Exhibit 4.3
CONFORMED COPY
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 3, 2005
between
BANCO BRADESCO S.A.,
acting through its Grand Cayman branch,
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
as Initial Purchaser
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REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of June
3, 2005, between BANCO BRADESCO S.A., a financial institution incorporated under
the laws of the Federative Republic of Brazil, acting through its Grand Cayman
branch (the "Company"), and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
as Initial Purchaser (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated May
26, 2005 (the "Purchase Agreement"), between the Company and the Initial
Purchaser. In order to induce the Initial Purchaser to purchase the Company's
8.875% Perpetual Non-cumulative Junior Subordinated Securities (the "Original
Securities") and for the benefit of the holders of the Original Securities, the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Initial Purchaser under the Purchase Agreement, as set forth
in Section 5(k) of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall
have the following meanings:
Additional Securities: Additional securities issued after the
Closing Date (excluding Securities issued upon registration or transfer for, or
in lieu of, other Securities) pursuant to the terms of the Indenture.
Affiliate: As defined in Rule 405 under the Securities Act.
Broker-Dealer: Any broker or dealer registered under the Exchange
Act.
Broker-Dealer Transfer Restricted Securities: Exchange Securities
that are acquired by a Broker-Dealer in the Exchange Offer in exchange for
Registrable Securities that such Broker-Dealer acquired for its own account as a
result of market-making activities or other trading activities (other than
Registrable Securities acquired directly from the Company or any of its
Affiliates).
Business Day: Any day except a Saturday or Sunday or a legal holiday
or a day on which banking institutions (including, without limitation, the
members of the Federal Reserve System) are authorized or required by law,
regulation or executive order to close in the City of New York, Cayman Islands,
London or Sao Paulo.
Closing Date: June 3, 2005.
Company Indemnitee: As defined in Section 8(a) hereof.
Consummate: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Exchange Securities to be issued in the Exchange
Offer, (b) the maintenance of such Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less than the
minimum period required pursuant to Section 3(b) hereof and (c) the delivery by
the Company to the Security Registrar under the Indenture of Exchange Securities
in the same aggregate principal amount as the aggregate principal amount of
Original Securities tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Original Securities, each
Interest Payment Date.
Exchange Act: U.S. Securities Exchange Act of 1934, as amended.
Exchange Offer: The offer by the Company to all Holders of all
outstanding Registrable Securities, pursuant to the Exchange Offer Registration
Statement, whereby such Holders are offered the opportunity to exchange their
outstanding Registrable Securities for Exchange Securities in an aggregate
principal amount equal to the aggregate principal amount of the Registrable
Securities tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exchange Securities: The Company's 8.875% Perpetual Non-cumulative
Junior Subordinated Securities to be issued pursuant to the Indenture (i) in the
Exchange Offer or (ii) upon the request of any Holder of Original Securities
covered by a Shelf Registration Statement, in either case in exchange for
Original Securities.
Holders: As defined in Section 2 hereof.
Increased Interest: As defined in Section 5 hereof.
Indenture: Indenture, dated as of the Closing Date, between the
Company and the Trustee, pursuant to which the Securities are to be issued, as
such Indenture is amended or supplemented from time to time in accordance with
the terms thereof.
Interest Payment Date: As defined in the Indenture and the Original
Securities.
NASD: National Association of Securities Dealers, Inc.
Original Securities: As defined in the preamble to this Agreement.
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Person: An individual, partnership, corporation, limited liability
company, trust, unincorporated organization, or a government or agency or
political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement at
the time such Registration Statement is declared effective, 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 Damages Payment Date, each Person
who is a Holder of Securities on the record date with respect to the Interest
Payment Date on which such Damages Payment Date shall occur.
Registrable Securities: Shall mean the Original Securities;
provided, however, that Original Securities shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such Original
Securities shall have been declared effective under the Securities Act and such
Original Securities shall have been disposed of pursuant to such Registration
Statement, (ii) such Original Securities have been sold to the public pursuant
to Rule 144 (or any similar provision then in force, but not Rule 144A) under
the Securities Act, (iii) such Original Securities shall have ceased to be
outstanding, (iv) the Exchange Offer is consummated or (v) two years (or such
shorter period as may hereafter be provided in Rule 144(k) under the Securities
Act (or similar rule)) have elapsed since the original issuance date of the
Original Securities.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company
relating to (a) an offering of Exchange Securities pursuant to an Exchange Offer
or (b) the registration for resale of Registrable Securities pursuant to the
Shelf Registration Statement, in each case, (i) which is filed pursuant to the
provisions of this Agreement and (ii) including the Prospectus included therein,
all amendments and supplements thereto (including post-effective amendments) and
all exhibits and material incorporated by reference therein.
Restricted Broker-Dealer: Any Broker-Dealer which holds
Broker-Dealer Transfer Restricted Securities.
SEC: U.S. Securities and Exchange Commission.
Securities: The Original Securities, the Additional Securities and
the Exchange Securities.
Securities Act: U.S. Securities Act of 1933, as amended.
Shelf Registration Statement: As defined in Section 4 hereof.
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Trust Indenture Act: U.S. Trust Indenture Act of 1939, as amended.
Trustee: The Bank of New York Trust Company (Cayman) Limited, as
trustee under the Indenture, and any successor in such capacity.
