Itaú Unibanco Holding S.A. 188,424,758 RESTRICTED ADSs Resale Registration Rights Agreement dated June 1, 2010
EXHIBIT
4.2
EXECUTION
COPY
Itaú
Unibanco Holding S.A.
188,424,758
RESTRICTED ADSs
dated
June 1, 2010
RESALE
REGISTRATION RIGHTS AGREEMENT, dated as of June 1, 2010, among Itaú Unibanco
Holding S.A., a sociedade por
ações incorporated in the Federative Republic of Brazil (together with
any successor entity, herein referred to as the “Company”), Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) and Itaú USA
Securities Inc. (“Itaú”) (each an “Initial Purchaser”), for themselves and as
representatives of the placement agents listed in Schedule A to the Purchase
Agreement (as defined below), for the benefit of the holders of the Restricted
ADSs (as defined below).
Pursuant
to the Purchase and Placement Facilitation Agreement, dated as of May 25, 2010,
between the Company, Bank of America Corporation, a Delaware corporation (the
“Selling Shareholder”) and the Initial Purchasers (the “Purchase Agreement”),
relating to the initial placement (the “Initial Placement”) of the Restricted
ADSs (as defined below), the Initial Purchasers have agreed to purchase from
Bank of America Corporation an aggregate of 188,424,758 preferred shares without
par value of the Company in the form of American Depositary Shares (the
“Restricted ADSs”) each representing one preferred share for placement with
qualified institutional buyers, as defined in Rule 144A under the Securities Act
of 1933, as amended (the “Securities Act”). The Company has agreed to
provide the registration rights set forth in this Agreement (as defined below)
pursuant to Section 5(m) of the Purchase Agreement.
The
parties hereby agree as follows:
“Affiliate” of any specified
person means any other person which, directly or indirectly, is in control of,
is controlled by, or is under common control with, such specified
person. For purposes of this definition, control of a person means
the power, direct or indirect, to direct or cause the direction of the
management and policies of such person whether by contract or otherwise; and the
terms “controlling” and “controlled” have meanings correlative to the
foregoing.
“Agreement”: This
Resale Registration Rights Agreement.
“Business Day”: Any day that is
not a Saturday, Sunday or other day on which commercial banks in New York City
or São Paulo are authorized or required by law to remain closed.
“Closing Date”: June
1, 2010.
“Commission”: Securities
and Exchange Commission.
“Company”: As
defined in the preamble hereto.
“CPI
Requirement”: The current information requirement applicable
under Rule 144(c)(1) under the Securities Act to a resale of Restricted ADSs
pursuant to Rule 144(b)(1) under the Securities Act. Rule 144(c)(1) requires
that the issuer be, and have been for a period of at least 90 days immediately
before the sale, subject to the reporting requirements of section 13 or 15(d) of
the Exchange Act and have filed all required reports under section 13 or 15(d)
of the Exchange Act, as applicable, during the 12 months preceding such
sale.
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“Effectiveness
Period”: As defined in Section 2(a)(iii) hereof.
“Event”: As defined
in Section 3 hereof.
“Event Date”: As
defined in Section 3 hereof.
“Exchange
Act”: Securities Exchange Act of 1934, as
amended.
“FINRA”: Financial
Industry Regulatory Authority.
“Free Writing
Prospectus”: A free writing prospectus, as defined in Rule 405
under the Securities Act.
“Holder”: A Person
who owns, beneficially or otherwise, Transfer Restricted
Securities.
“Indemnified
Holder”: As defined in Section 6(a) hereof.
“Initial
Placement”: As defined in the preamble hereto.
“Initial
Purchasers”: As defined in the preamble hereto.
“Issuer Free Writing
Prospectus”: An issuer free writing prospectus, as defined in
Rule 433 under the Securities Act.
“Liquidated
Damages”: As defined in Section 3 hereof.
“Losses”: As defined
in Section 6(a) hereof.
“Majority of
Holders”: Holders holding over 50% of the aggregate number of
Restricted ADSs outstanding.
“Notice and Questionnaire”
means a written notice executed by the respective Holder and delivered to the
Company containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Appendix A to the Private
Placement Memorandum of the Company relating to the Restricted
ADSs.
“Notice Holder”: On
any date, any Holder of Transfer Restricted Securities that has delivered a
Notice and Questionnaire to the Company on or prior to such date.
“Permitted Free Writing
Prospectus”: As defined in Section 7(a) hereof.
“Person”: An
individual, partnership, corporation, company, unincorporated organization,
trust, joint venture or a government or agency or political subdivision
thereof.
