February 12, 2020

Anheuser-Busch InBev/Grupo Modelo (DOJ 2012-13)

Deal SummaryCooperation | Conditions Precedent |Defense Strategy | Litigation Commitments | Remedy Commitments | Reverse Break Fees | Termination Provisions

(a)               Deal Summary. Anheuser-Busch InBev agreed to acquire Grupo Modelo on June 28, 2012 for $20.1 billion. In addition to commitments from Anheuser-Busch to divest assets in order to get the transaction approved, Anheuser-Busch also agreed to a $650 million reverse termination fee. The parties agreed that either party could abandon the transaction as of December 30, 2013 (18 months). If an antitrust investigation or litigation was the reason that the transaction had not yet closed, then either party could elect to extend the termination date by a period of 90 calendar days (21 months). On January 13, 2013, the DOJ filed a lawsuit to block the deal. The parties agreed to divest Modelo’s U.S. business to Constellation Brands Inc. on April 19, 2013, which divestiture was eventually approved by the district court on October 24, 2013.

(b)               Cooperation. § 7.02 (a),(b): (a) Prior to the Closing Date or the Settlement Date, as applicable, upon the terms and subject to the conditions of this Agreement, each of the parties hereto shall use their respective reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and assist and cooperate with the other parties and with each other in doing, all things necessary, proper or advisable (subject to applicable Law) to consummate and make effective the transactions contemplated hereby, including the Merger and the Offer (in the case of the Merger, prior to the Termination Date), including: (i) the preparation and filing of all filings, notices, notifications, petitions, requests, statements, folletos informativos, registrations and updates to registrations, submissions of information, applications and other documents with Governmental Authorities (together, “Filings”) necessary or advisable to consummate the transactions contemplated hereby, including the Merger and the Offer; and (ii) the taking of all such other actions as are necessary or advisable to obtain the Required Approvals or any other necessary or advisable consents, approvals, permits, waivers, authorizations, qualifications, clearances, expirations or terminations of waiting periods or non-actions (together, “Consents”) from or with respect to any Governmental Authority or other Person. In furtherance and not in limitation of the foregoing, each party shall use its reasonable best efforts to cooperate with the others in determining, including providing the other party with any information which is reasonably necessary to determine or to confirm, which Filings are required or advisable to be made with, and which Consents are required or advisable to be obtained from or with respect to, Governmental Authorities or other Persons in connection with the consummation of the transactions contemplated hereby (subject to any applicable confidentiality restrictions and applicable Law, provided, that any such party so restricted shall use its reasonable best efforts to provide such information in a manner that does not violate the applicable confidentiality restriction or applicable Law), and each party shall promptly after the date hereof (to the extent not made prior to the date hereof) (A) make or cause to be made all Filings required of such party in order to obtain all Required Approvals, including under the HSR Act and the Federal Law of Economic Competition (Ley Federal de Competencia Económica), and in order to obtain approval under any other applicable Antitrust Laws, (B) make or cause to be made all Filings required to be made with the CNBV and (C) comply with any request of any Governmental Authority in connection therewith for additional information, documents or other materials received by such party from such Governmental Authority in respect of such Filings or such transactions, including participating in meetings (whether substantive, reporting or courtesy) with officials of such Governmental Authority during the course of its review of this Agreement and the transactions contemplated hereby.

