Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
Dated December 19, 2001
among
COMPANHIA BRASILEIRA DE BEBIDAS
as Issuer,
COMPANHIA DE BEBIDAS DAS AMERICAS - AMBEV
as Guarantor,
and
UBS WARBURG LLC,
BANC OF AMERICA SECURITIES LLC
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO., INC.,
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY, INC., and
BANC OF AMERICA SECURITIES LLC
as Initial Purchasers
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 19th day of December, 2001 before me, a notary public within
and for said county, personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, to me personally known who being duly sworn, did say that they
are each a Director of UBS Warburg LLC, 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.
On this 19th day of December, 2001, 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]
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of
December 19, 2001, 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) UBS
Warburg LLC, ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc., ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney, Inc. and Banc of America Securities LLC, as initial purchasers
(the "Initial Purchasers") of U.S.$500,000,000 of CBB's 10 1/2% Notes due
December, 2011 (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 December
19, 2001 with The Bank of New York as Trustee (the "Indenture"), pursuant to
which it is today issuing $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 December 19, 2001 (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 OFFER" shall mean the exchange offer by the Companies of
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
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"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 Deutsche
Bank 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 UBS Warburg LLC, Banc of America
Securities LLC, ▇▇ ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc. and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, 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.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or
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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
December 12, 2001 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 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
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"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 Borough of Manhattan,
the City of New York) specified in the notice prior to the close of
business on the last Exchange Date; and
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(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 of the SEC.
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 six 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. 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
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Notes will be increased to 11% 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.
(a) 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 Prospectus or any document which is to be
incorporated by reference into a Registration
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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 of the 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 its 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 UBS Warburg LLC 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 UBS Warburg LLC 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
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 UBS Warburg LLC. 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 untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state
11
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 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' 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' 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 forgoing, 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.
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(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.
UBS WARBURG LLC, as Representative on
behalf of the Initial Purchasers
By:
------------------------------
Name:
Title:
By:
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Name:
Title:
WITNESSES:
1.
-----------------------------
Name:
2.
-----------------------------
Name: