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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 8)*
--------------------------
COMPANIA CERVECERIAS UNIDAS S.A.
UNITED BREWERIES COMPANY, INC. (ENGLISH TRANSLATION OF NAME OF ISSUER)
(Name of Issuer)
COMMON STOCK, NO PAR VALUE 204429104
SHARES OF COMMON STOCK IN THE FORM OF AMERICAN DEPOSITARY SHARES (CUSIP number)
(Title of class of securities)
JoBeth G. Brown
Vice President and Secretary
Anheuser-Busch Companies, Inc.
One Busch Place
St. Louis, Missouri 63118
(314) 577-2000
(Name, address and telephone number of person authorized to receive notices
and communications)
OCTOBER 28, 2004
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-(g), check
the following box. / /
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7 for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purposes of Section 18 of the Securities Exchange Act of
1934 (the "Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act. (However, see the
Notes.)
(Continued on following pages)
(Page 1 of 22 Pages)
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CUSIP No. 204429104 13D/A Page 2 of 22 Pages
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1 NAME OF REPORTING PERSON Anheuser-Busch Companies, Inc.
S.S. OR I.R.S. IDENTIFICATION NO. 43-1162835
OF ABOVE PERSON
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) / /
(b) /X/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e): / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
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NUMBER OF 7 SOLE VOTING POWER: None
SHARES
-------------- -------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 63,695,333
OWNED BY
-------------- -------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: None
REPORTING
-------------- -------------------------------------------------------------
10 SHARED DISPOSITIVE POWER: 63,695,333
PERSON WITH
-------------- ---------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY
REPORTING PERSON: 63,695,333
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES: / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 20.0%
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14 TYPE OF REPORTING PERSON: CO
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CUSIP No. 204429104 13D/A Page 3 of 22 Pages
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1 NAME OF REPORTING PERSON Anheuser-Busch International, Inc.
S.S. OR I.R.S. IDENTIFICATION NO. 43-1213600
OF ABOVE PERSON
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) / /
(b) /X/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: WC
-------------- ---------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e): / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
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NUMBER OF 7 SOLE VOTING POWER: None
SHARES
-------------- -------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 63,695,333
OWNED BY
-------------- -------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: None
REPORTING
-------------- -------------------------------------------------------------
10 SHARED DISPOSITIVE POWER: 63,695,333
PERSON WITH
-------------- ---------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY
REPORTING PERSON: 63,695,333
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES: / /
-------------- ---------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 20.0%
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14 TYPE OF REPORTING PERSON: CO
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CUSIP No. 204429104 13D/A Page 4 of 22 Pages
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1 NAME OF REPORTING PERSON Anheuser-Busch International Holdings, Inc.
S.S. OR I.R.S. IDENTIFICATION NO. 51-0348308
OF ABOVE PERSON
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) / /
(b) /X/
-------------- ---------------------------------------------------------------------------------
3 SEC USE ONLY
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4 SOURCE OF FUNDS: WC
-------------- ---------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e): / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
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NUMBER OF 7 SOLE VOTING POWER: None
SHARES
-------------- -------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 63,695,333
OWNED BY
-------------- -------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: None
REPORTING
-------------- -------------------------------------------------------------
10 SHARED DISPOSITIVE POWER: 63,695,333
PERSON WITH
-------------- ---------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY
REPORTING PERSON: 63,695,333
-------------- ---------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES: / /
-------------- ---------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 20.0%
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14 TYPE OF REPORTING PERSON: CO
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CUSIP No. 204429104 13D/A Page 5 of 22 Pages
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1 NAME OF REPORTING PERSON Anheuser-Busch International Holdings, Inc.
S.S. OR I.R.S. IDENTIFICATION NO. Chile I Limitada
OF ABOVE PERSON 98-0346879
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) / /
(b) /X/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: WC
-------------- ---------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e): / /
-------------- ---------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: Chile
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NUMBER OF 7 SOLE VOTING POWER: None
SHARES
-------------- -------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 63,695,333
OWNED BY
-------------- -------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: None
REPORTING
-------------- -------------------------------------------------------------
10 SHARED DISPOSITIVE POWER: 63,695,333
PERSON WITH
-------------- ---------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY
REPORTING PERSON: 63,695,333
-------------- ---------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES: / /
-------------- ---------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 20.0%
-------------- ---------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: PN
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CUSIP No. 204429104 13D/A Page 6 of 22 Pages
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1 NAME OF REPORTING PERSON Anheuser-Busch International Holdings, Inc.
