EX-1.1 2 d343004dex11.htm FORM OF INTERNATIONAL UNDERWRITING AGREEMENT FORM OF UNDERWRITING AGREEMENT Cencosud S.A. [—] Common Shares in the form of American Depositary Shares
Exhibit 1.1
FORM OF UNDERWRITING AGREEMENT
Cencosud S.A.
[—] Common Shares in the form of American Depositary Shares
[—], 2012
X. X. Xxxxxx Securities LLC
UBS SECURITIES LLC
As Representatives of the
several Underwriters listed
in Annex 1 hereto
c/o X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o UBS SECURITIES LLC
000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Ladies and Gentlemen:
Cencosud S.A., a corporation (sociedad anónima) incorporated and existing under the laws of the Republic of Chile (the “Company”), proposes to (i) issue and sell to the several Underwriters listed in Annex 1 hereto (the “Underwriters”), for whom you are acting as representatives (the “Representatives”), an aggregate of [—] shares of common stock (the “Common Shares”) of the Company in the form of American Depositary Shares (“ADS” or “ADSs”) of the Company (the “Underwritten ADSs”) and, at the option of the Underwriters, up to an additional [—] ADSs of the Company (the “Option ADSs”). The Underwritten ADSs and the Option ADSs are herein referred to as the “ADSs”.
The Common Shares to be represented by ADSs are to be deposited pursuant to a deposit agreement (the “Deposit Agreement”), dated as of [—], 2012 among the Company, [—], as depositary (the “Depositary”), and the holders from time to time of the American Depositary Receipts (the “ADRs”) representing the ADSs, to be issued under the Deposit Agreement. Each ADS will represent [—] Common Shares.
The Company is offering the ADSs as part of a global offering (the “Global Offering”) consisting of (i) an international offering of the ADSs in the United States and elsewhere outside Chile pursuant to this Underwriting Agreement (the “International Offering”);
The Common Shares for both the International Offering and the Chilean Offering will be sold initially through a book auction on the Bolsa de Comercio xx Xxxxxxxx, Bolsa de Valores (the “Xxxxxxxx Stock Exchange”) by the Chilean Placement Agents, on behalf of the Company, in a process known as subasta de libro de órdenes from [—], 2012, until 4:00 p.m. (Santiago time) on [—], 2012, in compliance with Chilean law and the rules of the Xxxxxxxx Stock Exchange. To purchase the number of Common Shares required for purposes of the International Offering, the Underwriters will participate in the subasta de libro de órdenes through the Chilean Placement Agents.
At the commencement of the offering period, the Company, acting through the Chilean Placement Agents, will register the Global Offering with the Xxxxxxxx Stock Exchange and such registration will specify the offering characteristics and conditions (the “Offer Conditions”). In order to minimize arbitrage on the Offer Conditions, all or part of those characteristics and conditions may be declared confidential (“Confidential Conditions”) by the Chilean Placement Agents in accordance with notifications previously given to the Xxxxxxxx Stock Exchange. The Confidential Conditions will be disclosed once the pricing and allocation process is finalized.
On the business day that the order book closes, the purchase price and allocations of the Common Shares will be determined by the Company, based on the demand for Common Shares and certain other discretionary matters. On the business day immediately thereafter, the Chilean Placement Agents through the Xxxxxxxx Stock Exchange will formally allocate the Common Shares to those prospective purchasers who have complied with the Offer Conditions by process of the special auction described above. Pursuant to requirements under Chilean law, the Chilean Placement Agents, on behalf of the Company, will deliver the Common Shares against payment therefor on the second business day following the formal award of these shares to prospective purchasers pursuant to the special auction procedure. The Common Shares are expected to be ready for delivery through the book-entry system of the Depósito Central de Valores on or about [—], 2012. The Common Shares awarded to the Underwriters will be deposited by the Chilean Placement Agents, on behalf of the Company, with the Depositary and the Depository will issue the ADSs representing the Common Shares so deposited.
In order to complete its proposed capital increase, the Company will, in accordance with Chilean law, conduct a preemptive rights offering (the “Preemptive Rights Offering”) to its existing shareholders. The Company hereby confirms that [—] has indicated its intention to waive its preemptive rights to subscribe for up to [—] Common Shares of the Company during the Preemptive Rights Offering, which are the Common Shares that have been made available for purposes of the Global Offering.
2
The Company hereby confirms its agreement with the several Underwriters concerning the purchase and sale of the ADSs, as follows:
| 1. | Registration Statement. |
(a) The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration statement (File No. 333-[—]), including a prospectus, relating to the ADSs. Such registration statement, as amended at the time it became effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness (“Rule 430 Information”), is referred to herein as the “Registration Statement”; and as used herein, the term “Preliminary Prospectus” means each prospectus included in such registration statement (and any amendments thereto) before effectiveness, any prospectus filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the term “Prospectus” means the final prospectus in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the ADSs. If the Company has filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
(b) The Company and the Depositary have also filed with the Commission a registration statement on Form F-6 (No. 333-[—]), filed on [—], 2012, and a related prospectus, which may be in the form of an ADR certificate (the “Registration Statement on Form F-6”), for the registration under the Securities Act of the ADSs evidenced by ADRs, have filed such amendments thereto and such amended prospectuses as may have been required to the date hereof, and will file such additional amendments thereto and such amended prospectuses as may hereafter be required. The Registration Statement on Form F-6, as amended at the time it becomes effective (including by the filing of any post-effective amendments thereto), and the prospectuses included therein, as then amended, are hereinafter called the “ADR Registration Statement” and the “ADR Prospectus,” respectively.
(c) At or prior to the Applicable Time (as defined below), the Company had prepared the following information (collectively, with the pricing information set forth in Annex 2, the “Pricing Disclosure Package”): a Preliminary Prospectus dated [—], 2012 and each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed in Annex 2 hereto.
(d) For purposes hereof, “Applicable Time” means [—] [A/P].M., New York City time, on [—], 2012.
3
| 2. | Purchase of the ADSs by the Underwriters. |
(a) The Company agrees to issue and sell the Underwritten ADSs to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective number of the Underwritten ADSs set forth opposite such Underwriter’s name in Annex 1 hereto at a price per ADS (the “Purchase Price”) of $[—].