“Purchase
Agreement”: As defined in the preamble
hereto.
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“Prospectus”: The
prospectus included in a Shelf Registration Statement, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such prospectus.
“Record
Holder”: With respect to any Liquidated Damages Payment Date,
each Person who is a registered holder of the Restricted ADSs on the 30th day
after the relevant Event Date.
“Restricted
ADSs”: As defined in the preamble hereto.
“Rule 144”: Rule
144 (or any other similar provision then in force) under the Securities
Act.
“Securities
Act”: Securities Act of 1933, as amended.
“Selling
Shareholder”: As defined in the preamble hereto.
“Shelf Filing Deadline”: As
defined in Section 2(a)(i) hereof.
“Shelf Registration
Statement”: As defined in Section 2(a)(i) hereof.
“Suspension
Notice”: As defined in Section 4(c) hereof.
“Transfer Restricted
Securities”: Each Restricted ADS until the earliest
of:
(i) the
date on which such Restricted ADS has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement;
(ii) the
date on which such Restricted ADS is transferred in compliance with Rule 144 or
pursuant to Regulation S; or
(iii) in
the case of a Restricted ADS not held by an affiliate of the Company, the date
on which the holding period that applies to a non-affiliate under Rule 144,
without regard to whether the issuer is in compliance with any requirement for
current public information, has expired.
The
holding period referred to in (iii) above is currently six months.
Unless
the context otherwise requires, the singular includes the plural, and words in
the plural include the singular.
(a) The
Company shall:
(i) on
or before June 30, 2010 (the “Shelf Filing Deadline”), file with the SEC a shelf
registration statement pursuant to Rule 415 under the Securities Act or any
similar rule that may be adopted by the Commission (the “Shelf Registration
Statement”), which shelf registration statement shall be an automatic shelf
registration if the Company is eligible to use an automatic shelf registration
statement on or before the Shelf Filing Deadline and shall provide for the
registration, and resales on a continuous or delayed basis, of all Transfer
Restricted Securities subject to the terms and conditions
hereof;
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(ii) if
the Company is not eligible to use an automatic shelf registration statement,
use its reasonable best efforts to cause the Shelf Registration Statement to
become effective under the Securities Act as promptly as practicable, but no
later than 60 days after filing of the Shelf Registration
Statement;
(iii) use
its reasonable best efforts to keep the Shelf Registration Statement
continuously effective, supplemented and amended as required by the Securities
Act and by the provisions of Section 4(b) hereof to the extent necessary to
ensure that (A) it is available for resales by the Holders of Transfer
Restricted Securities entitled, subject to the terms and conditions hereof, to
the benefit of this Agreement and (B) it conforms with the requirements of this
Agreement and the Securities Act and the rules and regulations of the Commission
promulgated thereunder, until six months from the Closing Date of the Restricted
ADSs (the “Effectiveness Period”); and
(iv) use
its reasonable best efforts to cause the CPI Requirement to be met at all times
until twelve months from the Closing Date of the Restricted ADSs.
The
Company shall be deemed not have used its reasonable best efforts to keep the
Shelf Registration Statement effective during the Effectiveness Period or with
respect to its obligations under this Agreement if it voluntarily takes any
action that would result in Holders of Transfer Restricted Securities not being
able to offer and sell such securities at any time during the Effectiveness
Period, unless such action is required by applicable law or otherwise undertaken
by the Company in good faith and for valid business reasons (not including
avoidance of the Company’s obligations hereunder), including, but not limited
to, the acquisition or divestiture of assets. At the end of the Effectiveness
Period, the Company may, in its sole discretion, keep the Shelf Registration
Statement effective until March 31, 2011.
(b) Schedule
2(b) is a list of the Holders as of June 1, 2010, provided by the Initial
Purchasers. By June 7, 2010, the Company shall send the Notice and
Questionnaire by email or facsimile to each Holder listed in Schedule 2(b) for
whom an email address or facsimile number has been provided, either in Schedule
2(b) or otherwise by email with confirmation receipt from the addressee to the
persons indicated in Section 8(f)(ii) by the Initial Purchasers prior to 5 p.m.
(New York time) on June 1, 2010. Notwithstanding the foregoing, if the shelf
registration statement is not an automatic shelf registration statement, the
Company shall send the Notice and Questionnaire to such Holders and in such
manner not less than 30 days prior to the time the Company intends in good faith
to have the shelf registration statement declared effective. Each Holder that
becomes a Notice Holder (and provides such additional information as the Company
reasonably may request) no later than 5 p.m. (New York time) on June 15, 2010
shall be named as a selling securityholder in the initial Prospectus made
available to Holders under the Shelf Registration Statement.