                        (b) To the extent not prohibited by the relevant Governmental Authority, the parties shall jointly participate in, and shall cooperate with each other with respect to, all discussions, negotiations and other communications with all Governmental Authorities and other Persons in connection with the Required Approvals or Consents. Each party shall cooperate, and cause its Representatives to cooperate, with the others and any Governmental Authority and such other Persons in furnishing all information reasonably necessary to obtain, or in connection with obtaining, any such Required Approval or Consent. If any information to be furnished by one party to another party contains confidential competitively-sensitive information, the disclosing party may restrict the receipt of such information to the receiving party’s external counsel; provided, that to the extent reasonably practicable the disclosing party also shall provide a redacted version of such information to the receiving party. In connection with the actions and other matters referenced in this Section 7.02, no party shall be required to take any action prohibited by applicable Law. To the extent not prohibited by the relevant Governmental Authority, without limiting the foregoing, each of the parties shall, and shall cause its Representatives to, (i) promptly and in reasonable detail inform the others of any written or material oral communication received from or given to any Governmental Authority or such other Persons, and provide the others with copies of any such written communication, (ii) permit the others to review in advance, to the extent practicable with reasonable time and opportunity to comment and consider in good faith the views of the others with respect to, any proposed submission, correspondence, Filing or other communication by any party to or with any Governmental Authority or such other Persons, including any submission, correspondence, Filing or other communication explaining or defending this Agreement or the transactions contemplated hereby or articulating any regulatory or competitive argument or responding to any request or objection made by any Governmental Authority or such other Persons, (iii) provide reasonable prior notice to and, to the extent practicable, consult with the others in advance of any meeting, material conference or material discussion with any Governmental Authority or such other Persons and (iv) give the others (including their outside counsel) the opportunity to attend and participate in such meetings, conferences and discussions. If reasonably requested by ABI or its Subsidiaries, and if not prohibited from doing so by the relevant Governmental Authority, the Company and its Subsidiaries shall, upon reasonable notice, cause an informed representative thereof to attend any one or more meetings, either by phone or in person, with ABI or its Subsidiaries before a Governmental Authority in support of obtaining the Required Approvals. In connection with the parties’ obligations under this Section 7.02(b), each party shall use its reasonable best efforts to ensure that the other parties are not prohibited by any Governmental Authority from participating in any meetings, discussions, negotiations, conferences or other communications with such Governmental Authority. Without limiting the parties’ obligations under this Section 7.02, other than in respect of the matters contemplated in Section 7.02(h), ABI’s decision with respect to matters relating to the Required Approvals or any Consent of any Governmental Authority will control.

(c)                Conditions Precedent. § 8.01(a)-(b): Conditions to the Merger. The consummation of the Merger shall be subject to the following conditions precedent, each of which shall have been satisfied, or waived by the applicable party indicated in the relevant subsection (it being understood that conditions that may be waived by only one party are conditions solely to such party’s obligations), prior to the Closing Date: . . .

                        (a) the Required Approvals shall have been obtained

                        (b) no preliminary, temporary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a Governmental Authority, nor any statute, rule, regulation or executive order promulgated or enacted by any Governmental Authority after the date hereof, shall be in effect that would make the Merger, the Offer and the transactions contemplated by this Agreement illegal or otherwise prevent the consummation thereof, unless waived by the Company and ABI;

