4.02
Representations and Warranties of
SABMiller and Miller.
Each of SABMiller and Miller represents and warrants,
jointly and severally, to the Company, as of the date of this Agreement and as
of the Closing Date, that:
(A)
CORPORATE EXISTENCE AND POWER.
IT IS A
CORPORATION DULY INCORPORATED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE
LAWS OF THE STATE OR JURISDICTION OF ITS INCORPORATION AND HAS ALL CORPORATE
POWER AND AUTHORITY REQUIRED TO CARRY ON ITS BUSINESSES AS NOW CONDUCTED.
WHERE
APPLICABLE, IT IS DULY QUALIFIED TO DO BUSINESS AS A FOREIGN CORPORATION OR
OTHER ENTITY AND IS IN GOOD STANDING IN EACH JURISDICTION WHERE THE NATURE OF
ITS BUSINESS, ACTIVITIES OR PROPERTIES MAKES SUCH QUALIFICATION NECESSARY TO
CARRY ON ITS BUSINESS AS NOW CONDUCTED, EXCEPT WHERE THE FAILURE TO BE SO
QUALIFIED OR IN GOOD STANDING HAS NOT BEEN, AND WOULD NOT REASONABLY BE EXPECTED
TO BE, MATERIAL TO THE MILLER BUSINESS.
(B)
CORPORATE AUTHORIZATION.
THE EXECUTION,
DELIVERY AND PERFORMANCE BY IT OF THE TRANSACTION DOCUMENTS TO WHICH IT IS A
PARTY AND THE CONSUMMATION BY IT OF THE CONTEMPLATED TRANSACTIONS ARE WITHIN ITS
CORPORATE POWERS AND HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION
ON ITS PART.
NO SABMILLER SHAREHOLDER APPROVAL OF THE CONTEMPLATED TRANSACTIONS
IS REQUIRED.
THIS AGREEMENT CONSTITUTES AND EACH OF THE OTHER TRANSACTION
DOCUMENTS TO WHICH IT IS A PARTY CONSTITUTES OR SHALL CONSTITUTE AT CLOSING A
LEGAL, VALID AND BINDING AGREEMENT OF IT, ENFORCEABLE AGAINST IT IN ACCORDANCE
WITH ITS TERMS (I) EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY APPLICABLE
BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER SIMILAR LAWS NOW OR
HEREAFTER IN EFFECT RELATING TO OR AFFECTING CREDITORS' RIGHTS GENERALLY,
INCLUDING THE EFFECT OF STATUTORY AND OTHER LAWS REGARDING FRAUDULENT
CONVEYANCES AND PREFERENTIAL TRANSFERS, AND (II) SUBJECT TO THE LIMITATIONS
IMPOSED BY GENERAL EQUITABLE PRINCIPLES REGARDLESS OF WHETHER SUCH
ENFORCEABILITY IS CONSIDERED IN A PROCEEDING AT LAW OR IN EQUITY.
(C)
GOVERNMENTAL AUTHORIZATION.
THE EXECUTION,
DELIVERY AND PERFORMANCE BY IT OF THE TRANSACTION DOCUMENTS TO WHICH IT IS A
PARTY REQUIRE NO ACTION BY OR IN RESPECT OF, OR CONSENT OR APPROVAL OF, OR
FILING WITH, ANY GOVERNMENTAL AUTHORITY OTHER THAN:
(I)
COMPLIANCE WITH ANY APPLICABLE
REQUIREMENTS OF THE ANTITRUST LAWS;
(II)
THE ACTIONS, CONSENTS, APPROVALS, PERMITS
OR FILINGS SET FORTH IN SCHEDULE 4.02(C) OR OTHERWISE EXPRESSLY REFERRED TO IN
THIS AGREEMENT; AND
(III)
SUCH OTHER CONSENTS, APPROVALS,
AUTHORIZATIONS, PERMITS AND FILINGS, THE FAILURE TO OBTAIN OR MAKE OF WHICH
WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE, BE MATERIAL TO THE MILLER BUSINESS.
(D)
NON-CONTRAVENTION.
EXCEPT AS SET FORTH IN
SCHEDULE 4.02(D), THE EXECUTION, DELIVERY AND PERFORMANCE BY IT OF THE
TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY DOES NOT AND SHALL NOT
(I) CONTRAVENE OR CONFLICT WITH ITS CHARTER, BYLAWS OR OTHER ORGANIZATIONAL
DOCUMENTS, (II) ASSUMING COMPLIANCE WITH THE MATTERS REFERRED TO IN
SECTION 4.02(C), CONTRAVENE
50
OR CONFLICT WITH, OR CONSTITUTE A VIOLATION OF, ANY PROVISIONS OF ANY APPLICABLE
LAW BINDING UPON IT, OR (III) ASSUMING COMPLIANCE WITH THE