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(c) If
the Shelf Registration Statement ceases to be effective for any reason at any
time during the Effectiveness Period (other than because all Transfer Restricted
Securities registered thereunder shall have been resold pursuant thereto or
shall have otherwise ceased to be Transfer Restricted Securities), the Company
shall use its reasonable best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof or file a subsequent Shelf
Registration Statement covering all of the securities that as of the date of
such filing or designation are Transfer Restricted Securities. If
such a subsequent Shelf Registration Statement is filed (and is not already
effective), the Company shall use its reasonable best efforts to cause the
subsequent Shelf Registration Statement to become effective as promptly as is
practicable after such filing and to keep such subsequent Shelf Registration
Statement continuously effective until the end of the Effectiveness
Period.
(d) The
Company shall supplement and amend the Shelf Registration Statement if required
by the rules, regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration Statement, if required by the
Securities Act or as reasonably requested by the Initial Purchasers on behalf of
the Holders of the Transfer Restricted Securities covered by such Shelf
Registration Statement and in the judgment of U.S. counsel to the Company as
reasonably necessary to supplement and amend the Shelf Registration
Statement.
(e) The
Company shall cause the Shelf Registration Statement and the related Prospectus
and any amendment or supplement thereto, as of the effective date of the Shelf
Registration Statement or such amendment or supplement, and any Issuer Free
Writing Prospectus, as of the date thereof, (i) to comply in all material
respects with the applicable requirements of the Securities Act, and (ii) not to
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein (in the case of the Prospectus and any Issuer Free Writing Prospectus,
in light of the circumstances under which they were made) not
misleading.
(f) Each
Holder agrees that if such Holder wishes to sell Transfer Restricted Securities
pursuant to a Shelf Registration Statement and related Prospectus, it will do so
only in accordance with the terms and conditions of this
Agreement. Each Holder wishing to sell Transfer Restricted Securities
pursuant to a Shelf Registration Statement and related Prospectus from and after
the effectiveness date of such Shelf Registration Statement agrees to deliver a
Notice and Questionnaire to the Company. From and after the
effectiveness date of the Shelf Registration Statement, the Company shall, on
the first day and the 15th day of
each calendar month beginning on the immediately subsequent first day or 15th day of
the calendar month, except if the effectiveness date of the Shelf Registration
Statement is on the 30th day or
31st
day, as the case may be, or the 14th day of
the calendar month, in which case the Company shall, on the subsequent 15th day or
first day of the calendar month, respectively:
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(i) if
required by applicable law, file with the SEC a post-effective amendment to the
Shelf Registration Statement or prepare and, if required by applicable law, file
a supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other required document
so that the Holder delivering such Notice and Questionnaire at least five
Business Days prior to 5 p.m. (New York time) prior to such first or fifteenth
day is named as a selling securityholder in the related Prospectus in such a
manner as to permit such Holder to deliver such Prospectus to purchasers of the
Transfer Restricted Securities in accordance with applicable law and, if the
Company shall file a post-effective amendment to the Shelf Registration
Statement, use its reasonable best efforts to cause such post-effective
amendment to become effective under the Securities Act as promptly as is
practicable; and
(ii) notify
such Holder as promptly as practicable after the effectiveness under the
Securities Act of any prospectus or prospectus supplement filed pursuant to
Section 2(f)(i).
Notwithstanding
anything contained herein to the contrary, the Company shall be under no
obligation to name any Holder that is not a Notice Holder as a selling security
holder in any Registration Statement or related Prospectus.
If:
(i) after
June 30, 2010, a Shelf Registration Statement has not been filed with the
Commission;
(ii) if
the Shelf Registration Statement is not an automatic shelf registration
statement, on or prior to the 60th day
following the date of filing of the shelf registration statement, the shelf
registration statement is not declared effective;
(iii) the
Shelf Registration Statement is filed and has become effective but, during the
Effectiveness Period, shall thereafter cease to be effective or fail to be
usable for its intended purpose as a result of a failure on the Company’s part
to file information required to keep the Shelf Registration Statement so
effective and usable at any time prior to six months from the Closing Date of
the Restricted ADSs; or
(iv) the
CPI Requirement is not met at any time until twelve months from the Closing Date
of the Restricted ADSs,
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(each
such event referred to in foregoing clauses (i) through (iv) above being
referred to as an “Event,” and the date on which such Event occurs being
referred to as an “Event Date”), then the Company shall pay to each Holder on
the fifth Business Day after every 30th day
following each such Event Date to the Record Holder on such 30th day an
amount in cash, as liquidated damages and not as a penalty (“Liquidated
Damages”), equal to 0.42% of the offering price per Restricted ADS set forth in
the Purchase Agreement multiplied by the number of Transfer Restricted
Securities held by the Holder on such 30th day,
calculated pro rata die
for every 30-day period following such Event Date until the applicable Event is
cured. In the event that the Company does not pay Liquidated Damages
as due on such fifth Business Day after the 30th day
following each such Event Date, the Company shall also pay interest on the
unpaid amount at a rate equal to the Federal Funds Rate from such fifth Business
Day up to but excluding the payment date at a rate per annum equal to the
Federal Funds Rate, calculated on the basis of a 360-day year for the actual
number of days elapsed.