(d)               Defense Strategy. § 7.02(b), (h): (b) To the extent not prohibited by the relevant Governmental Authority, the parties shall jointly participate in, and shall cooperate with each other with respect to, all discussions, negotiations and other communications with all Governmental Authorities and other Persons in connection with the Required Approvals or Consents. Each party shall cooperate, and cause its Representatives to cooperate, with the others and any Governmental Authority and such other Persons in furnishing all information reasonably necessary to obtain, or in connection with obtaining, any such Required Approval or Consent. If any information to be furnished by one party to another party contains confidential competitively-sensitive information, the disclosing party may restrict the receipt of such information to the receiving party’s external counsel; provided, that to the extent reasonably practicable the disclosing party also shall provide a redacted version of such information to the receiving party. In connection with the actions and other matters referenced in this Section 7.02, no party shall be required to take any action prohibited by applicable Law. To the extent not prohibited by the relevant Governmental Authority, without limiting the foregoing, each of the parties shall, and shall cause its Representatives to, (i) promptly and in reasonable detail inform the others of any written or material oral communication received from or given to any Governmental Authority or such other Persons, and provide the others with copies of any such written communication, (ii) permit the others to review in advance, to the extent practicable with reasonable time and opportunity to comment and consider in good faith the views of the others with respect to, any proposed submission, correspondence, Filing or other communication by any party to or with any Governmental Authority or such other Persons, including any submission, correspondence, Filing or other communication explaining or defending this Agreement or the transactions contemplated hereby or articulating any regulatory or competitive argument or responding to any request or objection made by any Governmental Authority or such other Persons, (iii) provide reasonable prior notice to and, to the extent practicable, consult with the others in advance of any meeting, material conference or material discussion with any Governmental Authority or such other Persons and (iv) give the others (including their outside counsel) the opportunity to attend and participate in such meetings, conferences and discussions. If reasonably requested by ABI or its Subsidiaries, and if not prohibited from doing so by the relevant Governmental Authority, the Company and its Subsidiaries shall, upon reasonable notice, cause an informed representative thereof to attend any one or more meetings, either by phone or in person, with ABI or its Subsidiaries before a Governmental Authority in support of obtaining the Required Approvals. In connection with the parties’ obligations under this Section 7.02(b), each party shall use its reasonable best efforts to ensure that the other parties are not prohibited by any Governmental Authority from participating in any meetings, discussions, negotiations, conferences or other communications with such Governmental Authority. Without limiting the parties’ obligations under this Section 7.02, other than in respect of the matters contemplated in Section 7.02(h), ABI’s decision with respect to matters relating to the Required Approvals or any Consent of any Governmental Authority will control.

                        . . . .

                        (h) Notwithstanding the last sentence of Section 7.02(b) and ABI’s rights to determine and implement the strategy and timing for making any offers or proposals for, or accepting or agreeing to, any Remedial Action pursuant to Section 7.02(c), ABI hereby acknowledges and agrees that the Company, solely on behalf of itself and its Subsidiaries, shall have the sole and exclusive right to discuss and negotiate with the Governmental Authorities in Mexico with respect to the Mexican Competition Matters and, in good faith and in consultation with ABI (as provided in Section 7.02(b)), to determine and implement the strategy and timing for making any offers or proposals for, or accepting or agreeing to, any Remedial Action solely in respect the Mexican Competition Matters; provided, however, that, to the extent not prohibited by the relevant Governmental Authority, the Company shall (i) promptly inform in reasonable detail ABI and its Representatives of any written or material oral communication relating to the Mexican Competition Matters received from or given to the Governmental Authorities in Mexico having jurisdiction over the Mexican Competition Matters, and provide ABI and its Representatives with copies of any such written communication, (ii) permit ABI to review in advance, to the extent practicable with reasonable time and opportunity to comment and consider in good faith the views of ABI and its Representatives with respect to, any proposed material communication by the Company or its Representatives to such Governmental Authorities, (iii) provide reasonable prior notice to and, to the extent practicable, consult with ABI and its Representatives in advance of any meeting, material conference or material discussion with such Governmental Authority and (iv) give ABI (including its outside counsel) the opportunity to attend and participate in such meetings, conferences or discussions. Notwithstanding Section 5.01(j), the Company shall not settle, compromise, discharge or agree to settle any of the Mexican Competition Matters without the prior written consent of ABI, which consent shall not be unreasonably withheld.

