EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
Dated September 18 2003
among
COMPANHIA BRASILEIRA DE BEBIDAS
as Issuer,
COMPANHIA DE BEBIDAS DAS AMERICAS - AMBEV
as Guarantor,
and
CITIGROUP GLOBAL MARKETS INC.
as representative on behalf of itself and the other Initial Purchasers
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of
September 18, 2003, among (i) Companhia Brasileira de Bebidas ("CBB"), a
sociedade anonima organized under the laws of the Federative Republic of
Brazil ("Brazil") and a majority-owned subsidiary of Companhia de Bebidas das
Americas - AMBEV, a sociedade anonima organized and existing under the laws of
Brazil ("AMBEV" and, collectively with CBB, the "Companies"), (ii) AMBEV and
(iii) Citigroup Global Markets Inc. as representative on behalf of the Initial
Purchasers (as defined below) of U.S.$ 500,000,000 of CBB's 8.75% Notes due
2013 (the "Notes"). Terms not otherwise defined herein are used as defined in
the Indenture (as defined below).
WITNESSETH
WHEREAS, CBB is today entering into an Indenture dated as of
September 18, 2003 with The Bank of New York as Trustee (the "Indenture"),
pursuant to which it is today issuing U.S.$500,000,000 aggregate principal
amount of its Notes;
WHEREAS, to guarantee CBB's obligations under the Notes, AMBEV is
today entering into the Guaranty dated as of September 18, 2003 (the
"Guaranty");
WHEREAS, in order to provide additional liquidity to the holders of
the Notes (the "Holders"), CBB and AMBEV are willing to enter into this
Registration Rights Agreement providing for the registration of the Notes
under the Securities Act of 1933, as amended;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Closing Date" shall mean the Closing Date as defined in the
Purchase Agreement.
"Companies" shall have the meaning set forth in the preamble and
shall also include their successors and assigns.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Date" shall have the meaning set forth in section 2(a)(ii)
hereof.
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"Exchange Offer" shall mean the exchange offer by the Companies of
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form F-1, F-2, F-3 or F-4, as applicable, and all
amendments and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" shall mean securities issued by CBB, which are
unconditionally subject to an effective guaranty on a senior unsecured basis
by AMBEV under the Guaranty, containing terms identical in all material
respects to the Notes (except that the Exchange Securities will not bear
legends restricting their transfer) and to be offered to Holders of Notes in
exchange for Notes pursuant to the Exchange Offer.
"Holder" shall mean each person or entity that holds the Notes of
the Registrable Securities, and each of their successors, assigns and direct
and indirect transferees who become registered owners of Registrable
Securities under the Indenture; provided that, for purposes of Sections 4 and
5 of this Agreement, the term "Holder" shall include Participating
Broker-Dealers (as defined in Section 4(a)).
"Indenture" shall mean the Indenture relating to the Notes dated the
Closing Date, among CBB, The Bank of New York, as Trustee, and The Bank of New
York (Luxembourg) S.A., as Luxembourg paying agent and Luxembourg transfer
agent, as the same may be amended from time to time in accordance with the
terms thereof.
"Initial Purchasers" shall mean Citigroup Global Markets Inc. and
▇.▇. ▇▇▇▇▇▇ Securities Inc.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided
that, whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by
the Companies or any of their affiliates (as such term is defined in Rule 405
under the Securities Act) (other than the Initial Purchasers or subsequent
Holders of Registrable Securities if such subsequent holders are deemed to be
such affiliates solely by reason of their holding of such Registrable
Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage or amount.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture or any nation or government, any state, province or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
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"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement and by all other
amendments and supplements to such prospectus, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall mean the Purchase Agreement dated as of
September 11, 2003 among the Companies and the Initial Purchasers relating to
the purchase of the Notes by the Initial Purchasers.