The
Holders of Transfer Restricted Securities agree that the Company’s obligation to
pay Liquidated Damages will be deemed to have been satisfied by the Company upon
receipt by the depositary for the Restricted ADSs for the account of such
Holders of the amount of Liquidated Damages due on such fifth Business
Day.
The
Holders of Transfer Restricted Securities, the Initial Purchasers and the
Company agree that the failure of the Shelf Registration Statement being
effective as a result of the aforementioned Events may have a material adverse
impact on Holders of Transfer Restricted Securities and that the damage from
such failure is not susceptible of precise determination. The Holders
of Transfer Restricted Securities, the Initial Purchasers and the Company agree
that the above, as reasonable estimates of the Holders of Transfer Restricted
Securities losses in the event of such failure, are Liquidated Damages and not
penalties.
Liquidated
Damages for more than one Event shall not be cumulative and shall be the sole
and exclusive remedy available to the Holders of Transfer Restricted Securities
against the Company for damages arising from each Event. Notwithstanding
anything to the contrary in this Agreement, in no event shall the Company pay
liquidated damages to the Holders of Transfer Restricted Securities for any
period after six months from the Closing Date during which the CPI Requirement
is met or for any Restricted ADS that is no longer considered a Transfer
Restricted Security.
(a) In
connection with the Shelf Registration Statement, the Company shall comply with
all the provisions of Section 4(b) hereof and shall use its reasonable best
efforts to effect such registration to permit the sale of the Transfer
Restricted Securities, and pursuant thereto, shall as expeditiously as possible
prepare and file with the Commission a Shelf Registration Statement relating to
the registration on any appropriate form under the Securities Act.
(b) In
connection with the Shelf Registration Statement and any Prospectus required by
this Agreement to permit the resale of Transfer Restricted Securities, the
Company shall:
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(i) Subject
to any notice by the Company in accordance with this Section 4(b) of the
existence of any fact or event of the kind described in Section 4(b)(iii)(D),
use its reasonable best efforts to keep the Shelf Registration Statement
continuously effective during the Effectiveness Period; upon the occurrence of
any event that would cause the Shelf Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted Securities during
the Effectiveness Period, the Company shall file as promptly as practicable a
post-effective amendment to the Shelf Registration Statement or an amendment or
supplement to the related Prospectus or file any other required document, in the
case of clause (A), correcting any such misstatement or omission, and, in the
case of either clause (A) or (B), use its reasonable best efforts to cause any
such amendment to become effective and the Shelf Registration Statement and the
related Prospectus to become usable for their intended purposes as soon as
practicable thereafter.
(ii) Prepare
and file with the Commission such amendments and post-effective amendments to
the Shelf Registration Statement as may be necessary to keep the Shelf
Registration Statement effective during the Effectiveness Period; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act, and to
comply fully with the applicable provisions of Rule 424 under the Securities Act
in a timely manner; and comply with the provisions of the Securities Act with
respect to the disposition of all Transfer Restricted Securities covered by the
Shelf Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth or
to be set forth in the Shelf Registration Statement or supplement to the
Prospectus.
(iii) Advise
the Notice Holders and any Initial Purchaser that has provided in writing to the
Company an email address or facsimile number and address for notices, as
promptly as practicable (which notice pursuant to clauses (B) through (E) below
shall be accompanied by an instruction to suspend the use of the Prospectus
until the Company shall have remedied the basis for such
suspension):
(A) when
the Prospectus, any Prospectus supplement, any post-effective amendment or any
Issuer Free Writing Prospectus has been filed, and, with respect to the Shelf
Registration Statement or any post-effective amendment thereto, when the same
has become effective,
(B) of
any request by the Commission for amendments or supplements to the Shelf
Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or
for additional information relating thereto,
(C) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Shelf Registration Statement under the Securities Act or of any notice that
would prevent its use, or of the suspension by any state securities commission
of the qualification of the Transfer Restricted Securities for offering or sale
in any jurisdiction, or the threatening or initiation of any proceeding for any
of the preceding purposes,
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(D) of
the existence of any fact or the happening of any event, during the
Effectiveness Period, that makes any statement of a material fact made in the
Shelf Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Shelf Registration
Statement or the Prospectus in order to make the statements therein (in the case
of the Prospectus, in the light of the circumstances under which they were made)
not misleading, or
(E) when
any Issuer Free Writing Prospectus includes information that may conflict with
the information contained in the Registration Statement.
