Strictly
private & confidential
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Xx. Xxxxxxx X. Xxxxxxx Xx.
Vice President and Treasurer
Anheuser-Xxxxx International Holdings, Inc. Chile II Limitada |
| This
Agreement (the “Agreement”), effective 10:00 a.m. Chilean time on November 11,
2004, will confirm the basis upon which Anheuser-Xxxxx International Holdings, Inc. Chile
II Limitada (“Client”) has irrevocably engaged Xxxxxx, Xxxxxxxx S.A., Corredores
de Bolsa (“Celfin”), on an exclusive basis to act as placement agent and,
subject to the conditions indicated herein, purchaser in connection with the Client’s
sale offering of 63,695,333 shares (the “Shares”) of common stock of
Compañía Cervecerías Unidas S.A. (“CCU”) in the Xxxxxxxx
Stock Exchange (the “Offering”). |
Section 1. Services
to be rendered
| Xxxxxx
agrees to perform the following services, according to the terms and conditions defined by
the Client for the Remate and applicable Xxxxxxxx Stock Exchange regulations: |
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i. |
register with the Xxxxxxxx Stock Exchange the Remate on November 11, 2004 and
sell the Shares on November 12, 2004 on behalf of the Client in one lot at a
minimum price of CH$2,800 (two thousand and eight hundred Chilean pesos) per
share, without imposing any restrictions or conditions to participate in the
Remate. In any case, the Client shall approve the terms and conditions of the
Remate before its registration with the Xxxxxxxx Stock Exchange and no
amendments shall be done to such registration without Client’s prior
written approval, and |
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ii. |
bid to purchase the entire lot of Shares in the Remate for the account of
investors either directly or through Banchile Corredores de Bolsa S.A.
(“Banchile”) at a minimum price of CH$2,800 (two thousand and eight
hundred Chilean pesos) per share and purchase in the Remate the Shares in such
terms, provided that no other broker-dealer places a better offer to purchase
the Shares in the Remate (“Third Party Offeror”). |
Section 2. Payment of the
Purchase Price and Closing
| The
payment of the purchase price of the Shares as determined to be paid by Xxxxxx in the
Remate (the “Purchase Price”), the transfer of the Shares to the purchaser and
the consummation and completion of all other transactions to be completed and consummated
by the parties hereunder (the “Closing”) shall take place at the offices of
Xxxxx y Cia. Ltda., located at Xxxxxxxxxx 000, xxxxx 00, Xxxxxxxx, Xxxxx, not later than
4:00 pm of the second (2nd) banking day following the Remate (the “Closing
Date”). |
| All
risks for any breach of the purchase orders from investors received by Celfin and/or any
Participating Broker, including, but not limited to, the failure or delay to pay of one or
more investors, shall be borne exclusively by Celfin and not by the Client. Xxxxxx shall
be liable under article 33 of Law No. 18,045 for the timely and full payment to
Client of the Purchase Price. |
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i. |
Celfin shall deliver the Purchase Price to Client or its duly authorized
designee by one or more banking checks or wire transfer in immediately available
funds, to a CH$ (Chilean peso) denominated account designated by Client or its
designee; |
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ii. |
Xxxxxx shall transfer the Shares and deliver the relevant stock certificate to
the purchaser on behalf of the Client; and |
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iii. |
subject to the satisfaction of (i) and (ii) above, Client shall deliver the
Placement Fee to Celfin by one or more banking checks and surrender to Celfin
the banking checks held in escrow by the Escrow Agent pursuant to Section 10. |
Section 3. Fees
| As
compensation for Celfin’s services in connection with the successful consummation and
completion of the Offering, the Client shall pay to Celfin 1.75% (one hundred seventy five
basis points), plus Value Added Tax, of the gross amount in Chilean pesos of the Purchase
Price, payable at the Closing (but Client shall not be required to pay stock exchange fees
or other similar charges and any withholding or deduction for or on account of taxes of
any kind) (the “Placement Fee”). |
| The
Client shall pay the Placement Fee to Celfin even if any Third Party Offeror places a
better offer to purchase the Shares in the Remate, as indicated in Section 1(ii) above.
However, the Client shall not be obligated to pay the Placement Fee to Celfin if the
Closing shall not have occurred by November 16, 2004, provided, however,
Xxxxxx’s failure to fulfill any obligation under this Agreement shall have been the
cause of, or shall have resulted in, the failure of the Closing to occur on such date. |
| Except
for Celfin, no broker, finder or investment banker (including Banchile and any other
Chilean or foreign broker, dealer or underwriting participating in the Offering at the
request or invitation of Celfin or Banchile other than a Third Party Offeror)
(individually a “Participating Broker”, collectively the “Participating
Brokers”) will be entitled to any brokerage, finder’s or other fee or commission
in connection with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of Client. |
Section 4.
Representations and Warranties
| (a)
Client hereby represents and warrants to Celfin that (i) it is a limited
liability company duly organized, validly existing and in good standing under
the laws of the Republic of Chile and has all necessary power and authority to
enter into this Agreement, the Collateral Agreement and the Custody Agreement,
to carry out its obligations hereunder and thereunder and to consummate the
transactions contemplated by this Agreement and thereby, and (ii) the Shares are
owned of record and beneficially by the Client free and clear of any security
interest, pledge, lien charge, encumbrance, adverse claim, restrictive covenant,
condition or restriction of any kind, including, without limitation, any
restriction on the voting, transfer or other exercise of any attributes of
ownership. |
| (b)
Celfin hereby represents, warrants and covenants to Client that (i) it is a
closed stock corporation duly organized, validly existing and in good standing
under the laws of the Republic of Chile and has all necessary power and
authority to enter into this Agreement, the Collateral Agreement and the Custody
Agreement, to carry out its obligations hereunder and thereunder and to
consummate the transactions contemplated by this Agreement and thereby; (ii) it
and the Participating Brokers have not and shall not act in a manner
inconsistent with the requirements of Regulation S applicable to Category 1
status; (iii) neither Celfin nor any Participating Broker has communicated or
shall communicate, whether by means of telephone, e-mail, or in physical form,
to any person or entity in the United States in connection with the Offering;
(iv) neither Celfin nor any Participating Broker has taken or shall take any
action inconsistent with the status of the Offering as an “offshore
transaction” as defined in Regulation S; (v) neither Celfin nor any
Participating Broker has engaged or shall engage, in connection with the
Offering, in any “directed selling efforts” as defined under
Regulation S, and (vi) Celfin and each Participating Broker shall establish
reasonable procedures so that no person submitting a purchase order to either of
them in connection with the Offering does so in or from the United States or is
a U.S. resident. |
| (c)
Xxxxxx agrees and acknowledges that Client has made no representation, warranty
or statement concerning the financial condition, results of operations, accuracy
of the financial statements or securities filings of CCU and that Client shall
have no liability to Celfin or any person or entity purchasing the Shares from
Celfin with respect to such matters. Xxxxxx has reviewed such matters for its
own account and has come to its conclusions concerning such matters without
consulting Client. |
Section 5. Termination of Engagemen t
| (a) |
This Agreement may be terminated: |
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i. |
by the Client or Celfin, at any time prior to the registration of the Remate
with the Xxxxxxxx Stock Exchange, if: (a) any representations and warranties of
the other party hereto contained in this Agreement shall not have been true and
correct in all respects when made or (b) the other party hereto shall not have
complied in all respects with the covenants or agreements contained in this
Agreement to be complied with by it; |
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ii. |
by either the Client or Celfin at any time prior to the completion of the
Remate, in the event that any governmental authority or the Xxxxxxxx Stock
Exchange shall have issued an order, decree or ruling or taken any other action
restraining, suspending, enjoining or otherwise prohibiting or restricting the
transactions contemplated by this Agreement and such order, decree, ruling or
