EXHIBIT
4.17
INTERBREW
S.A.
Vaartstraat
94
B-3000,
Leuven
Belgium
Companhia
de Bebidas das Américas — AmBev
Rua
Dr.
Renato Paes de Barros 1017
04530-001,
São Paulo, SP
Federative
Republic of Brazil
Attn:
Mr.
Felipe Dutra
Labatt
Brewing Company Limited
207
Queen's Quay West, Suite #299
Toronto,
ON M5J 1A7
Canada
Attn:
Mr.
James V. West
Dear
Sirs
and Mesdames:
Re:
Confirmation
of Intellectual Property and Hedging Arrangements
Reference
is made to Section 5.01(c) of the Incorporação Agreement dated as of
March 3, 2004 (the “Incorporação
Agreement”)
among
Companhia de Bebidas das Américas — AmBev (“AmBev”),
Interbrew S.A. (“Interbrew”),
Labatt Brewing Company Limited (“LBCL”)
and
Labatt Brewing Canada Holding Ltd., which requires, in part, that Interbrew,
AmBev and LBCL use their respective commercially reasonable efforts to negotiate
in good faith new intercompany agreements between LBCL and the “Labatt
Subsidiaries” (as such term is defined in the Incorporação Agreement) (LBCL and
the Labatt Subsidiaries being referred to collectively herein as the
“LBCL
Companies”),
on
the one hand, and Interbrew and certain of its subsidiaries (Interbrew and
such
subsidiaries being referred to collectively herein as the “Interbrew
Companies”),
on
the other hand, or enter into modifications or amendments to any such existing
intercompany agreements, as may be necessary or advisable, in each case on
mutually agreeable term.
Intellectual
Property Licensing
This
letter confirms our discussions and agreement relating to the intellectual
property arrangements currently in place as between the Interbrew Companies
and
the LBCL Companies. Specifically, the parties hereto acknowledge and agree
that
certain intellectual property owned by one or more Interbrew Companies is
currently being used by one or more LBCL Companies and that, conversely,
certain
intellectual property owned by one or more LBCL Companies is currently being
used by one or more Interbrew Companies. In accordance with the Labatt Services
Agreement between LBCL and Interbrew, dated August 27, 2004, from and after
the
closing date of the Incorporação Agreement (the “Closing
Date”),
Interbrew shall bear certain technology and patent development costs incurred
by
the LBCL Companies and Interbrew shall be the exclusive owner of any and
all
resulting intellectual property created or developed by or for the LBCL
Companies from and after the Closing Date and up to the termination of the
Labatt Services Agreement between Interbrew and Labatt of even date herewith
(the “Labatt
Services Agreement”)
where
such intellectual property was created or developed with the aid of or with
funds provided by Interbrew (collectively, the “Post-Closing
IP”).
For
greater certainty, nothing in this letter shall affect the ownership of,
or the
arrangements of the parties in respect of, any intellectual property created
or
developed by or for LBCL prior to the Closing Date and after the termination
of
the Labatt Services Agreement.
Having
regard to the arrangements referenced above and pending the negotiation and
completion of new intercompany agreements as contemplated by the Incorporação
Agreement, including appropriate intellectual property licensing and related
agreements between the relevant Interbrew Companies and LBCL, Interbrew,
AmBev
and LBCL hereby confirm and agree that Interbrew shall be the exclusive owner
of
any and all Post-Closing IP and, as such, shall be entitled to, and LBCL
shall
pay to Interbrew, arm's length royalties or other remuneration in respect
of the
LBCL Companies' use of any and all such Post-Closing IP. Such remuneration
shall
be paid by LBCL in accordance with periodic invoices issued to LBCL by Interbrew
in respect thereof or in accordance with such other commercially reasonable
alternative remuneration and payment method as Interbrew and LBCL may determine,
following a post-Closing Date analysis by Interbrew of available alternative
methods and good faith negotiations between Interbrew and LBCL in respect
thereof. Without limiting the generality of the foregoing, the parties hereto
agree that an agreement between Interbrew and LBCL will be entered into,
which
will provide, among other things, that: (i) the Post-Closing IP will, to
the
extent permitted by law, constitute “work made for hire” and will otherwise be
assigned to Interbrew by the LBCL Companies; and (ii) the LBCL Companies
shall
cooperate with any and all prosecution efforts by Interbrew in respect of
the
Post-CIosing IP, including, without limitation, the procurement from employees
of patent applications and assignments, the execution of documents reasonably
requested by Interbrew and the provision of managerial authority to Interbrew
with respect to relevant employees.
Hedging
Arrangements
This
letter further confirms our discussions and agreement relating to certain
forward foreign exchange hedging arrangements entered into or undertaken
by
Brandbrew S.A.
(“Brandbrew”),
an
Interbrew subsidiary, with or at the request of LBCL from time to time
(collectively, the “Brandbrew
Arrangements”).
Having
regard to the arrangements referenced above and pending the negotiation and
completion of a formal agreement between LBCL and Brandbrew in respect of
the
Brandbrew Arrangements, Interbrew, AmBev and LBCL hereby confirm and agree
that
the following procedures and conditions shall apply from and after the Closing
Date in respect thereof:
| |
1.
|
Labatt
shall confirm its hedging requirements, in writing, on it monthly
basis to
Brandbrew;
|
| |
2.
|
All
forward foreign exchange contracts shall take place at the European
Central Bank (ECB) rate as reported by Bloomberg on the 15th
day of each month, modified as follows: plus or minus 0.3% margin,
plus or
minus relevant market forward points as calculated by
Bloomberg;
|
| |
3.
|
During
the last week of each calendar month, Brandbrew shall provide to
LBCL a
summary of the forward foreign exchange contracts entered into
with LBCL
during such month; and
|
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4.
|
Brandbrew
shall, on an ongoing basis, monitor and manage LBCL's interest
rate
exposure and make timely recommendations to LBCL regarding actions
and
positions to be taken by LBCL in the
market.
|
* * *
Each
of
Interbrew, AmBev and LBCL shall from time to time execute or procure such
documents and other assurances as may be reasonable or advisable to give
effect
to the provisions of this confirmation letter. In addition, each of Interbrew
and LBCL shall cause its respective affiliates to do all such things and
to
execute or procure all such documents and other assurances as may be necessary
or desirable to give effect to the provisions hereof.
No
modification of or amendment to this confirmation letter shall be effective,
valid or binding unless made in writing and signed by all parties.
This
confirmation letter shall be governed by and construed in accordance with,
and
the rights of the parties shall be governed by, the laws of the State of
New
York and the parties hereby consent to the exclusive jurisdiction of the
courts
of the State of New York to hear and determine any and all disputes, actions
and
proceedings arising out of this confirmation letter.
Please
indicate your acknowledgement, acceptance and agreement of and to the foregoing
by signing and returning to the undersigned the duplicate copies of this
confirmation letter enclosed herewith. Upon execution by all parties this
confirmation letter will become a valid and binding agreement between us.
This
confirmation letter may be executed in separate
counterparts,
each of which shall be considered an original and which, taken together,
shall
constitute a single agreement.
Very
truly yours,
INTERBREW
S.A.
Title: Vice
President Planning and Control
By:
/s/
Catherine Noirfalisse
Acknowledged
and agreed to by:
COMPANHIA
DE BEBIDAS DAS AMÉRICAS - AMBEV
Title:
Title:
LABATT
BREWING COMPANY LIMITED