(iv) If
at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement or any notice that would
prevent its use, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities or
Blue Sky laws, the Company shall use its reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time, including, if
necessary, by filing an amendment to the Shelf Registration Statement or a new
Shelf Registration Statement and using its reasonable best efforts to have such
amendment or new Shelf Registration Statement declared effective, and will
provide to each Holder who is named in the Shelf Registration Statement prompt
notice of the withdrawal of any such order or of the filing or effectiveness of
any such amendment or new registration statement.
(v) If
requested by any Notice Holders or the Initial Purchasers, promptly incorporate
in the Shelf Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such Notice Holders
may reasonably request to have included therein and, in the judgment of U.S.
counsel to the Company is reasonably necessary to include therein, including,
without limitation, information relating to the “Plan of Distribution” of the
Transfer Restricted Securities.
(vi) Subject
to any notice by the Company in accordance with this Section 4(b) of the
existence of any fact or event of the kind described in Section 4(b)(iii)(B)
through (E), the Company hereby consents to the use of the Prospectus and any
amendment or supplement thereto, and any Issuer Free Writing Prospectus, by each
of the Notice Holders in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment or
supplement thereto.
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(vii) Before
any public offering of Transfer Restricted Securities, as long as agreed by the
Company, the Company shall cooperate with the Notice Holders and their counsel
in connection with the registration and qualification of the Transfer Restricted
Securities under the securities or Blue Sky laws of such jurisdictions in the
United States as the Notice Holders may reasonably request and do any and all
other acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement, such registration and qualification and such other acts
or things being in the judgment of U.S. counsel to the Company reasonably
necessary to enable the disposition in such jurisdiction; provided, however, that the
Company shall not be required (A) to register or qualify as a foreign
corporation or a dealer of securities where it is not now so qualified or to
take any action that would subject it to the service of process in any
jurisdiction where it is not now so subject, other than service of process for
suits arising out of the Initial Placement, or (B) to subject itself to general
or unlimited service of process or to taxation in any such jurisdiction if they
are not now so subject.
(viii) Cooperate
with the Notice Holders to facilitate the timely delivery of Transfer Restricted
Securities to be sold not subject to any restrictive legends (unless required by
applicable securities laws).
(ix) If
any fact or event contemplated by Section 4(b)(iii)(B) through (E) hereof shall
exist or have occurred, use its reasonable best efforts to prepare a supplement
or post-effective amendment to the Shelf Registration Statement, related
Prospectus (including by means of an Issuer Free Writing Prospectus), relevant
Issuer Free Writing Prospectus or any document incorporated therein by reference
or to file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, none of the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus will contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein (in the case of
the Prospectus and any such Issuer Free Writing Prospectus, in the light of the
circumstances in which they are made) not misleading.
(x) Cooperate
and assist in any filings required to be made with FINRA and in the performance
of any due diligence investigation by any broker-dealer that is required to be
undertaken in accordance with the rules and regulations of FINRA, subject to the
Company’s approval; provided that if any
information is identified by the Company as being confidential or proprietary,
each person receiving such information shall take such actions as are reasonably
necessary to protect the confidentiality of such information, including entering
into confidentiality agreements which terms and conditions will be established
by the Company as it deems necessary to protect its proprietary and confidential
information.
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(xi) Otherwise
use its reasonable best efforts to comply with all applicable rules and
regulations of the Commission and all reporting requirements under the rules and
regulations of the Exchange Act.
(xii) Provide
to each Holder upon written request each document filed with the Commission
pursuant to the requirements of Section 13 and Section 15 of the Exchange Act
after the effective date of the Shelf Registration Statement, unless such
document is available through the Commission’s XXXXX system.
(xiii) Use
its reasonable best efforts to take all other steps necessary to effect the
registration of the Transfer Restricted Securities covered by the Shelf
Registration Statement.
(xiv) Enter
into customary agreements and take all other appropriate actions in order to
expedite or facilitate the registration or the disposition of the Transfer
Restricted Securities.
