EXHIBIT 2.22
This CONSENT AND INDEMNITY AGREEMENT (this
"Agreement") dated as of May 24, 2004, is made and
entered into by and among COMPANHIA DE BEBIDAS DAS
AMERICAS-AMBEV, a corporation organized under the
laws of the Federative Republic of Brazil
("AmBev"), INTERBREW S.A., a public limited
liability company organized under the laws of the
Kingdom of Belgium ("Interbrew"), LABATT BREWING
CANADA HOLDING LTD., a company organized under the
laws of the Bahamas and a wholly owned subsidiary
of Interbrew ("Mergeco"), and LABATT BREWING
COMPANY LIMITED, a corporation organized under the
federal laws of Canada ("Labatt"). Capitalized
terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in
the Incorporacao Agreement dated as of March 3,
2004 (the "Incorporacao Agreement"), among AmBev,
Interbrew, Mergeco and Labatt.
WHEREAS the parties hereto are parties to the Incorporacao
Agreement;
WHEREAS pursuant to Section 1.05 of the Incorporacao Agreement,
Interbrew and Labatt may not enter into certain commitments that would be
binding on Labatt or any of the Labatt Subsidiaries after Closing or that
would impose any liability on Labatt or any of the Labatt Subsidiaries after
Closing without the prior consent of AmBev; and
WHEREAS (a) Interbrew, Labatt, Stellamerica Holdings Limited, a
company organized under the federal laws of Canada and a wholly owned
subsidiary of Labatt ("Stellamerica"), Fomento Economico Mexicano, S.A. de
C.V., a sociedad anonima de capital variable organized under the laws of the
United Mexican States ("FEMSA"), Grupo Industrial Emprex, S.A. de C.V., a
sociedad anonima de capital variable organized under the laws of the United
Mexican States ("Emprex"), and FEMSA Cerveza, S.A. de C.V., a sociedad anonima
de capital variable organized under the laws of the United Mexican States
("Cerveza"), intend to enter into a Share Purchase Agreement dated as of the
date hereof (the "Share Purchase Agreement"), (b) Wisdom Import Sales Company
L.L.C., a Texas limited liability company and a wholly owned subsidiary of
Cerveza, Cerveza, Interbrew, Labatt Holdings, Inc., a Delaware corporation
("LH"), Labatt Holdings II, Inc., a Delaware corporation ("▇▇ ▇▇"), ▇▇▇▇▇▇, ▇▇
Holdings I L.L.C., a Delaware limited liability company and a subsidiary of
Labatt ("LF Holdings I"), and LF Holdings II L.L.C., a Delaware limited
liability company and a subsidiary of Labatt ("LF Holdings II") intend to
enter into a Redemption Agreement dated as of the date hereof (the "Redemption
Agreement"), (c) Interbrew, Labatt, Stellamerica, FEMSA, Emprex and Cerveza
intend to enter into a Consent and Waiver Agreement dated as of the date
hereof (the "Consent and Waiver Agreement") and (d) Cerveceria ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, S.A. de C.V., a sociedad anonima de capital variable organized
under the laws of the United Mexican States ("CCM"), and LUSA intend to enter
into a Transition Agreement dated as of the date hereof (the "Transition
Agreement" and, together with the Share Purchase Agreement, the Redemption
Agreement and the Consent and Waiver Agreement, the "Transaction Agreements");
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and intending to be legally bound hereby, the parties hereby agree as
follows:
SECTION 1. CONSENT. In accordance with the provisions of Section
1.05 of the Incorporacao Agreement, AmBev hereby consents to Labatt and the
Labatt Subsidiaries entering into, and performing their obligations under, (a)
the Share Purchase Agreement as set forth in Exhibit A-1 hereto, (b) the
Redemption Agreement as set forth in Exhibit A-2 hereto, (c) the Consent and
Waiver Agreement as set forth in Exhibit A-3 hereto and (d) the Transition
Agreement as set forth in Exhibit A-4 hereto, in the case of each of clauses
(a) through (d) as in effect on the date hereof (for the avoidance of doubt,
including, in each case, the exhibits and annexes thereto).