(e)                Litigation Commitments. § 7.02(c): (c) In connection with this Section 7.02, each of the parties hereto shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Authority with respect to the transactions contemplated hereby, and each party shall use its reasonable best efforts to: (i) defend any suit, action or other legal proceeding, whether judicial or administrative, relating to or arising under any Antitrust Law challenging this Agreement or the transactions contemplated hereby; (ii) avoid the entry of, or have vacated, overturned or terminated, including by appeal if necessary, any decree, order or judgment (whether preliminary, temporary or permanent, and whether for an injunction, temporary restraining order, stay or otherwise) that would reasonably be expected to restrain, prevent, materially impede, materially interfere with, or delay beyond the Termination Date the consummation of the transactions contemplated hereby; and (iii) avoid or eliminate, or minimize the impact of, each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority with respect to the transactions contemplated hereby, including by using its reasonable best efforts, subject to the immediately following sentence of this Section 7.02(c) and the provisions of Section 7.02(d), to propose, negotiate, commit to and effect any divestiture, hold separate condition or any other undertaking, condition, remedy, restriction, obligation, consent decree, settlement, stipulation, commitment, action or agreement (each, a “Remedial Action”), in each case as may be required in order to obtain any Required Approvals or other Consents of Governmental Authorities necessary to enable the consummation of the transactions contemplated hereby to occur no later than the Termination Date. Notwithstanding anything to the contrary in this Agreement, but subject to the immediately following proviso, it is understood and agreed that ABI (1) shall have the right, but not the obligation, in good faith, to oppose (through litigation, by refusing to accept or agree or consent to, or through other lawful means) any request, attempt or demand by any Governmental Authority or other Person for any Remedial Action with respect to any assets, brands, brand families, trademarks or other intellectual property rights, businesses, product lines (including production and distribution assets and rights relating thereto), contract rights or other tangible or intangible assets or property of ABI or the Company or their respective Subsidiaries or Affiliates, and (2) shall have the sole discretion and authority, in good faith and in consultation with the Company (as provided in Section 7.02(b)), to determine and implement the strategy and timing for making any offers or proposals for, or accepting or agreeing to, any such Remedial Action; provided that, notwithstanding the foregoing or anything to the contrary in this Agreement, but subject to the immediately following proviso, to the extent necessary to obtain the Required Approvals and any other required Consents of any such Governmental Authority or to otherwise take the actions contemplated by Section 7.02(a)(ii) (with respect to Consents from any Governmental Authority) and clauses (i), (ii) and (iii) of the first sentence of this Section 7.02(c) sufficiently in advance of the Termination Date to permit the consummation of the Merger by the Termination Date, ABI shall use its reasonable best efforts to take such actions (including offering, proposing, negotiating, committing to, accepting and agreeing to any Remedial Action) at least 90 days prior to the Termination Date (it being understood and agreed by the Company that, subject to ABI not taking any actions or failing to take any actions with the intention of making the Merger or the Offer not capable of receiving the Required Approvals prior to the Termination Date, and consulting with the Company as required hereunder, ABI shall not be in breach of its obligations under this Agreement solely by reason of the fact that it determines not to make offers or proposals for, or negotiate, commit to, accept or agree to, any such Remedial Action until 90 days prior to the Termination Date); provided, further, that, notwithstanding anything to the contrary in this Agreement (including the foregoing proviso), in no event shall ABI, the Company or any of their respective Subsidiaries or Affiliates be obligated to propose or agree to accept any Remedial Actions (A) the effectiveness or consummation of which are not conditional on the consummation of the Merger or (B) to the extent such Remedial Actions, individually or in the aggregate, would reasonably be expected to constitute a Regulatory MAE. In addition, it is understood and agreed that ABI and its Affiliates shall not be required to, and the Company and its Affiliates will not without the prior written consent of ABI, propose, negotiate, commit to or effect any Remedial Action whatsoever to obtain any Consent of any Person that is not a Governmental Authority if such Consent is not reasonably necessary to effect a Remedial Action required in order to obtain any Required Approvals or other Consents of Governmental Authorities.