"Registrable Securities" shall mean the Notes and the agreements in
respect of the obligations of AMBEV under the Guaranty (and the Guaranty
itself to the extent necessary or appropriate); provided, however, that the
Notes and the agreements in respect of obligations of AMBEV under the Guaranty
(and the Guaranty itself to the extent necessary or appropriate) shall cease
to be Registrable Securities (i) when a Registration Statement with respect to
such Notes and the agreements in respect of obligations of AMBEV under the
Guaranty (and the Guaranty itself to the extent necessary or appropriate)
shall have been declared effective under the Securities Act and such Notes and
the agreements in respect of obligations of AMBEV under the Guaranty (and the
Guaranty itself to the extent necessary or appropriate) shall have been
disposed of pursuant to such Registration Statement, (ii) when such Notes and
the agreements in respect of obligations of AMBEV under the Guaranty (and the
Guaranty itself to the extent necessary or appropriate) have been sold to the
public pursuant to Rule 144(k) (or any similar provision then in force, but
not Rule 144A) under the Securities Act or (iii) when the Notes and the
agreements in respect of obligations of AMBEV under the Guaranty (and the
Guaranty itself to the extent necessary or appropriate) shall have ceased to
be outstanding; provided further, that the securities with respect to which
CBB and AMBEV have caused to be filed and declared effective an Exchange Offer
Registration Statement and have commenced an Exchange Offer, in each case
pursuant to and in accordance with Section 2(a) hereof, and which have not
been tendered by the last Exchange Date (as defined in Section 2(a)(ii)
hereof) by the Holder thereof shall be deemed not be to Registrable
Securities.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by CBB and AMBEV with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of
the Exchange Securities or Registrable Securities), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements
and other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and disbursements
relating to the qualification of the Indenture under applicable securities
laws, (vi) the reasonable fees and disbursements of the Trustee and its
counsel, (vii) the reasonable fees and disbursements of counsel for
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CBB and AMBEV and (viii) the reasonable fees and disbursements of the
independent public accountants of CBB and AMBEV, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance, but excluding fees and expenses of counsel to the
underwriters (other than reasonable fees and expenses set forth in clause (ii)
above) or the Holders and underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable Securities
by a Holder.
"Registration Statement" shall mean any registration statement of
CBB and AMBEV that covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Sec" shall mean the United States Securities and Exchange
Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"Trustee" shall mean the trustee with respect to the Notes under the
Indenture.
SECTION 2. Registration Under the Securities Act.
(a) To the extent not prohibited by any applicable law or applicable
interpretation of the staff of the SEC (the "Staff"), CBB and AMBEV shall use
their reasonable best efforts to cause to be filed an Exchange Offer
Registration Statement covering the offer by CBB and AMBEV to the Holders to
exchange all of the Registrable Securities for Exchange Securities and to have
such Registration Statement remain effective until the closing of the Exchange
Offer. CBB and AMBEV shall commence the Exchange Offer promptly after the
Exchange Offer Registration Statement has been declared effective by the SEC
and use their reasonable best efforts to have the Exchange Offer consummated
not later than 60 days after such effective date. CBB and AMBEV shall commence
the Exchange Offer by mailing the related exchange offer Prospectus and
accompanying documents to each Holder stating, in addition to such other
disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement
and that all Registrable Securities validly tendered will be accepted for
exchange;
(ii) the dates of acceptance for exchange (which shall be a period
of at least 20 business days from the date such notice is mailed) (the
"Exchange Dates");
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any
rights under this Agreement;
(iv) that Holders electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the enclosed letters of transmittal,
to the institutions and at the addresses (located in the
▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, the City of New York) specified in the notice prior
to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business (New York time) on the last Exchange
Date, by sending to the institutions and at the addresses (located in the
Borough of Manhattan, the City of New York) specified in the notice a
telegram, telex, facsimile transmission or letter setting forth the name
of such Holder, the principal amount of Registrable Securities delivered
for exchange and a statement that such Holder is withdrawing his election
to have such Notes exchanged.
(b) As soon as practicable after the last Exchange Date, CBB and
AMBEV shall:
(i) accept for exchange Registrable Securities or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so accepted
for exchange by CBB and AMBEV and issue, and cause the Trustee to
promptly authenticate and mail to each Holder, an Exchange Security equal
in principal amount to the principal amount of the Registrable Securities
surrendered by such Holder.
(c) CBB and AMBEV shall use their reasonable best efforts to
complete the Exchange Offer as provided above and shall comply with the
applicable requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate applicable law or any applicable
interpretation of the Staff. CBB and AMBEV shall inform the Initial Purchasers
of the names and addresses of the Holders to whom the Exchange Offer is made,
and the Initial Purchasers shall have the right, subject to applicable law, to
contact such Holders and otherwise facilitate the tender of Registrable
Securities in the Exchange Offer.