SECTION 2. TRANSFER OF SPECIFIED EQUITY INTERESTS.
(a) Subject to receipt of necessary third party consents and waivers
which remain valid and in full force and effect, Interbrew shall, and shall
cause Labatt and the other subsidiaries of Interbrew to, use its reasonable
best efforts to cause the Femsa Cerveza Interest and 100% of the shares of LH
(such equity interests, the "Specified Equity Interests") to be transferred to
6235867 Canada Inc., a corporation organized under the laws of Canada and an
indirect wholly owned subsidiary of Interbrew that is not a subsidiary of
Labatt ("Canco"), as contemplated by the Share Purchase Agreement, the
Redemption Agreement and the Consent and Waiver Agreement, and in accordance
with the Restructuring Plan (as amended and restated pursuant to the
Restructuring Implementation Agreement and Consent dated as of the date hereof
among the parties hereto), on or prior to June 10, 2004, unless prohibited by
applicable law. In the event (i) the Specified Equity Interests have not been
transferred to Canco at or prior to Closing and (ii) the transactions
contemplated by the Redemption Agreement and the Share Purchase Agreement will
not be consummated at or prior to Closing, the parties shall agree prior to
Closing to appropriate amendments to the Incorporacao Agreement and to the
Letter Agreement (including the Promissory Notes) to ensure that AmBev is not
required to issue any AmBev Shares in respect of the Femsa Cerveza Interest at
Closing.
(b) Reference is made to Section 5.3 of the Redemption Agreement and
Section 4 of the Consent and Waiver Agreement, contemplating that the
Specified Equity Interests that have been transferred from Labatt and its
subsidiaries to Canco may be transferred back to Labatt under certain
circumstances. In the event (i) the Specified Equity Interests have been
transferred to Canco as provided above and (ii) either (A) Closing has
occurred or (B) the Incorporacao Agreement has not been terminated, Interbrew
agrees that it will not, and it will cause its subsidiaries not to, transfer
the Specified Equity Interests to Labatt or any of its subsidiaries without
the prior written consent of AmBev.
SECTION 3. INDEMNIFICATION. Notwithstanding Section 8.01 of the
Incorporacao Agreement and, for the avoidance of doubt, in addition to
Interbrew's obligations thereunder, Interbrew shall indemnify the AmBev
Indemnitees against and hold them harmless from any liability, claim, damage
(to the extent such damage is actually incurred) or expense, including
reasonable legal fees and expenses arising out of such liability, claim or
damage, suffered or
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incurred by the AmBev Indemnitees arising from, relating to or
otherwise in respect of (a) the Transaction Agreements and the transactions
contemplated thereby and (b) Cerveza, LH, ▇▇ ▇▇, LF Holdings I, LF Holdings II
and LUSA; provided, however, that for the avoidance of doubt, the foregoing
obligation is not intended to, and shall not, apply with respect to (i) any
loss of revenue, income, synergy, cost saving, tax benefit, business
opportunity or similar attribute resulting from the fact that any of the
interests or entities listed in the preceding clause (b) will not be held by
Labatt upon its acquisition by AmBev pursuant to the Incorporacao Agreement
and (ii) the expenses of AmBev, including legal fees and expenses, in
connection with the negotiation, execution and delivery of the Transaction
Agreements or the consummation of the transactions contemplated thereby in
accordance with the terms thereof. Unless otherwise provided herein, the
provisions of Sections 8.02, 8.03 and 8.04 of the Incorporacao Agreement shall
apply to Interbrew's obligations under this Section 3 as if such provisions
were a part of this Agreement.
SECTION 4. INCORPORACAO AGREEMENT. Except as specifically consented
to or modified hereby, the Incorporacao Agreement shall continue unmodified
and in full force and effect in accordance with the provisions thereof as in
existence on the date hereof.