(f)                Remedy Commitments. § 7.02(c)-(e): (c) Notwithstanding anything to the contrary in this Agreement, but subject to the immediately following proviso, it is understood and agreed that ABI (1) shall have the right, but not the obligation, in good faith, to oppose (through litigation, by refusing to accept or agree or consent to, or through other lawful means) any request, attempt or demand by any Governmental Authority or other Person for any Remedial Action with respect to any assets, brands, brand families, trademarks or other intellectual property rights, businesses, product lines (including production and distribution assets and rights relating thereto), contract rights or other tangible or intangible assets or property of ABI or the Company or their respective Subsidiaries or Affiliates, and (2) shall have the sole discretion and authority, in good faith and in consultation with the Company (as provided in Section 7.02(b)), to determine and implement the strategy and timing for making any offers or proposals for, or accepting or agreeing to, any such Remedial Action; provided that, notwithstanding the foregoing or anything to the contrary in this Agreement, but subject to the immediately following proviso, to the extent necessary to obtain the Required Approvals and any other required Consents of any such Governmental Authority or to otherwise take the actions contemplated by Section 7.02(a)(ii) (with respect to Consents from any Governmental Authority) and clauses (i), (ii) and (iii) of the first sentence of this Section 7.02(c) sufficiently in advance of the Termination Date to permit the consummation of the Merger by the Termination Date, ABI shall use its reasonable best efforts to take such actions (including offering, proposing, negotiating, committing to, accepting and agreeing to any Remedial Action) at least 90 days prior to the Termination Date (it being understood and agreed by the Company that, subject to ABI not taking any actions or failing to take any actions with the intention of making the Merger or the Offer not capable of receiving the Required Approvals prior to the Termination Date, and consulting with the Company as required hereunder, ABI shall not be in breach of its obligations under this Agreement solely by reason of the fact that it determines not to make offers or proposals for, or negotiate, commit to, accept or agree to, any such Remedial Action until 90 days prior to the Termination Date); provided, further, that, notwithstanding anything to the contrary in this Agreement (including the foregoing proviso), in no event shall ABI, the Company or any of their respective Subsidiaries or Affiliates be obligated to propose or agree to accept any Remedial Actions (A) the effectiveness or consummation of which are not conditional on the consummation of the Merger or (B) to the extent such Remedial Actions, individually or in the aggregate, would reasonably be expected to constitute a Regulatory MAE. In addition, it is understood and agreed that ABI and its Affiliates shall not be required to, and the Company and its Affiliates will not without the prior written consent of ABI, propose, negotiate, commit to or effect any Remedial Action whatsoever to obtain any Consent of any Person that is not a Governmental Authority if such Consent is not reasonably necessary to effect a Remedial Action required in order to obtain any Required Approvals or other Consents of Governmental Authorities.

                        (d) For purposes of Section 7.02(c), except to the extent expressly waived in writing by ABI in its sole discretion, one or more Remedial Actions shall constitute a “Regulatory MAE” if and to the extent such Remedial Actions, individually or in the aggregate with all other Remedial Actions taken together, either (i) would reasonably be expected to result (after giving effect to any net after-tax proceeds or other benefits reasonably expected to result from any such Remedial Action) in adverse valuation effects (measured on a net present value basis) to (A) the business, results of operations or financial condition of (x) the Company or its Subsidiaries, or (y) ABI or its Subsidiaries either before or after giving effect to the Merger and the Offer or (B) any anticipated benefits (net of any costs associated with or relating to such anticipated benefits so affected) reasonably expected to result to ABI, the Company and their respective Subsidiaries from the Merger or the Offer, that, in the case of (A) and (B), individually or in the aggregate exceed $3 billion or (ii) would require ABI, the Company or any of their respective Subsidiaries or Affiliates to divest, sell, dispose, assign, split (with respect to asset, brand, brand family, trademarks or geography), license any rights with respect to or enter into a co-existence agreement or agreement providing for a covenant not to sue, or take or agree to other actions, commitments or restrictions (including with respect to marketing) with respect to any Major Brand, any Major Brand Assets or a Major Brand Business. The following shall be deemed to constitute “Major Brands”: the Budweiser, Bud Light, Michelob, Corona or Modelo trademarks, brands or brand families or any extension or derivative thereof reasonably considered to be within such trademark, brand or brand family. The following shall be deemed to constitute “Major Brand Assets”: any tangible or intangible assets or property (including trademarks, trade names, trade dress and other intellectual property rights) and contract or other rights owned, used or held for use by ABI, the Company, Crown JV or any of their respective Subsidiaries primarily in connection with, or otherwise to the extent primarily relating to, the manufacture, marketing, sale and/or distribution of any product(s) sold under any Major Brand(s). “Major Brand Business” means: the operation of any of the Major Brands businesses.

