EXHIBIT 1.1
DRAFT
SEPTEMBER 24, 2003
FORM OF
INTERNATIONAL UNDERWRITING AGREEMENT
UNIBANCO - UNIAO DE BANCOS BRASILEIROS S.A.
UNIBANCO HOLDINGS S.A.
[3,535,638,273] Units in form of Global Depositary Shares
September 24, 2003
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
Commerzbank Aktiengesellschaft
As International Representatives of the several International Underwriters,
c/o Credit Suisse First Boston LLC,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxx Xxxxxx of America
Dear Sirs:
1. Introductory. Commerzbank Aktiengesellschaft ("COMMERZBANK"), a
corporation organized under the laws of the Federal Republic of Germany, is the
owner of 1,714,363,227 Units (as defined below) (the "COMMERZBANK FIRM
SECURITIES") and Mizuho Corporate Bank, Ltd., a corporation organized under the
laws of Japan ("MIZUHO" and, together with Commerzbank, the "SELLING
SHAREHOLDERS"), is or will on the Closing Date (as defined in Section 3) be the
owner of 3,336,548,592 Units (the "MIZUHO FIRM SECURITIES", and together with
the Commerzbank Firm Securities, the "FIRM SECURITIES") issued by Unibanco (as
defined below) as the issuing agent. In addition, Commerzbank is the owner of an
additional 757,636,773 Units (the "OPTIONAL SECURITIES", and together with the
Firm Securities, the "SECURITIES").
Each Unit ("UNIT") is evidenced by a certificado de deposito de acoes that
represents one (1) outstanding acao preferencial (preferred share), without par
value (each a "UNIBANCO PREFERRED SHARE"), of Unibanco -- Uniao de Bancos
Brasileiros S.A., a sociedade anonima (corporation) organized under the laws of
Brazil ("UNIBANCO"), and one (1) outstanding acao preferencial classe B (class B
preferred share), without par value (each a "HOLDINGS CLASS B PREFERRED SHARE"
and together with the Unibanco Preferred Shares, the "UNDERLYING SHARES") of
Unibanco Holdings S.A., a sociedade anonima (corporation) organized under the
laws of Brazil ("UNIBANCO HOLDINGS" and together with Unibanco, the
"COMPANIES"). The Underlying Shares have been issued by the Companies and
deposited with Unibanco as issuing agent for the Units pursuant to Article 43 of
Brazilian Law No. 6.404/76 of December 15, 1976, as amended (the "BRAZILIAN
CORPORATION LAW"), and Articles 7 to 11 and Articles 6 to 11 of the respective
By-laws of Unibanco and Unibanco Holdings.
Credit Suisse First Boston LLC ("CSFB") will act as global coordinator (the
"GLOBAL COORDINATOR") for the Global Offering (as described below). It is
understood that the several Underwriters named in Schedule B hereto (the
"BRAZILIAN UNDERWRITERS"), the Companies and the Selling Shareholders are
concurrently entering into a Private Instrument of Coordination of Placement of
Units Under a Firm Commitment and Best Efforts Basis (as described below) dated
the date hereof (the "BRAZILIAN UNDERWRITING AGREEMENT"), as supplemented by one
or more Adhesion Agreements pursuant to which the Brazilian Managers (as
described below) may enter into agreements with other Brazilian Underwriters to
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place the Units (collectively, the "BRAZILIAN ADHESION AGREEMENT"), which (i)
provides for a public secondary offering of Units solely in Brazil under the
procedures set forth in Brazilian Law No. 6.385/76, as amended, Article 33 of
CVM Instruction No. 13 of September 30, 1980 and Article 8 of CVM Instruction
Xx. 00 xx Xxxxxxxx 0, 0000 (xxx "XXXXXXXXX XXXXXXXX"), of which it is
anticipated that [1,515,273,546] Units (the "BRAZILIAN SECURITIES") will be
offered solely to institutional and non-institutional investors in Brazil
pursuant to a firm commitment underwriting and [3,535,638,273] Units will be
placed with the International Underwriters (as described below) for sale to
investors in the United States and other jurisdictions outside of Brazil in the
International Offering (as described below) and (ii) makes certain other
provisions with respect to the Brazilian Offering, including as described in the
next paragraph.
It is understood that the Brazilian Underwriters intend to place with the
several underwriters named in Schedule A hereto (the "INTERNATIONAL
UNDERWRITERS" and together with the Brazilian Underwriters, the "UNDERWRITERS"),
as part of an integrated global offering, an aggregate of 3,535,638,273 Units
constituting Firm Securities (the "INTERNATIONAL FIRM SECURITIES" and together
with the Optional Securities, the "INTERNATIONAL SECURITIES"), which will be
sold by the International Underwriters on a firm commitment basis in
transactions in the United States and elsewhere outside of Brazil (the
"INTERNATIONAL OFFERING" and together with the Brazilian Offering, the "GLOBAL
OFFERING") in the form of Global Depositary Shares ("GDSS") evidenced by one or
more global depositary receipts ("GDRS"), with each GDS representing 500 Units.
Commerzbank intends to offer to the International Underwriters an option,
to be exercised on no more than one occasion by the Global Coordinator during a
period of thirty days from the date hereof, to place the total number of
Optional Securities, which shall be in the form of GDSs, and the Global
Coordinator intends to exercise such option to the extent necessary to cover
over-allotments in the International Offering. If and to the extent that the
Global Coordinator exercises this option, the Brazilian Underwriters will place
the Optional Securities with the International Underwriters pursuant to the
Brazilian Underwriting Agreement as part of an integrated global offering.
The Units are to be issued by Unibanco, as issuing agent against the
deposit with the issuing agent of Underlying Shares (the "DEPOSITED SHARES").
The GDRs are to be issued by The Bank of New York, as Depositary (the
"DEPOSITARY") under a Deposit Agreement, dated as of March 26, 2001 (the
"DEPOSIT AGREEMENT"), among the Companies, the Depositary and the holders from
time to time of GDRs. The Brazilian Underwriters will place the International
Firm Securities with the International Underwriters in Brazil pursuant to the
Brazilian Underwriting Agreement in a best efforts underwriting on behalf of the
Selling Shareholders. The International Underwriters will deposit the
International Firm Securities with Unibanco as custodian to the Depositary (the
"CUSTODIAN"), simultaneously with or immediately following the Brazilian
Offering, and pursuant to the Deposit Agreement the Depositary will be required
to deliver to or upon the instruction of the International Underwriters GDRs
evidencing an aggregate of [7,071,276] GDSs representing the deposited
International Firm Securities.
The International Underwriters intend to pay the aggregate Purchase Price
(as defined in Section 3) for the International Securities being sold on each
Closing Date to Unibanco as foreign exchange provider (in such capacity, the
"FOREX COUNTERPARTY") for the benefit of the applicable Selling Shareholders or
Shareholder, with such payment extinguishing the International Underwriters'
payment obligations to such Selling Shareholders. It is understood that the
ForEx Counterparty convert the net proceeds of sale of the International
Securities on each Closing Date into Brazilian reais based on the commercial
rate of exchange as published by the Banco Central do Brasil (the "CENTRAL
BANK") on SISBACEN, PTAX 800, option 5 after the closing of the market on the
date hereof
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("The Designated Exchange Rate") and remit that amount of reais to Unibanco in
Brazil for the account of the Selling Shareholders and that the ForEx
Counterparty will simultaneously convert into United States dollars, at the
Designated Exchange Rate, and remit to each Selling Shareholder, the sum of (A)
such Selling Shareholder's share of the proceeds of the foreign exchange
transaction described above plus (B) the net proceeds of sale of the Brazilian
Securities sold by such Selling Shareholder pursuant to the Brazilian
Underwriting Agreement less (C) the applicable taxes [and offering expenses]
payable by such Selling Shareholder.
CSFB, X.X. Xxxxxx Securities Inc. ("JPMORGAN") and Commerzbank will act as
representatives (the "INTERNATIONAL REPRESENTATIVES") of the several
International Underwriters and as joint book-runners for the International
Offering and Unibanco -- Uniao de Bancos Brasileiros (Luxembourg) S.A. will act
as co-manager for the International Offering. Banco de Investimentos Credit
Suisse First Boston S.A. ("BICSFB") and Unibanco will act as the managers of the
Brazilian Offering (the "BRAZILIAN MANAGERS" and, together with the
International Representatives, the "REPRESENTATIVES") and as joint book-runners
for the Brazilian Offering.
In order to provide for the coordination of their activities, the
International Underwriters and the Brazilian Underwriters have entered into an
Agreement Between International Underwriters and Brazilian Underwriters dated
the date hereof (the "INTERSYNDICATE AGREEMENT"), which provides, among other
things, that the International Underwriters and the Brazilian Underwriters may
purchase and sell Units (including Units in the form of GDSs) among each other
for purposes of resale.