S.S. OR I.R.S. IDENTIFICATION NO. Chile II Limitada
OF ABOVE PERSON 98-0346884
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) / /
(b) /X/
-------------- ---------------------------------------------------------------------------------
3 SEC USE ONLY
-------------- ---------------------------------------------------------------------------------
4 SOURCE OF FUNDS: WC
-------------- ---------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e): / /
-------------- ---------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: Chile
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NUMBER OF 7 SOLE VOTING POWER: None
SHARES
-------------- -------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 63,695,333
OWNED BY
-------------- -------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: None
REPORTING
-------------- -------------------------------------------------------------
10 SHARED DISPOSITIVE POWER: 63,695,333
PERSON WITH
-------------- ---------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY
REPORTING PERSON: 63,695,333
-------------- ---------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES: / /
-------------- ---------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 20.0%
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14 TYPE OF REPORTING PERSON: PN
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This Amendment No. 8 (this "Amendment") amends and supplements the Schedule
13D filed on January 8, 2001 (the "Schedule 13D") with the Securities and
Exchange Commission by Anheuser-Busch Companies, Inc., Anheuser-Busch
International, Inc., Anheuser-Busch International Holdings, Inc., Anheuser-Busch
International Holdings, Inc. Chile I Limitada, and Anheuser-Busch International
Holdings, Inc. Chile II Limitada, as amended by Amendment No. 1 thereto filed on
February 6, 2001, Amendment No. 2 thereto filed on March 5, 2001, Amendment No.
3 thereto filed on March 30, 2001, Amendment No. 4 thereto filed on May 3, 2001,
Amendment No. 5 thereto filed on October 5, 2001, Amendment No. 6 thereto filed
on March 7, 2003 and Amendment No. 7 thereto filed on March 16, 2004. All
capitalized terms used in this Amendment and not otherwise defined herein have
the meanings assigned to such terms in the Schedule 13D, as previously amended.
ITEM 4. PURPOSE OF TRANSACTION
Item 4 is hereby amended and supplemented as follows:
The Reporting Persons are currently pursuing a possible disposition of the
Shares owned by them through a secondary offering of such Shares primarily in
Chile, as well as in other markets outside the United States. In that
connection, on October 28, 2004, Anheuser-Busch International Holdings, Inc.
Chile II Limitada executed an agreement with two Chilean investment banks (the
"Chilean Agreement") with respect to certain services that such firms would
render in connection with a secondary offering (see Item 6 below). There can be
no assurance that the Reporting Persons will consummate a secondary offering or
other disposition of their Shares. Consummation of an offering will depend on
various factors, including, without limitation, market conditions, the price
levels of the Issuer's equity securities, and other developments.
If the secondary offering of the Shares described above is effected, the
Shares offered therein will not be registered under the U.S. Securities Act of
1933 (the "Securities Act") and the offering will be structured so as to satisfy
the exemption from registration provided by Regulation S promulgated under the
Securities Act.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Item 6 is hereby amended and supplemented as follows:
The Chilean Agreement is attached hereto as Exhibit 99.5 and is
incorporated herein by reference. The description of the Chilean Agreement
contained in this Amendment is qualified in its entirety to the full text of the
exhibits filed hereto.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 99.5 Letter Agreement, dated as of October 28, 2004, by and among
Anheuser-Busch International Holdings, Inc. Chile II Limitada, Deutsche
Inversiones Limitada and Larrain Vial Servicios Profesionales Limitada.
Page 7 of 22 Pages
The undersigned hereby agree that this Statement is filed on behalf of each of
the Reporting Persons.
SIGNATURES
After reasonable inquiry and to the best of their knowledge and belief,
the undersigned certify that the information set forth in this Statement is
true, complete and correct.
Dated: October 29, 2004
ANHEUSER-BUSCH COMPANIES, INC.
By: /s/ William J. Kimmins
-------------------------------------------------
Name: William J. Kimmins
Title: Vice President and Treasurer
ANHEUSER-BUSCH INTERNATIONAL, INC.
By: /s/ William J. Kimmins
-------------------------------------------------
Name: William J. Kimmins
Title: Vice President and Treasurer
ANHEUSER-BUSCH INTERNATIONAL HOLDINGS, INC.
By: /s/ William J. Kimmins
-------------------------------------------------
Name: William J. Kimmins
Title: Vice President and Treasurer
ANHEUSER-BUSCH INTERNATIONAL HOLDINGS, INC.