Underwritten Registration or Underwritten Offering: A registration
in which securities of the Company are sold to an underwriter for reoffering to
the public.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Registrable Securities (each, a
"Holder") whenever such Person holds Registrable Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible by applicable
U.S. law or SEC policy (after the procedures set forth in Section 6(a)(i) below
have been complied with), the Company shall (i) cause the Exchange Offer
Registration Statement to be submitted to the SEC on a confidential basis or to
be filed with the SEC after the Closing Date, (ii) use its reasonable best
efforts to cause such Exchange Offer Registration Statement to become effective
by September 30, 2005, (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause such Exchange Offer Registration Statement to become
effective, (B) file, if applicable, a post-effective amendment to such Exchange
Offer Registration Statement pursuant to Rule 430A under the Securities Act and
(C) cause all necessary filings, if any, in connection with the registration and
qualification of the Exchange Securities to be made under the Blue Sky laws of
such jurisdictions as are necessary to permit Consummation of the Exchange
Offer, and (iv) upon the effectiveness of such Exchange Offer Registration
Statement, promptly commence the Exchange Offer and Consummate the Exchange
Offer by October 31, 2005. The Exchange Offer shall be on the appropriate form
permitting registration of the Exchange Securities to be offered in exchange for
the Registrable Securities and to permit sales of Broker-Dealer Transfer
Restricted Securities by Restricted Broker-Dealers as contemplated by Section
3(c) below. The time periods referred to in clauses (i) and (ii) of this Section
3(a) shall not include any period during which the Company is pursuing an SEC
ruling pursuant to Section 6(a)(i) below.
(b) The Company shall use its reasonable best efforts to cause the
Exchange Offer Registration Statement to be effective continuously, and shall
keep the Exchange Offer open for a period of not less than the minimum period
required under applicable U.S. federal and State securities laws to Consummate
the Exchange Offer; provided, however, that in no event shall such period be
less than 20 Business Days. The Company shall cause the Exchange Offer to comply
with all applicable U.S. federal and State securities laws and any applicable
Brazilian or Cayman Islands securities laws. No securities other than the
Securities shall be included in the Exchange Offer Registration Statement.
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(c) The Company shall include a "Plan of Distribution" section in
the Prospectus contained in the Exchange Offer Registration Statement and state
therein that any Restricted Broker-Dealer who holds Registrable Securities that
were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities may exchange such Registrable Securities
(other than Registrable Securities acquired directly from the Company or any
Affiliate of the Company) pursuant to the Exchange Offer; however, such
Broker-Dealer may be deemed to be an "underwriter" within the meaning of the
Securities Act and must, therefore, deliver a Prospectus meeting the
requirements of the Securities Act in connection with its initial sale of each
Exchange Security received by such Broker-Dealer in the Exchange Offer, which
Prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer Registration
Statement. Such "Plan of Distribution" section shall also contain all other
information with respect to such sales of Broker-Dealer Transfer Restricted
Securities by Restricted Broker-Dealers that the SEC may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Securities held by any
such Broker-Dealer, except to the extent required by the SEC as a result of a
change in policy after the date of this Agreement.
The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for sales of Broker-Dealer Transfer
Restricted Securities by Restricted Broker-Dealers, and to ensure that such
Registration Statement conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the SEC as announced
from time to time, for a period ending on the earlier of 180 days from the date
on which the Exchange Offer is Consummated and the date on which all Original
Securities have been exchanged for Exchange Securities.
The Company shall promptly provide sufficient copies of the latest
version of the Prospectus to such Restricted Broker-Dealers promptly upon
request, and in no event later than one Business Day after such request, at any
time during the period set forth above in order to facilitate such sales.
To the extent not conflicting with the Securities Act, or the rules
and regulations of the SEC, the Exchange Offer shall be conducted in accordance
with the requirements of the Luxembourg Stock Exchange.
SECTION 4. SHELF REGISTRATION
(a) If (i) the Company is not required to file an Exchange Offer
Registration Statement with respect to the Exchange Securities because the
Exchange Offer is not permitted by applicable law or SEC policy (after the
procedures set forth in Section 6(a)(i) below have been complied with) or (ii)
for any other reason the Exchange Offer Registration Statement is not declared
effective by September 30, 2005 or the
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Exchange Offer is not Consummated by October 31, 2005, then the Company shall
cause to be filed within 30 days after the earliest of (A) the date on which the
Company determines that it is not required to file the Exchange Offer
Registration Statement pursuant to clause (i) above, (B) September 30, 2005 if
the Exchange Offer Registration Statement has not been declared effective by
such date, and (C) October 31, 2005 if the Exchange Offer has not been
Consummated by such date, a shelf registration statement pursuant to Rule 415
under the Securities Act (which may be an amendment to the Exchange Offer
Registration Statement (in either event, the "Shelf Registration Statement")),
relating to all Registrable Securities, in the case of Section 4(a)(i) hereof,
and to any Holder that provides notice to the Company, in the case of Section
4(a)(ii) hereof, and, in either case the Holders of which shall have provided
the information required pursuant to Section 4(b) hereof and (y) use its
reasonable best efforts to cause such Shelf Registration Statement to become
effective on or prior to 30 days after the date on which the Company becomes
obligated to file such Shelf Registration Statement.
The Company shall use its reasonable best efforts to keep the Shelf
Registration Statement discussed in this Section 4(a) continuously effective,
supplemented and amended as required by and subject to the provisions of
Sections 6b(b) and (c) hereof to the extent necessary to ensure that it is
available for sales of Registrable Securities by the Holders thereof entitled to
the benefit of this Section 4(a), and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the SEC as announced from time to time, for a period of at least
two years (as extended pursuant to Section 6(c)(i)) following the date on which
such Shelf Registration Statement first becomes effective under the Securities
Act; provided, however, that the requirement to keep the Shelf Registration
Statement continuously effective shall terminate when all of the Registrable
Securities have been resold pursuant thereto.
