV in which case Panamco shall have a
liquidation preference over the Soft Drink Business and Beer and FIFCO shall
have a liquidation preference over the Beer Business). Payment for such assets
shall be effected by the cancellation and set-off of the respective Party's
promissory notes referred to in Section 2.04 above. Costs and expenses
incurred in connection with such sales or other transfers that are
attributable to the Soft Drink Business shall be borne by Panamco and costs
and expenses incurred in connection with such sales or other transfers that
are attributable to the Beer Business shall be borne equally by FIFCO and
Beer.
SECTION 2.08. INDEMNIFICATION PROCEEDS OF THE CONTRATO. With respect to
claims for indemnification (or holdback of funds through any escrow
arrangement) that the SPV may be entitled to assert in connection with an OPA
or the prospectuses, the proceeds received pursuant to any such claim shall be
distributed as follows:
(a) to FIFCO and Beer to the extent that such payments are attributable
to the escrow/holdback relating to the acquisition of the Beer Business;
(b) to Panamco to the extent that such payments are attributable to the
escrow/holdback relating to the acquisition of the Soft Drink Business; and
(c) to the extent that any such payments are attributable to both the
Beer Business and the Soft Drink Business, to the Parties in the relative
proportion that such payments relate to the escrows/holdbacks relating to the
acquisition of the Beer Business and the Soft Drink Business, or if such
relative proportion cannot be determined, then in the same proportions as the
Parties' respective equity interests in the SPV.
SECTION 2.09. NONCOMPETITION. If the SPV is successful in the acquisition
of the Soft Drink Business and the Beer Business, then the Parties agree that
for a period of twenty (20) years after such acquisition, (a) none of FIFCO
and Beer or any of their respective current or future affiliates, will engage,
either directly or indirectly, in producing, importing, bottling, distributing
or selling non-alcoholic beverages, including carbonated soft drinks, juices,
juice-based products, water, teas and isotonics ("Non-Alcoholic Beverages") in
Panama and (b) none of Panamco or any of its current or future affiliates,
will engage, either directly or indirectly, in producing, importing, bottling,
distributing or selling alcoholic beverages (including, without limitation,
beer, wine and spirits) in Panama; provided, however, that nothing in this
Section 2.09 shall prohibit any of the Parties or any of their respective
current or future affiliates from engaging in any transaction or other action
described above with a counterparty that owns or otherwise controls Panamanian
assets so long as such Party or affiliate promptly sells or otherwise divests
itself of such Panamanian assets to the extent necessary such that, after the
consummation of such sale or divestiture, such Party or affiliate is in
compliance with this Section 2.09. Notwithstanding the foregoing, Beer and
FIFCO may produce, import, bottle, distribute and sell all malt-based
beverages and non-alcoholic beer in Panama.
For purposes of this Section 2.09, "engage" shall mean to engage in, or
own, manage, operate or control, or actively participate in the ownership,
management, operation or control of
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a business or entity, as a proprietor, partner, stockholder, director,
executive, consultant, venturer or in any other capacity, other than
investments (A) in non-equity securities of a publicly traded company not
exceeding the lesser of (x) 15% of the outstanding non-equity securities of
any such company or (y) $10 million in value of the outstanding non-equity
securities of such company and (B) in equity securities of a publicly traded
company not exceeding the lesser of (x) 15% of the outstanding equity
securities of any such company or (y) $10 million in value of the outstanding
equity securities of such company.
SECTION 2.10. CROSS INDEMNITY. FIFCO and Beer agree (severally based on
their relative equity participation in the SPV) to indemnify and hold Panamco
and its officers, directors and representatives harmless from and against any
action, cost, damage, disbursement, expense, liability, loss, obligation,
penalty or settlement of any kind or nature, whether foreseeable or
unforeseeable, including but not limited to, interest or other carrying costs,
penalties, legal and other professional fees and expenses incurred in the
investigation, collection, prosecution and defense of claims and amounts paid
in settlement (collectively, a "Loss"), that may be imposed on or otherwise
incurred or suffered by Panamco arising, directly or indirectly, as a result
of, or based upon or arising from, the Beer Business, except for any such Loss
arising primarily from the actions of the indemnified party. Panamco agrees to
indemnify and hold harmless FIFCO and Beer and their respective officers,
directors and representatives from and against any Loss, that may be imposed
on or otherwise incurred or suffered by FIFCO and Beer arising, directly or
indirectly, as a result of, or based upon or arising from, the Soft Drink
Business, except for any such Loss arising primarily from the actions of the
indemnified party.
