EXHIBIT 1.1
August 9, 2004
EXCHANGE AGENT AGREEMENT
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
Companhia Brasileira de Bebidas (the "Company") proposes to make an
offer (the "Exchange Offer") to exchange all of its outstanding
U.S.$500,000,000 8.75% notes due 2013 (the "Old Securities") for a like
principal amount of new 8.75% notes due 2013 (the "New Securities"). The terms
and conditions of the Exchange Offer as currently contemplated are set forth
in a prospectus, dated on or about August 10, 2004 (the "Prospectus"),
proposed to be distributed to all record holders of the Old Securities. The
Old Securities and the New Securities are collectively referred to herein as
the "Securities".
The Company hereby appoints The Bank of New York to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or
about August 10, 2004. The Letter of Transmittal accompanying the Prospectus
(or in the case of book-entry securities, the Automated Tender Offer Program
("ATOP") of the Book-Entry Transfer Facility (as defined below)) is to be used
by the holders of the Old Securities to accept the Exchange Offer and contains
instructions with respect to the delivery of certificates for Old Securities
tendered in connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
a date to be specified to you by the Company or on such subsequent date or
time to which the Company may extend the Exchange Offer (the "Expiration
Date"). Subject to the terms and conditions set forth in the Prospectus, the
Company expressly reserves the right to extend the Exchange Offer from time to
time and may extend the Exchange Offer by giving oral (promptly confirmed in
writing) or written notice to you before 9:00 a.m., New York City time, on the
business day following the previously scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Old Securities not
theretofore accepted for exchange, upon the occurrence of any of the
conditions of the Exchange Offer specified in the Prospectus under
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the caption "The Exchange Offer -- Certain Conditions to the Exchange Offer."
The Company will give oral (promptly confirmed in writing) or written notice
of any amendment, termination or nonacceptance to you as promptly as
practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The
Exchange Offer" or as specifically set forth herein; provided, however, that
in no way will your general duty to act in good faith be discharged by the
foregoing.
2. You will establish a book-entry account with respect to the Old
Securities at The Depository Trust Company (the "Book-Entry Transfer
Facility") for purposes of the Exchange Offer within two business days after
the date of the Prospectus, and any financial institution that is a
participant in the Book-Entry Transfer Facility's systems may make book-entry
delivery of the Old Securities by causing the Book-Entry Transfer Facility to
transfer such Old Securities into your account in accordance with the
Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Securities (or confirmation of book-entry transfer into
your account at the Book-Entry Transfer Facility) and any other documents
delivered or mailed to you by or for holders of the Old Securities to
ascertain whether: (i) the Letters of Transmittal and/or any such other
documents are duly executed and properly completed in accordance with
instructions set forth therein; and (ii) the Old Securities have otherwise
been properly tendered. In each case where the Letter of Transmittal or any
other document has been improperly completed or executed or any of the
certificates for Old Securities are not in proper form for transfer or some
other irregularity in connection with the acceptance of the Exchange Offer
exists, you will endeavor to inform the presenters of the need for fulfillment
of all requirements and to take any other action as may be reasonably
necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the Chief Executive Officer and Chief
Financial Officer of the Company (such approval, if given orally, to be
promptly confirmed in writing) or any other party designated in writing, by
such an officer, you shall waive any irregularities in connection with any
tender of Old Securities pursuant to the Exchange Offer.
5. Tenders of Old Securities may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer -- Procedures for Tendering", and Old Securities shall be
considered properly tendered to you only when tendered in accordance with the
procedures set forth therein.
Notwithstanding the provisions of this Section 5, Old Securities
which the Chief Executive Officer and Chief Financial Officer of the Company
shall approve as having been properly tendered shall be considered to be
properly tendered (such approval, if given orally, shall be promptly confirmed
in writing).
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6. You shall advise the Company with respect to any Old Securities
received subsequent to the Expiration Date and accept its written instructions
with respect to disposition of such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old Securities are registered in two or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old Securities,
provided that customary transfer requirements, including payment of any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Securities where so
indicated and as permitted in the Letter of Transmittal and deliver
certificates for Old Securities to the registrar for split-up and return any
untendered Old Securities to the holder (or such other person as may be
designated in the Letter of Transmittal) as promptly as practicable after
expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice, if given orally, to
be promptly confirmed in writing) of its acceptance, promptly after the
Expiration Date, of all Old Securities properly tendered and you, on behalf of
the Company, will exchange such Old Securities for New Securities and cause
such Old Securities to be cancelled. Delivery of New Securities will be made
on behalf of the Company by you at the rate of $1,000 principal amount of New
Securities for each $1,000 principal amount of the corresponding series of Old
Securities tendered promptly after notice (such notice if given orally, to be
promptly confirmed in writing) of acceptance of said Old Securities by the
Company; provided, however, that in all cases, Old Securities tendered
pursuant to the Exchange Offer will be exchanged only after timely receipt by
you of certificates for such Old Securities (or confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility), a properly
completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof) with any required signature guarantees and any other
required documents. You shall issue New Securities only in denominations of
$1,000 or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Old Securities tendered pursuant to the
Exchange Offer may be withdrawn at any time prior to the Expiration Date.