                        (e) For purposes of the definition of “Regulatory MAE”, adverse valuation effects shall include any losses, costs, fines, penalties, expenses or damages incurred or paid in connection with, or to the extent arising from, any Remedial Action (including any losses, costs, fines, penalties, expenses or damages incurred or paid in connection with or to the extent arising from (x) any current or future investigations, demands or claims against or involving the Company or its Subsidiaries by the Mexican Federal Competition Commission (Comisión Federal de Competencia) in respect of any actions, or failures to act, by the Company or any of its Subsidiaries, whether prior to or after the date hereof (the “Mexican Competition Matters”) or (y) any claim by any third party that (A) the Company, ABI or any of their respective Subsidiaries has breached an obligation to such third party as a result of its compliance with the requirements of a Remedial Action or (B) its consent was required to effect a Remedial Action (in the case of clause (y), to the extent of losses, costs, fines, penalties, expenses or damages reasonably expected to be incurred or paid in connection therewith, or to the extent arising therefrom)). The parties understand and agree that a reasonable monetary estimate of qualitative effects of a Remedial Action, including without limitation, any reputational harm, competitive disadvantage, lost business opportunity or other qualitative harm, shall be included, without duplication, in the determination referenced in clause (i) of Section 7.02(d).

(g)               Reverse Break Fees. § 10.04(a)-(b): Termination Fee: (a) Subject to Section 7.02(f), in the event that (i) this Agreement is terminated by ABI or the Company pursuant to Section 10.01(b) or Section 10.01(c) (in the case of Section 10.01(c), as a result of any law, regulation, judgment, injunction, order or decree based on or arising under any Antitrust Law (other than any Antitrust Law under the Laws of Mexico)) and (ii) as of the date of termination, (A) any of the conditions set forth in Section 8.01(a) (other than in respect of the Required Approval set forth in item 2 of Annex A), Section 8.01(b) or Section 9.01(c) (in the case of Section 8.01(b) or Section 9.01(c), as a result of any injunction, judgment, order, decree, ruling, law, statute, rule, regulation or executive order in each case based on or arising under any Antitrust Law (other than any Antitrust Law under the Laws of Mexico)) has not been satisfied and (B) all other conditions waivable unilaterally by ABI set forth in Article 8 or, if termination occurs following the Effective Time, Article 9 shall have been satisfied or waived (or, in the case of conditions that by their nature are to be satisfied on the Closing Date, shall be capable of being satisfied on such date if such date were to occur), then ABI Holdings shall, and ABI shall cause ABI Holdings to, pay to the Company, acting solely as agent in accordance with Section 10.04(b) on behalf of (x) if such termination occurs prior to the Effective Time, the holders of Company Series A Shares and Company Series C Non-Voting Shares, or (y) if such termination occurs following the Effective Time, the holders of Company Series C Shares other than ABI or its Affiliates (the holders referenced in clause (x) or (y), as applicable, the “Holders”), to be allocated in each case on a pro rata basis as determined by the Company, a cash termination fee equal to $650,000,000 in the aggregate (the “Termination Fee”).