(d) In the event that CBB and AMBEV determine that the Exchange
Offer Registration provided for in Section 2(a) above is not available or may
not be consummated as soon as practicable after the last Exchange Date because
it would violate applicable law or the applicable interpretations of the
Staff, or the Exchange Offer is not for any reason consummated by the date
that is 12 months after the Closing Date, then CBB and AMBEV may file any
Registration Statement with the SEC that would result in the Holders of the
Notes being able to resell their Notes in such a manner that they cease to be
Registerable Securities, and upon effectiveness of any such Registration
Statement, CBB and AMBEV shall be deemed to have satisfied their obligations
hereunder.
(e) CBB and AMBEV shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a).
(f) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof will not be deemed to have become effective unless it has been
declared effective by the SEC.
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As provided for in the Indenture, in the event the Exchange Offer is not
consummated or the Registration Statement referred to in Section 2(d) above
has not been declared effective on or prior to the date that is twelve (12)
months after the Closing Date, the annual interest rate on the Notes will be
increased to 9.25% per annum (0.5% in excess of the note rate) until the
Exchange Offer is consummated or the Exchange Offer Registration Statement is
declared effective by the SEC, whereupon the interest rate will decrease
permanently to the original interest rate on the Notes.
SECTION 3. Registration Procedures. In connection with the
obligations of CBB and AMBEV with respect to the Registration Statements
pursuant to Section 2(a) and Section 2(b) hereof, CBB and AMBEV shall as
expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be
selected by CBB and AMBEV and (y) shall comply as to form in all material
respects with the requirements of the applicable form and include all
financial statements required by the SEC to be filed therewith, and use
their reasonable best efforts to cause such Registration Statement to
become effective and remain effective in accordance with Section 2
hereof;
(ii) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
applicable period and cause each Prospectus to be supplemented by any
required prospectus supplement and, as so supplemented, to be filed
pursuant to Rule 424 under the Securities Act; to keep each Prospectus
current during the period described under Section 4(3) and Rule 174 under
the Securities Act that is applicable to transactions by brokers or
dealers with respect to the Registrable Securities or Exchange
Securities;
(iii) to the extent necessary or applicable, use their reasonable
best efforts to register or qualify the Registrable Securities under all
applicable state securities or "blue sky" laws of such jurisdictions as
any Holder of Registrable Securities covered by a Registration Statement
shall reasonably request in writing by the time the applicable
Registration Statement is declared effective by the SEC, to cooperate
with such Holders in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. and do any and all
other acts and things which may be reasonably necessary or advisable to
enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that neither CBB nor AMBEV shall be required to (A)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for
this Section 3(a)(iii), (B) file any general consent to service of
process or (C) subject itself to taxation in any such jurisdiction if it
is not so subject;
(iv) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(v) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a
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Prospectus or any document which is to be incorporated by reference into
a Registration Statement or a Prospectus after the initial filing of a
Registration Statement, provide copies of such document to the Initial
Purchasers and their counsel and make such representatives of CBB and
AMBEV as shall be reasonably requested by the Initial Purchasers or their
counsel available for discussion of such document, and shall not at any
time file or make any amendment to the Registration Statement, any
Prospectus or any amendment of or supplement to a Registration Statement
or a Prospectus or any document which is to be incorporated by reference
into a Registration Statement or a Prospectus, of which the Initial
Purchasers and their counsel shall not have previously been advised and
furnished a copy or to which the Initial Purchasers or their counsel
shall reasonably object;
(vi) obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, not later than the effective
date of a Registration Statement;
(vii) use their reasonable best efforts to cause the Indenture to be
qualified under the Trust Indenture Act of 1939, as amended (the "TIA"),
in connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be, cooperate with the Trustee
and the Holders to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the
terms of the TIA and execute, and use their best efforts to cause the
Trustee to execute, all documents as may be required to effect such
changes and all other forms and documents required to be filed with the
SEC to enable the Indenture to be so qualified in a timely manner; and
(viii) use their reasonable best efforts to cause the Exchange
Securities to continue to be rated by one nationally recognized
statistical rating organization (as such term is defined in Rule
436(g)(2) under the Securities Act), if the Registrable Securities have
been rated.
SECTION 4. Participation of Broker-dealers in Exchange Offer.