2. Representations and Warranties of the Companies and the Selling
Shareholders. (a) The Companies jointly and severally represent and warrant to,
and agree with, the several International Underwriters, and, with respect to
(iv) below, the Selling Shareholders, that:
(i) A registration statement on Form F-3 (Nos. 333-107813 and
333-107813-01) as amended by Amendments Nos. 1 and 2 thereto relating to
the Units (including Units in the form of GDSs), including a form of
prospectus relating to the International Securities, have been filed with
the Securities and Exchange Commission ("COMMISSION") and either (A) such
registration statement, as so amended, has been declared effective under
the Securities Act of 1933, as amended ("ACT") and is not proposed to be
further amended and no stop order suspending its effectiveness is in effect
and no proceedings for such purpose are pending before or, to the best
knowledge of each of the Companies, threatened by the Commission or (B)
such registration statement, as so amended, is proposed to be further
amended by amendment or post-effective amendment. If applicable and if such
registration statement (as amended by such Amendments No. 1 and 2, the
"INITIAL REGISTRATION STATEMENT") has been declared effective, either (A)
an additional registration statement (the "ADDITIONAL REGISTRATION
STATEMENT") relating to the Units (including Units in the form of GDSs) may
have been filed with the Commission pursuant to Rule 462(b) ("RULE 462(B)")
under the Act and, if so filed, has become effective upon filing pursuant
to such rule and the Units (including Units in the form of GDSs) all have
been duly registered under the Act pursuant to the initial registration
statement and, if applicable, the additional registration statement or (B)
such an additional registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon filing
pursuant to such Rule and upon such filing the Units (including Units in
the form of GDSs) will all have been duly registered under the Act pursuant
to the initial registration statement and such additional registration
statement. If the Companies do not propose to amend the initial
registration statement or if an additional registration statement has been
filed and the Companies do not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the
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Commission or has become effective upon filing pursuant to Rule 462(c)
("RULE 462(C)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"EFFECTIVE TIME" with respect to the initial registration statement or, if
filed prior to the execution and delivery of this Agreement, the additional
registration statement means (A) if the Companies have advised the
Representatives that they do not propose to amend the initial registration
statement or the additional registration statement, as the case may be, the
date and time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c), or (B) if the
Companies have advised the Representatives that they propose to file, after
the date of this Agreement, an amendment or post-effective amendment to the
initial registration statement or the additional registration statement, as
the case may be, the date and time as of which such registration statement,
as amended by such amendment or post-effective amendment, as the case may
be, is declared effective by the Commission or is filed and becomes
effective pursuant to Rule 462(b). For purposes of this Agreement,
"EFFECTIVE DATE" with respect to the initial registration statement or the
additional registration statement (if any) means the date of the Effective
Time thereof. The initial registration statement, as amended at its
Effective Time, including all material incorporated by reference therein,
including all information contained in the additional registration
statement (if any) and deemed to be a part of the initial registration
statement as of the Effective Time of the additional registration statement
pursuant to the General Instructions of the Form on which it is filed and
including all information (if any) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to Rule 430A(b)
("RULE 430A(b)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as amended
at its Effective Time, including the contents of the initial registration
statement incorporated by reference therein and including all information
(if any) deemed to be a part of the additional registration statement as of
its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as
the "ADDITIONAL REGISTRATION STATEMENT". The Initial Registration Statement
and the Additional Registration Statement are hereinafter referred to
collectively as the "REGISTRATION STATEMENTS" and individually as the
"REGISTRATION STATEMENT". The form of prospectus relating to the
International Securities, as first filed with the Commission pursuant to
and in accordance with Rule 424(b) ("RULE 424(b)") under the Act or (if no
such filing is required) as included in the Registration Statement,
including all material incorporated by reference in such prospectus, is
hereinafter referred to as the "PROSPECTUS". No document has been or will
be prepared or distributed in reliance on Rule 434 under the Act.
(ii) Subject to the last sentence of this paragraph, if the Effective
Time of the Initial Registration Statement is prior to the execution and
delivery of this Agreement: (A) on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement conformed in all
respects to the requirements of the Act and the applicable rules and
regulations of the Commission (the "RULES AND REGULATIONS") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
(conformed, or will conform, in all respects to the requirements of the Act
and the Rules and Regulations (including with respect to the reverse
reconciliation of U.S. GAAP financial statements to Brazilian GAAP included
in the Prospectus) and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, and (C) on the date of this Agreement,
the Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement (if any) is prior to the execution and
delivery of this Agreement, the Additional Registration Statement (if any)
each conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all respects to
the requirements of the Act and the Rules and Regulations, and none of such
documents includes, or will include, any untrue statement of a material
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fact or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
Subject to the last sentence of this paragraph, if the Effective Time of
the Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement will conform in
all respects to the requirements of the Act and the Rules and Regulations,
none of such documents will include any untrue statement of a material fact
or will omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The two preceding
sentences do not apply to statements in or omissions from a Registration
Statement or the Prospectus based upon written information furnished to the
Companies by any Underwriter through the applicable Representatives
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(c) hereof, or by
the Selling Shareholders specifically for use therein, it being understood
and agreed that the only such information is that described as such in
Section 7(b) hereof.
(iii) (A) A registration statement in respect of the GDSs on Form F-6
(No. 333-13282) was filed with the Commission on March 16, 2001 and is
effective pursuant to the Rules and Regulations (such registration
statement, including all exhibits thereto, at the time it became effective,
being hereinafter called the "GDS REGISTRATION STATEMENT"); (B) no stop
order suspending the effectiveness of the GDS Registration Statement is in
effect and no proceedings for such purpose are pending before or, to the
best knowledge of each of the Companies, threatened by the Commission; and
(C) the GDS Registration Statement complies and, as amended or
supplemented, if applicable, will comply in all material respects with the
Act and the Rules and Regulations.
(iv) The Brazilian Offering has been duly registered in the Brazilian
securities and exchange commission, or Comissao de Valores Mobiliarios (the
"CVM") in the form prescribed by Brazilian Law No. 6.385/76 and CVM
Instruction No. 88 of November 3, 1988, and the form of prospectus relating
to the Brazilian Offering (the "Brazilian Prospectus") will be registered
with the national association of investment banks of Brazil, or Associacao
Nacional dos Bancos de Investimento (the "ANBID") and each conforms or will
conform in all respects to the requirements of applicable Brazilian law.
The Prospectus does not omit any material information about the Companies
that is included in the Brazilian Prospectus and there is no material
inconsistency between the information contained in the Brazilian Prospectus
and the information contained in the Prospectus, including with respect to
the manner in which the International Underwriters are to acquire the
International Securities.
(v) Each of the Companies has been duly organized, is validly existing
as a sociedade anonima under the laws of Brazil, has the corporate power
and authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified would not have a material adverse effect on
the condition (financial or other) or on the business, operations,
properties or results of operations of the Companies and their subsidiaries
taken as a whole (a "MATERIAL ADVERSE EFFECT").
(vi) Schedule C to this Agreement contains a list of all the
significant subsidiaries of the Companies within the meaning of Item
1-02(w) of Regulation S-X under the Act (each a "Significant Subsidiary)
and each Significant Subsidiary has been duly incorporated and is existing
as a sociedade anonima, a sociedade limitada, or corporation or limited
liability company, as the case may be, with power and authority (corporate
and other) to own its properties and conduct its business as described in
the Prospectus; and each Significant Subsidiary is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of
its business requires such qualification except to the extent that failure
to be so qualified would not have a Material Adverse Effect; all of the
issued and outstanding capital stock of each Significant Subsidiary has
been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each Significant Subsidiary owned
by each of the Companies, directly or through subsidiaries, is owned free
and clear of any security interest, mortgage, pledge, lien
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or encumbrances except for (A) the right of first refusal and other
encumbrances on the shares of Unibanco AIG Seguros S.A. arising from the
shareholders' agreement entered into among Unibanco, American Life
Insurance Company, American International Underwriters Overseas Ltd.,
American Home Assurance Company and American International Group Inc. and
(B) the encumbrances on the shares of Credicard S.A. Administradora de
Cartoes de Credito arising from the amendment to the shareholders'
agreement among Unibanco, Banco Itau S.A. and FNC Comercio e Participacoes
Ltda.
(vii) The Deposited Shares, the Units (including Units in the form of
GDSs) and all other outstanding shares of capital stock of each of the
Companies have been duly authorized and validly issued and when the Units
(including Units in the form of GDSs) have been delivered and paid for in
accordance with this Agreement and the Brazilian Underwriting Agreement, on
each Closing Date (as defined below), such Units (including Units in the
form of GDSs) will have been duly and validly issued and fully paid and
nonassessable and will conform to the descriptions thereof contained in the
Prospectus and will not be subject to any preemptive or similar rights
except such as have been validly complied with or waived or lapsed prior to
the date hereof.
(viii) The Deposit Agreement has been duly authorized, executed and
delivered by, and assuming due authorization, execution and delivery by the
Depositary, constitutes a valid and legally binding agreement of, each of
the Companies, enforceable against each of the Companies in accordance with
its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfer), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights and except as enforcement thereof is
subject to general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law); upon due and valid
issuance by the Depositary of GDRs evidencing GDSs against the deposit of
Units in respect thereof in accordance with the Deposit Agreement, and upon
payment by the International Underwriters for the Units underlying the
GDSs, such GDRs will be duly and validly issued and the persons in whose
names such GDRs are registered will be entitled to the rights specified
therein and in the Deposit Agreement, as the case may be; and the Deposit
Agreement and the GDSs conform in all material respects to the descriptions
thereof contained in the Prospectus.
(ix) There are no contracts, agreements or understandings between
either of the Companies and any person (other than Commerzbank and Mizuho)
granting such person the right to require either of the Companies to file a
registration statement under the Act with respect to any securities of
either of the Companies owned or to be owned by such person or to require
either Company to include such securities in the securities registered
pursuant to a Registration Statement or the GDS Registration Statement or
in any securities being registered pursuant to any other registration
statement filed by either of the Companies under the Act.
(x) The GDSs have been or will be approved for listing on the New York
Stock Exchange (the "NYSE"), and the Units, including those deposited in
respect of GDSs, have been approved for listing on the Sao Paulo Stock
Exchange, or Bolsa de Valores de Sao Paulo (the "BOVESPA").
(xi) Except for (A) the registration under the Act of the
International Securities, (B) the registration with the CVM of the
Brazilian Offering, (C) the listing approval by the NYSE and the BOVESPA of
the International Securities or the Brazilian Securities, as the case may
be, [(D) the registration of the Brazilian Prospectus with the ANBID] and
(E) except such as may be required by the securities or blue sky laws of
the various states of the United States and other jurisdictions in
connection with the offer and sale (and placement) of the Units (including
Units in the form of GDSs) or such as may be required by the by-laws and
rules of the National Association of Securities Dealers, Inc. ("NASD") or
NASD Regulation, Inc. ("NASDR") in connection with the use of the
Prospectus for issuances of securities by the Companies and the purchase
and distribution of the International Securities by the International
Underwriters and the confirmation by the NASD that it has no objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements, each of which has, to the best knowledge of the Companies,
been obtained and is in full force and effect, no consents, approvals,
licenses, authorizations, orders, registrations, clearances or
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qualifications of or with any court or governmental agency or body or any
stock exchange authority (hereinafter collectively referred to as a
"GOVERNMENTAL AGENCY") having jurisdiction over Unibanco Holdings or
Unibanco or any of their subsidiaries or any of their properties
(hereinafter collectively referred to as "GOVERNMENTAL AUTHORIZATIONS") is
required for (u) the issuance of the Underlying Shares; (v) the deposit of
the Underlying Shares with Unibanco as the issuing agent for the Units; (w)
the valid authorization, issuance and delivery of the Units in respect
thereof; (x) the deposit of the International Firm Securities by the
International Underwriters with the Custodian on behalf of the Depositary;
(y) the valid authorization, issuance, sale and delivery of GDSs in respect
thereof and the valid execution and delivery of GDRs representing such
GDSs; and (z) the due authorization, execution, delivery and performance by
each of the Companies of this Agreement and the Brazilian Underwriting
Agreement (including the payment of expenses hereunder or thereunder). All
such Governmental Authorizations necessary for the transactions described
in clauses (u) through (z) above will be in full force and effect on the
First Closing Date (as defined below) and, if any Optional Securities are
purchased, on each Optional Closing Date (as defined below).