                        (b) In the event that the Termination Fee becomes payable pursuant to Section 10.04(a), ABI Holdings shall, and ABI shall cause ABI Holdings to, remit to the Company or the Company’s designee (as directed by the Company), on behalf of the Holders and for distribution by the Company to the Holders, an amount equal to the Termination Fee, less all Antitrust Damages (as defined below) (the “Net Termination Fee”) by wire transfer of immediately available funds within two Business Days of the date of termination of this Agreement. The payment of the Net Termination Fee by ABI Holdings to the Company shall be the sole obligation of ABI Holdings to pay the Termination Fee (and, to the extent of ABI’s obligation to cause ABI Holdings to make such payment, the sole obligation of ABI), it being understood that no shareholder of the Company shall have any recourse or rights against ABI, ABI Sub or ABI Holdings with respect to the Company’s actions as agent on behalf of the Holders or the Company’s obligation to distribute the Net Termination Fee or the Termination Fee to the Holders. Notwithstanding any other provision of this Agreement to the contrary, no portion of the Termination Fee shall become payable while the Company, any of the Holders or Diblo pursues a claim in respect of one or more breaches by ABI, ABI Holdings or ABI Sub of any of their respective covenants or agreements contained in Section 7.02 or any other obligation or provision in this Agreement to the extent such other obligation or provision relates to Antitrust Law matters (an “Antitrust Claim”), until such litigation shall have been finally resolved by a final, non-appealable judgment of a court of competent jurisdiction or mutually satisfactory release with prejudice of any and all claims. The amount of the Termination Fee shall be reduced by an amount equal to the product of (x) the percentage of the total outstanding capital stock of the Company represented by the Company Shares, multiplied by (y) the sum of all amounts paid or payable by ABI, ABI Sub or ABI Holdings in respect of any such Antitrust Claim (including any interest or penalties) (such product, the “Antitrust Damages”). The Company shall receive and hold the Termination Fee or the Net Termination Fee, as applicable, as agent on behalf of the Holders. Within five Business Days of receipt by the Company or the Company’s designee of the Termination Fee or the Net Termination Fee, the Company shall, or shall cause such designee to, pay the Termination Fee or the Net Termination Fee, as the case may be, on a pro rata basis as determined by the Company, to the Holders of record of Company Series A Shares and Company Series C Non-Voting Shares, or, if the termination of this Agreement occurs following the Effective Time, the Holders of Company Series C Shares other than ABI or its Affiliates, in each case as of the open of business in Mexico City, Mexico on the date of the Company’s public announcement of the termination of this Agreement, it being understood that each such Holder and not the Company shall be responsible for the payment of any applicable taxes in connection with the receipt by such Holder of his or her pro rata allocation of the Termination Fee or the Net Termination Fee.

                        (c) Notwithstanding any other provision of this Agreement to the contrary, the written acceptance by the Company of the payment by ABI Holdings of the Termination Fee or the Net Termination Fee shall be deemed to be an irrevocable waiver by the Company, on behalf of itself and all of its shareholders, and Diblo of any and all Antitrust Claims against ABI, ABI Sub and ABI Holdings, and shall extinguish any right of the Company, on behalf of itself and its shareholders, and Diblo to sue or pursue any such Antitrust Claim against any of ABI, ABI Sub and ABI Holdings, and in such event the Company and Diblo shall terminate with prejudice any pending litigation pursuing any such Antitrust Claim commenced prior to accepting the Termination Fee or the Net Termination Fee (it being understood that the failure by the Company to return the Termination Fee or the Net Termination Fee, as applicable, to ABI Holdings within five (5) Business Days of payment to the Company thereof shall be deemed to be a written acceptance of the Termination Fee or the Net Termination Fee, as the case may be, for purposes of this Section 10.04(c)); provided, however, that nothing in this Section 10.04(c) shall limit or affect in any way the ability of the Company to accept the Net Termination Fee and enforce, prior to the payment of the Termination Fee or Net Termination Fee, as the case may be, any judgment obtained against ABI, ABI Holdings or ABI Sub or settlement entered into with ABI, ABI Holdings or ABI Sub following the final resolution of litigation relating to any Antitrust Claim as contemplated in Section 10.04(b).