(b) No Holder of Registrable Securities may include any of its
Registrable Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company in writing,
within 20 days after receipt of a written request therefor, such information
specified in Item 507 of Regulation S-K under the Securities Act or Item 9.D of
Form 20-F under the Securities Act, as applicable, for use in connection with
any Shelf Registration Statement or Prospectus or preliminary Prospectus
included therein. No Holder of Registrable Securities shall be entitled to
Increased Interest pursuant to Section 5 hereof unless and until such Holder
shall have used its reasonable best efforts to provide all such information.
Each Holder as to which any Shelf Registration Statement is being effected
agrees to furnish promptly to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Holder not materially misleading.
SECTION 5. INCREASE IN INTEREST PAYMENTS
If (i) any Registration Statement has not been declared effective by
the SEC on or prior to the date specified for such effectiveness in this
Agreement, (ii) the Exchange Offer has not been Consummated by October 31, 2005
or (iii) subject to
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Section 6(c)(ii), any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within five Business
Days by a post-effective amendment to such Registration Statement that cures
such failure and that is itself declared effective immediately (each such event
referred to in clauses (i) through (iii), a "Registration Default"), then the
Company shall pay increased interest ("Increased Interest") as set forth in the
Indenture to each Holder of Registrable Securities from the date of such
Registration Default in an amount equal to 1.0% per annum with respect to the
principal amount of Registrable Securities held by such Holder or for such
shorter period as the Registration Default continues. Following cure of any
Registration Default, the accrual of Increased Interest will cease.
All accrued Increased Interest shall be paid, directly or
indirectly, by the Company on each Damages Payment Date to the Record Holder of
any Original Securities that are Global Securities (as defined in the Indenture)
by wire transfer of immediately available funds and to Record Holders of any
definitive Original Securities by wire transfer or by mailing checks to their
registered addresses on each Damages Payment Date.
All obligations of the Company set forth in this Section 5 that are
outstanding with respect to any Registrable Security at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to all Registrable Securities shall have been satisfied
in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company shall comply with all applicable provisions of
Section 6(c) below, shall use its reasonable best efforts to effect such
exchange and to permit the sale of Broker-Dealer Transfer Restricted Securities
being sold in accordance with the intended method or methods of distribution
thereof, and shall comply with all of the following provisions:
(i) If, following the date hereof there has been published a change
in applicable law or SEC policy with respect to exchange offers such as
the Exchange Offer, such that in the reasonable opinion of U.S. counsel to
the Company there is a substantial question as to whether the Exchange
Offer is permitted by applicable U.S. federal law or SEC rule, regulation
or policy, the Company hereby agrees to seek a no-action letter or other
favorable decision from the SEC allowing the Company to Consummate an
Exchange Offer for such Original Securities. The Company hereby agrees to
pursue the issuance of such a decision to the SEC staff level. In
connection with the foregoing, the Company hereby agrees to take all such
other actions as are requested by the SEC or otherwise required in
connection with the issuance of such decision, including (A) participating
in telephonic conferences with the SEC, (B) delivering to the SEC staff an
analysis prepared by counsel to the Company setting forth the legal
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bases, if any, upon which such counsel has concluded that such an Exchange
Offer should be permitted and (C) diligently pursuing a resolution (which
need not be favorable) by the SEC staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Registrable
Securities shall furnish, upon the request of the Company, prior to the
Consummation of the Exchange Offer, a written representation to the
Company (which may be contained in the letter of transmittal contemplated
by the Exchange Offer Registration Statement) to the effect that (A) it is
not an Affiliate of the Company, (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any
person to participate in, a distribution of the Exchange Securities to be
issued in the Exchange Offer and (C) it is acquiring the Exchange
Securities in its ordinary course of business. As a condition to
participating in the Exchange Offer, each Holder shall also acknowledge
and agree, upon the request of the Company, (x) that any Broker-Dealer and
any such Holder using the Exchange Offer to participate in a distribution
of the securities to be acquired in the Exchange Offer (1) could not under
SEC policy as in effect on the date of this Agreement rely on the position
of the SEC enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5,
1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the SEC's letter to Shearman & Sterling dated July 2, 1993
and similar no-action letters (including Xxxxx & Xxxx LLP (available
February 7, 1997)), and, if applicable, any no-action letter obtained
pursuant to clause (i) above), and (2) must comply with the registration
and prospectus delivery requirements of the Securities Act in connection
with a secondary resale transaction and (y) that such a secondary resale
transaction must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or
508, as applicable, of Regulation S-K or any other information required by
the Securities Act or applicable State securities laws if the resales are
of Exchange Securities obtained by such Holder in exchange for Original
Securities acquired by such Holder directly from the Company or an
Affiliate thereof.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company shall provide a supplemental letter to the SEC (A)
stating that the Company is registering the Exchange Offer in reliance on
the position of the SEC enunciated in Exxon Capital Holdings Corporation
(available May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (available June 5,
1991), Xxxxx & Wood LLP (available February 7, 1997) and, if applicable,
any no-action letter obtained pursuant to clause (i) above, (B) including
a representation that the Company has not entered into any arrangement or
understanding with any Person to distribute the Exchange Securities to be
received in the Exchange Offer and that, to the best of the Company's
information and belief, each Holder participating in the Exchange Offer is
acquiring the Exchange Securities in its ordinary course of business and
has no arrangement or understanding with any Person to participate in the
distribution of the Exchange Securities received in the
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Exchange Offer and (C) including any other undertaking or representation