other action shall have become final and nonappealable, or remains in full force
and effect, on November 16, 2004; or |
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iii. |
by the mutual written consent of the Client and Celfin; |
| provided,
however, that the provisions of this Section 5 and of Sections 7 and 8 hereof shall
survive such termination. |
| (b)
In the event of termination of this Agreement by Client as provided in Section
5(a) above, Celfin shall not be entitled to any payment from Client in
connection with the transactions contemplated hereunder and there shall be no
liability whatsoever on the part of Client in such event. The termination of
this Agreement shall not preclude the right of the non-defaulting party under
this Agreement to sue for damages for breach of this Agreement in accordance
with Chilean law. |
Section 6. Publicity
| In
the event of consummation of the Offering, Celfin and Banchile shall have the right, at
its own expense, to disclose their participation as selling broker and purchasing broker
in the Offering respectively, including, without limitation, the placement of
“tombstone” advertisements in financial and other newspapers and journals
circulated in Chile, provided, however, the prior written consent of the
Client is obtained. |
Section 7. Indemnity
| Each
of the parties hereto (each, an “Indemnifying Party”) agrees to indemnify and
hold harmless each of the other parties (each, an “Indemnified Party”) from and
against any and all claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and disbursements of counsel), joint or several, that may be
incurred by or asserted or awarded against any Indemnified Party (including, without
limitation, in connection with any investigation, litigation or proceeding or the
preparation of a defense in connection therewith), in each case arising out of or in
connection with or by reason of this Agreement or the transactions contemplated hereunder,
only to the extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction (or a settlement tantamount
thereto agreed or approved by the Indemnified Party) to have resulted from such
Indemnifying Party’s bad faith, willful misconduct, negligence or breach of this
Agreement. |
Section 8. Governing Law;
Arbitration; Enforceability; Continued Performance
| (a)
Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the Republic of Chile. |
| (b)
Arbitration. All disputes arising out of or in connection with this Agreement
(the “Dispute”) including the arbitrability of any Dispute, shall be
finally settled under the Rules of Arbitration of the International Chamber of
Commerce (the “ICC”) in effect on the date of this Agreement (the
“Rules”) by three arbitrators. In the event of a conflict between the
Rules and the provisions of this Section 8, the provisions of this section shall
govern. The place of arbitration shall be in New York, New York. The arbitration
shall be governed by Chapter 2 of the United States Arbitration Act, 9 U.S.C.
§§ 201-208. The two arbitrators appointed by the parties shall appoint
the third arbitrator, who shall be neither a citizen nor resident of either the
United States or Chile, within thirty (30) days of the appointment of the second
arbitrator. The language of the arbitration shall be English, and all three
arbitrators must be fluent in English and Spanish. |
| (c)
Enforceability. Each party acknowledges and agrees that arbitration pursuant to
this Section 8 shall be the sole and exclusive procedure for resolving any
Dispute, and that any award rendered by the arbitral tribunal shall be final and
binding upon the parties. Judgment upon the award may be entered, and
application for judicial confirmation or enforcement of the award may be made,
in any competent court having jurisdiction thereof, and the parties hereto
submit to the jurisdiction of such court for purposes of enforcement of this
Section 8 and any award rendered hereunder. |
| (d)
Continued Performance. In the event of any Dispute, the parties shall continue
to perform their respective obligations under this Agreement during the pendency
of arbitration proceedings unless and until the arbitral tribunal otherwise
orders. |
Section 9. Compliance With Laws
| Each
of the Client and Celfin hereby agrees to adhere to all applicable laws, orders and
regulations of the United States, Chile and other relevant markets in rendering its
services under this Agreement. |
| Xxxxxx
understands that Client intends to conduct the Offering in a manner that does not require
registration of the Offering pursuant to the United States Securities Act of 1933 and in a
manner consistent with the requirements of Regulation S promulgated under the United
