Ex-10.1



 




Exhibit
10.1




SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT




     This Second Amendment to Asset Purchase Agreement dated as of January 11, 2007 (this
“Amendment”), among (a) Brown-Forman Tequila Mexico, S. de R.L. de C.V., a corporation
formed under the laws of Mexico (“Buyer”), (b) Brown-Forman Corporation, a Delaware
corporation (“BFC”), (c) Jose Guillermo Romo de la Peña (“JGR”) and Luis Pedro
Pablo Romo de la Peña (“LPR” and together with JGR, the “Romo de la Peña
Brothers”), (d) Grupo Industrial Herradura, S.A. de C.V., a corporation formed under the laws
of Mexico (“Parent”), Fabrica de Tequila Hacienda Las Norias S.A., de C.V., a corporation
organized under the laws of Mexico (“Las Norias”), Comercializadora Herradura, S.A. de
C.V., a corporation organized under the laws of Mexico (“Comercializadora”), Tequila
Herradura, S.A. de C.V., a corporation organized under the laws of Mexico (“Tequila
Herradura”), Sociedad Romo, S.A. de C.V., a corporation organized under the laws of Mexico
(“Sociedad Romo”), and Transportes de Carga Millenium, S.A. de C.V., a corporation
organized under the laws of Mexico (“Transportes” and together with the Romo de la Peña
Brothers, Parent, Las Norias, Comercializadora, Tequila Herradura and Sociedad Romo, the
“Sellers”) and (e) Corporación de Servicios Herradura, S.A. de C.V., a corporation
organized under the laws of Mexico (“Cosesa”), CH Acciones S.A. de C.V., a corporation
organized under the laws of Mexico (“CH Acciones”), Corporativo Herradura, S.A. de C.V., a
corporation organized under the laws of Mexico, La Moraleda Operadora Comercial, S.A. de C.V., a
corporation organized under the laws of Mexico, and Destilados de Agave, S.A. de C.V., a
corporation organized under the laws of Mexico (the Persons listed in this clause (e),
collectively, the “Additional Seller Parties”).



     WHEREAS, Buyer, BFC, the Sellers and the Additional Seller Parties have entered into an Asset
Purchase Agreement dated as of August 25, 2006, as amended by the First Amendment to the asset
Purchase Agreement dated as of December 19, 2006 (the “Agreement”); and



     WHEREAS, on December 20, 2006 the Mexican Federal Economic Competition Commission authorized
the transactions contemplated in the Asset Purchase Agreement, subject to certain modifications of
its Section 8.14 and to those modifications to the Agreement being filed with the Commission; and



     WHEREAS, Buyer, BFC, the Sellers and the Additional Seller Parities desire to amend certain
provisions of the Agreement.



     NOW, THEREFORE, in consideration of the premises, and intending to be legally bound by this
Amendment, Buyer, BFC, the Sellers and the Additional Seller Parties hereby agree as follows:



     SECTION 1. Definitions. All capitalized terms used but not defined herein shall have
the respective meanings assigned to such terms in the Agreement.



     SECTION 2. Amendment to Section 10.1(b) of the Agreement. Section 10.1(b) of the
Agreement is hereby amended and restated to read in its entirety as follows:



     “(b) by Sellers or by Buyer, if the Closing shall not have occurred on or before January 18,
2007; provided, however, that the right to terminate this Agreement under this



 









 




Section 10.1(b) shall not be available to any party whose failure to fulfill any obligation
under this Agreement shall have been the cause of, or resulted in, the failure of the Closing to
occur prior to such date;”.




     SECTION 3. Amendment to Section 8.14 (a) of the Agreement. Section 8.14 (a) of the
Agreement is hereby amended and restated to read in its entirety as follows


“(a) During the period beginning on the Closing Date and ending on the fifth (5th)
anniversary of the date when both JGR and LPR have ceased being a member of the Tequila Advisory
Board (the “Non-Compete Period”), none of the Sellers and the Additional Seller Parties and
none of their respective controlled Affiliates shall, directly or indirectly (including through any
controlled Affiliate), (i) produce, market, manufacture, distribute or sell (for themselves or a
third party), or (ii) license or otherwise permit any Person to use either the Excluded Marks or
the Intellectual Property in connection with: (A) any products or services that use imagery,
packaging, bottles, trade dress or advertising that imitates or is confusingly similar to that of
any of the Products, the Trademarks or the Related Marks or containing or marketed, advertised,
distributed or sold using the Products, the Trademarks or the Related Marks, (B) any products
containing or marketed, advertised, distributed or sold as containing or based on tequila or
tequila-like flavors, or any beverage products containing or marketed, advertised, distributed or
sold as containing or based on agave, or (C) any alcoholic beverages with advertising that refers
to or compares itself to the Business or the names “SAN JOSE DEL REFUGIO” or “HACIENDA SAN JOSE DEL
REFUGIO” or any likeness of the Hacienda. Without limitation of the foregoing, each of the Sellers
and the Additional Seller Parties acknowledges and agrees that the provisions of this Section 8.14
and Section 8.7 would preclude in all cases and in perpetuity each of the Sellers, the Additional
Seller Parties and their respective controlled Affiliates from selling any such products with
advertising that refers to or compares itself to the Business, the Intellectual Property (including
the Trademarks) or the Excluded Marks.”




     SECTION 4. Effectiveness. This Amendment shall be effective as of the date first
written above.



     SECTION 5. Governing Law. This Amendment will be governed by and construed in
accordance with the laws of New York without regard to principles of conflicts of law.



     SECTION 6. Continuation. Buyer, BFC, the Sellers and the Additional Seller Parties
agree and acknowledge that the Agreement, as amended by this Amendment, continues in full force and
effect in accordance with its terms. Nothing in this Amendment shall be deemed to work as a
novation (novación) of any of the obligations under the Agreement. All references to the Agreement
shall refer to the Agreement as amended by this Amendment.



     SECTION 7. Counterparts. This Amendment may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered will be an original, but all
such counterparts will together constitute one and the same instrument. Each counterpart may
consist of a number of copies, facsimiles or facsimiles of copies hereof each signed by less than
all, but together signed by all of the parties hereto.



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     IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have duly
executed this Amendment on the date first above written.



	 	 	 	 	 
	 	BROWN-FORMAN TEQUILA MEXICO, S. DE

R.L. DE C.V.

 	 
	 	By:  	/s/
Nelea A. Absher	 
	 	 	Name: 	Nelea A. Absher	 
	 	 	Title:  	DIRECTOR AND ATTORNEY-IN-FACT	 
	 



	 	 	 	 	 
	 	BROWN-FORMAN CORPORATION

 	 
	 	By:  	/s/
Donald C. Berg	 
	 	 	Name:  	Donald C. Berg	 
	 	 	Title:  	SENIOR VICE PRESIDENT AND DIRECTOR, CORPORATE
FINANCE	 



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	 	SELLERS:

 	 
	 		/s/
Jose Guillermo Romo de la Peña	 
	 	 	Jose Guillermo Romo de la Peña 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	 	 
	 		
/s/ Luis Pedro Pablo Romo de la Peña	 
	 	 	Luis Pedro Pablo Romo de la Peña 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	GRUPO INDUSTRIAL HERRADURA, S.A. DE C.V.

 	 
	 	By:  	/s/
Juan Casillas Ruiz	 
	 	 	Name:  	JUAN CASILLAS RUIZ	 
	 	 	Title:  	ATTORNEY-IN-FACT	 
	 



	 	 	 	 	 
	 	TEQUILA HERRADURA, S.A. DE C.V

 	 
	 	By:  	/s/
Juan Casillas Ruiz	 
	 	 	Name:  	JUAN CASILLAS RUIZ	 
	 	 	Title:  	ATTORNEY-IN-FACT	 
	 



	 	 	 	 	 
	 	FABRICA DE TEQUILA HACIENDA LAS NORIAS,

S.A. DE C.V.

 	 
	 	By:  	/s/
Juan Casillas Ruiz	 
	 	 	Name:  	JUAN CASILLAS RUIZ	 
	 	 	Title:  	ATTORNEY-IN-FACT	 



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	 	COMERCIALIZADORA HERRADURA,

S.A. DE C.V.

 	 
	 	By:  	/s/
Juan Casillas Ruiz	 
	 	 	Name:  	JUAN CASILLAS RUIZ	 
	 	 	Title:  	ATTORNEY-IN-FACT	 
	 



	 	 	 	 	 
	 	TRANSPORTES DE CARGA MELLENIUM,

S.A. DE C.V.

 	 
	 	By:  	/s/
Juan Casillas Ruiz	 
	 	 	Name:  	JUAN CASILLAS RUIZ	 
	 	 	Title:  	ATTORNEY-IN-FACT	 
	 



	 	 	 	 	 
	 	ADDITIONAL SELLER PARTIES:





CORPORACIÓN DE SERVICIOS HERRADURA, S.A. DE C.V.

 	 
	 	By:  	/s/
Juan Casillas Ruiz	 
	 	 	Name:  	JUAN CASILLAS RUIZ	 
	 	 	Title:  	ATTORNEY-IN-FACT	 
	 



	 	 	 	 	 
	 	CH ACCIONES S.A. DE C.V.

 	 
	 	By:  	/s/
Jose Guillermo Romo Romero	 
	 	 	Name:  	JOSE GUILLERMO ROMO ROMERO	 
	 	 	Title:  	ATTORNEY-IN-FACT 	 
	 
	 	By:  	/s/
Luis Pedro Pablo Romo de la Peña	 
	 	 	Name:  	LUIS PEDRO PABLO ROMO DE LA PEÑA	 
	 	 	Title:  	ATTORNEY-IN-FACT 	 



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	 	CORPORATIVO HERRADURA, S.A. DE C.V.

 	 
	 	By:  	/s/
Jose Guillermo Romo Romero	 
	 	 	Name:  	JOSE GUILLERMO ROMO ROMERO 	 
	 	 	Title:  	ATTORNEY IN FACT 	 
	 
	 	By:  	/s/
Luis Pedro Pablo Romo de la Peña	 
	 	 	Name:  	LUIS PEDRO PABLO ROMO DE LA PEÑA 	 
	 	 	Title:  	ATTORNEY IN FACT 	 



	 	 	 	 	 
	 	LA MORALEDA OPERADORA COMERCIAL, S.A.

DE C.V.

 	 
	 	By:  	/s/
Juan Casillas Ruiz	 
	 	 	Name:  	JUAN CASILLAS RUIZ	 
	 	 	Title:  	ATTORNEY-IN-FACT	 
	 



	 	 	 	 	 
	 	DESTILADOS DE AGAVE, S.A. DE C.V.

 	 
	 	By:  	/s/
Juan Castillas Ruiz	 
	 	 	Name:  	JUAN CASTILLAS RUIZ	 
	 	 	Title:  	ATTORNEY-IN-FACT	 
	 



	 	 	 	 	 
	 	SOCIEDAD ROMO, S.A. DE C.V

 	 
	 	By:  	/s/
Juan Casillas Ruiz	 
	 	 	Name:  	JUAN CASTILLAS RUIZ	 
	 	 	Title:  	ATTORNEY-IN-FACT	 
	 




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