required by the SEC as set forth in any no-action letter obtained pursuant
to clause (i) above.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall comply with all applicable provisions
of Section 6(c) below and shall use its reasonable best efforts to effect such
registration to permit the sale of the Registrable Securities being sold in
accordance with the intended method or methods of distribution thereof (as
indicated in the information furnished to the Company pursuant to Section 4(b)
hereof), and pursuant thereto the Company will prepare and file with the SEC a
Registration Statement relating to the registration on any appropriate form
under the Securities Act, which form shall be available for the sale of the
Registrable Securities in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in accordance with
the provisions hereof.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement to permit the
sale or resale of Registrable Securities (including any Exchange Offer
Registration Statement and the related Prospectus, to the extent that the same
are required to be available to permit sales of Broker-Dealer Transfer
Restricted Securities by Restricted Broker-Dealers), the Company shall:
(i) use its reasonable best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this Agreement,
as applicable. Upon the occurrence of any event that would cause any such
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 Registrable Securities during the period required by this
Agreement, the Company shall file promptly an appropriate amendment to
such Registration Statement (in the case of clause (A), correcting any
such misstatement or omission) and shall use its reasonable best efforts
to cause such amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for their intended
purposes as soon as reasonably practicable thereafter, in each case
subject to Section 6(c)(ii);
(ii) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, or such shorter period as will
terminate when all Registrable Securities covered by such Registration
Statement have been sold; 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
Rules 424, 430A and 462, as applicable, under the Securities Act in a
timely manner; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the
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applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus; provided, however, that if the
board of directors of the Company determines in its reasonable judgment
that it is in the best interests of the Company not to disclose the
existence of or facts surrounding any proposed or pending material event
or transaction involving the Company or its subsidiaries, the Company may,
(A) in the event a Shelf Registration Statement has been filed, allow the
Shelf Registration Statement to fail to be effective or usable as a result
of such nondisclosure for up to 30 consecutive days during the period of
effectiveness of such Shelf Registration Statement and (B) in the event
the Exchange Offer is Consummated, allow the Exchange Offer Registration
Statement to fail to be effective or usable as a result of such
nondisclosure for up to 30 consecutive days during the period specified in
the second paragraph of Section 3(c); provided, further, that in the event
the Company suspends the effectiveness of any Registration Statement
pursuant to the preceding proviso, the Company shall promptly notify the
Holders or the Restricted Broker-Dealers, as the case may be, of the
suspension of effectiveness of such Registration Statement (which notice
shall not be required to disclose the proposed or pending material event
or transaction if the board of directors of the Company determines in its
reasonable judgment that it is in the best interests of the Company not to
disclose the existence of or facts surrounding such event or transaction)
and, upon the abandonment, consummation or termination of the proposed or
pending material event or transaction, shall promptly notify such Holders
or Restricted Broker-Dealers, as the case may be, that the use of such
Registration Statement may resume.
(iii) advise the underwriter(s), if any, the Trustee and selling
Holders promptly and, if requested by such Persons, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the
same has become effective, (B) of any request by the SEC for amendments to
the Registration Statement or amendments or supplements to the Prospectus
or for additional information relating thereto, (C) of the issuance by the
SEC of any stop order suspending the effectiveness of the Registration
Statement under the Securities Act or of the suspension by any State
securities commission of the qualification of the Registrable Securities
for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, (D) of the existence of any
fact or the happening of any event that makes any statement of a material
fact made in the 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
Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes in
the Prospectus in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. If at any
time the SEC shall issue any stop order suspending the effectiveness of
the Registration Statement, or any State securities commission or other
regulatory
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authority shall issue an order suspending the qualification or exemption
from qualification of the Registrable 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;
(iv) furnish to the Initial Purchaser, the Trustee, each selling
Holder named in any Registration Statement or Prospectus and each of the
underwriter(s) in connection with such sale, if any, before filing with
the SEC, copies of any Registration Statement or any Prospectus included
therein or any amendments or supplements to any such Registration
Statement or Prospectus (including all documents incorporated by reference
after the initial filing of such Registration Statement), which documents
will be subject to the review and comment of such selling Holders and
underwriter(s) in connection with such sale, if any, for a period of at
least ten Business Days, and the Company will not file any such
Registration Statement or Prospectus or any amendment or supplement to any
such Registration Statement or Prospectus (including all such documents
incorporated by reference) to which the selling Holders of the Registrable
Securities covered by such Registration Statement or the underwriter(s) in
connection with such sale, if any, shall reasonably object within ten
Business Days after the receipt thereof. A selling Holder or underwriter,
if any, shall be deemed to have reasonably objected to such filing if such
Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement or
omission or fails to comply with the applicable requirements of the
Securities Act;
(v) prior to the filing of any document that is to be incorporated
by reference into a Registration Statement or Prospectus, provide copies
of such document to the selling Holders and to the underwriter(s) in
connection with such sale, if any, make the Company's representatives
available at reasonable times for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such selling Holders or
underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by the
selling Holders, any managing underwriter participating in any disposition
pursuant to such Registration Statement and any attorney or accountant
retained by such selling Holders or any of such underwriter(s), all
financial and other records, pertinent corporate documents and properties
of the Company and cause the Company's officers, directors and employees
to supply all information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with such Registration
Statement or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness; provided, however, that any
information that is reasonably and in good faith designated by the Company
in writing as confidential at the time of delivery of such information
shall be kept confidential by such Persons, unless (i) disclosure of such
information is required by court or administrative order or is necessary
to respond to inquiries of regulatory authorities, (ii) disclosure of such
information is
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necessary, in the reasonable judgment of counsel to such Person and after
consultation with the Company, in connection with any legal proceeding
relating to such Registration Statement or any Prospectus or otherwise
arising out of or relating to this Agreement and the transactions
contemplated hereby, (iii) disclosure of such information is required by
law or is necessary to avoid or correct a misstatement or omission in such
Registration Statement or Prospectus, (iv) such information becomes
generally available to the public other than as a result of a disclosure
or failure to safeguard such information by such person or (v) such
information becomes available to such person from a source other than the
Company and its subsidiaries and such source is not known, after due
inquiry, by the relevant Person to be bound by a confidentiality agreement
with respect to such information;
(vii) if requested by any selling Holders or the underwriter(s) in
connection with such sale, if any, promptly include in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as is required by the applicable
rules and regulations of the SEC or, to the extent not contrary to such
rules and regulations, as such selling Holders and underwriter(s), if any,
may reasonably request to have included therein, including information
relating to the "Plan of Distribution" of the Registrable Securities,
information with respect to the principal amount of Registrable Securities
being sold to such underwriter(s), the purchase price being paid therefor
and any other terms of the offering of the Registrable Securities to be
sold in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the
Company is notified of the matters to be included in such Prospectus
supplement or post-effective amendment; provided that the Company is not
required to take any action that would violate applicable law in the
opinion of local counsel to the Company reasonably satisfactory to the
underwriters;
(viii) use its best efforts to confirm that the ratings applicable
to the initial offer and sale of the Original Securities will apply to the
Exchange Securities;
(ix) furnish to each selling Holder, the Trustee and each of the
underwriter(s) in connection with such sale, if any, without charge, at
least one copy of the Registration Statement, as first filed with the SEC,
and of each amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits incorporated
therein by reference);
(x) deliver to each selling Holder, the Trustee and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; the Company hereby
consents to the use (in accordance with law) of the Prospectus and any
amendment or supplement thereto by each of the selling Holders and each of
the underwriter(s),
12
if any, in connection with the offering and the sale of the Registrable
Securities covered by the Prospectus or any amendment or supplement
thereto;
(xi) enter into such agreements (including an underwriting
agreement) and make such customary representations and warranties and take
all such other actions in connection therewith in order to expedite or
facilitate the disposition of the Registrable Securities pursuant to any
Registration Statement contemplated by this Agreement as may be reasonably
requested by any selling Holder of Registrable Securities or any
underwriter in connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement, and in such
connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an Underwritten Registration, the
Company shall:
(A) furnish or cause to be furnished to each selling Holder
and each underwriter, if any, upon the effectiveness of the Shelf
Registration Statement and to each Restricted Broker-Dealer upon
Consummation of the Exchange Offer:
(1) a certificate, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed on behalf
of the Company by (x) the principal executive officer of the
Company and (y) the principal financial or accounting officer
of the Company, confirming, as of the date thereof, the
matters set forth in Section 5(e) of the Purchase Agreement
and such other similar matters as the selling Holders,
underwriter(s) and/or Restricted Broker-Dealers may reasonably
request;
(2) opinions, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of external
Brazilian counsel, U.S. counsel and Cayman Islands counsel for
the Company covering matters similar to those set forth in
Section 5(b) of the Purchase Agreement and such other matters
as the selling Holders, underwriters and/or Restricted
Broker-Dealers may reasonably request, and in any event
including a statement to the effect that no information came
to such counsel's attention that caused it to believe that the
applicable Registration Statement, at the time such
Registration Statement or any post-effective amendment thereto
became effective and, in the case of the Exchange Offer
Registration Statement, as of the date of Consummation of the
Exchange Offer, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the case of the
opinion
13
dated the date of Consummation of the Exchange Offer, as of
the date of Consummation, contained an untrue statement of a
material fact or omitted 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; and
(3) a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement or the date
of Consummation of the Exchange Offer, as the case may be,
from the Company's independent accountants, in the customary
form and covering matters of the type customarily covered in
comfort letters to underwriters in connection with primary
underwritten offerings, and affirming the matters set forth in
the comfort letters delivered pursuant to Sections 5(f) and
(g) of the Purchase Agreement;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, in connection with any sale or
resale pursuant to any Shelf Registration Statement the
indemnification provisions and procedures of Section 8 hereof with
respect to all parties to be indemnified pursuant to such Section;
and
(C) deliver such other documents and certificates as may be
reasonably requested by the selling Holders, the underwriter(s), if
any, and Restricted Broker Dealers, if any, to evidence compliance
with clause (A) above and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the
Company pursuant to this clause (xi).