CHILE I LIMITADA
By: ANHEUSER-BUSCH INTERNATIONAL
HOLDINGS, INC., ITS MANAGING PARTNER
By: /s/ William J. Kimmins
-------------------------------------------
Name: William J. Kimmins
Title: Vice President and Treasurer
ANHEUSER-BUSCH INTERNATIONAL HOLDINGS, INC.
CHILE II LIMITADA
By: ANHEUSER-BUSCH INTERNATIONAL
HOLDINGS, INC. CHILE I LIMITADA, ITS
MANAGING PARTNER
By: ANHEUSER-BUSCH INTERNATIONAL
HOLDINGS, INC., ITS MANAGING
PARTNER
By: /s/ William J. Kimmins
-------------------------------------
Name: William J. Kimmins
Title: Vice President and Treasurer
Page 8 of 22 Pages
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
Exhibit 99.5 --- Letter Agreement, dated as of October 28, 2004, by and among
Anheuser-Busch International Holdings, Inc. Chile II
Limitada, Deutsche Inversiones Limitada and Larrain Vial
Servicios Profesionales Limitada
Page 15 of 22 Pages
October 28, 2004
Mr. William J. Kimmins Jr.
Vice President and Treasurer
Anheuser-Busch International Holdings, Inc. Chile II Limitada
Dear Mr. Kimmins,
This Agreement (the "Agreement") will confirm the basis upon which
Anheuser-Busch International Holdings, Inc. Chile II Limitada ("Client") has
engaged Deutsche Inversiones Limitada and its affiliate Deutsche Securities
Corredores de Bolsa Limitada (together "Deutsche Bank") and Larrain Vial
Servicios Profesionales Limitada and its affiliate Larrain Vial S.A. Corredora
de Bolsa (together "Larrain Vial" and together with Deutsche Bank the
"Bookrunners") on an exclusive basis to act as joint bookrunners and/or
placement agents, and to provide advisory and investment banking services in
connection with the Client's sale offering of up to 63,695,333 shares of common
stock of Compania Cervecerias Unidas S.A. ("CCU") in the Santiago Stock Exchange
(the "Offering").
SECTION 1. SERVICES TO BE RENDERED
The Bookrunners agree to perform each of the following financial advisory and
investment banking services:
i. assist and advise the Client in and coordinate the structuring of the
Offering;
ii. preparation of an offering statement or memorandum approved by the
Client to be used in connection with the Offering;
iii. assist and advise the Client and/or its legal advisors in the
preparation of transaction documentation;
iv. develop and implement a marketing plan and organize roadshows in
connection with the Offering;
v. assist and advise the Client in and conduct the placement of the
Offering through a VIVA VOZ, or live voice, auction on the Santiago
Stock Exchange (the "Remate") or through any other process available
in the Santiago Stock Exchange previously approved by the Client;
vi. The Bookrunners will use their best efforts to promote the Offering in
order to have the largest possible number of purchase orders of CCU
shares from investors with a view to maximizing economic return to
Client. Following the closing of the book of purchase orders of CCU
shares from investors and subject to approval of the Offering's
pricing by the Client, (a) Larrain Vial will (i) use its best efforts
to register the Remate and (ii) sell the shares on the auction date on
behalf of the Client in one or more lots and (b) Deutsche Bank will
bid to purchase the entire lot or lots of shares for the account of
such investors, according to the terms and conditions defined by the
Client for the Remate and applicable Santiago Stock Exchange
regulations. Subsequent to the registration of the Remate, all risks
for any breach of the purchase orders (ORDENES DE COMPRA) from
investors, including, but not limited to, the failure or delay to pay
of one or more investors, shall be borne exclusively by the
Bookrunners and not by the Client. Each of the Bookrunners shall be
liable under article 33 of Law N DEG. 18,045 (LEY DE MERCADO DE
VALORES) for the timely and full payment of the price of the shares
sold in the Remate;
Page 16 of 22 Pages
vii. if requested by Client, to assist and advise Client to the extent
permitted by law in discussions with CCU or any of its affiliates with
respect to the Offering; and
viii. be available to meet at the Client's request with the Client's or any
of its affiliates Board of Directors or management to discuss the
Offering and its financial implications.