States Securities Act of 1933 (“Regulation S”). Celfin acknowledges that Client
may rely on Celfin’s representations, warranties and covenants under Section 4(b)
hereof for purposes of determining whether the Offering is consistent with the
requirements of Regulation S. |
| Xxxxxx
will promptly and fully report to, and request guidance from, Client on any situation in
relation to this Agreement that it encounters which may be in violation of this Section 9
or the laws, orders or regulations of the United States or Chile. |
| Notwithstanding
anything to the contrary contained in Section 3 or 5 of this Agreement, Client will not be
liable to Celfin for any compensation described in Section 3 of this Agreement (including,
but not limited to, any costs and expenses incurred by Xxxxxx) in case of breach by Celfin
or any Participating Broker of this Section 9. |
Section 10. Cash
Collateral and Custody Agreement
| Simultaneously
with the execution of this Agreement, Xxxxxx will deliver to Gestiones de Confianza Xxxxx
Limitada (the “Escrow Agent”) two banking checks in the aggregate amount of
CH$12,100,000,000 (twelve billion and one hundred million Chilean pesos) endorsed to the
Client’s order as collateral for Celfin’s obligation to register the Remate with
the Xxxxxxxx Stock Exchange, its obligations to bid to purchase the Shares in the Remate
in the terms provided hereunder (except in the case of Section 5(a)(ii), only to the
extent the situations provided therein do not result from Xxxxxx’s bad faith, willful
misconduct, negligence or breach of this Agreement) and to make prompt and complete
payment of the Purchase Price. The Escrow Agent is hereby authorized by Xxxxxx to turnover
the collateral to the Client in the event Celfin fails to comply with the above
obligations. |
| Promptly
after the execution of this Agreement, Client and Xxxxxx will enter into certain Custody
Agreement (the “Custody Agreement”) dated on the date hereof providing for the
appointment of Xxxxxx as custodian of the Shares to be sold pursuant to the Offering, and
the delivery by Client to Celfin of the stock certificate evidencing Client’s
ownership (and absence of any liens) of such Shares and the relevant stock transfer
agreement authorizing Celfin to hold the Shares in “street name”. Xxxxxx, acting
in its capacity as custodian, shall comply with all applicable Chilean securities
regulations, including article 179 of Law No. 18,045 and Release Nos. 549 and 1429 of the
Chilean Securities and Insurance Commission. |
Section 12. Miscellaneous
| All
costs and expenses, including, without limitation, fees and disbursements of counsel,
financial advisors and accountants, incurred in connection with the Offering, this
Agreement, the Custody Agreement and the transactions contemplated hereunder and
thereunder shall be paid by the party incurring such costs and expenses, whether or not
the Closing shall have occurred. |
| This
Agreement may be executed in two or more counterparts, all of which together shall be
considered a single instrument. This Agreement and the ancillary agreements referred to it
in Section 11 hereof, constitute the entire agreement, and supersede all prior agreements
and understandings (both written and oral) of the parties hereto with respect to the
subject matter hereof, and cannot be amended or otherwise modified except in writing
executed by the parties hereto. The provisions hereof shall inure to the benefit of and be
binding upon the successors and assigns of Client and Celfin. |
| We
are delighted to accept this engagement and look forward to working with you on this
assignment. Please confirm that the foregoing is in accordance with your understanding by
signing and returning to us the enclosed duplicate of this Agreement, whereupon this
Agreement shall become effective as of the date hereof. |
Very truly yours,
Celfin, Gardeweg S.A.,
Corredores de Bolsa
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/s/ |
Xxxxxxxxxx Xxxx Xxxxxxxxxx |
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| By: |
Xxxxxxxxxx Xxxx Xxxxxxxxxx |
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Gerente General |
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AGREED,
as of the date first written above.
Anheuser-Xxxxx International Holdings, Inc. Chile II Ltda. |
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/s/ |
Xxxxxxx X. Xxxxxxx Xx. |
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| By: |
Xxxxxxx X. Xxxxxxx Xx. |
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Vice President and Treasurer |
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