ARTICLE III
TERM, TERMINATION AND EXCLUSIVITY
SECTION 3.01. TERM.
(a) This MOU shall become effective on the date first written above and
shall cease to have binding effect (except as otherwise provided herein) upon
the Parties upon the earliest of the following events: (i) the selling
shareholders terminate the bidding contest for the sale of the Shares; (ii)
the commencement of the liquidation/dissolution of the SPV as contemplated by
Section 2.02 above; (iii) the Parties mutually agree in writing to terminate
this MOU; and/or (iv) upon the sale of Coca-Cola and CBP to the Parties as
provided in Section 2.07 above (or any alternative structure as contemplated
therein).
(b) None of the Parties shall have a right of action or other claim
against the other as a result of the termination of this MOU under the
provisions established above.
(c) In the event of a termination of this MOU pursuant to Section
3.01(a)(iv), the following sections shall survive: 2.05, 2.06, 2.07, 2.08,
2.09, 2.10 and Article V. In the event of a termination of this MOU for any
other reason, the following sections shall survive: 2.08, 2.10, 5.01, 5.05 and
5.07.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Each Party
represents and warrants to the other Parties as follows:
(a) that it is a corporation duly organized, validly existing and in good
standing under the laws of the respective jurisdiction of incorporation and
has the full power and authority to carry on its business as contemplated
hereby and fully to perform its obligations under this MOU;
(b) that the execution, delivery and performance by it of this MOU does
not and will not (i) contravene, violate or conflict with its by-laws, (ii)
contravene, violate or conflict with any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award applicable to it, or
(iii) result in any breach of, or constitute a default (or event which with
the giving of notice or lapse of time, or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of any lien pursuant to, any note,
bond, mortgage, indenture contract, agreement, lease, license, permit,
franchise or other agreement or instrument to which it is a party; and
(c) this MOU has been duly authorized, executed and delivered by it and
constitutes a legal, valid and binding obligation of such Party, enforceable
against such Party in accordance with its terms, except as enforceability may
be limited by bankruptcy laws and regulations and by general equitable
principles.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. CONFIDENTIALITY.
(a) The Parties recognize and agree that, in the course of their
negotiations and due diligence, they have and will be exchanging nonpublic,
proprietary and confidential information regarding the other Parties, the
disclosure of which would be detrimental to the Party providing such
information. Each Party agrees to treat all such information delivered to it
by the other Party as confidential, and to protect such information from
disclosure to any third Party, in whole or part, without the prior written
consent of the providing Party; provided, however, that the following
information shall not be considered confidential or proprietary and neither
Party shall have any obligation to treat it as such: (i) information that was
known to the receiving Party at the time of disclosure to it by the providing
Party; (ii) information that was in the public domain at the time of
disclosure by the providing Party; and (iii) information that was obtained by
the receiving Party from a third Party who was under no obligation of
nondisclosure with respect thereto; and provided, further, that either Party
shall have the right to disclose any confidential information as required by
court order or applicable law or regulation. The Parties agree to cause their
employees, agents and representatives to maintain the confidentiality of any
such information in accordance with the provisions of this paragraph.
(b) The Parties agree to maintain the confidentiality of such information
for a period of five (5) years from the effective date of this MOU or until
earlier relieved of such obligation by
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written notice from the providing Party or until such information passes into
the public domain through no fault of the receiving Party.
(c) The Parties do not intend to restrict a Party's use of information
and know-how that it possessed prior to entering into this MOU or information
and know-how developed by a Party or any of its affiliates in connection with
work on other projects undertaken during the term of this MOU.
(d) The obligations of confidentiality set forth in this Article shall
survive termination, cancellation or expiration of this MOU or dissolution of
the SPV.
SECTION 5.02. NO IMPLIED WAIVERS. The failure of a Party to insist upon
or enforce strict performance of any of the provisions of this MOU shall not
be construed as a waiver or relinquishment to any extent of such Party's right
to assert or rely upon any such provisions, rights and remedies in that or any
other instance; rather, the same shall be and remain in full force and effect.
SECTION 5.03. SEVERABILITY. The invalidity or unenforceability of any
-provision, clause or part of this MOU, or the application thereof under
certain circumstances, shall not affect the validity or enforceability of the
remainder of this MOU, or the application of such provision, clause or part
under other circumstances.
SECTION 5.04. SUCCESSORS AND ASSIGNS. This MOU shall be binding upon, and
inure for the benefit of, the Parties and their respective successors
(including, without limitation, by means of acquisition or merger) and
permitted assigns. None of the Parties may assign its rights under this MOU
without the prior written consent of the other Parties, provided that a Party
may assign such rights to an affiliate without obtaining such consent so long
as such assignor remains liable hereunder.
SECTION 5.05. COSTS AND EXPENSES. Except as otherwise provided herein,
the Parties agree that each Party shall pay the costs and expenses incurred by
itself in connection with the Transaction and jointly shall bear the costs and
expenses incurred by the SPV in connection with the Transaction.
SECTION 5.06. NOTICES. All notices or other communications permitted or
required pursuant to this MOU shall be in writing and shall be deemed given on
the date received, whether by personal delivery or by mail, postage prepaid,
certified with return receipt, to the following addresses:
If to Panamco:
c/o Panamco L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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If to FIFCO:
Florida Ice and Farm Co.
APDO. ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
If to Beer:
Heineken Finance N.V.
Kaya W.F.G. (Jombi) ▇▇▇▇▇▇▇ 32
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ Antilles
Phone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: 5999 461 5523
Attention: Managing Director
with a copy to:
Heineken International B.V.
Tweede ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇.▇. ▇▇▇ ▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇ Graafland
SECTION 5.07. GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) This MOU shall be governed by and construed in accordance with the
laws of the Republic of Panama.
(b) Any claim, dispute or controversy arising in connection with this MOU
shall be settled by final binding arbitration under the Rules of Arbitration
of the International Chamber of Commerce in New York City, New York. The
arbitration shall be heard and determined by a panel of three arbitrators,
with Panamco selecting one arbitrator, Beer and FIFCO selecting one arbitrator
and the final arbitrator selected by the first two arbitrators. The award
rendered by the arbitrators shall be final, and judgment may be entered upon
it in accordance with law in any court having jurisdiction thereof. The
Parties waive, to the fullest extent permitted by applicable law, and agree
not to invoke or exercise, any rights to appeal, review or impugn such
decision or award by any court or tribunal. Each Party shall be entitled to
seek interim measures of
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protection in the form of injunctive relief. At any hearing of oral evidence,
each Party shall have the right to present and examine its witnesses and to
cross-examine the witnesses of the other Party or Parties and each Party shall
have the right to conduct reasonable discovery of the other Party or Parties.
This provision shall survive the termination of this MOU.
SECTION 5.08. STATUS OF RELATIONSHIP. No Party is hereby constituted an
agent or legal representative of any other Party hereto, and no Party is
granted any right or authority hereunder to assume or create any obligation,
expressed or implied, or to make any representation, covenant, warranty, or
guaranty on behalf of any other party or the SPV, except as provided herein.
SECTION 5.09. ENTIRE AGREEMENT. This MOU constitutes the entire agreement
between the parties with respect to the subject matter of this MOU and
supersedes all prior or contemporaneous negotiations or agreements, whether
oral or written.
SECTION 5.10. EXECUTION IN COUNTERPARTS; FACSIMILE SIGNATURES. This MOU
may be executed in two or more counterparts, each of which shall be considered
an original instrument, but all of which shall be considered one and the same
agreement. Facsimile signatures shall be treated as originals.
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IN WITNESS WHEREOF, the Parties have caused this MOU to be executed by
their duly authorized representatives, effective as of the date first written
above.
INTER-AMERICAN FINANCIAL CORPORATION
By
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
FLORIDA ICE AND FARM CO.
By
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director General
HEINEKEN FINANCE N.V.
By
/s/ ▇. ▇▇ ▇▇▇▇
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Name: ▇. ▇▇ ▇▇▇▇
Title: Director