(b) In addition, the Company agrees to issue and sell the Option ADSs to the several Underwriters as provided in this Agreement, and the Underwriters, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, shall have the option to purchase, severally and not jointly, from the Company the Option ADSs at the Purchase Price less an amount per ADS equal to any dividends or distributions declared by the Company and payable on the Underwritten ADSs but not payable on the Option ADSs.
(c) If any Option ADSs are to be purchased, the number of Option ADSs to be purchased by each Underwriter shall be the number of Option ADSs which bears the same ratio to the aggregate number of Option ADSs being purchased as the number of Underwritten ADSs set forth opposite the name of such Underwriter in Annex 1 hereto (or such number increased as set forth in Section 10 hereof) bears to the aggregate number of Underwritten ADSs being purchased from the Company by the several Underwriters, subject, however, to such adjustments to eliminate any fractional ADSs as the Representatives in their sole discretion shall make.
(d) The Underwriters may exercise the option to purchase Option ADSs at any time in whole, or from time to time in part, on or before the thirtieth day following the date of the Prospectus, by written notice from the Representatives to the Company. Such notice shall set forth the aggregate number of Option ADSs as to which the option is being exercised and the date and time when the Option ADSs are to be delivered and paid for, which may be the same date and time as the Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date or later than the tenth full business day (as hereinafter defined) after the date of such notice (unless such time and date are postponed in accordance with the provisions of Section 10 hereof). Any such notice shall be given at least two business days prior to the date and time of delivery specified therein.
(e) The Company understands that the Underwriters intend to make a public offering of the ADSs as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the ADSs on the terms set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell ADSs to or through any affiliate of an Underwriter.
(f) Payment for the ADSs shall be made by wire transfer in immediately available funds to the account specified by the Company to the Representatives in the case of the Underwritten ADSs, at the offices of Shearman & Sterling LLP, 599
0
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M., New York City time, on [—], 2012, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing or, in the case of the Option ADSs, on the date and at the time and place specified by the Representatives in the written notice of the Underwriters’ election to purchase such Option ADSs. The time and date of such payment for the Underwritten ADSs is referred to herein as the “Closing Date,” and the time and date for such payment for the Option ADSs, if other than the Closing Date, is herein referred to as the “Additional Closing Date.”
(g) Payment for the ADSs to be purchased on the Closing Date or the Additional Closing Date, as the case may be, shall be made against delivery to the Representatives for the respective accounts of the several Underwriters of the ADRs corresponding to the ADSs to be purchased on such date, registered in such names and in such denominations as the Representatives shall request in writing not later than two full business days prior to the Closing Date or the Additional Closing Date, as the case may be, with any transfer stamp or similar taxes or any withholding or other taxes imposed by the Republic of Chile or any political subdivision or any authority or agency therein or thereof having power to tax, or of any other jurisdiction in which the Company is organized or otherwise resident for tax purposes or any jurisdiction from or through which a payment is made (each, a “Relevant Taxing Jurisdiction”) payable in connection with the sale of such ADSs duly paid by the Company. The ADRs evidencing the ADSs shall be delivered to the Representatives for the respective accounts of the several Underwriters at the Closing Date or the Additional Closing Date, as the case may be, for the accounts designated by the Representatives, with any transfer, stamp or similar taxes or any withholding or other taxes imposed by any Relevant Taxing Jurisdiction thereof or therein payable in connection with the initial delivery of the ADRs, ADSs or Common Shares to the Representatives, the Depositary or the persons in whose names the Underwriters have requested ADRs evidencing the ADSs to be initially issued at the Closing Date or the Additional Closing Date, as the case may be, duly paid by the Company against payment of the purchase price thereof in accordance with this Section 2. Delivery of the ADRs corresponding to the ADSs shall be made through the facilities of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct. The ADR certificates evidencing the ADSs will be made available for inspection and packaging by the Representatives at the office of DTC or its designated custodian not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date or the Additional Closing Date, as the case may be.
(h) As compensation to the Underwriters for their commitments hereunder, the Company will pay, or cause to be paid, to the Representatives, for the accounts of the several Underwriters, an amount equal to $[—] per ADS for the ADSs to be delivered by the Company hereunder on the Closing Date or the Additional Closing Date, as the case may be. On [—], 2012, or on such other date, not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing, or, in the case of the Option ADSs, on the date and time specified by the Representatives in the written notice of the Underwriters’ election to purchase such Option ADSs, the Company will pay or cause to be paid by wire transfer, in immediate available funds, such commission to the account specified by the Representatives.
5
(i) The Company acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of ADSs contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company.
6
(c) Issuer Free Writing Prospectus. Other than the Registration Statement, the ADR Registration Statement, the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the ADSs (each such communication by the Company or its agents and representatives (other than a communication referred to in clause (i) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the documents listed in Annex 2 hereto, or (iii) each electronic road show and any other written communications approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, filed prior to the first use of such Issuer Free Writing Prospectus, did not, and as of the Closing Date and as of the Additional Closing Date, as the case may be, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus or Preliminary Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Issuer Free Writing Prospectus or Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.
7
representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, the ADR Registration Statement and the Prospectus and any amendment or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.
8
9
(k) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(l) The Shares. The Common Shares to be purchased by the Underwriters in the form of ADSs from the Company have been duly authorized for sale to the Underwriters pursuant to this Agreement and when issued, paid for and delivered in accordance with this Agreement and, in the case of the ADSs, the Deposit Agreement, will be validly issued, fully paid and non-assessable; such Common Shares may be freely deposited with the Depositary against issuance of ADRs evidencing the ADSs; the ADSs and the underlying Common Shares are freely transferable by the Company to the Underwriters in the manner contemplated by this Agreement; ownership title to such Common Shares, free and clear of all liens, encumbrances or claims will be transferred to the Depositary on behalf of the Underwriters on the Closing Date and the Additional Closing Date, as applicable; there are no restrictions on subsequent transfers of such Common Shares or the ADSs to be delivered to the Underwriters except as described in the Prospectus under “Description of Share Capital” and “Description of the American Depositary Receipts;” the Common Shares, the ADRs and the ADSs conform in all material respects to all statements relating thereto contained in the Pricing Disclosure Package and the Prospectus and such descriptions conform in all material respects to the rights set forth in the instruments defining the same; no holder of the ADSs will be subject to personal liability by reason of being such a holder; and on the Closing Date and the Additional Closing Date, as applicable, if any, the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other similar rights with respect to the Common Shares underlying the ADSs to be sold pursuant to this Agreement that have not been duly waived.