(xii) Except as set forth in the Prospectus, (a) all amounts payable
with respect to the Deposited Shares or the Units upon liquidation of
either Company or upon the redemption of Deposited Shares and all dividends
and other distributions declared and payable on the Deposited Shares and
the Units (including Units in the form of GDSs) may under the current laws
and regulations of Brazil and any political subdivision thereof be paid to
the Registrar in United States or in Brazilian currency, and no such
dividends and other distributions are subject to withholding or other taxes
under the current laws and regulations of Brazil, (b) such dividends and
other distributions may be paid by the Registrar, under the current laws
and regulations of Brazil, to the Depositary in Brazilian currency that may
be converted into foreign currency that may be freely transferred out of
Brazil, and no such dividends or other distributions will be subject to
withholding or other taxes under the current laws and regulations of
Brazil, and (c) such dividends and other distributions are otherwise free
and clear of any other tax, withholding or deduction in Brazil or any
political subdivision or taxing authority thereof which may be levied on
the Depositary's account and without the necessity of obtaining any
Governmental Authorization in Brazil.
(xiii) To ensure the legality, validity, enforcement or admissibility
into evidence in a legal or administrative proceeding in Brazil of each of
this Agreement, the Deposit Agreement and the Units (including Units in the
form of GDSs), it is not necessary that this Agreement, the Deposit
Agreement or the Units be filed or recorded with any court or other
authority in Brazil or that any registration tax, stamp duty or similar tax
be paid in Brazil on or in respect of any of this Agreement, the Deposit
Agreement or the Units other than court costs, including (without
limitation) filing fees and deposits to guarantee judgment required by a
Brazilian court of law, and except that (A) (i) this Agreement and the
Deposit Agreement shall have been translated into Portuguese by a sworn
translator and (ii) the signatures of the parties thereto shall have been
notarized by a notary public licensed as such under the law of the place of
signing and the signature of such notary public shall have been
authenticated by a Brazilian consulate, (B) this Agreement and the Deposit
Agreement, together with their sworn Portuguese translations, shall have
been registered with the appropriate Registry of Deeds and Documents in
Brazil, which registration may be made at any time for judicial enforcement
thereof in Brazil, and (C) this Agreement and the Deposit Agreement,
together with their sworn Portuguese translations, shall have been filed
with the CVM.
(xiv) The execution and delivery by the Companies of, and the
performance by the Companies of their obligations under, this Agreement and
the Brazilian Underwriting Agreement and the issuance and sale of the
Units, including the deposit of the Deposited Shares with the issuing agent
and the deposit of any Units with the Custodian for the Depositary and the
issuance of the GDRs evidencing the GDSs by the Depositary in accordance
with the Deposit Agreement, will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, (A) any
statute, any rule, regulation or order of any Governmental Agency or of any
court, domestic or foreign, having jurisdiction over either of the
Companies or any Significant Subsidiary or any of their properties,
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(B) any agreement or instrument to which either of the Companies or any
such Significant Subsidiary is a party or by which either Company or any
such Significant Subsidiary is bound or to which any of the properties of
either Company or any such Significant Subsidiary is subject, or (C) the
by-laws of either Company or any such Significant Subsidiary, except in the
case of (A) or (B), any such breach, default or violation that would not
have a Material Adverse Effect, and the Companies have full power and
authority to authorize and issue the Units (including Units in the form of
GDSs), the Deposit Agreement, the Brazilian Underwriting Agreement and this
Agreement.
(xv) Each of this Agreement and the Brazilian Underwriting Agreement
has been duly authorized, executed, and delivered by each of the Companies.
(xvi) The Companies and their Significant Subsidiaries have good and
marketable title to all real property and good and marketable title to all
personal property owned by them that is material to the business of the
Companies and their subsidiaries, taken as a whole, free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such that would not have a Material Adverse Effect; and any
real property and buildings held under lease by either of the Companies or
their Significant Subsidiaries that are material to its business and that
of its subsidiaries, taken as a whole, are held by it under valid,
subsisting and enforceable leases with such exceptions as are not material
and do not materially interfere with the use made of such property and
buildings by either of the Companies, except as described in the
Prospectus.
(xvii) The Companies and their Significant Subsidiaries possess such
certificates, authorizations, licenses, concessions, approvals, orders or
permits issued by the appropriate regulatory agencies or bodies as are
necessary to own, lease or license, as the case may be, and to operate
their properties and to conduct the businesses now conducted by them in the
manner described in the Prospectus, except to the extent that the failure
to have such certificates, authorizations, licenses, concessions,
approvals, orders or permits would not have a Material Adverse Effect; the
Companies and their Significant Subsidiaries have not received any notice
of proceedings relating to the revocation or modification of any such
certificates, authorizations, licenses, concessions, approvals, orders or
permits that, if determined adversely to the Companies or any of their
Significant Subsidiaries, would individually or in the aggregate have a
Material Adverse Effect.
(xviii) No labor dispute with any union or other formally or
informally constituted body representing the employees of the Companies or
any subsidiary exists or, to the knowledge of the Companies, is imminent,
that has or would have, as the case may be, a Material Adverse Effect.
(xix) The Companies and their Significant Subsidiaries own, possess or
can acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively, "INTELLECTUAL
PROPERTY RIGHTS") necessary to conduct the business now operated by them,
or presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property Rights that, if determined adversely to the
Companies or any of their subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(xx) Each of the Companies and each of their Significant Subsidiaries
(A) are in compliance with any and all applicable Brazilian laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (B) have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (C) are in compliance with
all terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to have or
receive required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals would
not, singly or in the aggregate, have a Material Adverse Effect.
(xxi) Except as set forth in the Prospectus, there are no legal or
governmental proceedings pending or, to the best knowledge of each of the
Companies, threatened, to which either of the
8
Companies or any of their subsidiaries is subject, which would individually
or in the aggregate, if determined adversely, have a Material Adverse
Effect, or would materially and adversely affect the ability of the
Companies to perform their obligations under the Deposit Agreement, the
Brazilian Underwriting Agreement, this Agreement, or which are otherwise
material in the context of the sale of the Units (including Units in the
form of GDSs).
(xxii) The financial statements included in or incorporated by
reference in each Registration Statement and the Prospectus present fairly
the financial position of the Companies and their consolidated subsidiaries
as of the dates shown and their results of operations and cash flows for
the periods shown, and such financial statements have been prepared in
conformity with generally accepted accounting principles in Brazil or the
United States of America, as applicable, applied on a consistent basis
throughout the periods involved (except as otherwise noted therein).
(xxiii) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Companies and their
subsidiaries taken as a whole, and, except as disclosed in or contemplated
by the Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Companies on any class of their capital
stock.
(xxiv) The Companies are subject to the reporting requirements of
either Section 13 or Section 15(d) of the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT") and file reports with the Commission on the
Electronic Data Gathering, Analysis, and Retrieval (XXXXX) system and has
timely filed all reports required to be filed by it pursuant thereto and
thereon for purposes of being eligible to use Form F-3 in connection with
the International Offering.
(xxv) The Companies and the transactions contemplated in this
Agreement in connection with the offer and sale (and placement) of the
Units meet the requirements set forth in Form F-3 under the Securities Act
for use of the Registration Statement in connection with the International
Offering of the Units that are the subject of this Agreement.
(xxvi) Neither of the Companies is and, after giving effect to the
Global Offering and sale of the Units (including Units in the form of GDSs)
and the application of the proceeds thereof as described in the Prospectus,
neither of the Companies will be an "investment company" as defined in the
Investment Company Act of 1940.
(xxvii) To the knowledge of the Companies, the discussion of their
possible status as a "passive foreign investment company" set forth in the
Prospectus under the caption "Taxation -- Material United States Federal
Income Tax Consequences -- Passive Foreign Investment Company
Considerations" is accurate in all material respects.
(xxviii) Each of the Companies and each of their respective
Significant Subsidiaries has filed all necessary federal, state and foreign
income and franchise tax returns, except where the failure to so file such
returns would not have a Material Adverse Effect, and has paid all taxes
shown as due thereon.
(xxix) Neither of the Companies has any immunity from jurisdiction of
any court of (A) any jurisdiction in which it owns or leases property or
assets, (B) the United States of America or the State of New York or (C)
Brazil or any political subdivision thereof 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 and assets or this Agreement or the Deposit
Agreement or any of the Units (including Units in the form of GDSs) or the
Underlying Shares or actions to enforce judgments in respect thereof.
(xxx) There is and has been no failure on the part of either of the
Companies or any of the directors or officers of either of the Companies,
in their capacities as such, to comply in all material respects with any
provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
9
promulgated in connection therewith, including Section 402 related to loans
and Sections 302 and 906 related to certifications.
(xxxi) Each of the Companies and each of their subsidiaries is in
material compliance with applicable U.S. and Brazilian anti-terrorism and
anti-money laundering rules and regulations, including Title III of the USA
Patriot Act and the regulations promulgated thereunder.
(b) Unibanco Holdings represents and warrants to each of the Underwriters
that:
(i) Unibanco Holdings has no direct subsidiaries other than Unibanco.
Unibanco Holdings does not currently conduct any material activities other
than holding Unibanco common shares and Unibanco preferred shares.
(ii) Except as set forth in the Prospectus, Unibanco Holdings owns,
directly or indirectly, and has good and valid title to, 96.6% of the
issued and outstanding shares of voting stock of Unibanco, free and clear
of all liens, encumbrances, equities and claims.
(c) Each of the Selling Shareholders, severally and not jointly, represents
and warrants to each of the Underwriters with respect to itself that:
(i) Such Selling Shareholder has and on each Closing Date hereinafter
mentioned will have valid and unencumbered title to the Firm Securities
(and in the case of Commerzbank, the Optional Securities, as applicable) to
be delivered by such Selling Shareholder on such Closing Date and full
right, power and authority to enter into this Agreement and the Brazilian
Underwriting Agreement and to sell, assign, transfer and deliver the Units
(including Units in the form of GDSs) to be delivered by such Selling
Shareholder on such Closing Date hereunder; and upon the delivery of and
payment for the Units (including Units in the form of GDSs) on each Closing
Date hereunder the several Underwriters will acquire valid and unencumbered
title to the Units (including Units in the form of GDSs) to be delivered by
such Selling Shareholder on such Closing Date.
(ii) Subject to the last sentence of this paragraph, if the Effective
Time of the Initial Registration Statement is prior to the execution and
delivery of this Agreement: (A) on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement conformed in all
respects to the requirements of the Act and the Rules and Regulations and
did not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed, or will conform, in all respects to the requirements of the Act
and the Rules and Regulations and did not include, or will not include, any
untrue statement of a material fact and did not omit, or will not omit, to
state any material fact required to be stated therein or necessary to make
the statement therein not misleading, and (C) on the date of this
Agreement, the Initial Registration Statement and, if the Effective Time of
the Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all respects to
the requirements of the Act and the Rules and Regulations, and neither of
such documents includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading. Subject to the last sentence of this paragraph, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, on the Effective Date of the
Initial Registration Statement, the Initial Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act and
the Rules and Regulations, neither of such documents will include any
untrue statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading. The two preceding sentences apply only to statements in or
omissions from a Registration Statement or the Prospectus based upon
written information furnished to the Companies by such
10
Selling Shareholder specifically for use therein, it being understood and
agreed that the only such information is that described as such in Section
7(b) (ii) hereof.
(iii) Such Selling Shareholder has been advised by the Companies, and
is not aware that such advice is incorrect, that the Brazilian Offering has
been duly registered in the CVM in the form prescribed by Brazilian Law No.
6.385/76 and CVM Instruction No. 88 of November 3, 1988, and the Brazilian
Prospectus will be registered with the ANBID and that each conforms or will
conform in all respects to the requirements of Brazilian law.
(iv) Such Selling Shareholder has been duly organized and is validly
existing as a corporation under the laws of the Federal Republic of Germany
(in the case of Commerzbank) or a corporation under the laws of Japan (in
the case of Mizuho).
(v) Each of this Agreement and the Brazilian Underwriting Agreement
has been duly authorized, executed and delivered by such Selling
Shareholder.
(vi) The execution and delivery by such Selling Shareholder of, and
the performance by such Selling Shareholder of its respective obligations
under, this Agreement and the Brazilian Underwriting Agreement, the deposit
of the Deposited Shares with the Registrar against issuance and deposit
with the custodian on behalf of the Depositary of Units (including Units in
form of GDSs) to be delivered on the First Closing Date (and, in the case
of Commerzbank, the Optional Closing Date, as appropriate), the
consummation by such Selling Shareholder of the transactions herein
contemplated, and the sale, transfer and delivery of the Units, including
those in form of GDSs, to be sold by such Selling Shareholder hereunder and
thereunder will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (x) any statute, any rule,
regulation or order of any Governmental Agency or of any court, domestic or
foreign, having jurisdiction over such Selling Shareholder or any of its
properties, or (y) any agreement or instrument to which such Selling
Shareholder is a party or by which such Selling Shareholder is bound or to
which any of the properties of such Selling Shareholder or any such
subsidiary is subject, or (z) the charter or by-laws of such Selling
Shareholder; except, in the case of (x) or (y), any such breach, default or
violation that would not have a material adverse effect on the consummation
of the transactions contemplated hereby and thereby, such Selling
Shareholder has full power and authority to deposit Underlying Shares with
the Registrar and to sell Underlying Shares and Units (including Units in
the form of GDSs), and no consent, approval, authorization or order of or
qualification with any Governmental Agency is required for the performance
by such Selling Shareholder of its obligations under this Agreement and the
Brazilian Underwriting Agreement or the consummation of the transactions
contemplated by the Prospectus, this Agreement and the Deposit Agreement,
except for (A) the registration under the Act of the International
Securities, (B) the registration with the CVM of the Brazilian Offering,
(C) the listing approval by the NYSE and the BOVESPA of the International
Securities or the Brazilian Securities, as the case may be, [(D) the
registration of the Brazilian Prospectus with the ANID] and (E) such as may
be required by the securities or blue sky laws of the various states of the
United States and any other jurisdictions in connection with the offer and
sale (and placement) of the Units (including Units in form of GDSs) and
such as may be required by the by-laws and rules of the NASD or NASDR in
connection with the use of the Prospectus for issuances of securities by
the Companies and the purchase and distribution of the International
Securities by the International Underwriters and the confirmation by the
NASD that it has no objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements, each of which
has, to the best knowledge of the Selling Shareholders (except with respect
to clause (D) and (E) as to which the Selling Shareholders make no
representation), been obtained and is in full force and effect. The
Governmental Authorizations for the transactions described in clauses (A),
(B) and (C) above and all similar authorizations of Governmental Agencies
having jurisdiction over such Selling Shareholder will be in full force and
effect on the First Closing Date and, with respect to Commerzbank, if any
additional Optional Securities are purchased, on the Optional Closing Date.
11
(vii) The Underlying Shares to be deposited in connection with the
sale of Securities may be freely deposited by such Selling Shareholder with
the Registrar against issuance of Units; the Units may be freely deposited
with the Depositary against issuance of GDRs evidencing GDSs; and the Units
(including the Units in the form of GDS) to be sold by such Selling
Shareholder are freely transferable by such Selling Shareholder to the
Underwriters in the manner contemplated in this Agreement and the Brazilian
Underwriting Agreement.
(viii) Delivery of the Units (including Units in the form of GDSs)
being sold by such Selling Shareholder pursuant to this Agreement and the
Brazilian Underwriting Agreement against payment therefor will pass good
and valid title to such Units (including Units in the form of GDS) free and
clear of all liens, encumbrances, equities and claims; and there are no
restrictions on subsequent transfers of Units (including Units in the form
of GDS) being sold by such Selling Shareholder and to be delivered to the
Underwriters as a result of any action taken by, law or regulation
applicable to, or other circumstance relating, to such Selling Shareholder.
(ix) There are no legal or governmental proceedings or investigations
pending or, to the best knowledge of such Selling Shareholder, threatened
to which such Selling Shareholder is either a party or of which any of the
properties of such Selling Shareholder is the subject other than
proceedings that would not have a Material Adverse Effect on the power or
ability of such Selling Shareholder to perform its obligations under this
Agreement and the Brazilian Underwriting Agreement or to consummate the
transactions contemplated by the Prospectus.
(x) Such Selling Shareholder has no immunity from jurisdiction of any
court of (A) any jurisdiction in which it owns or leases property or
assets, (B) the United States of America or the State of New York (C)
Brazil, Japan or Germany or any political subdivision of any thereof or
from any legal process (whether through service or notice, attachment prior
to judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property or assets or this Agreement or any of the
Units (including Units in the form of GDSs) or the Underlying Shares or
actions to enforce judgments in respect of any thereof.
3. Purchase, Sale and Delivery of Securities. (a) On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, (i) Commerzbank acknowledges its
agreement in the Brazilian Underwriting Agreement to place the Commerzbank Firm
Securities with the Brazilian Underwriters pursuant to the Brazilian
Underwriting Agreement and acknowledges that a portion thereof, equal to the
number of International Firm Securities multiplied by a fraction, the numerator
of which is equal to the number of Commerzbank Firm Securities and the
denominator of which is equal to the number of Firm Securities, will be placed
with the International Underwriters as part of the Global Offering, (ii) Mizuho
acknowledges its agreement in the Brazilian Underwriting Agreement to place the
Mizuho Firm Securities with the Brazilian Underwriters pursuant to the Brazilian
Underwriting Agreement and acknowledges that a portion thereof, equal to the
number of International Firm Securities multiplied by a fraction, the numerator
of which is equal to the number of Mizuho Firm Securities and the denominator of
which is equal to the number of Firm Securities, will be placed with the
International Underwriters as part of an integrated global offering, and (iii)
each International Underwriter agrees, for the benefit of the Selling
Shareholders and the Brazilian Underwriters, severally and not jointly, to
purchase in the Brazilian Offering, at a purchase price of U.S.$[ ] per Unit
(the "FIRM SECURITIES PURCHASE PRICE"), the respective number of Units
constituting the International Firm Securities set forth opposite the name of
such International Underwriter in Schedule A hereto.
(b) The International Firm Securities in GDS form will be delivered to the
International Representatives for the accounts of the International Underwriters
at the offices of Shearman & Sterling LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Xxxxxx Xxxxxx of America, at 9:00 A.M., New York time, on September
30, 2003, against payment of the aggregate Firm Securities Purchase Price
therefor in U.S. dollars in Federal (same day) funds by official bank check or
checks or wire transfer to an account at a bank acceptable to the Global
Coordinator, in favor of the ForEx Counterparty, and for
12
the ratable benefit of the Selling Shareholders, or at such other time not later
than seven full business days thereafter as the Global Coordinator, the Selling
Shareholders and the Companies determine, with the approval of the ForEx
Counterparty, as applicable, such time being herein referred to as the "FIRST
CLOSING DATE". For purposes of Rule 15c6-1 under the Exchange Act and Article 22
of CVM Instruction No. 88 of November 3, 1988, the First Closing Date (if later
than the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Firm Securities sold
pursuant to the Global Offering. In connection with the placement of
International Firm Securities to the International Underwriters pursuant to the
Brazilian Underwriting Agreement, the International Underwriters will deposit,
through customary procedures, [3,535,638,273] Units with the Custodian and,
pursuant to the Deposit Agreement, the Depositary will be required to deliver to
the International Underwriters, the GDRs evidencing the International Firm
Securities in GDS form. Such International Firm Securities in GDS form so to be
delivered will be in definitive form, in such denominations as the applicable
Representatives request and registered in the name of Cede & Co. as the nominee
of the Depository Trust & Clearing Corporation ("DTCC") and will be made
available for checking and packaging at a location specified at least 24 hours
prior to the First Closing Date. Simultaneously with the delivery of the Firm
International Securities in GDS form, the International Underwriters shall cause
the GDRs evidencing such GDSs to be delivered to The Bank of New York as
transfer agent for DTCC's Fast Automated Securities Transfer Program.
(c) In addition, upon written notice from the Global Coordinator and
JPMorgan given to Commerzbank, the Companies and the Brazilian Managers, on no
more than one occasion, not more than 30 days subsequent to the date of the
Prospectus, the International Underwriters may purchase all or less than all of
the Optional Securities at a purchase price of U.S.$[ ] per Unit (which is
equal to the public offering price per Unit less only the selling concession)
(the "OPTIONAL SECURITIES PURCHASE PRICE", and together with the Firm Securities
Purchase Price, the "PURCHASE PRICE"). Commerzbank acknowledges its agreement in
the Brazilian Underwriting Agreement to deliver such Optional Securities upon
the exercise of the option granted to the International Underwriters reflected
in the Brazilian Underwriting Agreement, and the Brazilian Underwriters agree,
severally and not jointly, to place the number of Optional Securities specified
in such notice with the International Underwriters as part of the Global
Offering, and each International Underwriters agrees, for the benefit of
Commerzbank and the Brazilian Underwriters, severally and not jointly, to
purchase in the Brazilian Offering a number of Units equal to the total number
of Optional Securities specified in such notice, multiplied by a fraction, the
numerator of which is equal to the respective number of Units constituting the
International Firm Securities set forth opposite the name of such International
Underwriter in Schedule A hereto and the denominator of which is equal to the
total number of International Firm Securities.