(a) The parties hereto acknowledge that the Staff has taken the
position that any broker-dealer that receives Exchange Securities for its own
account in the Exchange Offer in exchange for Notes that were acquired by such
broker-dealer as a result of market-making or other trading activities (a
"Participating Broker-Dealer"), may be deemed to be an "underwriter" within
the meaning of the Securities Act and must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Securities. CBB and AMBEV understand that it is the Staff's position
that if the Prospectus contained in the Exchange Offer Registration Statement
includes a plan of distribution containing a statement to the above effect and
the means by which Participating Broker-Dealers may resell the Exchange
Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may be delivered
by Participating Broker-Dealers to satisfy their prospectus delivery
obligation under the Securities Act in connection with resales of Exchange
Securities for their own accounts, so long as the Prospectus otherwise meets
the requirements of the Securities Act.
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(b) In light of the above, notwithstanding the other provisions of
this Agreement, CBB and AMBEV agree to take all actions necessary to ensure
the effectiveness of the Registration Statement referred to in Section 2 as
may be reasonably requested by the Initial Purchasers or by one or more
Participating Broker-Dealers, in each case as provided in clause (ii) below,
in order to expedite or facilitate the disposition of any Exchange Securities
by Participating Broker-Dealers consistent with the positions of the Staff
recited in Section 4(a) above, provided that:
(i) neither CBB nor AMBEV shall be required to amend or supplement
the Prospectus contained in the Exchange Offer Registration Statement for
a period exceeding 180 days after the last Exchange Date (as such period
may be extended pursuant to the penultimate paragraph of Section 3 of
this Agreement) and Participating Broker-Dealers shall not be authorized
by CBB or AMBEV to deliver and shall not deliver such Prospectus after
such period in connection with the resales contemplated by this Section
4; and
(ii) any application of the procedures to an Exchange Offer
Registration, to the extent not required by the positions of the Staff or
the Securities Act and the rules and regulations thereunder, will be in
conformity with the reasonable request to CBB and AMBEV by the Initial
Purchasers or with the reasonable request in writing to CBB and AMBEV by
one or more broker-dealers who certify to the Initial Purchasers and CBB
and AMBEV in writing that they anticipate that they will be Participating
Broker-Dealers; and provided further that, in connection with such
application of any procedures to an Exchange Offer Registration, CBB and
AMBEV shall be obligated (x) to deal only with one entity representing
the Participating Broker-Dealers, which shall be Citigroup Global Markets
Inc. unless it elects not to act as such representative, (y) to pay the
reasonable fees and expenses of only one counsel representing the
Participating Broker-Dealers, which shall be counsel to the Initial
Purchasers unless such counsel elects not to so act and (z) to cause to
be delivered only one, if any, "cold comfort" letter with respect to the
Prospectus in the form existing on the last Exchange Date and with
respect to each subsequent amendment or supplement, if any, effected in
connection therewith.
(c) The Initial Purchasers shall have no liability to the Companies
or any Holder with respect to any request that they may make pursuant to
Section 4(b) above.
SECTION 5. Indemnification and Contribution.
(a) Each of CBB and AMBEV, jointly and severally agrees to indemnify
and hold harmless the Initial Purchasers, each Holder and each Person, if any,
who controls the Initial Purchasers or any Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, or is
under common control with, or is controlled by, the Initial Purchasers or any
Holder, from and against all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred by the Initial Purchasers, any Holder or any such controlling or
affiliated Person in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement (or any amendment
thereto) pursuant to which Exchange Securities or Registrable Securities were
registered under the Securities Act,
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including all documents incorporated therein by reference, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (as amended or supplemented if CBB or AMBEV shall
have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact necessary to
make the statements therein in light of the circumstances under which they
were made not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to the Initial
Purchasers or any Holder furnished to the Companies in writing through
Citigroup Global Markets Inc. or any selling Holder expressly for use therein;
provided that the foregoing indemnity agreement shall not inure to the benefit
of any Holder or any person controlling such Holder with respect to any sale
or disposition of Registrable Securities by such Holder in violation of
Section 4 above; provided further that the foregoing indemnity agreement shall
not inure to the benefit of any Holder from whom the person asserting any such
losses, claims, damages or liabilities purchased Notes, or any person
controlling such Holder, if a copy of the final Prospectus (as then amended or
supplemented if CBB and AMBEV shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Holder to
such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Notes to such person, and if the final
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability.