10
(o) Descriptions of the Transaction Documents. Each Transaction Document conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
11
already obtained and are in full force and effect, and except that final executed copies of this Agreement and the Prospectus must be filed with the SVS, (iii) such as have been already obtained or as may be required for the registration of the ADSs and Common Shares under the Securities Act or the Securities Act Regulations, by the Financial Industry Regulatory Authority, Inc. (“FINRA”) or by state securities or blue sky laws and (iv) such as may be required under the securities laws of jurisdictions other than Chile or the United States, which have been obtained.
12
respect with any such rights of others, and the Company and its subsidiaries have not received any notice of any claim of infringement of, or conflict with any such rights of others, which infringement or conflict could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
13
14
toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”), (b) have received and are in compliance with all permits, licenses, certificates or other authorizations or approvals required of them under applicable Environmental Laws to conduct their respective businesses, and (c) have not received notice of any actual or potential liability under or relating to any Environmental Laws, including for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, and have no knowledge of any event or condition that would reasonably be expected to result in any such notice, and (ii) there are no costs or liabilities associated with Environmental Laws of or relating to the Company or its subsidiaries, except in the case of each of (i) and (ii) above, for any such failure to comply, or failure to receive required permits, licenses or approvals, or cost or liability, as would not, individually or in the aggregate, have a Material Adverse Effect; and (iii) except as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, (a) there are no proceedings that are pending, or that are known to be contemplated, against the Company or any of its subsidiaries under any Environmental Laws in which a governmental entity is also a party, other than such proceedings as would not, individually or in the aggregate, have a Material Adverse Effect, (b) the Company and its subsidiaries are not aware of any issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be expected to have a Material Adverse Effect, and (c) none of the Company and its subsidiaries anticipates material capital expenditures relating to any Environmental Laws.
15
similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with IFRS, including, but not limited to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as disclosed in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no material weaknesses in the Company’s internal controls. The Company’s auditors and the Audit Committee of the Board of Directors of the Company have been advised of: (i) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which have adversely affected or are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting.
16
Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency to the extent applicable to the Company and/or any of its subsidiaries (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(mm) Solvency. On and immediately after the Closing Date and the Additional Closing Date, as applicable, the Company (after giving effect to the issuance of the ADSs and the other transactions related thereto as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus) will be Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company is not less than the total amount required to pay the liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Company is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the ADSs as contemplated by this Agreement, the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv) the Company is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged; and (v) the Company is not a defendant in any civil action that would result in a judgment that the Company is or would become unable to satisfy.
(nn) No Restrictions on Subsidiaries. Except as otherwise described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, no subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company.
17
(oo) No Limitation on Vote, Transfer and Payment of Dividends. Except as set forth in the Deposit Agreement, the Pricing Disclosure Package or the Prospectus, there are no limitations under Chilean law on the rights of holders of Common Shares, ADSs or ADRs evidencing the ADSs to hold or vote or transfer their respective securities, and no approvals are currently required in Chile (including any foreign exchange or foreign currency approvals) in order for the Company to pay dividends declared by the Company to the holders of Common Shares, including the Depositary. All dividends and other distributions declared and payable on the Common Shares may be paid in pesos exchangeable into U.S. dollars to the Depositary subject only to a withholding tax of 35% (which may be reduced by certain tax credits discussed in the Prospectus under the caption “Taxation—Chilean Taxation”) but otherwise free and clear of any tax, duty, withholding or deduction imposed by or in Chile.
(rr) No Stabilization. The Company has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the ADSs.
(ss) Absence of Immunity. Neither the Company nor any of its subsidiaries nor any of their assets or revenues has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of Chile or the United States and, to the extent that the Company, any of its subsidiaries, or any of their respective assets or revenues may have or may hereafter become entitled to any such right of immunity in any such court in which proceedings arising out of, or relating to the transactions contemplated by the Transaction Documents, may at any time be commenced, the Company has waived, and it will waive, or will cause their subsidiaries to waive such right to the extent permitted by law.
(tt) Compliance with FSMA. The Company has not taken any action or omitted to take any action (such as issuing any press release relating to any ADSs without an appropriate legend) which may result in the loss by any of the Underwriters of the ability to rely on any stabilization safe harbor provided by the Financial Services Authority under the Financial Services and Markets Xxx 0000 (the “FSMA”).
18
(uu) Absence of Filing. The Transaction Documents are in proper legal form under the laws of Chile and the United States for the enforcement thereof in Chile or the United States against the Company; to ensure the legality, validity, enforceability or admissibility into evidence of the Transaction Documents in Chile or the United States, it is not necessary that it be submitted to, filed or recorded with any court or other authority in Chile or the United States or that any tax, imposition or charge be paid in Chile or the United States on or in respect of such document, except for their official translation into Spanish for their presentation to a Chilean court.