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10. The Company shall not be required to exchange any Old Securities
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Old Securities
tendered shall be given (if given orally, to be promptly confirmed in writing)
by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept
for exchange all or part of the Old Securities tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus
under the caption "The Exchange Offer -- Certain Conditions to the Exchange
Offer" or otherwise, you shall as soon as practicable after the expiration or
termination of the Exchange Offer return those certificates for unaccepted Old
Securities (or effect appropriate book-entry transfer), together with any
related required documents and the Letters of Transmittal relating thereto
that are in your possession, to the persons who deposited them.
12. All certificates for reissued Old Securities, unaccepted Old
Securities or for New Securities shall be forwarded by first-class mail.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons
or to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act unless the
same constitutes your own gross negligence, willful misconduct or bad faith,
and in no event shall you be liable to a securityholder, the Company or any
third party for special, indirect or consequential damages, or lost profits,
arising in connection with this Agreement.
(b) shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in writing
between you and the Company;
(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any
of the certificates or the Old Securities represented thereby deposited with
you pursuant to the Exchange Offer, and will not be required to and will make
no representation as to the validity, value or genuineness of the Exchange
Offer;
(d) shall not be obligated to take any legal action hereunder which
might in your judgment involve any expense or liability, unless you shall have
been furnished with indemnity reasonably satisfactory to you;
(e) may conclusively rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter, telegram
or other document or security delivered to you and believed by you in good
faith to be genuine and to have been signed or presented by the proper person
or persons;
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(f) may act upon any tender, statement, request, document,
agreement, certificate or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you shall in
good faith believe to be genuine or to have been signed or presented by the
proper person or persons;
(g) may conclusively rely on and shall be protected in acting upon
written or oral instructions from any authorized officer of the Company;
(h) may consult with counsel of your selection with respect to any
questions relating to your duties and responsibilities and the advice or
opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken by
you hereunder in good faith and in accordance with the advice or opinion of
such counsel; and
(i) shall not advise any person tendering Old Securities pursuant to
the Exchange Offer as to the wisdom of making such tender or as to the market
value or decline or appreciation in market value of any Old Securities.
15. You shall take such action as may from time to time be requested
in writing, which may be provided via email, by the Company (and such other
action as you may deem appropriate) to furnish copies of the Prospectus,
Letter of Transmittal and the Notice of Guaranteed Delivery (as defined in the
Prospectus) or such other forms as may be approved from time to time by the
Company, to all persons requesting such documents and to accept and comply
with telephone requests for information relating to the Exchange Offer,
provided that such information shall relate only to the procedures for
accepting (or withdrawing from) the Exchange Offer. The Company will furnish
you with copies of such documents on your reasonable request. All other
requests for information relating to the Exchange Offer shall be directed to
the Company, Attention: Xxxx Xxxxxx Xxxxxxxx Xxxxx Xxxxx.
16. You shall advise by facsimile transmission, with a follow-up
confirmation telephone call, Xxxx Xxxxxx Xxxxxxxx Xxxxx Xxxxx, the Chief
Financial Officer of the Company (at the facsimile number 00-00-0000-0000 and
telephone number 00-00-0000-0000), and such other person or persons as the
Company may request, daily (and more frequently during the week immediately
preceding the Expiration Date if requested) up to and including the Expiration
Date, as to the number of Old Securities which have been tendered pursuant to
the Exchange Offer and the items received by you pursuant to this Agreement,
separately reporting and giving cumulative totals as to items properly
received and items improperly received. In addition, you will also inform, and
cooperate in making available to, the Company or any such other person or
persons upon oral request made from time to time prior to the Expiration Date
of such other information as they may reasonably request. Such cooperation
shall include, without limitation, the granting by you to the Company and such
persons as the Company may request of access to those persons on your staff
who are responsible for receiving tenders, in order to ensure that immediately
prior to the Expiration Date the Company shall have received information in
sufficient detail to enable it to decide whether to extend the Exchange Offer.