(d) The Optional Securities described in clause (c) shall be purchased for
the account of each International Underwriter in the same proportion as the
number of International Firm Securities set forth opposite such International
Underwriter's name bears to the total number of International Firm Securities
(subject to adjustment by the Global Coordinator to eliminate fractions) and may
be purchased by the International Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the International Firm
Securities. No Optional Securities shall be sold or delivered unless the
International Firm Securities previously have been, or simultaneously are, sold
and delivered.
(e) The Global Coordinator and XX Xxxxxx, with the approval of the ForEx
Counterparty shall determine the time for the delivery of and payment for the
Optional Securities in GDS form (the "OPTIONAL CLOSING DATE"), which may,
subject to applicable rules and customs governing Brazilian foreign exchange
transactions, be the First Closing Date (the First Closing Date and the Optional
Closing Date, if any, or sometimes referred to collectively as a "CLOSING
DATE"); provided however that the Optional Closing Date shall be not later than
five full business days after written notice of election to purchase Optional
Securities is given. Commerzbank or the Brazilian Managers will deliver the
Optional Securities, in GDS form being purchased on the Optional Closing Date to
the applicable Representatives for the accounts of the several International
Underwriters, at the offices of Shearman & Sterling LLP,
13
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx of America, at
9:00 a.m. New York time on the Optional Closing Date against payment of the
aggregate Optional Securities Purchase Price therefor in U.S. dollars in Federal
(same day) funds by official bank check or checks or wire transfer to an account
at a bank acceptable to the Global Coordinator, in favor of the ForEx
Counterparty, and for the benefit of Commerzbank. In connection with the
placement of Optional Securities to the International Underwriters pursuant to
the Brazilian Underwriting Agreement, the International Underwriters will
deposit, through customary procedures, up to 757,636,773 Units with the
Custodian and, pursuant to the Deposit Agreement, the Depositary will be
required to deliver to the International Underwriters, the GDRs evidencing the
Optional Securities in GDS form. The GDRs evidencing the Optional Securities in
GDS form will be in definitive form, in such denominations as the Global
Coordinator requests upon reasonable notice prior to the Optional Closing Date
and registered in the name of Cede & Co. as the nominee of DTCC and will be made
available for checking and packaging at a location specified at a reasonable
time in advance of the Optional Closing Date. Simultaneously with the delivery
of the Optional Securities in GDS form, the International Underwriters shall
cause the GDRs evidencing such GDSs to be delivered to The Bank of New York as
transfer agent for DTCC's Fast Automated Securities Transfer Program.
4. Offering by International Underwriters. It is understood that the
several International Underwriters propose to offer the International Securities
for sale to the public as set forth in the Prospectus.
5. Certain Agreements.
(a) The Companies agree with the several Underwriters and the Selling
Shareholders that:
(i) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Companies will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable, and upon consultation with the Global
Coordinator and JPMorgan, subparagraph (4)) of Rule 424(b) not later than
the earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement. The Companies will
advise the Global Coordinator and JPMorgan promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and an
additional registration statement is necessary to register a portion of the
Units (including Units in the form of GDSs) under the Act but the Effective
Time thereof has not occurred as of such execution and delivery, the
Companies will file the additional registration statement or, if filed,
will file a post-effective amendment thereto with the Commission pursuant
to and in accordance with Rule 462(b) on or prior to 10:00 A.M., New York
time, on the date of this Agreement or, if earlier, on or prior to the time
either Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to by the
Global Coordinator and JPMorgan.
(ii) The Companies will advise the Global Coordinator and JPMorgan
promptly of any proposal to amend or supplement the initial or any
Additional Registration Statement as filed or the related prospectus or the
Initial Registration Statement, the Additional Registration Statement (if
any) or the Prospectus or the GDS Registration Statement and will not
effect such amendment or supplementation without the Global Coordinator's
and JPMorgan's prior consent; and the Companies will also advise the Global
Coordinator and JPMorgan promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and the GDS Registration Statement (if its
effectiveness is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus or the GDS Registration Statement and of the
institution by the Commission of any stop order proceedings in respect of a
Registration Statement or the GDS Registration Statement and will use its
reasonable best efforts to prevent the issuance of any such stop order and
to obtain as soon as possible its lifting, if issued.
14
(iii) If, at any time when a prospectus relating to the Units
(including Units in the form of GDSs) is required to be delivered under the
Act in connection with sales by any Underwriter or dealer, any event occurs
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the
Companies will promptly notify the Global Coordinator and JPMorgan of such
event and will promptly prepare and, in the case of the Prospectus, file
with the Commission, at the Companies' own expense, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither the Global Coordinator's or
JPMorgan's consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 6.
(iv) As soon as practicable, the Companies will make generally
available to their respective securityholders an earnings statement
covering a period of at least 12 months beginning after the Effective Date
of the Initial Registration Statement (or, if later, the Effective Date of
the Additional Registration Statement) that will satisfy the provisions of
Section 11(a) of the Act.
(v) The Companies will furnish to the Representatives copies of the
Registration Statement and the GDS Registration Statement (each of which
will be signed and will include all exhibits), each preliminary prospectus
relating to the Units (including Units in the form of GDSs), and, so long
as a prospectus relating to the Units (including Units in the form of GDSs)
is required to be delivered under the Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and supplements to
such documents, in each case in such quantities as the Global Coordinator
or JPMorgan requests. The Prospectus shall be so furnished in New York City
on or prior to 3:00 P.M., New York time, on the business day following the
pricing of the International Securities. All other such documents shall be
so furnished as soon as available.
(vi) The Companies will cooperate with the International Underwriters
in arranging for the qualification of the Units (including Units in the
form of GDSs) for sale under the laws of such jurisdictions in the United
States and elsewhere as the Global Coordinator designates (and to which the
Companies agree) and will continue such qualifications in effect so long as
required for the distribution.
(vii) No action has been or, prior to the completion of the
distribution of the Units (including Units in the form of GDSs), will be
taken by the Companies that would permit a public offering of the Units
(including Units in the form of GDSs), or possession or distribution of any
prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus issued in connection with the Global Offering of the
Units (including Units in the form of GDSs), or any other offering
material, in any country or jurisdiction where action for that purpose is
required, except under circumstances that will result in compliance with
all applicable rules or regulations of any such country or jurisdiction.
(viii) For a period of 180 days after the date of the initial public
offering of the Securities, the Companies will not offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Act relating to, any
additional Underlying Preferred Shares or Units or GDSs or securities
convertible into or exchangeable or exercisable for any Underlying
Preferred Shares or Units or GDSs, or publicly disclose the intention to
make any such offer, sale, pledge, disposition or filing, without the prior
written consent of the Global Coordinator and JPMorgan.
(ix) The Companies will comply with the terms of the Deposit Agreement
so that the GDRs evidencing the GDSs will be executed by the Depositary and
delivered to the International Underwriters, pursuant to this Agreement, on
the applicable Closing Date.
15
(b) Each of the Selling Shareholders, severally and not jointly, agrees
with the several Underwriters, Unibanco, and Unibanco Holdings that:
(i) Such Selling Shareholder will, severally and not jointly,
indemnify and hold harmless the Underwriters against 43% (in the case of
Commerzbank) and 57% (in the case of Mizuho) of any documentary, stamp or
any other taxes or levies of any kind imposed by any Governmental Authority
(other than income or gross receipts taxes), including any interest and
penalties, on the deposit of Underlying Shares with the Registrar, the
issuance and sale of the Units (including Units in the form of GDSs) and on
the execution and delivery of this Agreement. All payments to be made by
such Selling Shareholder under this clause (i) shall be made without
withholding or deduction for or on account of any present or future taxes,
duties or governmental charges whatsoever unless such Selling Shareholder
is compelled by law to deduct or withhold such taxes, duties or charges. In
that event, each Selling Shareholder shall pay such additional amounts as
may be necessary in order that the net amounts received after such
withholding or deduction shall equal the amounts that would have been
received if no withholding or deduction had been made.
(ii) For a period of 180 days after the date of the initial public
offering of the Securities, Commerzbank will not offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Act relating to, any
additional Underlying Preferred Shares or Units or GDSs or securities
convertible into or exchangeable or exercisable for any Underlying
Preferred Shares or Units or GDSs, or publicly disclose the intention to
make any such offer, sale, pledge, disposition or filing, without the prior
written consent of the Global Coordinator and JPMorgan, except for the sale
of Securities in the Brazilian Offering.
(c) The Companies and the Selling Shareholders shall pay (i) all expenses
incident to the performance of their own obligations under this Agreement, the
Brazilian Underwriting Agreement and the Deposit Agreement, including any travel
expenses and other expenses incidental to attending or hosting meetings with
prospective purchasers of the International Securities, (ii) all transfer taxes
on the sale of the International Securities, the deposit of Underlying Shares
against Units or the deposit of Units against GDSs, (iii) any CVM, SEC, ANBID,
stock exchange or NASD registration and filing fees and (iv) the costs of
preparing, word processing, printing and distributing the Registration Statement
or any Additional Registration Statement, either Prospectus and any amendments
or supplements to any thereof.
The Companies and the Selling Shareholders agree, as between themselves,
that the expenses set forth in the preceding paragraph shall be divided between
them in accordance with the letter agreement dated August 1, 2003, relating to
the expenses of the offering of Units by the Selling Shareholders (the "Expense
Letter") and that, to the extent that either of the Companies or any Selling
Shareholder is required to pay any expense required to be paid by any other
party to the Expense Letter, such party shall be entitled to seek reimbursement
therefor from such other party. Nothing contained in this paragraph shall
derogate from the obligations to the Underwriters of the Companies and the
Selling Shareholders set forth in the preceding paragraph.