(ww) Consent to Jurisdiction; Appointment of Agent for Service of Process. The choice of law provisions set forth in this Agreement and the Deposit Agreement will be recognized by Chilean courts; the Company has the legal capacity to xxx and be sued in its own name under the laws of Chile; the irrevocable submission of the Company to the non-exclusive jurisdiction of the State and Federal courts in the Borough of Manhattan, the City of New York, New York (“New York Court”), the waiver by the Company of any objection to the venue of a proceeding in a New York Court and the agreement of the Company that this Agreement and the Deposit Agreement shall be construed in accordance with and governed by the internal laws of the State of New York are legal, valid and binding under the laws of Chile and will be respected by the Chilean courts; and the service of process effected in the manner set forth in this Agreement and the Deposit Agreement, as applicable, provided personal service of process is made and assuming its validity under New York law, will be effective, insofar as Chilean law is concerned, to confer valid personal jurisdiction over the Company. The provisions in this Agreement and the Deposit Agreement as to the choice of New York Law as the governing law thereof and the provisions thereof as to (i) the submission by the Company to the non-exclusive jurisdiction of the New York Court, and (ii) the manner of effecting service of process as set forth therein, are valid, binding and enforceable under the laws of Chile. If a final and conclusive judgment for the payment of money is rendered by such courts outside Chile against the Company in respect of this Agreement or the Deposit Agreement, such judgment will be recognized in the courts of Chile and such courts would, subject to a review of the judgment in order to ascertain whether certain basic principles of due process and public policy have been complied with, grant or fail to grant, under the following circumstances, a judgment which would be enforceable against the Company in Chile. That is (A) if there is a treaty between Chile and the country where the judgment was rendered with respect to the enforcement of foreign judgments, the provisions of said treaty shall be applied, (B) if there shall be no treaty, the judgment would be enforced if there is reciprocity as to the enforcement of judgments (i.e., the relevant foreign court would enforce a judgment of a Chilean court under comparable circumstances), (C) if the judgment has been rendered by the courts of a country which does not enforce the judgments of Chilean courts, such judgment will not be enforced in Chile, (D) if reciprocity or the lack of reciprocity cannot be proven, the judgment would be enforced if it has not been rendered by default within the meaning of Chilean law, (E) the judgment shall not be contrary to the laws of Chile and (F) in any event, the judgment shall not be contrary to the public policy of Chile and shall not affect in any way properties located in Chile. Upon compliance with all of the above, and provided that the
19
judgment is submitted to the Supreme Court of the Republic of Chile, in a duly legalized (by the competent Chilean Consul) form and, if not in Spanish, translated by an official translator of the Ministry of Foreign Affairs of Chile, the courts of Chile will enforce a final and conclusive judgment for the payment of money recorded by a court outside of Chile in accordance with the procedures contemplated for the enforcement of foreign judgments in the Chilean Civil Procedure Code. Access to the courts of Chile will not be subject to any conditions that are not applicable to residents, citizens or companies incorporated under the laws of Chile. The Supreme Court of Chile will hear arguments from the party against whom enforcement is sought, but such hearing will be limited to aspects relating to such enforcement and not to substantive issues resolved in the foreign judgment. As of the date hereof, there is no treaty between the Republic of Chile and the United States on the enforcement of foreign judgments. In practice, due to the difficulties of proving in each case whether the reciprocity rule on the enforcement of foreign judgments applies or not in respect of a specific country, the Supreme Court of Chile’s approach on the matter has generally been the examination of whether circumstances in letters (E) and (F) above are duly met by such foreign judgment.
(xx) Margin Rules. Neither the issuance, sale and delivery of the ADSs not the application of the proceeds thereof by the Company as described in the ADR Registration Statement, the Registration Statement, the Pricing Disclosure Package and the Prospectus will not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(zz) Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”) that are then in effect and with which the Company is required to comply as of the effectiveness of the Registration Statement.
(aaa) Status under the Securities Act. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Company or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the ADSs and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405 under the Securities Act.
(bbb) Qualified Independent Underwriters. At the Company’s request, Credit Suisse Securities (USA) LLC has, without compensation, acted as “qualified independent underwriter’ within the meaning of FINRA Rule 5121 of the Financial Industry Regulatory Authority, Inc. (“FINRA”) (in such capacity, the “QIU”) in connection with the International Offering.
20
Any certificate signed by any officer or representative of the Company and delivered to the Representatives or Underwriters or counsel for the Underwriters in connection with the offering of the ADSs shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby on the date of such certificate.
4. Further Agreements of the Company. The Company covenants and agrees with each Underwriter that:
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object.
(d) Notice to the Representatives. The Company will advise the Representatives promptly, and confirm such advice in writing, (i) when the Registration Statement has become effective; (ii) when the ADR Registration Statement has become effective; (iii) when any amendment to the Registration Statement or to the ADR
21
Registration Statement have been filed or become effective; (iv) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed; (v) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (vi) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (vii) of the issuance by any Chilean governmental or regulatory authority of any order suspending the related transactions in Chile described in the Registration Statement, the Pricing Disclosure Package or the Prospectus or preventing or suspending the use of any offering document of securities or the initiation or threatening of any proceeding for that purpose; (viii) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Pricing Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the ADSs or any other securities of the Company for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package, the Prospectus or offering documents used in Chile or suspending any such qualification of any securities of the Company and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
22
Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Pricing Disclosure Package is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Pricing Disclosure Package to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate such amendments or supplements to the Pricing Disclosure Package as may be necessary so that the statements in the Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances existing when the Pricing Disclosure Package is delivered to a purchaser, be misleading or so that the Pricing Disclosure Package will comply with law.
(f) Blue Sky Compliance. The Company will qualify the ADSs for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for distribution of the ADSs; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
23
sold pursuant to the Underwriting Agreement; (ii) the shares of Common Stock to be sold in the Chilean Offering or pursuant to the Preemptive Rights Offering; (iii) issuances of grants of employee stock options or equity awards pursuant to the terms of a Company plan in effect on the date hereof or issuances of securities pursuant to the exercise of such options or the exercise of any other employee stock options outstanding on the date hereof; (iv) the issuance by the Company of securities upon the exercise of an option or warrant of the conversion a security outstanding on the date hereof of which the Underwriters have been advised in writing; or (v) the entry into an agreement providing for the issuance of securities in connection with an acquisition, merger or similar transaction by the Company or any of its subsidiaries, and the issuance of such securities pursuant to any such agreement or pursuant to an employee benefit plan assumed by the Company or any of its subsidiaries in connection with such transaction; provided that, in the case of clause (v), the aggregate number of shares issued in all such transactions does not exceed 5% of the total number of shares of Common Stock outstanding immediately following the completion of the transaction and prior to any such issuance the Company shall cause any such securities issued pursuant thereto to be subject to transfer restrictions substantially similar to those contained in Exhibits E and F hereto. Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.
(ii) If X.X. Xxxxxx Securities LLC and UBS Securities LLC, in their sole discretion, agree to release or waive the restrictions set forth in a lock-up letter described in Section 4(h) hereof for an officer or director of the Company and provide the Company with notice of the impending release or waiver, in the form of Exhibit G hereto, at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit H hereto through a major news service at least two business days before the effective date of the release or waiver.