(b) To the extent relevant with respect to a Registration Statement
pursuant to Section 2(d), each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Companies, the Initial Purchasers and the
other selling Holders, and each of their respective directors, officers who
sign the Registration Statement and each Person, if any, who controls CBB or
AMBEV, the Initial Purchasers and any other selling Holder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
to the same extent as the foregoing indemnity from CBB and AMBEV to the
Initial Purchasers and the Holders, but only with reference to information
relating to such Holder furnished to the Companies, CBB or AMBEV in writing by
or on behalf of such Holder expressly for use in any Registration Statement
(or any amendment thereto) or any Prospectus (or any amendment or supplement
thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to either paragraph (a) or paragraph (b)
above, such Person (the "Indemnified Party") shall promptly notify the Person
against whom such indemnity may be sought (the "Indemnifying Party") in
writing (but the failure to so notify an Indemnifying Party shall not relieve
it from any liability which it may have under this Section 5, except to the
extent that such Indemnifying Party has been prejudiced in any material
respect by such failure, or from any liability it may otherwise have) and the
Indemnifying Party, upon request of the Indemnified Party, shall retain
counsel reasonably satisfactory to the Indemnified Party to represent the
Indemnified Party and any others the Indemnifying Party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any Indemnified Party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (i) the Indemnifying
Party and
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the Indemnified Party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the Indemnifying Party and the Indemnified
Party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (A)
the reasonable fees and expenses of more than one separate firm (in addition
to any local counsel) for the Initial Purchasers and all Persons, if any, who
control any of the Initial Purchasers within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, (B) the reasonable
fees and expenses of more than one separate firm (in addition to any local
counsel) for CBB, AMBEV, their respective directors and officers who sign the
Registration Statement and each Person, if any, who controls CBB and AMBEV
within the meaning of either such Section and (C) the reasonable fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Holders and all Persons, if any, who control any Holders within the
meaning of either such Section, and that all such fees and expenses shall be
reimbursed as they are incurred. In such case involving the Initial Purchasers
and any Person who controls any of the Initial Purchasers, such firm shall be
designated in writing by Citigroup Global Markets Inc. In such case involving
the Holders and such Persons who control Holders, such firm shall be
designated in writing by the Majority Holders. In all other cases, such firm
shall be designated by the Companies. The Indemnifying Party shall not be
liable for any settlement of any proceeding effected without its written
consent but, if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified
Party from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Party shall have requested an Indemnifying Party to reimburse the
Indemnified Party for fees and expenses of counsel as contemplated by the
second and third sentences of this paragraph, the Indemnifying Party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (x) such settlement is entered into more than 30 days
after receipt by such Indemnifying Party of the aforesaid request and (y) such
Indemnifying Party shall not have reimbursed the Indemnified Party for such
fees and expenses of counsel in accordance with such request prior to the date
of such settlement. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party (which consent shall not be unreasonably
withheld), effect any settlement of any pending or threatened proceeding in
respect of which such Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such settlement includes an unconditional release of such Indemnified Party
from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a)
or paragraph (b) of this Section 5 is unavailable to an Indemnified Party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Party under such paragraph, in lieu of
indemnifying such Indemnified Party thereunder, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party or parties on the one hand and of the
Indemnified Party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of CBB, AMBEV and the Holders shall be determined by reference
to, among other things, whether the
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untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
CBB or AMBEV or by the Holders and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Holders' respective obligations to contribute pursuant to this
Section 5(d) are several in proportion to the respective principal amount of
Registrable Securities of such Holder that were registered pursuant to a
Registration Statement.
(e) CBB, AMBEV and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro
rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an Indemnifying Party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such Indemnified Party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at
which Registrable Securities were sold by such Holder exceeds the amount of
any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 5 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any Indemnified Party at law or
in equity.
(f) The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Initial Purchasers, any Holder or any Person controlling any of
the Initial Purchasers or any Holder, or by or on behalf of CBB or AMBEV,
their respective officers or directors, or any Person controlling CBB or
AMBEV, (iii) acceptance of any of the Exchange Securities and (iv) any sale of
Registrable Securities pursuant to any shelf or other Registration Statement.
SECTION 6. Miscellaneous.
