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PROMISSORY PURCHASE AGREEMENT
This Promissory Purchase Agreement (the "Promissory Agreement") dated as of
January 3, 2001 is made by and between Compania de Inversiones Mobiliarias
Limitada, a limited liability company organized and existing under the laws of
the Republic of Chile ("CIMOL"), Compania de Petroleos de Chile S.A. ("COPEC") a
public corporation organized and existing under the laws of Republic of Chile,
and Anheuser-Busch International Holdings, Inc. ("ABIH"), a Delaware
corporation. CIMOL, COPEC and ABIH are also referred to herein individually as a
"Party" and collectively as the "Parties".
1. BACKGROUND
(a) CIMOL is the owner of a total of 23,887,716 fully subscribed and
paid-up shares of the same unique series of Compania Cervecerias Unidas
S.A. ("CCU") (the "Shares"), which together constitute and represent
7.50% of all of the validly issued, subscribed and paid-up shares of
CCU. The foregoing is evidenced in the Shareholders' register of CCU,
folio No. 11566-5, and by shareholders certificate No. S 30 274.
(b) ABIH desires to purchase and acquire (for itself or for the person it
designates), and CIMOL desires to sell, assign and transfer the Shares
in accordance with the terms and conditions of this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF CIMOL AND COPEC
CIMOL and COPEC represent and warrant to ABIH that on this date and on the
Closing Date (as hereinafter defined):
(i) CIMOL is a duly organized and validly existing corporation, subsidiary
of COPEC, has sufficient capacity to freely dispose of its assets,
including the Shares, and is authorized to enter into this Promissory
Agreement and the Stock Purchase Agreement (as hereafter defined) and
to fully comply with all of its obligations.
(ii) CIMOL is the absolute owner and, in accordance with the terms of this
Promissory Agreement, may dispose of the Shares freely and without any
limitation, and that the Shares have been validly issued and are free
from any pledge, attachment, usufruct, prohibition, litigation,
cancellation clause, shareholders' agreement, promissory agreement or
any other measure that might impede the free transfer thereof
("Encumbrance").
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(iii) This Promissory Agreement and the Stock Purchase Agreement do not
violate any law in force or administrative rules, judicial resolutions,
arbitral awards or any other legal provision, contract or private
agreement executed by or binding upon CIMOL and COPEC, which may be
applicable.
(iv) This Promissory Agreement and the Stock Purchase Agreement do not give
rise to or constitute a breach of any legal or contractual obligation
assumed by or binding upon CIMOL and COPEC.
(v) The Shares represent on the date hereof 7.50% of all issued and
subscribed shares of CCU and of the corresponding financial and voting
rights thereof. CIMOL and COPEC have not negotiated any special
preferential rights with respect to the Shares to subscribe to any
future capital increase of CCU. On the date of this Promissory
Agreement, there is no claim or proceeding of lost certificates being
processed with respect to the Shares.
(vi) Through the execution of the Stock Purchase Agreement ABIH shall
acquire good and valid title to the Shares, free of any Encumbrance.
(vii) There are no actions, lawsuits or proceedings pending or initiated
against CIMOL or COPEC before any jurisdictional, ordinary or arbitral
entity or governmental authority that prohibit, oppose or impede the
execution of this Promissory Agreement and/or the fulfillment of the
obligations generated thereby with respect to CIMOL and COPEC.
(viii) Their appearing representatives are duly authorized and empowered to
sign this Promissory Agreement and the Stock Purchase Agreement and to
assume all of the obligations contained therein and in the Stock
Purchase Agreement.
(ix) Finally, CIMOL and COPEC represents and warrants that the execution of
the Stock Purchase Agreement constitutes an absolute, irrevocable and
unconditional obligation and undertaking of CIMOL and COPEC.
3. REPRESENTATIONS AND WARRANTIES OF ABIH.
ABIH represents and warrants to CIMOL and COPEC that on this date and on the
Closing Date:
(i) It is a duly organized and validly existing corporation, has sufficient
capacity to freely dispose of its assets and is authorized to enter
into this Promissory Agreement and the Stock Purchase Agreement and to
fully comply with all of its obligations.
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(ii) This Promissory Agreement and the Stock Purchase Agreement do not
contravene any of the provisions set forth in its corporate charter,
nor result in a breach thereof on its part.