6. Conditions of the Obligations of the International Underwriters. The
obligations of the several International Underwriters to purchase and pay for
the International Firm Securities on the First Closing Date and the Optional
Securities on the Optional Closing Date will be subject to the accuracy of the
representations and warranties of the Companies and the Selling Shareholders
herein, to the accuracy of the statements of the Companies' officers and the
Depositary made pursuant to the provisions hereof, to the performance by the
Companies, the Selling Shareholders and the Brazilian Underwriters of their
respective obligations hereunder and to the following additional conditions
precedent:
(a) The International Representatives shall have received a "comfort
letter", dated the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of the
amendment or post-effective amendment to the registration statement to be filed
shortly prior to such Effective Time) from PricewaterhouseCoopers Auditores
16
Independentes, confirming that it is a firm of independent public accountants
within the meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in its opinion the financial statements and schedules examined by
it with respect to 2001 and included or incorporated by reference in the
Registration Statements comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published
Rules and Regulations;
(ii) on the basis of a reading of the latest available interim
financial statements of each of the Companies, inquiries of officials of
the Companies who have responsibility for financial and accounting matters
and other specified procedures, nothing came to their attention that caused
it to believe that:
(A) at the date of the latest available balance sheet read by such
accountants, or at a subsequent specified date not more than three
business days prior to the date of such letter, there was any change in
the capital stock or any increase in short-term indebtedness or
long-term debt of any of the Companies and their consolidated
subsidiaries or, at the date of the latest available balance sheet read
by such accountants, there was any decrease in consolidated net current
assets or net assets, as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
(B) for the period from the closing date of the income statement
for 2001 included in the Prospectus to the closing date of the latest
available income statement read by such accountants there were any
decreases, as compared with the corresponding period of the previous
year and with the period of corresponding length ended the date of the
latest income statement included in the Prospectus, in consolidated net
operating income in the total or per share amounts of consolidated net
income;
except, in the case of clauses (A) and (B) above, for changes, increases
or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(iii) it has compared specified dollar amounts (or percentages derived
from such dollar amounts) and other financial information contained in the
Registration Statements (in each case to the extent that such dollar
amounts, percentages and other financial information are derived from the
general accounting records of the Companies and their subsidiaries subject
to the internal controls of each of the Companies' accounting system or are
derived directly from such records by analysis or computation) with the
results obtained from inquiries, a reading of such general accounting
records and other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such letter.
(b) The International Representatives shall have received a "comfort
letter", dated the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of the
amendment or post-effective amendment to the registration statement to be filed
shortly prior to such Effective Time), from Deloitte Touche Tohmatsu, confirming
that it is a firm of independent public accountants within the meaning of the
Act and the applicable published Rules and Regulations thereunder and stating to
the effect that:
(i) in its opinion the financial statements and schedules examined by
it and included or incorporated by reference in the Registration Statements
comply as to form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and Regulations;
(ii) it has performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in Statement of Auditing
17
Standards No. 100, Interim Financial Information, on the unaudited
financial statements included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii) above, a
reading of the latest available interim financial statements of each of the
Companies, inquiries of officials of the Companies who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused it to believe that:
(A) the unaudited financial statements included in the Registration
Statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published
Rules and Regulations or any material modifications should be made to
such unaudited financial statements for them to be in conformity with
generally accepted accounting principles;
(B) at the date of the latest available balance sheet read by such
accountants, or at a subsequent specified date not more than three
business days prior to the date of such letter, there was any change in
the capital stock or any increase in short-term indebtedness or
long-term debt of any of the Companies and their consolidated
subsidiaries or, at the date of the latest available balance sheet read
by such accountants, there was any decrease in consolidated net assets,
as compared with amounts shown on the latest balance sheet included in
the Prospectus; or
(C) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the latest
available income statement read by such accountants there were any
decreases, as compared with the corresponding period of the previous
year and with the period of corresponding length ended the date of the
latest income statement included in the Prospectus, in consolidated net
sales or net operating income in the total or per share amounts of
consolidated net income;
except, in the case of clauses (A), (B) and (C) above, for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(iv) it has compared specified dollar amounts (or percentages derived
from such dollar amounts) and other financial information contained in the
Registration Statements (in each case to the extent that such dollar
amounts, percentages and other financial information are derived from the
general accounting records of the Companies and their subsidiaries subject
to the internal controls of each of the Companies' accounting system or are
derived directly from such records by analysis or computation) with the
results obtained from inquiries, a reading of such general accounting
records and other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such letter.
(c) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 A.M., New York time, on the date of this
Agreement or such later date as shall have been consented to by the Global
Coordinator and JPMorgan. If the Effective Time of the Additional Registration
Statement (if any) is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 A.M., New York
time, on the date of this Agreement or, if earlier, the time the Prospectus is
printed and distributed to any International Underwriter, or shall have occurred
at such later date as shall have been consented to by CSFB or JPMorgan. If the
Effective Time of the Initial Registration Statement is prior to the execution
and delivery of this Agreement, the Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a) of this
Agreement. The GDS Registration Statement shall have been declared effective not
later than 10:00 A.M., New York time, on the date of this Agreement or such
later date as shall have been consented to by the Global Coordinator and
JPMorgan. Prior to such Closing Date, no stop order suspending the effectiveness
of a Registration Statement or the GDS Registration Statement shall have been
issued and no proceedings for that purpose
18
shall have been instituted or, to the knowledge of the Selling Shareholders, the
Companies or the Representatives, shall be contemplated by the Commission.
(d) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business operations,
properties, or results of operations of the Companies or their subsidiaries,
taken as a whole, which, in the judgment of a majority in interest of the
International Underwriters, including the International Representatives, after
consultation with the Companies and the Selling Shareholders, is material and
adverse and makes it impractical or inadvisable to proceed with completion of
the International Offering or the sale of and payment for the Units (including
Units in the form of GDSs); (ii) any downgrading in the rating of any debt
securities or preferred stock of any of the Companies by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities or preferred
stock of any of the Companies (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any change in United States, Brazilian, or
international financial, political or economic conditions or currency exchange
rates or exchange controls as would, in the judgment of a majority in interest
of the International Underwriters including the International Representatives,
after consultation with the Companies and the Selling Shareholders, be likely to
prejudice materially the success of the proposed issue, sale or distribution of
the International Securities, whether in the primary market or in respect of
dealings in the secondary market; (iv) any material suspension or material
limitation of trading in securities generally on the NYSE or the BOVESPA, or any
setting of minimum prices for trading on such exchange; (v) any suspension of
trading of any securities of any of the Companies on any exchange or in the
over-the-counter market; (vi) any banking moratorium declared by United States
federal, New York state or Brazilian federal or state authorities; (vii) any
major disruption of settlements of securities or clearance services in the
United States of America or the Federative Republic of Brazil or (viii) any
attack on, outbreak or escalation of hostilities or act of terrorism involving
the United States or Brazil, any declaration of war by the United States
Congress or any other national, regional or international calamity or emergency
if, in the judgment of a majority in interest of the International Underwriters
including the International Representatives, after consultation with the
Companies and the Selling Shareholders, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the sale of and
payment for the International Securities.
(e) The International Representatives shall have received on such Closing
Date a certificate from each of the Companies, dated such Closing Date and
signed by two executive officers of each of the Companies, to the effect that
the representations and warranties of each of the Companies contained in this
Agreement and the Brazilian Underwriting Agreement are true and correct as of
such Closing Date and that each of the Companies has complied with all of the
agreements and satisfied all of the conditions on its part to be performed or
satisfied hereunder and under the Brazilian Underwriting Agreement on or before
such Closing Date.
(f) The International Representatives shall have received on such Closing
Date a certificate, dated such Closing Date and signed by two executive officers
of each of the Selling Shareholders (in the case of the First Closing Date) or
by Commerzbank alone (in the case of the Optional Closing Date), to the effect
that the representations and warranties of such Selling Shareholder contained in
this Agreement and the Brazilian Underwriting Agreement are true and correct as
of such Closing Date and that such Selling Shareholder has complied with all of
the agreements and satisfied all of the conditions on its part to be performed
or satisfied hereunder and under the Brazilian Underwriting Agreement on or
before such Closing Date.
(g) The International Representatives shall have received on such Closing
Date an opinion of Debevoise & Xxxxxxxx, United States counsel for the
Companies, dated such Closing Date, in the form and substance satisfactory to
the International Representatives.
19
(h) The International Representatives shall have received on such Closing
Date an opinion of Xxxxxx Xxxxx Xxxxxxx xx Xxxxxx, general counsel of Unibanco,
dated such Closing Date, in the form and substance satisfactory to the
International Representatives.
(i) The International Representatives shall have received on such Closing
Date an opinion of Xxxxx Xxxx & Xxxxxxxx, United States counsel for the Selling
Shareholders, dated such Closing Date, in the form and substance satisfactory to
the International Representatives.
(j) The International Representatives shall have received on such Closing
Date an opinion of Tozzini, Freire, Xxxxxxxx e Xxxxx Advogados, Brazilian
counsel for the Selling Shareholders, dated such Closing Date, in the form and
substance satisfactory to the International Representatives.
(k) The International Representatives shall have received on such Closing
Date an opinion of Xxxxxxxxx xxx Xxxxxxxx and Xxxxxxxxx Xxxxx, German legal
counsels for Commerzbank, dated such Closing Date, in the form and substance
satisfactory to the International Representatives.
(l) The International Representatives shall have received on such Closing
Date an opinion of Iwata Godo Law Firm, Japanese counsel for Mizuho, dated such
Closing Date, in the form and substance satisfactory to the International
Representatives.
(m) The International Representatives shall have received on such Closing
Date an opinion of Xxxxxx Xxxxxx & Xxxxxx LLP, counsel for the Depositary, dated
such Closing Date, in the form and substance satisfactory to the International
Representatives.
(n) The International Representatives shall have received on such Closing
Date an opinion of Shearman & Sterling LLP, United States counsel for the
Underwriters, dated such Closing Date, in the form and substance satisfactory to
the International Representatives.
(o) The International Representatives shall have received on such Closing
Date an opinion of Xxxxxxxx Xxxx Advogados, Brazilian counsel to the
Underwriters, dated such Closing Date, in the form and substance satisfactory to
the International Representatives.
(p) The Deposit Agreement shall be in full force and effect and the Units
shall have been created and deposited with the Depositary pursuant thereto.
(q) The Registrar shall have furnished to the International Representatives
a certificate, reasonably satisfactory to the International Underwriters, of one
of its authorized officers with respect to the deposit with the Registrar of the
Underlying Shares against Units and the execution and delivery of the Units
evidencing such Underlying Shares pursuant to the By-Laws of Unibanco and of
Unibanco Holdings and such other matters related thereto as the International
Underwriters reasonably request.