SECTION 5. ASSIGNMENT. This Agreement and the rights and obligations
hereunder shall not be assignable or transferable by any party (including by
operation of law in connection with a merger or consolidation of such party)
without the prior written consent of the other parties hereto. Notwithstanding
the foregoing, each of Interbrew, AmBev or Mergeco may, if it assigns its
right to consummate the Incorporacao Agreement in accordance with the second
sentence of Section 9.01 of the Incorporacao Agreement, assign its respective
rights under this Agreement to such affiliate without the prior written
consent of the other parties hereto. Any attempted assignment in violation of
this Section shall be void.
SECTION 6. NO THIRD-PARTY BENEFICIARIES. This Agreement is for the
sole benefit of the parties hereto and their permitted assigns and nothing
herein expressed or implied shall give or be construed to give to any person,
other than the parties hereto and such assigns, any legal or equitable rights
hereunder.
SECTION 7. ATTORNEY FEES. A party in breach of this Agreement shall,
on demand, indemnify and hold harmless the other party for and against all
reasonable out-of-pocket expenses, including legal fees, incurred by such
other party by reason of the enforcement and protection of its rights under
this Agreement. The payment of such expenses is in addition to any other
relief to which such other party may be entitled.
SECTION 8. NOTICES. All communications and notices hereunder shall
be in writing and given in the manner provided in Section 9.04 of the
Incorporacao Agreement.
SECTION 9. COUNTERPARTS. This Agreement may be executed in one or
more separate counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to the other parties. An
executed counterpart of this Agreement delivered by fax or
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other means of electronic transmission shall be deemed to be an original and
shall be as effective for all purposes as delivery of a manually executed
counterpart.
SECTION 10. ENTIRE AGREEMENT. This Agreement and the Incorporacao
Agreement, as consented to and modified hereby, contain the entire agreement
and understanding among the parties hereto with respect to the subject matter
hereof and supersede all prior agreements and understandings relating to such
subject matter. None of the parties shall be liable or bound to any other
party in any manner by any representations, warranties or covenants relating
to such subject matter except as specifically set forth herein or in the
Incorporacao Agreement.
SECTION 11. ARBITRATION. All disputes arising out of or in
connection with this Agreement shall be settled in accordance with Section
9.09 of the Incorporacao Agreement.
SECTION 12. SEVERABILITY. If any provision of this Agreement (or any
portion thereof) or the application of any such provision (or any portion
thereof) to any person or circumstance shall be held invalid, illegal or
unenforceable in any respect by an arbiter or arbitration panel established in
accordance with Section 9.09 of the Incorporacao Agreement, such invalidity,
illegality or unenforceability shall not affect any other provision hereof (or
the remaining portion thereof) or the application of such provision to any
other persons or circumstances.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK;
PROVIDED HOWEVER THAT THE INCORPORACAO AND ANY CORPORATE ACTION REQUIRED TO
COMPLETE THE INCORPORACAO AS CONTEMPLATED BY THE INCORPORACAO AGREEMENT SHALL
BE GOVERNED BY THE LAWS OF THE FEDERATIVE REPUBLIC OF BRAZIL.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
COMPANHIA DE BEBIDAS DAS AMERICAS - AMBEV
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇ Ferro
Title: Director
by /s/ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
WITNESSES:
/s/ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇.▇.: 18984698-7
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇.: 7350876
CPF: ▇▇▇.▇▇▇.▇▇▇-▇▇
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INTERBREW S.A.,
by /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Zone President US-Latin America
WITNESSES:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
ID Card:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
ID Card:
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LABATT BREWING CANADA HOLDING LTD.,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Welwyn Limited, Director
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Rosencrantz Limited, Director
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Vice President
WITNESSES:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Driver License I.D. Number: 45352
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Driver License I.D. Number: 46422
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LABATT BREWING COMPANY LIMITED,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Corporate Secretary
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Zone President US-Latin America
WITNESSES:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Driver License I.D. Number:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Driver License I.D. Number:
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