The above shall be done at each closing under such underwriting or
similar agreement, as and to the extent required thereunder, and if at any
time the representations and warranties of the Company contemplated in
(A)(l) above cease to be true and correct, the Company shall so advise the
underwriter(s), if any, the selling Holders and each Restricted
Broker-Dealer promptly and if requested by such Persons, shall confirm
such advice in writing;
(xii) prior to any public offering of Registrable Securities,
cooperate with the selling Holders, the underwriter(s), if any, and its
counsel in connection with the registration and qualification of the
Registrable Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s), if any, may
request and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the applicable Registration Statement; provided, however, that
the Company shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that
would subject it to the service of process in suits or to taxation, other
than as to matters
14
and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xiii) issue, upon the request of any Holder of Original Securities
covered by any Shelf Registration Statement contemplated by this
Agreement, Exchange Securities having an aggregate principal amount equal
to the aggregate principal amount of Original Securities surrendered to
the Company by such Holder in exchange therefor or being sold by such
Holder; such Exchange Securities to be registered in the name of such
Holder or in the name of the purchaser(s) of such Securities, as the case
may be; in return, the Original Securities held by such Holder shall be
surrendered promptly to the Company for cancellation;
(xiv) in connection with any sale of Registrable Securities that
will result in such securities no longer being Registrable Securities,
cooperate with the selling Holders and the underwriter(s), if any, to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any
restrictive legends; and to register such Registrable Securities in such
denominations and such names as the Holders or the underwriter(s), if any,
may request at least three Business Days prior to such sale of Registrable
Securities;
(xv) use its reasonable best efforts to cause the disposition of the
Registrable Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof or
the underwriter(s), if any, to consummate the disposition of such
Registrable Securities, subject to the proviso contained in clause (xii)
above;
(xvi) subject to Section 6(c)(i), if any fact or event contemplated
by Section 6(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Registrable Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(xvii) provide a CUSIP number for all Registrable Securities not
later than the effective date of a Registration Statement covering such
Registrable Securities and provide the Trustee under the Indenture with a
Global Security or definitive certificates for the Registrable Securities
which are in a form eligible for deposit with The Depository Trust
Company;
(xviii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter that is required to be retained in accordance with the rules
and
15
regulations of the NASD, and use its reasonable best efforts to cause such
Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the
Holders selling Registrable Securities to consummate the disposition of
such Registrable Securities;
(xix) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make generally available
to its security holders with regard to any applicable Registration
Statement, as soon as practicable, a consolidated earnings statement
meeting the requirements of Section 11(a) of the Securities Act and Rule
158 thereunder (which need not be audited) covering a twelve-month period
beginning after the effective date of the Registration Statement (as such
term is defined in paragraph (c) of Rule 158);
(xx) cause the Indenture to be qualified under the Trust Indenture
Act not later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with
the Trustee and the Holders of Securities to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and execute and use
its reasonable best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable such Indenture to be
so qualified in a timely manner; and
(xxi) make available promptly to each Holder, upon request, at the
corporate trust office of the Trustee, each document filed with the SEC
pursuant to the requirements of Section 13 or Section 15(d) of the
Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Registrable Security that, upon receipt of the notice referred to in Section
6(c)(i) or any notice from the Company of the existence of any fact of the kind
described in Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the applicable Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 6(c)(xvi) hereof, or until it is
advised in writing by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (the "Advice"). If so directed by
the Company, each Holder will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities that was current at the
time of receipt of either such notice. In the event the Company shall give any
such notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(c)(i) or Section 6(c)(iii)(D) hereof
to and including the date when each selling Holder covered by such
16
Registration Statement shall have received the copies of the supplemented or
amended Prospectus contemplated by Section 6(c)(xvi) hereof or shall have
received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including the following: (i)
all registration and filing fees and expenses (including filings made by the
Initial Purchaser or any Holder with the NASD or its counsel that may be
required by the rules and regulations of the NASD, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Securities in
accordance with rules and regulations of the NASD); (ii) all fees and expenses
of compliance with U.S. federal securities and State Blue Sky or securities laws
(including reasonable fees and disbursements of counsel for any underwriters or
Holders in connection with qualification under State Blue Sky or securities laws
of any of the Exchange Securities or Registrable Securities and filings with the
NASD), Brazilian laws and Cayman Islands laws; (iii) all expenses of
preparation, word processing, printing and distribution of the Registration
Statement and any documents relating to the performance of and compliance with
this Agreement (including the preparation of a Global Security or definitive
certificates for the Exchange Securities to be issued in the Exchange Offer and
printing of any preliminary Prospectus and the Prospectus), messenger and
delivery services and telephone; (iv) all fees and disbursement charges of U.S.
counsel, Brazilian counsel and Cayman Islands counsel for the Company; (v) all
application and filing fees in connection with listing the Securities on any
securities exchange or automated quotation system pursuant to the requirements
hereof; (vi) the reasonable fees and expenses of the Initial Purchaser in
connection with the Exchange Offer, including the reasonable fees and expenses
of counsel to the Initial Purchaser in connection therewith; (vii) the fees and
expenses of the Trustee, agents of the Trustee, and any exchange agent, their
respective counsel and the Luxembourg listing agent, if any; (viii) all
reasonable fees and disbursement charges of independent accountants of the
Company (including the expenses of any special audit and comfort letters
required by or incident to such performance); and (ix) all rating agency fees.
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchaser and the Holders of Registrable Securities being tendered in
the Exchange Offer and/or resold pursuant to the "Plan of Distribution"
contained in the Exchange Offer Registration Statement or registered pursuant to
the Shelf Registration Statement, as applicable, for the reasonable fees and
disbursement charges of Milbank, Tweed, Xxxxxx & XxXxxx
17
LLP, as U.S. counsel for the Initial Purchaser, and of not more than one firm of
Brazilian counsel and Cayman Islands counsel for the Initial Purchaser, who
shall be chosen by the Initial Purchaser on behalf of the Holders.
(c) Each Holder of Registrable Securities will pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the
disposition of such Holder's Registrable Securities.