(r) The Depositary shall have furnished to the International
Representatives a certificate, reasonably satisfactory to the International
Underwriters, of one of its authorized officers with respect to the deposit with
the custodian of the Units against GDSs, the execution and delivery of the GDRs
evidencing such GDSs pursuant to the Deposit Agreement and such other matters
related thereto as the International Underwriters reasonably request.
(s) The GDSs shall have been approved for listing on the NYSE, subject only
to official notice of issuance, the Units shall have been admitted for trading
on the BOVESPA.
(t) The NASD shall have communicated to counsel for the International
Underwriters its determination to raise no objections with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(u) All necessary approvals from the CVM relating to this Agreement, the
Brazilian Underwriting Agreement, the Deposit Agreement, and the Global Offering
and sale of Units (including Units in the form of GDSs) shall have been obtained
and shall be in full force and effect.
20
(v) All conditions precedent to the placement of the Firm Securities by the
Selling Shareholders (or placement of Optional Securities by Commerzbank, as the
case may be) and all conditions precedent to the release of GDRs by the
Depositary on such Closing Date that are provided for in the Brazilian
Underwriting Agreement have been satisfied and Underlying Shares shall have been
deposited with the Registrar in the appropriate amount, Units shall have been
deposited with the Brazilian Custodian on behalf of the Depositary in the
appropriate amount and GDRs shall have been released by the Depositary in the
appropriate amount.
(w) The Companies and each of the Selling Shareholders shall furnish or
cause to be furnished to the International Representatives at such Closing Date
conformed copies of such certificates (in form satisfactory to the International
Representatives) of officers of the Companies and of the Selling Shareholders,
respectively, as to such other matters as the International Representatives may
reasonably request.
(x) The International Representatives shall have received a letter, dated
such Closing Date, of Pricewaterhouse Coopers Auditores Independentes, which
meets the requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more than three
days prior to such Closing Date for purposes of this subsection.
(y) The International Representatives shall have received a letter, dated
such Closing Date, of Deloitte Touche Tohmatsu, which meets the requirements of
subsection (b) of this Section, except that the specified date referred to in
such subsection will be a date not more than three days prior to such Closing
Date for purposes of this subsection.
The International Representatives may in their sole discretion waive on
behalf of the International Underwriters compliance with any conditions to the
obligations of the International Underwriters hereunder, whether in respect of
the Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a)(i) The Companies will, jointly
and severally, indemnify and hold harmless each International Underwriter, its
partners, members, directors and officers and each person, if any, who controls
such International Underwriter within the meaning of Section 15 of the Act,
against any losses, claims, damages or liabilities, joint or several, to which
such International Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each
International Underwriter for any legal or other expenses reasonably incurred by
such International Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Companies will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Companies by any International Underwriter
through the International Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by any
International Underwriter consists of the information described as such in
subsection (c)(i) below, provided, further, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any preliminary prospectus the indemnity agreement contained in this subsection
(a)(i) shall not inure to the benefit of any International Underwriter from whom
the person asserting any such losses, claims, damages or liabilities purchased
the International Securities concerned, to the extent that a prospectus relating
to such International Securities was required to be delivered by such
International Underwriter under the Act in connection with such purchase and any
such loss, claim, damage or liability of such International Underwriter results
from the fact that there was not sent or given to such person, at or prior to
the written confirmation of the sale of such International
21
Securities to such person, a copy of the Prospectus (exclusive of material
incorporated by reference) if the Companies had previously furnished copies
thereof to such International Underwriter.
(ii) The Companies will, jointly and severally, indemnify and hold harmless
each Selling Shareholder, its directors and officers and each person, if any,
who controls such Selling Shareholder within the meaning of Section 15 of the
Act, against any losses, claims, damages or liabilities, joint or several, to
which such Selling Shareholder may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Selling
Shareholder for any legal or other expenses reasonably incurred by such Selling
Shareholder in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Companies will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Companies by any of the Selling Shareholders
specifically for use therein, it being understood and agreed that the only such
information furnished by any Selling Shareholder consists of the information
described as such in subsection (b)(ii) below; provided however, that with
respect to any untrue statement or alleged untrue statement in or omission or
alleged omission from any preliminary prospectus the indemnity agreement
contained in this subsection (a)(ii) shall not inure to the benefit of any
Selling Shareholder if such untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus was corrected in
the Prospectus.
(b) (i) Each Selling Shareholder will, severally and not jointly, indemnify
and hold harmless each International Underwriter, its partners, members,
directors and officers and each person, if any, who controls such International
Underwriter within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities, joint or several, to which such International
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Companies by such Selling Shareholder specifically for use
therein, and will reimburse each International Underwriter for any legal or
other expenses reasonably incurred by such International Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by either Selling Shareholder
consists of the information relating to such Selling Shareholder in the
Prospectus under the caption "Prospectus Summary -- The Offering -- Our
Relationship with Commerzbank and Mizuho", the information relating to such
Selling Shareholder in the fifth paragraph under the caption "Recent
Developments -- Brazilian Exchange Offer Prior to Global Offering" and the
information relating to such Selling Shareholder under the caption "Selling
Shareholders", except for the percentages included in the beneficial ownership
tables under such caption; provided, however, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any preliminary prospectus the indemnity agreement contained in this subsection
(b)(i) shall not inure to the benefit of any International Underwriter from whom
the person asserting any such losses, claims, damages or liabilities purchased
the International Securities concerned, to the extent that a prospectus relating
to such International Securities was required to be delivered by such
International Underwriter under the Act in connection with such purchase and any
such loss, claim, damage or liability of such International Underwriter results
from the fact that there was not sent or given
22
to such person, at or prior to the written confirmation of the sale of such
International Securities to such person, a copy of the Prospectus (exclusive of
material incorporated by reference) if the Companies had previously furnished
copies thereof to such International Underwriter.
(ii) Each Selling Shareholder will, severally and not jointly, indemnify
and hold harmless each of the Companies, their directors and officers and each
person, if any, who controls the Companies within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which such Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Companies by such Selling Shareholder specifically
for use therein, and will reimburse such Company for any legal or other expenses
reasonably incurred by such Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by either Selling Shareholder consists of the following information in
the Prospectus furnished on behalf of each Selling Shareholder: the information
appearing under the caption "Prospectus Summary -- The Offering -- Our
Relationship with Commerzbank and Mizuho", the information relating to such
Selling Shareholder in the fifth paragraph under the caption "Recent
Developments -- Brazilian Exchange Offer Prior to Global Offering" and the
information relating to such Selling Shareholder under the caption "Selling
Shareholders", except for the percentages included in the beneficial ownership
tables under such caption; provided, however, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any preliminary prospectus the indemnity agreement contained in this subsection
(b)(ii) shall not inure to the benefit of either of the Companies if such untrue
statement or alleged untrue statement in or omission or alleged omission from
any preliminary prospectus was corrected in the Prospectus.
(c) (i) Each International Underwriter will, severally and not jointly,
indemnify and hold harmless the Companies, their directors and officers and each
person, if any, who controls the Companies within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities to which the
Companies may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Companies by such International Underwriter through the
International Representatives specifically for use therein, and will reimburse
any legal or other expenses reasonably incurred by the Companies in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that the
only such information furnished by any International Underwriter consists of (A)
the following information in the Prospectus furnished on behalf of each
International Underwriter: the names of the International Representatives
appearing on the cover page of the Prospectus, the last paragraph on page "i" of
the Prospectus concerning stabilization and overallotment by the International
Underwriters, the table under the caption "Underwriting" including the names of
the International Underwriters and the respective number of GDSs to be
purchased, the information contained in the fourth paragraph under the caption
"Underwriting", the selling concession and discount figures appearing in the
seventh paragraph under the caption "Underwriting", the table contained in the
eighth paragraph under the caption "Underwriting", the first and second
sentences in the thirteenth paragraph under the caption "Underwriting", the
information contained in the fourteenth paragraph under the caption
"Underwriting",
23
and the information contained in the sixteenth paragraph under the caption
"Underwriting" and (B) with respect to Commerzbank, the description of
relationships among Commerzbank, Mizuho and the Companies that is described
under the caption "Selling Shareholders" and is cross referenced in the fifth
sentence of the thirteenth paragraph under the caption "Underwriting".
(ii) Each International Underwriter will, severally and not jointly,
indemnify and hold harmless each of the Selling Shareholders, its directors and
officers, and each person, if any, who controls a Selling Shareholder within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities to which such Selling Shareholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Selling Shareholders by
such International Underwriter through the International Representatives
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by each of the Selling Shareholders in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any International Underwriter consists of (A) the
following information in the Prospectus furnished on behalf of each
International Underwriter: the names of the International Representatives
appearing on the cover page of the Prospectus, the last paragraph on page "i" of
the Prospectus concerning stabilization and overallotment by the International
Underwriters, the table under the caption "Underwriting" including the names of
the International Underwriters and the respective number of GDSs to be
purchased, the information contained in the fourth paragraph under the caption
"Underwriting", the selling concession and discount figures appearing in the
seventh paragraph under the caption "Underwriting", the table contained in the
eighth paragraph under the caption "Underwriting", the first and second
sentences in the thirteenth paragraph under the caption "Underwriting", the
information contained in the fourteenth paragraph under the caption
"Underwriting", and the information contained in the sixteenth paragraph under
the caption "Underwriting" and (B) with respect to Commerzbank, the description
of relationships among Commerzbank, Mizuho and the Companies that is described
under the caption "Selling Shareholders" and is cross-referenced in the fifth
sentence of the thirteenth paragraph under the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; provided, however the failure to notify the indemnifying
party shall not relieve it from any liability that it may have under subsection
(a), (b) or (c) above except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided further that the failure to notify the indemnifying party
shall not relieve it from any liability that it may have to an indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and such indemnified party notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such
24
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
(e) If the indemnification provided for in this Section 7 is unavailable or
insufficient to hold harmless an indemnified party under subsection (a), (b) or
(c) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Companies and the Selling Shareholders on the one hand and the International
Underwriters on the other from the Global Offering of the Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Companies and
the Selling Shareholders on the one hand and the International Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Companies and the Selling
Shareholders on the one hand and the International Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
Global Offering (before deducting expenses) received by the Selling Shareholders
bear to the sum of the total underwriting discounts and commissions received by
the International Underwriters pursuant hereto. The relative fault 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
a material fact relates to information supplied by the Companies, the Selling
Shareholders or the International Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (e). Notwithstanding the provisions of this subsection (e), no
International Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages which such International Underwriter 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 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
International Underwriters' obligations in this subsection (e) to contribute are
several in proportion to their respective underwriting obligations and not
joint.