24
(n) Filings. The Company will file with the Commission such reports as may be required by Rule 463 under the Securities Act.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) It has not used, authorized use of, referred to or participated in the planning for use of, and will not use, authorize use of, refer to or participate in the planning for use of, any “free writing prospectus,” as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other than (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference) in the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed in Annex 2 or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such underwriter and approved by the Company in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not, without the prior written consent of the Company, use any free writing prospectus that contains the final terms of the ADSs unless such terms have previously been included in a free writing prospectus filed with the Commission.
25
(c) It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).
(c) No Downgrade. Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement, if there are any debt securities or preferred stock of, or guaranteed by, the Company or any of its subsidiaries that are rated by a “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act, (i) no downgrading shall have occurred in the rating accorded any such debt securities or preferred stock and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any such debt securities or preferred stock (other than an announcement with positive implications of a possible upgrading).
26
(f) Chilean Offer. Contemporaneously with or prior to the purchase by the Underwriters of the ADSs in the International Offering, the sale of shares of common stock to the respective Chilean Placement Agents in the Chilean Offering according to the subasta de libro de órdenes shall have occurred.
(i) Opinion and 10b-5 Statement of U.S. Counsel for the Company. Milbank, Tweed, Xxxxxx & XxXxxx LLP, U.S. counsel for the Company, shall have furnished to the Representatives, at the request of the Company, their written opinion and 10b-5 statement, dated the Closing Date or on the Additional Closing Date, as the case may be, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Exhibit A hereto, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(j) Opinion and 10b-5 Statement of Chilean Counsel for the Company. Xxxxxxxx Yrarrazaval, Xxxxxx & Xxxxxxx Ltda., Chilean counsel for the Company, shall have furnished to the Representatives, at the request of the Company, their written
27
opinion and 10b-5 statement, dated the Closing Date or on the Additional Closing Date, as the case may be, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Exhibit B hereto, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(k) Opinion and 10b-5 Statement of U.S. Counsel for the Underwriters. The Representatives shall have received on and as of the Closing Date or on the Additional Closing Date, as the case may be, an opinion and 10b-5 statement of Shearman & Sterling, U.S. counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(l) Opinion and 10b-5 Statement of Chilean Counsel for the Underwriters. The Representatives shall have received on and as of the Closing Date or on the Additional Closing Date, as the case may be, an opinion and 10b-5 statement of Xxxxx y Cía Ltda., Chilean counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(p) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the
28
Closing Date or on the Additional Closing Date, as the case may be, prevent the issuance or sale of the ADSs; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or on the Additional Closing Date, as the case may be, prevent the issuance or sale of the ADSs.
(r) Lock-up Agreements. The “lock-up” agreements, each substantially in the forms of Exhibit E and F hereto, as the case may be, between you and certain shareholders, officers and directors of the Company listed in Annex 4 relating to sales and certain other dispositions of shares of Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date or on the Additional Closing Date, as the case may be.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
| 7. | Indemnification and Contribution. |
29
alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in subsection (b) below.
(ii) The Company also agrees to indemnify and hold harmless the QIU, its affiliates, directors and officers and each person, if any, who controls the QIU within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities incurred as a result of the participation of the QIU in connection with the offering of the ADSs.
30
the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interest between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid or reimbursed as they are incurred; provided, however that if indemnity may be sought pursuant to Section 7(a)(ii) above in respect of such proceeding, then in addition to such separate firm of the Underwriters, their affiliates and such control persons of the Underwriters the indemnifying party shall be liable for the fees and expenses of not more than one separate firm (in addition to any local counsel) for the QIU, its affiliates, directors, officers and all persons, if any, who control the QIU within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act . Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by the QIU and any such separate firm for the Company, its directors, its officers who signed the Registration Statement and any control persons of the Company shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
31
damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters or the QIU, as the case may be, on the other, from the offering of the ADSs or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company, on the one hand, and the Underwriters or the QIU, as the case may be, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters or the QIU, as the case may be, on the other, shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the ADSs and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, or the fee to be received by or the QIU, as the case may be, bear to the aggregate offering price of the ADSs. The relative fault of the Company, on the one hand, and the Underwriters or the QIU, as the case may be, on the other, 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 Company or by the Underwriters or the QIU, as the case may be, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
32
| 10. | Defaulting Underwriter. |
(a) If, on the Closing Date or the Additional Closing Date, as the case may be, any Underwriter defaults on its obligation to purchase the ADSs that it has agreed to purchase hereunder on such date, the non-defaulting Underwriters may in their discretion arrange for the purchase of such ADSs by other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such ADSs, then the Company shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such ADSs on such terms. If other persons become obligated or agree to purchase the ADSs of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may postpone the Closing Date or the Additional Closing Date, as the case may be, for up to five full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement and the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement and the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Annex 1 hereto that, pursuant to this Section 10, purchases ADSs that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the ADSs of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate number of ADSs that remain unpurchased on the Closing Date or the Additional Closing Date, as the case may be, does not exceed one-eleventh of the aggregate number of ADSs to be purchased on such date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of ADSs that such Underwriter agreed to purchase hereunder on such date plus such Underwriter’s pro rata share (based on the number of ADSs that such Underwriter agreed to purchase on such date) of the ADSs of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
33
(c) If, after giving effect to any arrangements for the purchase of the ADSs of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate number of ADSs that remain unpurchased on the Closing Date or the Additional Closing Date, as the case may be, exceeds one-eleventh of the aggregate amount of ADSs to be purchased on such date, or if the Company shall not exercise the right described in paragraph (b) above, then this Agreement or, with respect to the Additional Closing Date, the obligation of the Underwriters to purchase ADSs on the Additional Closing Date shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Company, except that the Company will continue to be liable for the payment of expenses as set forth in Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any non-defaulting Underwriter for damages caused by its default.
| 11. | Payment of Expenses. |
(a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all reasonable and documented costs and expenses, previously approved by the Company, incident to the performance of its obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the ADSs and any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of the Company’s counsel and independent accountants; (v) the fees and disbursements of Underwriters’ counsel, that in no event will exceed US$275,000 plus reasonable expenses for the Underwriters’ U.S. counsel and US$20,000 for the Underwriters’ local counsel (provided, however that such counsel fee limits may be increased with the consent of the Issuer); (vi) the fees and expenses incurred in connection with the registration or qualification of the ADSs under the state or foreign securities or blue sky laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters); (vii) the cost of preparing ADR certificates evidencing the ADSs; (viii) the costs and charges of any transfer agent and any registrar for the ADSs (including the Common Shares underlying ADSs); (ix) all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, FINRA (including the fees and expenses of the QIU); (x) all expenses incurred by the Company and the Underwriters in connection with any “road show” presentation to potential investors; and (xi) all expenses and application fees related to the listing of the ADSs on the New York Stock Exchange; (xii) any filing with, and clearance of the offering by,
34
the SVS, the Xxxxxxxx Stock Exchange and the Electronic Stock Exchange; and (xiii) all previously approved out-of-pocket costs and expenses reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby (excluding the Underwriters’ legal expenses).
