Exhibit 2.1
EXECUTION COPY
AMENDMENT NO. 1 dated as of
January 2, 2007 (this “ Amendment ”) to the
Agreement to Establish Joint Venture, dated July 17, 2006 (the
“ Agreement ”), between Barton Beers, Ltd., a
corporation incorporated under the laws of the State of Maryland
(“ Barton ”), and Diblo, S.A. de C.V., a
sociedad anónima de capital variable organized under the laws
of Mexico (“ Diblo ”).
WHEREAS the parties hereto have
agreed to certain changes to the Agreement as set forth
herein;
NOW, THEREFORE, in consideration of
the foregoing and the mutual agreements herein set forth, the
parties hereto agree as follows:
SECTION 1. Definitions .
Capitalized terms used but not otherwise defined herein have the
meanings assigned to them in the Agreement.
SECTION 2. Amendments to Article
1 . (a) Section 1.1 is hereby amended by deleting the
definition “Related Agreements” and replacing it with
the following definition:’
“‘ Related
Agreements ’ means, collectively, the Company LLC
Agreement, the Barton Contribution Agreement, the Importer
Agreement, the Brewery Purchase and Sale Agreements, the
Sub-license Agreement, the Administrative Services Agreement, the
CBI Guarantee and the other agreements and documents executed and
delivered by the Modelo Party or Barton or their Affiliates in
connection with the consummation of the transactions contemplated
hereby.”
(b) Section 1.1 is hereby
amended by adding the following definitions in alphabetical
order:
“‘ Extrade II
’ means Extrade II, S.A. de C.V., a sociedad anónima de
capital variable organized under the laws of Mexico.
‘ Marcas Modelo ’
means Marcas Modelo, S.A. de C.V., a sociedad anónima de
capital variable organized under the laws of Mexico.
‘ Sub-license Agreement
’ has the meaning assigned to such term in
Section 3.3.
‘ Trademarks ’
has the meaning assigned to such term in the Sub-license
Agreement.”
SECTION 3. Amendment to Article
III . (a) Article III is hereby amended by deleting
Section 3.1 and replacing it with the following:
“3.1 Importer and
Brewery Purchase and Sale Agreements . (a) At the Closing and immediately
following the execution of the LLC Agreement, Extrade II shall
execute and deliver an agreement designating the Company as the
exclusive importer of the Beer sold under the Brands in the
Territory (the “Importer Agreement”) in the form
attached hereto as Exhibit D.
(b) At the Closing, Extrade II and
each of the subsidiaries of Diblo that will sell Beer to Extrade II
to enable Extrade II to fulfill its obligations under the Importer
Agreement shall execute and deliver an agreement in a form
reasonably satisfactory to Diblo and Barton (each, a “Brewery
Purchase and Sale Agreement”).”
(b) Article III is hereby amended by
adding the following Section 3.3:
“ 3.3 Sub-license
Agreement . At the Closing and immediately following the
execution of the LLC Agreement, Marcas Modelo shall execute and
deliver an agreement granting the Company an exclusive sub-license
to use the Trademarks within the Territory, solely in connection
with the activities contemplated in the Importer Agreement (the
“Sub-license Agreement”), in the form attached hereto
as Exhibit E.”
SECTION 4. Amendments to Article
IV . (a) Article IV is hereby amended by deleting
Section 4.1 and replacing it with the following:
“ 4.1 Guarantee
. Diblo hereby absolutely, unconditionally and irrevocably
guarantees to Barton and the Company, as a primary obligor and not
merely as a surety, the due and punctual performance and observance
of, and compliance with, all covenants, agreements, obligations,
liabilities, representations and warranties of Extrade II under or
pursuant to the Importer Agreement, of Marcas Modelo under or
pursuant to the Sub-license Agreement and of the Modelo Party under
or pursuant to the Related Documents to which it is a party and any
damages incurred by Barton or the Company as a consequence of
Extrade II not executing the Importer Agreement at Closing or
Marcas Modelo not executing the Sub-license Agreement at Closing
(all such obligations and any such damages being collectively
referred to as the “Guaranteed Obligations”). Diblo
further agrees that the Guaranteed Obligations may be amended,
modified, extended or renewed, in whole or in part, without notice
to or further