(a) No Inconsistent Agreements. Neither CBB nor AMBEV has entered
into, and on or after the date of this Agreement will not enter into, any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of CBB's or any of AMBEV's other issued and outstanding securities
under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless CBB and AMBEV have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or consent; provided, however, that no amendment,
modification, supplement, waiver or
12
consent to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Securities unless consented to
in writing by such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder
to the Companies by means of a notice given in accordance with the provisions
of this Section 6(c), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; (ii) if to CBB,
initially at CBB's address set forth in the Purchase Agreement and thereafter
at such other address, notice of which is given in accordance with the
provisions of this Section 6(c); and (iii) if to AMBEV, initially at the
AMBEV's address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 6(c). All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied;
and on the next business day if timely delivered to an air courier
guaranteeing overnight delivery. Copies of all such notices, demands, or other
communications shall be concurrently delivered by the Person giving the same
to the Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement and such Person shall be entitled to receive the benefits hereof.
The Initial Purchasers (in their capacity as Initial Purchasers) shall have no
liability or obligation to CBB or AMBEV with respect to any failure by a
Holder to comply with, or any breach by any Holder of, any of the obligations
of such Holder under this Agreement.
(e) Purchases and Sales of Securities. CBB and AMBEV shall have the
right to purchase Registrable Securities only as contemplated in the
Indenture; provided, however, that, notwithstanding the foregoing, neither CBB
nor AMBEV shall, and each of CBB and AMBEV shall use their best efforts to
cause their respective affiliates (as defined in Rule 405 under the Securities
Act) not to, purchase and then resell or otherwise transfer any Registrable
Securities, if doing so adversely affects the rights of the Holders hereunder.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between CBB and AMBEV, on the
one hand, and the Initial Purchasers, on the other hand, and shall have the
right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
13
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the laws of
the State of New York.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(k) Jurisdiction.
(a) Each of CBB and AMBEV agrees that any legal suit, action or
proceeding arising out of or relating to this Agreement or the transactions
contemplated herein may be instituted in any U.S. federal or New York State
court in the Borough of Manhattan in the City of New York (each a "New York
court") and each of CBB and AMBEV hereby waives any objection which it may now
or hereafter have to the laying of venue of any such proceeding, and
irrevocably submits to the jurisdiction of such courts, with respect to
actions brought against it as defendant, in any suit, action or proceeding.
(b) Each of CBB and AMBEV (A) irrevocably appoints CT Corporation
System, at its offices located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(together with any successor, the "Process Agent"), as its authorized agent in
the Borough of Manhattan in The City of New York upon which process may be
served in any such suit, action or proceeding, acknowledges that the Process
Agent has accepted such designation and agrees that service of process upon
the Process Agent, and written notice of such service to the Companies, by the
person serving the same to the address set forth in the Purchase Agreement,
shall be deemed in every respect effective service of process upon the
Companies in any such suit, action or proceeding and (B) agrees to take any
and all action, including the execution and filing of any and all such
documents and instruments as may be necessary to continue such designation and
appointment of the Process Agent in full force and effect so long as any of
the Notes shall be outstanding.
(l) Waiver of Immunity. To the extent that either of the Companies
has or hereafter may acquire any immunity from jurisdiction of any court or
from any legal process (whether through service of notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with respect
to itself or its property, it hereby irrevocably waives such immunity in
respect of its obligations under this Agreement to the fullest extent
permitted by law.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
COMPANHIA BRASILEIRA DE BEBIDAS
By: ------------------------
Name:
Title:
By: ------------------------
Name:
Title:
COMPANHIA DE BEBIDAS DAS AMERICAS - AMBEV
By: ------------------------
Name:
Title:
By: ------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CITIGROUP GLOBAL MARKETS INC.,
as representative on behalf of the Initial Purchasers
By: ------------------------
Name:
Title:
WITNESSES:
1. ------------------------------
Name:
2. ------------------------------
Name:
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 18th day of September, 2003 before me, a notary public
within and for said county, personally appeared ________________, to me
personally known who being duly sworn, did say that [he/she] is a
________________ of ________________, one of the persons described in and
which executed the foregoing instrument, and acknowledge said instrument
to be the free act and deed of said corporation.
s
On this 18th day of September, 2003, before me personally came
_________________ and ________________ to me personally known, who being
by me sworn, did depose and say that they signed their names to the
foregoing instrument as witnesses.
---------------------------
Notary Public
COMMISSION EXPIRES
[Notarial Seal]