The
actions set forth in clause (xvii) of this Section 4(b) shall be performed at
the effectiveness of the Shelf Registration Statement and each post-effective
amendment thereto.
(c) Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of any notice (a “Suspension
Notice”) from the Company of the existence of any fact of the kind described in
Section 4(b)(iii)(B) through (E) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the Shelf Registration
Statement and use of the Prospectus and any related Free Writing Prospectuses
until such Holder is advised in writing by the Company that the use of the
Prospectus and any applicable Issuer Free Writing Prospectus may be resumed, and
has also been advised of any additional or supplemental filings that are
incorporated by reference in the Prospectus. Each Holder also agrees that the
occurrence of the circumstances described in Section 4(b)(iii)(B) through (E),
and the issuance of a Suspension Notice, shall not constitute a failure on the
Company’s part to file information required to keep the Shelf Registration
Statement effective and usable, for purposes of Section 3(iii)
hereof.
If so
directed by the Company, each Holder will deliver to the Company all copies,
other than permanent file copies then in such Holder’s possession, of the
Prospectus covering such Transfer Restricted Securities and any Issuer Free
Writing Prospectus that was current at the time of receipt of such Suspension
Notice.
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(d) Each
Holder agrees by acquisition of a Transfer Restricted Security, that no Holder
shall be entitled to sell any of such Transfer Restricted Securities pursuant to
a Registration Statement, or to receive a Prospectus relating thereto, unless
such Holder has furnished the Company with a Notice and Questionnaire as
required pursuant to Section 2(b) or Section 2(f) hereof (including the
information required to be included in such Notice and Questionnaire) and the
information set forth in the next sentence. The Company may require
each Notice Holder of Restricted ADSs to be sold pursuant to the Shelf
Registration Statement to furnish to the Company such information regarding the
Holder and the distribution of such Restricted ADSs as the Company may from time
to time reasonably require for inclusion in such Registration
Statement. Each Notice Holder agrees promptly to furnish to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Notice Holder not
misleading and any other information regarding such Notice Holder and the
distribution of such Transfer Restricted Securities as the Company may from time
to time reasonably request in writing. The Company may exclude from
such Shelf Registration Statement the Restricted ADSs of any Holder that
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
All
expenses incident to the Company’s performance of or compliance with this
Agreement shall be borne by the Company regardless of whether a Shelf
Registration Statement becomes effective, including, without
limitation:
(a) all
registration and filing fees and expenses (including filings made with
FINRA);
(b) all
fees and expenses of compliance with federal securities and state Blue Sky or
securities laws;
(c) all
fees and disbursements of counsel to the Company; and
(d) all
fees and disbursements of independent certified public accountants of the
Company.
The
Company shall bear its internal expenses (including, without limitation, all
salaries and expenses of their officers and employees performing legal,
accounting or other duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the
Company.
(a) The
Company agrees to indemnify and hold harmless each Holder of Transfer Restricted
Securities (including each Initial Purchaser), its directors, officers,
employees and agents, and each person, if any, who controls any Holder within
the meaning of the Securities Act or the Exchange Act (each, an “Indemnified
Holder”), against any loss, claim, damage, liability or expense, as incurred, or
any action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or expense relating to resales of the Transfer Restricted
Securities) (collectively, “Losses”), to which such Indemnified Holder may
become subject, insofar as any such Loss arises out of or is based
upon:
(i) any
untrue statement or alleged untrue statement of a material fact contained in the
Shelf Registration Statement as originally filed or in any amendment thereof, or
the omission or alleged omission to state therein any material fact required to
be stated therein or necessary to make the statements therein not misleading;
or
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(ii) any
untrue statement or alleged untrue statement of a material fact contained in any
Issuer Free Writing Prospectus, any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact, in each case, necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading,
and to
reimburse each Indemnified Holder for any and all expenses including the fees
and disbursements of counsel as such expenses are reasonably incurred by such
Indemnified Holder in connection with investigating, defending, settling,
compromising or paying any such Loss; provided, however , that the
foregoing indemnity agreement shall not apply to any Loss to the extent, but
only to the extent, arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Holder (or its related Indemnified Holder) expressly for use
therein. The indemnity agreement set forth in this Section 6(a) shall
be in addition to any liabilities that the Company may otherwise
have.