You shall prepare a final list of all persons whose tenders were accepted, the
aggregate principal amount of Old
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Securities tendered, the aggregate principal amount of Old Securities accepted
and deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall
be stamped by you as to the date and, after the expiration of the Exchange
Offer, the time, of receipt thereof and shall be preserved by you for a period
of time at least equal to the period of time you preserve other records
pertaining to the transfer of securities. You shall dispose of unused Letters
of Transmittal and other surplus materials by returning them to the Company.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as shall be agreed in writing by the Company and
you and to reimbursement of reasonable, duly-documented out-of-pocket
expenses, including reasonable fees and expenses of your legal counsel (it
being understood that you expect that such out-of-pocket expenses will not
exceed $8,000 and that you will notify the Company before you incur any
out-of-pocket expense for which you will be seeking reimbursement under this
Section once the aggregate amount of out-of-pocket expenses eligible for
reimbursement under this Section reaches $8,000). Nothing in this Section 18
shall impair or limit any rights you may have to reimbursement of expenses
pursuant to Section 20.
19. You hereby acknowledge receipt of the Prospectus and the Letter
of Transmittal. Any inconsistency between this Agreement, on the one hand, and
the Prospectus and the Letter of Transmittal (as they may be amended from time
to time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to your duties, liabilities and indemnification
as Exchange Agent.
20. The Company covenants and agrees to fully indemnify and hold you
harmless against any and all loss, liability, cost or expense, including
reasonable and duly documented attorneys' fees and expenses, incurred without
gross negligence, bad faith or willful misconduct on your part, arising out of
or in connection with any act, omission, delay or refusal made by you in
reliance upon any signature, endorsement, assignment, certificate, order,
request, notice, instruction or other instrument or document believed by you
to be valid, genuine and sufficient and in accepting any tender or effecting
any transfer of Old Securities believed by you in good faith to be authorized,
and in delaying or refusing in good faith to accept any tenders or effect any
transfer of Old Securities. In each case, the Company shall be notified by
you, by letter or facsimile transmission, of the written assertion of a claim
against you or of any other action commenced against you, promptly after you
shall have received any such written assertion or shall have been served with
a summons in connection therewith. The Company shall be entitled to
participate at its own expense in the defense of any such claim or other
action and, if the Company so elects, the Company shall assume the defense of
any suit brought to enforce any such claim. In the event that the Company
shall assume the defense of any such suit, the Company shall not be liable for
the fees and expenses of any additional counsel thereafter retained by you, so
long as the Company shall retain counsel reasonably satisfactory to you to
defend such suit, and so long as you have not determined, in your reasonable
judgment, that a conflict of interest exists between you and the Company. You
agree not to, without the prior written consent of the Company, settle or
compromise (or consent to the entry of judgment in or otherwise seek to
terminate) any claim, action or proceeding in respect of which indemnification
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may be sought pursuant to this Section. The provisions of this section shall
survive the termination of this Agreement.
21. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the
Internal Revenue Service.
22. You shall deliver or cause to be delivered, in a timely manner
to each governmental authority to which any transfer taxes are payable in
respect of the exchange of Old Securities, the Company's check in the amount
of all transfer taxes so payable; provided, however, that you shall reimburse
the Company for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
23. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of
New York applicable to agreements made and to be performed entirely within
such state, and without regard to conflicts of law principles, and shall inure
to the benefit of, and the obligations created hereby shall be binding upon,
the successors and assigns of each of the parties hereto.
24. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
25. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
26. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to
be charged. This Agreement may not be modified orally.
27. Unless otherwise provided herein, all notices, requests and
other communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party, addressed to
it, at its address or telecopy number set forth below:
If to the Company:
Companhia Brasileira de Bebidas
Xxx Xx Xxxxxx Xxxx xx Xxxxxx 0000, 4(0) andar
00000-000 Xxx Xxxxx, XX, Xxxxxx
Facsimile: 00-00-0000-0000
Attention: Xxxx Xxxxxx Xxxxxxxx Xxxxx Xxxxx
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If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Corporate Trust Administration
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate ninety (90) days following the Expiration Date.
Notwithstanding the foregoing, Sections 18 and 20 shall survive the
termination of this Agreement. Upon any termination of this Agreement, you
shall promptly deliver to the Company any certificates for Securities, funds
or property then held by you as Exchange Agent under this Agreement.
29. This Agreement shall be binding and effective as of the date
hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
Companhia Brasileira de Bebidas
By: /s/ Xxxxxx Xxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxx Xxxxxx
Title: Authorized Representative
Companhia Brasileira de Bebidas
By: /s/ Xxxxxx Xxxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxx Xxxxx
Title: Authorized Representative
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
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