                        (d) The parties hereto acknowledge that the Company shall have the sole and exclusive right, on behalf of the Holders, to enforce the obligation of ABI and ABI Holdings to pay the Termination Fee (including the Net Termination Fee) in accordance with the terms of this Agreement through any suit, action or other legal proceeding. In exchange for the right to receive its portion of the Termination Fee or the Net Termination Fee as provided herein, each Holder shall be deemed to have agreed that the Company shall be appointed, authorized and empowered, on behalf of such Holder, to act as sole and exclusive agent and attorney-in-fact, under any and all applicable Laws, with the sole and exclusive right to enforce (whether through any suit, action or proceeding for specific performance or any other remedy at law or in equity) on behalf of such Holder ABI’s or ABI Holdings’ obligation to pay the Termination Fee or the Net Termination Fee, as the case may be, in accordance with the terms of this Agreement (including the right to refrain from enforcing such obligation on behalf of such Holder) and to take any and all actions that may be necessary or desirable, as determined by the Company in its sole discretion, in connection therewith, and each such Holder shall be deemed to have waived any right to enforce such obligation with respect to the Termination Fee or the Net Termination Fee, as the case may be, individually. Without prejudice to the Company’s right to obtain an injunction or specific performance of this Agreement or any other remedy to which it is entitled at law or in equity, the parties hereto acknowledge and agree that in the event that any suit, action or other proceeding is brought by the Company alleging any Antitrust Claim, the amount of the Termination Fee, to the extent already paid to the shareholders pursuant to this Section 10.04, shall be credited against any Antitrust Damages that the shareholders of the Company may be entitled to receive.

                        (e) The parties acknowledge and agree that the agreements contained in this Section 10.04 are an integral part of this Agreement and the transactions contemplated hereby and that, without these agreements, the Company would not have entered into this Agreement; accordingly, if ABI or ABI Holdings fails promptly to pay the Termination Fee or the Net Termination Fee when due pursuant to and in accordance with this Section 10.04 and, in order to obtain such payment, the Company commences a suit, action or other proceeding that results in a judgment against ABI or ABI Holdings directing it to pay such Termination Fee or Net Termination Fee, or if payment of any portion of the Termination Fee is deferred pursuant to Section 10.04(b) while litigation is ongoing, ABI and ABI Holdings, as applicable, shall pay to the Company the amount of the Termination Fee together with interest on the amount of the Termination Fee from the date such payment was required to be made until the date of receipt of payment by the Company at LIBOR in effect on the date such payment was required to be made. In no event shall the Termination Fee referred to in this Section 10.04 be paid (i) on more than one occasion or (ii) following an exercise by the Company of its call option held in relation to Crown JV set forth Section 12.8 or 12.9 of the Crown JV Agreement (x) in violation of Section 5.01(g) or Section 5.01(h) or (y) if such exercise shall have materially contributed to the failure to obtain the Required Approval set forth in item 2 of Annex A. ABI and ABI Holdings’ obligation to pay the Termination Fee shall survive the termination of this Agreement, subject to the terms and conditions hereof.

(h)               Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement. § 10.01(b)-(c): Termination. This Agreement may be terminated and the Offer may be abandoned at any time prior to the Settlement Date: . . .

                        (b) by the Company or ABI if the Merger has not been consummated on or before December 30, 2013 (as it may be extended, the “Termination Date”); provided, that if on the date of such written election (i) either of the conditions set forth in Section 8.01(a) or Section 8.01(b) has not been satisfied or (ii) litigation with any Governmental Authority that is challenging the consummation of the transactions contemplated hereby under Antitrust Laws has been commenced, then, at the written election of the Company or of ABI, the Termination Date may be extended by a period of 90 calendar days (and in the case of such extension, any reference to the Termination Date in any other provision of this Agreement shall be a reference to the Termination Date, as extended); provided, further, that the right to terminate this Agreement pursuant to this Section 10.01(b) shall not be available to any party whose breach of any provision of this Agreement results in the failure of the Merger to be consummated by the Termination Date;

                        (c) by the Company or ABI if there shall be any law or regulation enacted after the date hereof that makes consummation of the Merger or Offer illegal or by the Company or ABI if any judgment, injunction, order or decree of any Governmental Authority having competent jurisdiction enjoins the consummation of the Merger or Offer and such judgment, injunction, order or decree shall have become final and nonappealable;