(f) The obligations of the Companies and the Selling Shareholders under
this Section 7 shall be in addition to any liability which the Companies and the
Selling Shareholders may otherwise have, including pursuant to the Brazilian
Underwriting Agreement, and shall extend, upon the same terms and conditions, to
each person, if any, who controls any International Underwriter within the
meaning of the Act; and the obligations of the International Underwriters under
this Section shall be in addition to any liability which the respective
International Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of each of the Companies, to each officer
of each of the Companies who has signed a Registration Statement and to each
person, if any, who controls the Companies as the Selling Shareholders within
the meaning of the Act.
8. Default of Underwriters. If any International Underwriter or
Underwriters defaults or default in its or their obligation to purchase Units
(including Units in the form of GDSs) hereunder on either the First or the
Optional Closing Date and the aggregate number of Units (including Units in the
form of GDSs) that such defaulting International Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total number of Units
(including Units in the form of GDS) constituting the Units (including Units in
the form of GDSs) that the International Underwriters are obligated to purchase
on such Closing Date, the Global Coordinator may make arrangements satisfactory
to the Brazilian
25
Underwriters and the Selling Shareholders (or, in the case of the Optional
Closing Date, Commerzbank) for the purchase of such Units (including Units in
the form of GDSs) by other persons, including any of the International
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting International Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Units
(including Units in the form of GDSs) that such defaulting International
Underwriters agreed but failed to purchase on such Closing Date. If any
International Underwriter or Underwriters so default and the aggregate number of
Units (including Units in the form of GDSs) with respect to which such default
or defaults occur exceeds 10% of the total number of Units (including Units in
the form of GDSs) that the International Underwriters are obligated to purchase
on such Closing Date and arrangements satisfactory to the Global Coordinator and
the Selling Shareholders for the purchase of such Units (including Units in the
form of GDSs) by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting International Underwriter, the Companies or the Selling
Shareholders, except as provided in Section 9; provided, however, that if such
default occurs with respect to Optional Securities after the First Closing Date,
this Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination. As used in this Agreement, the
term "International Underwriter" includes any person substituted for an
International Underwriter under this Section. Nothing herein will relieve a
defaulting International Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Shareholders, of the Companies or their officers and of the several
International Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any International
Underwriter, any of the Selling Shareholders, the Companies or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Units (including Units in the form
of GDSs). If this Agreement is terminated pursuant to Section 8 or if for any
reason the purchase of the Units (including Units in the form of GDSs) by the
International Underwriters is not consummated, the Selling Shareholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Companies, the Selling
Shareholders, and the International Underwriters pursuant to Section 7 shall
remain in effect, and if any Units (including Units in the form of GDSs) have
been purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of the
Units (including Units in the form of GDSs) by the International Underwriters is
not consummated for any reason other than solely because of the termination of
this Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (i), (ii) (iii), (iv), (v), (vi), (vii) or (viii)of Section 6(d), the
Selling Shareholders will, jointly and severally, reimburse the Underwriters for
all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Units
(including Units in the form of GDSs).
11. Notices. All communications hereunder will be in writing and, if sent
to the International Underwriters, will be mailed, delivered or telegraphed and
confirmed to the International Representatives, c/o Credit Suisse First Boston
LLC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, attn: Transactions Advisory
Group with a copy mailed, delivered or telegraphed and confirmed by the same
mode of delivery to X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attn: Syndicate Desk, with a copy Shearman & Sterling LLP,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 attn: Xxxxxx X. Xxxxxxxxxxx; or,
if sent to either of the Companies, will be mailed, delivered or telegraphed and
confirmed to it at Xxxxxxx Xxxxxxx Xxxxxx 000, Xxx Xxxxx, XX 00000-000, Xxxxxx,
attn: Xxxxxx Xxxxx Xxxxxxx xx Xxxxxx; or, if sent to Commerzbank, will be
mailed, delivered or telegraphed and confirmed to Commerzbank
Aktiengesellschaft, ZKE 0, 00xx xxxxx, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx, attn:
Xxxxxx Xxxxxxxx, with a copy to Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, attn: Xxxxxx X. Xxxx; or, if sent to Mizuho, will be mailed,
delivered or telegraphed and confirmed to it at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, attn: Xxxxxxx Xxxxxxx, Americas Division, with a copy to
Xxxxx Xxxx & Xxxxxxxx,
26
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, attn: Xxxxxx X. Xxxx; provided,
however, that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
13. Representation of Underwriters. The International Representatives
will act for the several International Underwriters and the Brazilian Managers
will act for the Brazilian Underwriters, in each case in connection with the
transactions contemplated by this Agreement and the Brazilian Underwriting
Agreement. Any action taken by the International Representatives jointly or by
the Global Coordinator will be binding upon all the International Underwriters
and any action taken by the Brazilian Managers jointly or by the Global
Coordinator will be binding upon all the Brazilian Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the internal substantive laws of the State of New York.
16. Submission to Jurisdiction. Each of the Companies and each of the
Selling Shareholders hereby irrevocably submits to the non-exclusive
jurisdiction of the United States Federal and New York State courts in the
Borough of Manhattan in The City of New York in any action, suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby. Each of the Companies hereby irrevocably appoints Unibanco, 555 Madison
Avenue, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Xxxxxx Xxxxxx of America; Mizuho
hereby irrevocably appoints Mizuho Corporate Bank, Ltd., 1251 Avenue of the
Americas, Xxx Xxxx, Xxx Xxxx, 00000, Xxxxxx Xxxxxx of America; Commerzbank
hereby irrevocably appoints Commerzbank AG, 2 World Financial Center, Xxx Xxxx,
Xxx Xxxx, 00000, Xxxxxx Xxxxxx of America, in each case to act as such person's
authorized agent in the Borough of Manhattan in The City of New York upon which
process may be served in any such suit or proceeding, and agrees that service of
process upon such agent, and written notice of said service to either of the
Companies, or Commerzbank or Mizuho, as the case may be, by the person serving
the same to the address provided in Section 10, shall be deemed in every respect
effective service of process upon such party in any such action, suit or
proceeding. Each of the Companies further agree to take any and all action to
procure acceptance of such appointment as may be necessary to maintain such
designation and appointment of such agent in full force and effect for a period
of seven years from the date of this Agreement.
The obligation of any of the Companies or either Selling Shareholder in
respect of any sum due to any Underwriter shall, notwithstanding any judgment in
a currency other than United States dollars, not be discharged until the first
business day, following receipt by such Underwriter of any sum adjudged to be so
due in such other currency, on which (and only to the extent that) such
Underwriter may in accordance with normal banking procedures purchase United
States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to such Underwriter hereunder,
the Companies and such Selling Shareholder agree, severally and not jointly, as
a separate obligation and notwithstanding any such judgment, to indemnify such
Underwriter against such loss. If the United States dollars so purchased are
greater than the sum originally due to such Underwriter hereunder, such
Underwriter agrees to pay to the Companies or such Selling Shareholder, as
applicable, an amount equal to the excess of the dollars so purchased over the
sum originally due to such Underwriter hereunder.
17. Language. This Agreement may be executed in both English-language and
Portuguese-language originals, with the English and Portuguese versions being
equally authentic; provided, however, that the English-language version shall be
dispositive in the event of any inconsistency between the English-language and
the Portuguese-language versions and shall control in any question of
construction or interpretation.
27
[SIGNATURES APPEAR ON NEXT PAGE]
28
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to each of the Companies one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Shareholders, the Companies and the several Underwriters in accordance
with its terms.
Very truly yours,
UNIBANCO -- UNIAO DE BANCOS
BRASILEIROS S.A.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
UNIBANCO HOLDINGS S.A.
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT
By
------------------------------------
Name:
Title:
29
MIZUHO CORPORATE BANK LTD.
By
------------------------------------
Name:
Title:
Accepted, , 2003
CREDIT SUISSE FIRST BOSTON LLC
X.X. XXXXXX SECURITIES INC.
COMMERZBANK AKTIENGESELLSCHAFT
Acting severally on behalf of themselves and the several International
Underwriters named in Schedule A hereto.
By: CREDIT SUISSE FIRST BOSTON LLC
By
--------------------------------------------------------
Name:
Title:
00
XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX ss.:
On the [ ], 2003, before me personally came to me
known, who, being by me duly sworn, did depose and say that she is
of , one of the corporations described in and
which executed the foregoing instrument, and that he signed his name thereto by
like authority.
--------------------------------------
[ ]
Notary Public, State of New York
No. [ ]
Qualified in [ ]
Certificate Filed in New York County
Commission Expires [ ]
STATE OF NEW YORK
COUNTY OF NEW YORK ss.:
On the [ ], 2003, before me personally came to me
known, who, being by me duly sworn, did depose and say that he is
of , one of the corporations described in and
which executed the foregoing instrument, and that he signed his name thereto by
like authority.
--------------------------------------
[ ]
Notary Public, State of New York
No. [ ]
Qualified in [ ]
Certificate Filed in New York County
Commission Expires [ ]
STATE OF NEW YORK
COUNTY OF NEW YORK ss.:
On the [ ], 2003, before me personally came to me
known, who, being by me duly sworn, did depose and say that he is
of , one of the corporations described in and
which executed the foregoing instrument, and that he signed his name thereto by
like authority.
--------------------------------------
[ ]
Notary Public, State of New York
No. [ ]
Qualified in New York County
Commission Expires [ ]
31
32
SCHEDULE A
INTERNATIONAL UNDERWRITERS
NAME OF INTERNATIONAL UNDERWRITERS NUMBER OF GDSS TO BE PURCHASED
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
Commerzbank Aktiengesellschaft
Unibanco -- Uniao de Bancos Brasileiros (Luxembourg) S.A.
A-1
SCHEDULE B
BRAZILIAN UNDERWRITERS
NAME OF BRAZILIAN UNDERWRITERS
Banco de Investimentos Credit Suisse First Boston S.A.
Unibanco -- Uniao de Bancos Brasileiros S.A.
J.P. Xxxxxx Corretora de Cambio e Valores Mobiliarios S.A.
B-1
SCHEDULE C
LIST OF SIGNIFICANT SUBSIDIARIES
Unipart Participacoes Internacionais Ltd.
UBB Cayman Bank, Ltd.
Unibanco AIG Seguros S.A.
Unibanco Representacao e Participacoes Ltda.
Credicard S.A. Administracao de Cartoes de Credito
Unicard Banco Multiplo S.A.
B-2