35
| 19. | Miscellaneous. |
36
Xxxx (fax: (000) 000-0000). Notices to the Company shall be given to it at Xx. Xxxxxxx 0000, Xxxx 0, Xxx Xxxxxx, Xxxxxxxx, Xxxxx, Attention: Xxxxxx Xxxxxxxx; with a copy to Xxxxxxxx Yrarrazaval, Xxxxxx & Xxxxxxx Ltda. at Xx. Xx Xxxx 00, Xxxx 00, Xxx Xxxxxx X.X. 0000000, Xxxxxxxx, Xxxxx, Attention: Xxxxxxx Xxxxx.
[Signature Page follows]
37
If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
| Very truly yours, | ||
| CENCOSUD S.A. | ||
| By: |
| |
| Name: | ||
| Title: |
Accepted: , 2012
X. X. XXXXXX SECURITIES LLC
For itself and on behalf of the
several Underwriters listed
in Annex 1 hereto.
| By: |
| |
| Authorized Signatory |
UBS SECURITIES LLC
For itself and on behalf of the
several Underwriters listed
in Annex 1 hereto.
| By: |
| |
| Authorized Signatory | ||
| By: |
| |
| Authorized Signatory |
[Underwriting Agreement signature page]
ANNEX 1
| Underwriter | Number of Underwritten ADSs | |||
| X. X. Xxxxxx Securities LLC | [ | —] | ||
| UBS Securities LLC | [ | —] | ||
| Xxxxxx Xxxxxxx & Co. LLC | [ | —] | ||
| Credit Suisse Securities (USA) LLC | [ | —] | ||
| Banco Bilbao Vizcaya Argentaria, S.A. | [ | —] | ||
| Santander Investment Securities Inc. | [ | —] | ||
|
|
| |||
| Total | ||||
|
|
|
Annex 1
ANNEX 2
| a. | Issuer Free Writing Prospectuses |
[list each Issuer Free Writing Prospectus filed by the Company under Rule 433(d) of the Securities Act]
| b. | Pricing Information Provided Orally by Underwriters |
The following information is also included in the Pricing Disclosure Package:
I. The initial price to the public of the ADS is $[—] per ADS.
Annex 2
ANNEX 3
List of Subsidiaries
See Exhibit 21.1
Annex 3
ANNEX 4
List of Shareholders, Officers and Directors of the Company that are Signatories to Lock-up Agreements
Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxx
Xxxxxxxx Xxxxxxxxxx
Xxxx Xxx Xxxxx
Xxxxx Xxxxx
Xxxxxx Xxxx
Xxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxx
Xxxxxxxx Xxxx
Xxxxxx Xxxxxxxx
Bronislao Jandzio
Xxxxx Xxxxxxxx
Xxxxxx Xxxx
Xxxxx Xxxxx
Xxxxxxxx Xxxxx
Xxxxx Xxxxxxxx
Xxxxxxx Xxxxx
Xxxxxx Illuminati
Xxxxxx Xxxxxxxxx
Inversiones Quinchamali Limitada
Inversiones Latadia Limitada
Inversiones Tano Limitada
Annex 4
EXHIBIT A
FORM OF OPINION OF MILBANK, TWEED, XXXXXX & XXXXXX LLP, U.S. COUNSEL FOR THE COMPANY
[Provided Under Separate Cover]
A-1
EXHIBIT B
FORM OF OPINION OF XXXXXXXX YRARRAZAVAL, XXXXXX & XXXXXXX LTDA., CHILEAN COUNSEL FOR THE COMPANY
[Provided Under Separate Cover]
B-1
EXHIBIT C
FORM OF THE GENERAL COUNSEL OF THE COMPANY
[Provided Under Separate Cover]
C-1
EXHIBIT D
FORM OF OPINION OF DEPOSITARY’S COUNSEL
, 2012
To the Underwriters
| Re: | Cencosud S.A. |
| Offering of [—] shares of Common Stock of the Company in the form of American Depositary Shares |
Ladies and Gentlemen:
We are acting as counsel for [—], as depositary, in connection with the Deposit Agreement dated as of [—], 2012 (the “Deposit Agreement”), among Cencosud S.A. (the “Company”), [—], as depositary (the “Depositary”), and all owners and beneficial owners from time to time of American Depositary Receipts issued thereunder.
We are delivering this opinion at the request of the Depositary to you as provided in the Underwriting Agreement dated [—], 2012 among the Company and you, in connection with the contemplated purchase of [—] shares of common stock (“Common Shares”) of the Company, in the form of American Depositary Shares (the “ADSs”) evidenced by American Depositary Receipts (“ADRs”).
Based on the foregoing, and subject to the accuracy of the assumptions and to the qualifications set forth below, we are of the opinion that:
| 1. | The Deposit Agreement has been duly authorized, executed and delivered by the Depositary and constitutes a valid and binding agreement of the Depositary enforceable against the Depositary in accordance with its terms, except as enforcement of it may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general application relating to or affecting creditors’ rights and by general principles of equity. |
| 2. | Upon execution and delivery by the Depositary of ADRs evidencing the ADSs against the deposit of Common Shares in accordance with the provisions of the Deposit Agreement, the ADSs will be validly issued and will entitle the registered holders of the ADSs to the rights specified in those ADRs and in the Deposit Agreement. |
These opinions are based upon the assumptions that (a) the Deposit Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, (b) all the Common Shares are duly authorized, validly issued, fully paid and non-assessable and are registered or not required to be registered in accordance with the United States Securities Act of 1933, as amended, and (c) all signatures on documents examined by us are genuine. In giving these opinions, we have also relied as to certain matters, without independent verification, on information obtained from public officials or officers of the Depositary.