In preparing the offering statement or memorandum to be used in connection with
the Offering, the Bookrunners will use and rely upon publicly available
information concerning the Client, CCU and its affiliates. Accordingly, the
Bookrunners shall be entitled to assume and rely upon the accuracy and
completeness of all such publicly available information and are not required to
conduct a physical inspection of any of the properties or assets of CCU and its
affiliates, or to prepare or obtain any independent evaluation or appraisal of
any of the assets or liabilities of CCU and its affiliates. Client understands
and agrees that the Bookrunners will not assume responsibility for independent
verification of any information furnished to them by the Client, whether or not
publicly available, considered by the Bookrunners in connection with the
rendering of their services. All financial forecasts and projections used by the
Bookrunners in their analysis and/or the offering statement or memorandum used
in connection with the Offering, if any, shall be prepared by the Bookrunners
reflecting the best currently available estimates and judgments of the
Bookrunners, as the case may be, as to the matters covered thereby. Therefore,
the Bookrunners shall be solely responsible with respect to any such financial
forecasts and projections and neither the Client nor any of its affiliates shall
have any liability with respect thereto.
SECTION 2. FEES
As compensation for Deutsche Bank and Larrain Vial's services in connection with
the Offering, the Client shall pay or grant, as the case may be, each of
Deutsche Bank and Larrain Vial its equal share of the following non-refundable
cash fees:
a) 1% (one percent) of the gross amount in Chilean pesos of any Offering
effected in the Chilean capital market, payable at the closing of such
Offering (inclusive of IMPUESTO AL VALOR AGREGADO if applicable,
DERECHOS DE BOLSA or other similar charges and any withholding or
deduction for or on account of taxes of any kind) (the "Placement
Fee"); and
b) whether or not the Offering is placed or executed, all actual,
reasonable, necessary, documented out-of-pocket expenses to the extent
specified in section 3 hereof.
The Placement Fee shall be payable by Client at the offices of each of the
Bookrunners in Chilean pesos one (1) business day following payment to Client of
the price of the shares sold in the Remate.
SECTION 3. EXPENSES
In addition to any fees that may be payable to the Bookrunners hereunder and
regardless of whether the Offering is consummated, Client hereby agrees, from
time to time upon request, to reimburse the Bookrunners for all actual,
reasonable, necessary, documented out-of-pocket expenses incurred in connection
with any Offering or otherwise arising out of the Bookrunner's engagement
hereunder, to the extent previously approved by Client. With respect to the
retention of legal counselor by the Bookrunners, Client hereby agrees to
reimburse the Bookrunners for legal fees and expenses incurred by them in
connection with the negotiation and execution of this Agreement and compliance
with U.S. securities laws and regulations regarding the transactions
contemplated hereunder in an amount not to exceed US$15,000.
Page 17 of 22 Pages
Additionally, Client agrees to pay to the Bookrunners and other Chilean or
foreign broker-dealers participating in the Offering at the request or
invitation of any of the Bookrunners an incentive to accumulate purchase orders
for CCU shares equal to 0,25% (25 basis points) plus IMPUESTO AL VALOR AGREGADO
if applicable of the final purchase price of all purchase orders effectively
allocated to the Bookrunners and any such Chilean or foreign broker-dealers
(inclusive of DERECHOS DE BOLSA or other similar charges and any withholding or
deduction for or on account of taxes of any kind).
Under no circumstances shall these expenses include (i) any fees, wages,
compensation, salary, overtime, or other remuneration paid to any employees,
consultants, advisors, or other independent contractors retained by or on behalf
of any of the Bookrunners, and (ii) any Bookrunner's overhead or any mark up
added by any Bookrunner to its actual out of pocket expenses.
SECTION 4. TERMINATION OF ENGAGEMENT
The engagement of each of the Bookrunners hereunder may be terminated by either
Client or the relevant Bookrunner at any time, with or without cause, upon
written advice to that effect to the other party; provided, however, that
(a) if the Client terminates this engagement other than for cause, or any of the
Bookrunners resign for cause, and the Client directly or indirectly enter into a
partial or total sale of its CCU shares prior to January 31, 2005, the Client
shall pay each of Deutsche Bank or Larrain Vial or both in case both have
resigned, its equal share of an amount equal to the Placement Fee multiplied by
the aggregate amount of such shares sold within three business days of such
sale; and
(b) the provisions of this Section 4 and of Sections 2 (b),3, 7, 8 and 9 hereof
shall survive such termination.