(b) Each
Holder agrees, severally and not jointly, to indemnify and hold harmless the
Company, each of its directors, each of its officers who sign the Shelf
Registration Statement and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act (i) to the same extent as
the foregoing indemnity from the Company to each such Holder, but only with
reference to written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity and (ii) against any Loss,
joint or several, including, but not limited to, any Loss relating to resales of
the Transfer Restricted Securities, to which such person may become subject,
insofar as any such Loss arises out of, or is based upon any Free Writing
Prospectus used by such Holder without the prior consent of the Issuer, provided that the
indemnification obligation in this clause (ii) shall be several, not joint and
several, among the Holders who used such Free Writing
Prospectus. This indemnity agreement set forth in this Section shall
be in addition to any liabilities which any such Holder may otherwise
have.
13
(c) Promptly
after receipt by an indemnified party under this Section 6 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 6, notify
the indemnifying party in writing of the commencement thereof, but the failure
to notify the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. In case any such action is brought against any indemnified
party and such indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to participate in,
and, to the extent that it shall elect, jointly with all other indemnifying
parties similarly notified, by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel satisfactory to such indemnified party;
provided, however , if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties that are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt
of notice from the indemnifying party to such indemnified party of such
indemnifying party’s election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not be
liable to such indemnified party under this Section 6 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (other than local counsel),
reasonably approved by the indemnifying party, representing the indemnified
parties who are parties to such action) or (ii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action, in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying party.
(d) The
indemnifying party under this Section 6 shall not be liable for any settlement
of any proceeding effected without its written consent, which shall not be
withheld unreasonably, but if settled with such consent or if there is a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any Loss by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by Section
6(c) hereof, the indemnifying party agrees that it 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 such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement,
compromise or consent to the entry of judgment in any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity was or could have been sought hereunder by such
indemnified party, unless such settlement, compromise or consent (x) includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding and (y) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
14
(e) If
the indemnification provided for in Section 6 is for any reason unavailable to
or otherwise insufficient to hold harmless an indemnified party in respect of
any Loss referred to therein, then each indemnifying party shall contribute to
the aggregate amount paid or payable by such indemnified party, as incurred, as
a result of any Loss referred to therein:
(i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company, on the one hand, and the Holders, on the other hand, from the
offering and sale of the Transfer Restricted Securities, on the one hand, and a
Holder with respect to the sale by such Holder of the Transfer Restricted
Securities, on the other hand, or
(ii) if
the allocation provided by Section (6)(e)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in Section 6(e)(i) above but also the relative
fault of the Company, on the one hand, and the Holders, on the other hand, in
connection with the statements or omissions or alleged statements or omissions
that resulted in such Loss, as well as any other relevant equitable
considerations.
The
relative benefits received by the Company, on the one hand, and the Holders, on
the other hand, in connection with such offering and such sale of the Transfer
Restricted Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Restricted ADSs purchased under the Purchase Agreement (before deducting
expenses) received by the Company and the total proceeds received by the Holders
with respect to their sale of Transfer Restricted Securities. The relative fault
of the Company, on the one hand, and the Holders, on the other hand, shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company, on the one
hand, or the Holders, on the other hand, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Holders agree that it would not be
just and equitable if contribution pursuant to this Section 6(e) were determined
by pro rata allocation
(even if the Holders were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in this Section 6(e).
The
amount paid or payable by a party as a result of the Loss referred to above
shall be deemed to include, subject to the limitations set forth in Section
6(c), any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
Notwithstanding
the provisions of this Section 6, in no event will any Holder be required to
undertake liability to any person under this Section 6 for any amounts in excess
of the dollar amount of the proceeds to be received by such Holder from the sale
of such Holder’s Transfer Restricted Securities (after deducting any fees,
discounts and commissions applicable thereto) pursuant to any Shelf Registration
Statement under which such Transfer Restricted Securities are to be registered
under the Securities Act. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders’ obligations to contribute as provided in this
Section 6(e) are several and not joint.
15
(f) The
provisions of this Section 6 shall remain in full force and effect, regardless
of any investigation made by or on behalf of any Holder or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 6 hereof, and will survive the sale by a Holder of Transfer Restricted
Securities.