Very truly yours,
D-1
EXHIBIT E
FORM OF LOCK-UP AGREEMENT FOR ENTITIES AND PERSONS UNRELATED TO THE CONTROLLING SHAREHOLDER
[—], 2012
X. X. Xxxxxx Securities LLC
UBS SECURITIES LLC
As Representatives of the
several Underwriters listed
in Annex 1 hereto
c/o X. X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
UBS SECURITIES LLC
000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
| Re: | Cencosud S.A. — Public Offering of shares of Common Stock in the form of American Depositary Shares |
Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Cencosud S.A., a corporation (sociedad anónima) incorporated and existing under the laws of the Republic of Chile (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Annex 1 to the Underwriting Agreement (the “Underwriters”), of shares of common stock of the Company in the form of American Depositary Shares (the “ADSs”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement.
In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the ADSs, and for other good and valuable consideration receipt of which is hereby acknowledged, the undersigned hereby agrees that, without the prior written consent of X. X. Xxxxxx Securities LLC and UBS Securities LLC on behalf of the Underwriters, the undersigned will not, during the period ending 180 days after the date of the final prospectus relating to the Public Offering (the “Prospectus”), (1) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise dispose of, directly or indirectly, any shares of common stock, $[ ] per share par value, of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be
E-1
deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant), or publicly disclose the intention to make any offer, sale, pledge or disposition; (2) enter into any swap or other agreement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (3) make any demand for or exercise any right with respect to the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock; in each case without the prior written consent of X.X. Xxxxxx Securities LLC and UBS Securities LLC. If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any Company-directed Securities the undersigned may purchase in the Public Offering.
The foregoing shall not apply to:
| (i) | the shares of Common Stock in the form of ADSs to be sold in the International Offering pursuant to the Underwriting Agreement; |
| (ii) | the shares of Common Stock to be sold in the Chilean Offering or pursuant to the Preemptive Rights Offering; |
| (iii) | the exercise of an option or warrant or the conversion of a security outstanding on the date of the Underwriting Agreement of which the Underwriters have been advised in writing; |
| (iv) | the transfer of shares of Common Stock by the undersigned to its affiliates, or, in the case of any undersigned who is a limited liability company, the distribution of shares of Common Stock to its members; |
| (v) | the transfer of shares of Common Stock as a bona fide gift; or |
| (vi) | transactions related to shares of Common Stock acquired in open market transactions after the completion of the Public Offering; |
provided that in the case of (iii), (iv) and (v), each optionee, transferee or donee, as applicable, is or agrees to be bound by the terms of this lock-up prior to such transfer.
If the undersigned is an officer or director of the Company, (i) X.X. Xxxxxx Securities LLC and UBS Securities LLC, on behalf of the Underwriters agree that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of common stock, X.X. Xxxxxx Securities LLC and UBS Securities LLC, on behalf of the Underwriters will notify the Company of the impending release or waiver, and (ii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by X.X. Xxxxxx Securities LLC and UBS Securities LLC, on behalf of the Underwriters hereunder to any such officer or director shall only be effective two business days after the publication date of such press release.
Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day
E-2
period, the restrictions imposed by this Letter Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless X.X. Xxxxxx Securities LLC and UBS Securities LLC, on behalf of the Underwriters, waive, in writing, such extension.
In furtherance of the foregoing, the Company and any duly appointed transfer agent for the registration or transfer of the securities described herein are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the common stock to be sold thereunder, the undersigned shall be released from, all obligations under this Letter Agreement. In addition, the undersigned shall be released from all obligations under this agreement if the Closing Date (as defined in the Underwriting Agreement) has not occurred on or prior to [—], 2012. The undersigned understands that the Underwriters are entering into the Underwriting Agreement and proceeding with the Public Offering in reliance upon this Letter Agreement.
This Letter Agreement and any claim, controversy or dispute arising under or related to this Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof.
| Very truly yours, | ||
| [NAME OF STOCKHOLDER] | ||
| By: |
| |
| Name: | ||
| Title: |
E-3
Annex 1 to Lock-up Agreement
Underwriters
X. X. Xxxxxx Securities LLC
UBS Securities LLC
Xxxxxx Xxxxxxx & Co. LLC
Credit Suisse Securities (USA) LLC
Banco Bilbao Vizcaya Argentaria, S.A.
Santander Investment Securities Inc.
E-4
EXHIBIT F
FORM OF LOCK-UP AGREEMENT FOR THE CONTROLLING SHAREHOLDER AND ENTITIES
OR PERSONS RELATED TO THE CONTROLLING SHAREHOLDER
[—], 2012
X. X. Xxxxxx Securities LLC
UBS SECURITIES LLC
As Representatives of the
several Underwriters listed
in Annex 1 hereto
c/o X. X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
UBS SECURITIES LLC
000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
| Re: | Cencosud S.A. — Public Offering of shares of Common Stock in the form of American Depositary Shares |
Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the several Underwriters, propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Cencosud S.A., a corporation (sociedad anónima) incorporated and existing under the laws of the Republic of Chile (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters named in Annex 1 to the Underwriting Agreement (the “Underwriters”), of shares of common stock of the Company in the form of American Depositary Shares (the “ADSs”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement.
In consideration of the Underwriters’ agreement to purchase and make the Public Offering of the ADSs, and for other good and valuable consideration receipt of which is hereby acknowledged, the undersigned hereby agrees that, without the prior written consent of X. X. Xxxxxx Securities LLC and UBS Securities LLC on behalf of the Underwriters, the undersigned will not, during the period ending 180 days after the date of the final prospectus relating to the Public Offering (the “Prospectus”), (1) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise dispose of, directly or indirectly, any shares of common stock, $[ ] per share par value, of the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option
F-1
or warrant), or publicly disclose the intention to make any offer, sale, pledge or disposition; (2) enter into any swap or other agreement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock or such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (3) make any demand for or exercise any right with respect to the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock; in each case without the prior written consent of X.X. Xxxxxx Securities LLC and UBS Securities LLC. If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any Company-directed Securities the undersigned may purchase in the Public Offering.