(iii) Its appearing representatives are duly authorized and empowered to sign
this Promissory Agreement and the Stock Purchase Agreement and to
assume all of the obligations contained therein and in the Stock
Purchase Agreement.
(iv) There are no actions, investigations, lawsuits or proceedings against
it that prohibit, oppose or impede the execution of this Promissory
Agreement and the Stock Purchase Agreement and/or the fulfillment of
the obligations generated by virtue thereof.
(v) This Promissory Agreement and the Stock Purchase Agreement do not
violate any law in force or administrative rules, judicial resolutions,
arbitral awards or any other applicable legal provision, contract or
private agreement executed by or binding upon ABIH which may be
applicable.
(vi) This Promissory Agreement and the Stock Purchase Agreement do not give
rise to or constitute a breach of any legal obligation assumed by or
binding upon ABIH.
(vii) Finally, ABIH represents and warrants that the execution of the Stock
Purchase Agreement constitutes an absolute, irrevocable and
unconditional obligation and undertaking of ABIH.
4. PROMISE TO ENTER INTO THE STOCK PURCHASE AGREEMENT
Subject to the provisions of this Promissory Agreement, the Parties agree and
irrevocably undertake, pursuant to Article 1554 of the Civil Code of Chile, to
enter into a stock purchase agreement (the "Stock Purchase Agreement") under
which CIMOL shall sell, assign and transfer to ABIH, or the Person it designates
in accordance with this Promissory Agreement, all the Shares; and ABIH, or the
Person it designates in accordance with this Promissory Agreement, shall
purchase, acquire and accept the Shares from CIMOL, at the purchase price set
forth in Article Six below. The Stock Purchase Agreement must be executed by the
Parties in a public deed before Mr. Jose Musalem Saffie, Chilean Notary Public,
or whomsoever succeeds or replaces him, on the Closing Date. The non-attendance
by one of the Parties at the execution of the Stock Purchase Agreement shall be
evidenced by a certificate issued by such Notary.
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5. CLOSING
(a) The Parties undertake to sign the Stock Purchase Agreement (the
"CLOSING") on January 10, 2001 (the "CLOSING DATE").
(b) The Parties undertake to carry out, on or prior to the Closing Date,
all other acts and to sign all other documents, that are necessary for
the complete fulfillment of the Stock Purchase Agreement and the
transfer of the Shares to ABIH, including the inscription thereof in
the Shareholders' Register of CCU in the name thereof, free of any
Encumbrance.
(c) CIMOL undertakes to deliver the certificates representing the Shares to
ABIH on the Closing Date.
6. PRICE
(a) The purchase price of the Shares shall be the total amount of US$
119,438,580 which is US$ 25.00 per CCU ADR or US$ 5.00 per CCU share.
(b) In case ABIH is not able to purchase on or before the Closing Date with
the assistance of CIMOL and/or COPEC, an additional amount of CCU
shares (other than the Shares) that represent at least 2.5% of the
stock capital of CCU, the purchase price to be paid by ABIH to CIMOL
will be the total amount of US$ 117,049,808 which is US$ 24.5 per CCU
ADR or US$ 4.90 per CCU share, instead of US$ 25.00 per CCU ADR or US$
5.00 per CCU share.
(c) The purchase price of the Shares in such amount ("Purchase Price") will
be paid by ABIH to CIMOL in US dollars (and not in its equivalent in
Chilean pesos) on the Closing Date, by delivering a official check or
bank draft or similar document written by Citibank, New York to the
order of COPEC. At the time of such delivery, CIMOL will deliver to
ABIH a duly signed share transfer document and the share certificate or
certificates evidencing CIMOL' ownership of the Shares.
7. WAIVER OF ACTION FOR TERMINATION AND INDEMNIFICATION
(a) The Parties agree that they will be responsible for the breach of their
respective obligations under this Promissory Agreement. The performance
of the Stock Purchase Agreement is an absolute, irrevocable and
unconditional undertaking of the Parties. Thus, the Parties hereby
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waive the right to request the termination of this Promissory Agreement
granted to them by paragraph 2 of Article 1489 of the Civil Code of
Chile, agreeing that in the event of a breach by either of the Parties
of the Stock Purchase Agreement, the non-breaching Party may only
request specific performance, with indemnification for damages.