16
(i) if
to a Holder, at the address set forth on the records of depositary for the
Restricted ADSs or at the address, email or facsimile provided in the Notice and
Questionnaire;
(ii) if
to the Company:
Attention:
Xxxxxx X. Xxxxx Xxxxxxxxx
Address:
Praça Xxxxxxx Xxxxxx xx Xxxxx Aranha, 100, Xxxxx Xxxxxxxxx, 3° andar, Xxxx
Xxxxxxx, 00000-000 - Xxx Xxxxx – SP - Brazil
E-mail:
xxxxxx.xxxxxxxxx@xxxx-xxxxxxxx.xxx.xx
Tel.: x00
00 0000-0000
Fax: x00
00 0000-0000
Attention:
Xxxxxxxx Xxxxx Xxxxx Chagas
Address:
Praça Xxxxxxx Xxxxxx xx Xxxxx Aranha, 100, Xxxxx Xxxxxxxxx, 12° andar, Xxxx
Xxxx, 00000-000 - São Paulo – SP - Brazil
E-mail:
xxxxxxxx.xxxxxx@xxxx-xxxxxxxx.xxx.xx
Tel.: x00
00 0000-0000
Fax: x00
00 0000-0000
With a
copy to:
Milbank,
Tweed, Hadley, XxXxxx LLP
Attention:
Xxxxxx Xxxxxxxxx and Xxxxxxx Xxxxx
Xx.
Xxxxxxxx, 0000, 8o
andar
01311-200,
São Paulo – SP – Brazil
E-mail:
xxxxxxxxxx@xxxxxxx.xxx
E-mail:
xxxxxx@xxxxxxx.xxx
(iii)
if to the Initial Purchasers:
Attention:
Syndicate Department
Xxx
Xxxxxx Xxxx
Xxx Xxxx,
Xxx Xxxx 00000
With a
copy to ECM Legal.
17
All such
notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; if transmitted by facsimile (with a
confirmation of a successful sent); and on the next Business Day, if timely
delivered to an air courier guaranteeing overnight delivery or sent via email
(with a confirmation of a successful receipt by the addressee).
Notwithstanding
anything to the contrary contained in this Agreement, the Company will be deemed
to have satisfied any obligation to notify or advise in writing each of the
Holders upon receipt by the depositary for the Restricted ADSs of any
communication from the Company to be delivered by the depositary to each of the
Holders as instructed by the Company to the depositary.
Any party
hereto may change the address for receipt of communications by giving written
notice to the others.
18
(i) Jurisdiction. The
Company agrees that any suit, action or proceeding against the Company brought
by any Holder or Initial Purchaser, the directors, officers, employees,
Affiliates and agents of any Holder or Initial Purchaser, or by any person who
controls any Holder or Initial Purchaser, arising out of or based upon this
Agreement or the transactions contemplated hereby may be instituted in any State
or U.S. federal court in The City of New York and County of New York, and waives
any objection which it may now or hereafter have to the laying of venue of any
such proceeding, and irrevocably submits to the non-exclusive jurisdiction of
such courts in any suit, action or proceeding. The Company hereby
appoints the general manager of Itaú Unibanco S.A. New York branch, at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000 as its authorized agent (the “Authorized
Agent”) upon whom process may be served in any suit, action or proceeding
arising out of or based upon this Agreement or the transactions contemplated
herein which may be instituted in any State or U.S. federal court in The City of
New York and County of New York, by any Holder or Initial Purchaser, the
directors, officers, employees, Affiliates and agents of any Holder or Initial
Purchaser, or by any person who controls any Holder or Initial Purchaser, and
expressly accepts the non-exclusive jurisdiction of any such court in respect of
any such suit, action or proceeding. The Company hereby represents
and warrants that the Authorized Agent has accepted such appointment and has
agreed to act as said agent for service of process, and the Company agrees to
take any and all action, including the filing of any and all documents that may
be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent shall be
deemed, in every respect, effective service of process upon the
Company. The Company further agrees to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment in
full force and effect so long as any of the Securities shall be
outstanding. To the extent that the Company may acquire any immunity
from jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, it hereby
irrevocably waives such immunity in respect of this Agreement, to the fullest
extent permitted by law. Notwithstanding the foregoing, any action
arising out of or based upon this Agreement may be instituted by any Holder or
Initial Purchaser, the directors, officers, employees, Affiliates and agents of
any Holder or Initial Purchaser, or by any person who controls any Holder or
Initial Purchaser, in any court of competent jurisdiction in
Brazil.
(k)
Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
(l) GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
19
[Signature pages
follow]
20
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ITAÚ
UNIBANCO HOLDING S.A.
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By
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Name:
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Title:
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By
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Name:
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Title:
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XXXXXXX
LYNCH, PIERCE, XXXXXX & XXXXX
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INCORPORATED
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ITAÚ
USA SECURITIES INC.
|
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Acting
severally on behalf of themselves and the holders of Restricted
ADSs
|
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XXXXXXX
LYNCH, PIERCE, XXXXXX & XXXXX
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INCORPORATED
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By
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Authorized
Representative
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ITAÚ
USA SECURITIES INC.
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By
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Authorized
Representative
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