SECTION 8. INDEMNIFICATION; CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless the Initial
Purchaser, each Holder, each Participating Broker-Dealer, each Person who
participates as an underwriter in connection with a Shelf Registration (any such
Person for all purposes of this Section 8 being an "Underwriter") and each
Person, if any, who controls any of such parties within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration
Statement (or any amendment or supplement thereto) pursuant to which
Exchange Securities or Registrable Securities were registered under the
Securities Act, including all documents incorporated therein by reference,
or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading, or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any amendment
or supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any untrue statement or omission, or any such
alleged statement or omission, in either case of the nature described in
clause (i) above; provided that any such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by any indemnified party),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
untrue statement or omission, or any alleged untrue statement or omission,
in either case of the nature described in clause (i) above, to the extent
that any such expense is not paid under clause (i) or (ii) above;
18
provided, however, that this indemnity agreement as to any indemnified party
shall not apply to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written information
furnished to the Company by such indemnified party expressly for use in a
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto).
(b) Each Holder severally, but not jointly, agrees to indemnify and
hold harmless the Company, the Initial Purchaser, each Underwriter and the other
selling Holders, and each of their respective directors and officers, and each
Person, if any, who controls the Company, the Initial Purchaser, any Underwriter
or any other selling Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 4(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Shelf Registration Statement
(or any amendment or supplement thereto) or any Prospectus included therein (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information with respect to such Holder furnished to the Company by such
Holder expressly for use in the Shelf Registration Statement (or any amendment
or supplement thereto) or such Prospectus (or any amendment or supplement
thereto); provided, however, that no such Holder shall be liable for any claims
hereunder in excess of the amount of net proceeds received by such Holder from
the sale of Registrable Securities pursuant to such Shelf Registration
Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notice an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying party or parties be liable
for the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation,
19
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) If the indemnification to which a party is entitled under this
Section 8 is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party in such proportion as is appropriate to
reflect the relative fault of each indemnifying party on the one hand and the
Holders and the indemnified party on the other hand in connection with the
statements or omissions which resulted, in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
Relative fault 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 indemnifying party or the indemnified party, and each such
party's relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, the Holders and the Initial Purchaser agree that it
would not be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 8. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
8 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, (i) the Initial
Purchaser shall not be required to contribute any amount in excess of the amount
by which the total price at which the Securities sold by it pursuant to a
registration effected hereunder exceeds the amount of any damages which the
Initial Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and (ii) no Holder
shall be required to contribute in excess of the amount by which the net
proceeds received by such Holder from the sale of Registrable Securities by it
pursuant to a registration effected hereunder exceeds the amount of any damages
which such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No Person guilty of fraudulent misrepresentation (within the meaning
of Section 1l(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
20
For purposes of this Section 8, each Person, if any, who controls
the Initial Purchaser, or an Underwriter or Holder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Initial Purchaser, or such Underwriter or Holder,
and each director of the Company, and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the Company. The
obligations of each Holder to contribute pursuant to this Section 8 are several
and not joint and in the same proportion of all contributions of Holders
required hereunder as such Holder's Registrable Securities sold pursuant to the
Registration Statement is of the total amount of Registrable Securities sold
pursuant to the Registration Statement. Any Underwriters' respective obligations
to contribute pursuant to this Section 8 are several in the proportions
specified in the relevant underwriting agreement and not joint.
SECTION 9. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Registrable Securities on
the basis provided in customary underwriting arrangements entered into in
connection therewith and (b) completes and executes all reasonable
questionnaires, powers of attorney and other documents required under the terms
of such underwriting arrangements.
SECTION 10. SELECTION OF UNDERWRITERS
For any Underwritten Offering, the investment banker or investment
bankers and manager or managers for any Underwritten Offering that will
administer such offering will be selected by the Holders of a majority in
aggregate principal amount of the Registrable Securities included in such
offering. Such investment bankers and managers are referred to herein as the
"underwriters".
SECTION 11. ADDITIONAL AMOUNTS
If any Increased Interest to be received by the Initial Purchaser or
any Holders under this Agreement are subject to any present or future taxes,
assessments, deductions, withholdings or charges of any nature enacted by Brazil
or any political subdivision thereof or taxing authority therein ("Brazilian
Taxes") or by the Cayman Islands or any political subdivision thereof or taxing
authority therein ("Cayman Islands Taxes"), then the Company shall pay to the
Initial Purchaser or such Holders, as the case may be, additional amounts so
that such Persons shall retain, after taking into consideration all such
Brazilian Taxes and Cayman Islands Taxes, if applicable, an amount equal to the
amounts owed to them under this Agreement as if such amounts had not been
subject to Brazilian Taxes or Cayman Islands Taxes. If any Brazilian Taxes or
Cayman Islands Taxes are collected by deduction or withholding, the Company
shall upon request provide to such Persons copies of documents evidencing the
transmittal to the proper authorities of the amount of Brazilian Taxes or Cayman
Islands Taxes, as the case may be, deducted or withheld.
21
SECTION 12. CONTRACT CURRENCY
The Company shall indemnify the Initial Purchaser, the Trustee or
Holder against any loss incurred by it as a result of any payment by, or
judgment or order against the Company, being given or made and expressed and
paid in a currency (the "Non-Contract Currency") other than U.S. dollars and as
a result of any variation as between (i) the rate of exchange at which the U.S.
dollar amount is converted into the Non-Contract Currency for the purpose of
such payment, judgment or order and (ii) the spot rate of exchange in New York
City at which such Person on the date of payment of such payment, judgment or
order is able to purchase U.S. dollars with the amount of the Non-Contract
Currency actually received by such Person. The foregoing indemnity shall
constitute a separate and independent obligation of the Company and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "spot rate of exchange" shall include any premiums and costs
of exchange payable in connection with the purchase of, or conversion into, U.S.
dollars.