(b) Without prejudice to the foregoing provision, the breach by one of the
Parties of any obligation of this Promissory Agreement or the Stock
Purchase Agreement shall oblige the breaching Party to indemnify and
fully reimburse the non-breaching Party for the damages it suffered.
8. LEGISLATION
This Promissory Agreement shall be governed in accordance with the laws of the
Republic of Chile.
9. ENTIRE AGREEMENT
This Agreement and the Stock Purchase Agreement constitute the entire agreement
among the Parties with respect to the subject matter thereof and replace all
prior agreements, understandings and negotiations among the parties, written as
well as verbal, with respect to the subject matter thereof. The Parties have not
made or relied upon any representation, statement, incentive, promise,
undertaking, condition or warranty that has not been expressly set forth in this
document.
10. NOTICES
All notices, requests or other communications to the Parties must be made in
writing and sent to the address or fax number that such Party sets forth below,
by hand, Federal Express or other internationally known courier (a "Qualified
Courier") to be delivered the following business day (or closest equivalent), or
by a fax transmission:
If to CIMOL
Compania de Inversiones Mobiliarias Limitada
Agustinas N(0)1382, Santiago, Chile
Attn: Mr. Ramiro Mendez Urrutia and Mr. Ricardo Budinich
Phone: 56-2 690-7000
Fax: 56-2 696-2595
If to COPEC
Compania de Petroleos de Chile S.A.
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Agustinas 1382, Santiago, Chile
Attn: Mr. Jorge Bunster or Mr. Ramiro Mendez
Phone: 56-2 -690-7000
Fax: 56-2- 696- 2595
If to ABIH
Anheuser-Busch International, Inc.
One Busch Place
St. Louis Missouri 63118
Attn: Executive Vice President - Business Development
Phone: 1-314-577-4404
Fax: 1-314-577-0745
Carey y Cia Ltda. Abogados
Miraflores 222, piso 24, Santiago, Chile
Att: Mr. Jorge Carey Tagle and/or Mr. Jose Antonio Silva Bafalluy
Phone: 56-2-365-7201
Fax: 56-2-633-1980
All notices or other communications sent in accordance with this article 12
shall be considered delivered (a) if sent by Qualified Courier, three business
days after being delivered to the Qualified Courier, (b) if by fax, when the
sending machine receives electronic confirmation of receipt by the receiving
machine, or (c) in any other form, upon delivery by hand to such address (or
when the notice to such address is refused).
11. NOTICES AND PRESS RELEASES
Neither Party will give notice or make any press release without giving the
other Party reasonable opportunity to comment and approve. However, such
approval shall not be unreasonably withheld or delayed.
12. EXPENSES
Each party shall pay its own expenses relating to the preparation, negotiation
and the Closing of this Promissory Agreement.
13. PARTIAL INVALIDITY
In the event that any provision of this Promissory Agreement is declared
illegal, void or ineffective, the remainder of this Promissory Agreement shall
continue in full force and effect and the application of such provision to other
persons or circumstances shall be interpreted so as to reasonably reflect the
intention of the Parties. The Parties also agree to replace such illegal, void
or
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ineffective provision of this Promissory Agreement with a valid and effective
provision that achieves, to the extent possible, the financial, commercial and
other purpose that the illegal, void or ineffective provision tried to achieve.
IN WITNESS WHEREOF, the undersigned, thereunto duly authorized, have hereunto
set their respective hands as of the day and year first above written.
COMPANIA DE INVERSIONES MOBILIARIAS LIMITADA
By: /s/ Ramiro Mendez Urrutia
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Name: Mr. Ramiro Mendez Urrutia
Title: Attorney in fact
By: /s/ Ricardo Budinich Diez
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Name: Mr. Ricardo Budinich Diez
Title: Attorney in fact
COMPANIA DE PETROLEOS DE CHILE S.A.
By: /s/ Ramiro Mendez Urrutia
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Name: Mr. Ramiro Mendez Urrutia
Title: Attorney in fact
By: /s/ Ricardo Budinich Diez
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Name: Mr. Ricardo Budinich Diez
Title: Attorney in fact
ANHEUSER-BUSCH INTERNATIONAL HOLDING, INC.
By: /s/ Jorge Carey Tagle
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Name: Mr. Jorge Carey Tagle
Title: Attorney in fact
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