The foregoing shall not apply to:
| (i) | the shares of Common Stock in the form of ADSs to be sold in the International Offering pursuant to the Underwriting Agreement; |
| (ii) | the shares of Common Stock to be sold in the Chilean Offering or pursuant to the Preemptive Rights Offering; |
| (iii) | the exercise of an option or warrant or the conversion of a security outstanding on the date of the Underwriting Agreement of which the Underwriters have been advised in writing; |
| (iv) | the transfer by the undersigned to its affiliates or immediate family members of (i) shares of Common Stock or (ii) rights to subscribe for new shares of Common Stock during the Preemptive Rights Period; |
| (v) | in the case of any undersigned that is a limited liability company, the distribution of shares of Common Stock to its members; |
| (vi) | the transfer of shares of Common Stock as a bona fide gift; |
| (vii) | transactions related to shares of Common Stock acquired in open market transactions after the completion of the Public Offering; |
| (viii) | the transfer of pledges of the undersigned’s shares of Common Stock securing indebtedness outstanding as of the date hereof (of which the Underwriters have been advised in writing) or the creation of new pledges resulting in the termination of such existing pledges, in each case in connection with any refinancing of such indebtedness, including such additional shares of Common Stock as may be required to be pledged to reflect xxxx-to-market adjustments under the terms of such transferred or new pledges, as the case may be; |
| (ix) | pledges of such additional shares of Common Stock as may be required to be pledged to reflect xxxx-to-market adjustments under the terms of pledges of the undersigned’s shares of Common Stock securing indebtedness outstanding as of the date hereof (of which the Underwriters have been advised in writing); or |
| (x) | pledges of up to 80 million shares of the undersigned’s shares of Common Stock as security for one or more newly established credit facilities to be entered into by the undersigned for purposes of obtaining financing to subscribe for new shares of Common Stock in the Preemptive Rights Offering, including such additional shares of Common Stock as may be required to be pledged to reflect xxxx-to-market adjustments under the terms of such pledges; or |
F-2
| (xi) | the transfer of shares of Common Stock held of record by Asesorias Alpa Ltda. as of the date hereof; (for inclusion only in the lock-up agreement to be entered by Xxxxxxx Xxxxxxxx). |
provided that in the case of (iii), (iv), (v) and (vi), each optionee, transferee or donee, as applicable, is or agrees to be bound by the terms of this lock-up prior to such transfer.
If the undersigned is an officer or director of the Company, (i) X.X. Xxxxxx Securities LLC and UBS Securities LLC, on behalf of the Underwriters agree that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of common stock, X.X. Xxxxxx Securities LLC and UBS Securities LLC, on behalf of the Underwriters will notify the Company of the impending release or waiver, and (ii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by X.X. Xxxxxx Securities LLC and UBS Securities LLC, on behalf of the Underwriters hereunder to any such officer or director shall only be effective two business days after the publication date of such press release.
Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, the restrictions imposed by this Letter Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless X.X. Xxxxxx Securities LLC and UBS Securities LLC, on behalf of the Underwriters, waive, in writing, such extension.
In furtherance of the foregoing, the Company and any duly appointed transfer agent for the registration or transfer of the securities described herein are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the common stock to be sold thereunder, the undersigned shall be released from, all obligations under this Letter Agreement. In addition, the undersigned shall be released from all obligations under this agreement if the Closing Date (as defined in the Underwriting Agreement) has not occurred on or prior to [—], 2012. The undersigned understands that the Underwriters are entering into the Underwriting Agreement and proceeding with the Public Offering in reliance upon this Letter Agreement.
This Letter Agreement and any claim, controversy or dispute arising under or related to this Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof.
F-3
| Very truly yours, | ||
| [NAME OF STOCKHOLDER] | ||
| By: |
| |
| Name: | ||
| Title: |
Annex 1 to Lock-up Agreement
Underwriters
X. X. Xxxxxx Securities LLC
UBS Securities LLC
Xxxxxx Xxxxxxx & Co. LLC
Credit Suisse Securities (USA) LLC
Banco Bilbao Vizcaya Argentaria, S.A.
Santander Investment Securities Inc.
F-4
EXHIBIT G
FORM OF WAIVER OF LOCK-UP
Cencosud S.A.
Public Offering of shares of Common Stock in the form of American Depositary Shares
, 20
[Name and Address of
Officer or Director
Requesting Waiver]
Dear Mr./Ms. [Name]:
This letter is being delivered to you in connection with the offering by Cencosud S.A. (the “Company”) of shares of common stock (“Common Shares”) in the form of American Depositary Shares (“ADSs”), $ par ADS, of the Company and the lock-up letter dated , 2012 (the “Lock-up Letter”), executed by you in connection with such offering, and your request for a [waiver] [release] dated , 20 , with respect to ADSs.
X.X. Xxxxxx Securities LLC and UBS Securities LLC hereby agree to [waive] [release] the transfer restrictions set forth in the Lock-up Letter, but only with respect to the ADSs, effective , 20 (not less than three business days after the date of the release letter); provided, however, that such [waiver] [release] is conditioned on the Company announcing the impending [waiver] [release] by press release through a major news service at least two business days before effectiveness of such [waiver] [release]. This letter will serve as notice to the Company of the impending [waiver] [release].
Except as expressly [waived] [released] hereby, the Lock-up Letter shall remain in full force and effect.
Yours very truly,
[Signature of X.X. Xxxxxx Securities LLC Representative]
[Name of X.X. Xxxxxx Securities LLC Representative]
[Signature of UBS Securities LLC Representative]
[Name of UBS Securities LLC Representative]
cc: Company
G-1
EXHIBIT H
FORM OF PRESS RELEASE
Cencosud S.A.
[Date]
Cencosud S.A. (the “Company”) announced today that X.X. Xxxxxx Securities LLC and UBS Securities LLC, on behalf of the underwriters in the Company’s recent public sale of shares of common stock in the form of American Depositary Shares (“ADSs”), is [waiving] [releasing] a lock-up restriction with respect to shares of the Company’s common stock held by [certain officers or directors] [an officer or director] of the Company. The [waiver] [release] will take effect on , 20 , and the shares may be sold on or after such date.
This press release is not an offer for sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.
H-1