SECTION 13. MISCELLANEOUS
(a) Remedies. Each Holder, and the Trustee on behalf of any such
Holder, in addition to being entitled to exercise all rights provided herein, in
the Indenture, the Purchase Agreement or granted by law, including recovery of
liquidated or other damages, will be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The Company has not
previously entered into any agreement granting any registration rights under
U.S. securities laws with respect to its securities to any Person which would
entitle such Person to any rights under this Agreement. The rights granted to
the Holders hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(c) Adjustments Affecting the Securities. The Company will not,
knowingly and voluntarily, take any action, or permit any change to occur, with
respect to the Securities that would materially and adversely affect the ability
of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section 5
and
22
Section 11 hereof and this Section 13(d)(i), the Company has obtained the
written consent of Holders of all outstanding Registrable Securities and (ii) in
the case of all other provisions hereof, the Company, through the Trustee, has
obtained the written consent of Holders of a majority of the outstanding
principal amount of Registrable Securities. Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof that relates
exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount of Registrable Securities subject to such Exchange Offer.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Security Registrar under the Indenture, with a copy to the Security
Registrar under the Indenture;
(ii) if to the Initial Purchaser, at the address set forth in the
Purchase Agreement;
(iii) if to the Company, at the address set forth in the Purchase
Agreement; and
(iv) if to the Trustee, at the address set forth in the Indenture.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when receipt acknowledged, if telecopied; and two Business Days, after delivery
to a recognized air courier service, if sent by courier.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto and of the Holders of Registrable Securities, including, without
limitation and without the need for an express assignment, subsequent Holders of
Registrable Securities; provided, however, that the other Persons identified in
Section 8 shall have the benefit of the indemnification and contribution
provisions set forth in such Section; and provided, further, that this Agreement
shall not inure to the benefit of or be binding upon a successor or assign of a
23
Holder unless and to the extent such successor or assign acquired Registrable
Securities directly from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Submission to Jurisdiction, etc. The Company irrevocably agrees
that any legal suit, action or proceeding brought by any party to this Agreement
or by any person who controls any such party arising out of or based upon this
Agreement or the transactions contemplated hereby may be instituted in the
federal courts of the United States or the courts of the State of New York, in
each case located in the Borough of Manhattan in the City of New York (the
"Specified Courts") and irrevocably submits to the jurisdiction of such courts
in any suit, action or proceeding. The Company hereby irrevocably and
unconditionally waives any objection to the laying of venue of any suit, action
or proceeding in the Specified Courts, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such suit, action or proceeding brought in any such court has been brought
in an inconvenient forum. The Company has appointed Banco Bradesco S.A., New
York branch, located at 000 Xxxx Xxxxxx, 00xx/00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, as its authorized agent (the "Authorized Agent") upon whom process may be
served in any action based on this Agreement which may be instituted in any U.S.
federal or state court in New York City by any party to this Agreement and
expressly accepts the jurisdiction of any such court in respect of any such
action. Such appointment shall be irrevocable. The Company represents and
warrants that the Authorized Agent has agreed to act as said agent for service
of process, and agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect for a period of 12 years from the date of
this Agreement. Service of process upon the Authorized Agent and written notice
of such service to the Company shall be deemed, in every respect, effective
service of process upon the Company. In addition, the Company irrevocably
consents to the service of any process in any such suit, action or proceeding in
any of the Specified Courts by the delivery or mailing of such process to the
Company at its address specified in this Agreement and agrees that nothing
herein shall affect the right to effect service of process in any other manner
permitted by law or shall limit the right to xxx in any other jurisdiction. The
Company also irrevocably submits to the non-exclusive jurisdiction of any
competent court in Brazil.
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The Company irrevocably waives, to the fullest extent permitted by
applicable law, all immunity (whether on the basis of sovereignty or otherwise)
from jurisdiction, service of process, attachment (both before and after
judgment) and execution to which it might otherwise be entitled and will not
raise or claim or cause to be pleaded any such immunity in connection with any
suit, action or proceeding arising out of or based upon this Agreement,
including, without limitation, any immunity pursuant to the U.S. Foreign
Sovereign Immunities Act of 1976, as amended.
THE COMPANY AND THE INITIAL PURCHASER HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR FOR ANY COUNTERCLAIM THEREIN.
(k) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
BANCO BRADESCO S.A.,
acting through its Grand Cayman branch
By: /s/ XXXX XXXXXXXXX XXXXX XX XXXXX
Title: Diretor Gerente
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ XXXXX XXXXX
Title: Authorized Signatory
00
XXXXX XX XXX XXXX )
) :ss
COUNTY OF NEW YORK )
On this 2nd day of June, 2005, before me, a notary public within and
for said county, personally appeared Xxxxx Xxxxx to me personally known who
being duly sworn, did say that she is the Authorized Signatory of Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, one of the persons described in and which
executed the foregoing instrument, and acknowledges said instrument to be the
free act and deed of said persons.
By: /s/ XXXXXX X. XXXXX
Title: NOTARY PUBLIC, STATE OF NEW YORK
No. 01BR4926406
Qualified in Queens County
Commission Expires April 4, 2006
[NOTARIAL SEAL]
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