It is understood that the termination by the Client of this engagement with
respect to one Bookrunner or the resignation by one of the Bookrunners to their
engagement hereunder shall not mean the termination of the engagement of the
other Bookrunner which will continue with the engagement as if it would have
been agreed exclusively with it as from the date hereof, and shall be entitled
to all rights and compensation hereunder except for the rights of the other
Bookrunner as provided in (a) and (b) above.
SECTION 5. RELIANCE ON OTHERS
Client confirms that it will rely on its own counsel, accountants and other
similar expert advisors for legal, accounting, tax and other similar advice.
SECTION 6. PUBLICITY
In the event of consummation of the Offering, the Bookrunners shall have the
right, at their own expense, to disclose their participation in such Offering,
including, without limitation, the placement of "tombstone" advertisements in
financial and other newspapers and journals, PROVIDED, HOWEVER, the prior
written consent of the Client is obtained.
SECTION 7. SCOPE OF RESPONSIBILITY
None of the Bookrunners nor any of its respective affiliates (nor any of their
respective control persons, directors, officers, employees or agents) shall be
liable to Client or to any other person claiming through Client for any claim,
loss, damage, liability, cost or expense suffered by Client or any such other
person arising out of or related to the relevant Bookrunner's engagement
hereunder except to the extent a claim,
Page 18 of 22 Pages
loss or expense arises out of, or is based upon any action or failure to act by
the relevant Bookrunner that is found in a final judicial determination (or a
settlement tantamount thereto) to constitute bad faith, willful misconduct,
negligence or a breach of this Agreement on the part of the relevant Bookrunner.
The obligations undertaken by the Bookrunners hereunder are several and not
joint, and no Bookrunner or its affiliates (and their respective control
persons, directors, officers, employees and agents) may be held liable for any
action or failure to act of the other Bookrunner or its affiliates (and their
respective control persons, directors, officers, employees and agents).
SECTION 8. INDEMNITY
Each of the parties hereto (each, an "Indemnifying Party") agrees to indemnify
and hold harmless each of the other parties (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and disbursements of counsel),
joint or several, that may be incurred by or asserted or awarded against any
Indemnified Party (including, without limitation, in connection with any
investigation, litigation or proceeding or the preparation of a defense in
connection therewith), in each case arising out of or in connection with or by
reason of this Agreement or the transactions contemplated hereunder, only to the
extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction (or a settlement
tantamount thereto agreed or approved by the Indemnified Party) to have resulted
from such Indemnifying Party's bad faith, willful misconduct, negligence or
breach of this Agreement.
SECTION 9. GOVERNING LAW; ARBITRATION; ENFORCEABILITY; CONTINUED PERFORMANCE
(a) Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the Republic of Chile.
(b) Arbitration. All disputes arising out of or in connection with this
Agreement (the "Dispute") including the arbitrability of any Dispute, shall be
finally settled under the Rules of Arbitration of the International Chamber of
Commerce (the "ICC") in effect on the date of this Agreement (the "Rules") by
three arbitrators. In the event of a conflict between the Rules and the
provisions of this section, the provisions of this section shall govern. The
place of arbitration shall be in New York, New York. The arbitration shall be
governed by Chapter 2 of the United States Arbitration Act, 9 U.S.C. Sections
201-208. The two arbitrators appointed by the parties shall appoint the third
arbitrator, who shall be neither a citizen nor resident of either the United
States or Chile, within thirty (30) days of the appointment of the second
arbitrator. The language of the arbitration shall be English, and all three
arbitrators must be fluent in English and Spanish.
(c) Enforceability. Each party acknowledges and agrees that arbitration pursuant
to this section shall be the sole and exclusive procedure for resolving any
Dispute, and that any award rendered by the arbitral tribunal shall be final and
binding upon the parties. Judgment upon the award may be entered, and
application for judicial confirmation or enforcement of the award may be made,
in any competent court having jurisdiction thereof, and the parties hereto
submit to the jurisdiction of such court for purposes of enforcement of this
section and any award rendered hereunder.
(d) Continued Performance. In the event of any Dispute, the parties shall
continue to perform their respective obligations under this Agreement during the
pendency of arbitration proceedings unless and until the arbitral tribunal
otherwise orders.
Page 19 of 22 Pages
SECTION 10. NO RIGHTS IN SHAREHOLDERS, ETC.
Client recognizes that each Bookrunner has been engaged only by Client, and that
Client's engagement of each Bookrunner is not deemed to be on behalf of and is
not intended to confer rights upon any shareholder, partner or other owner of
Client or any other person not a party hereto as against each Bookrunner or any
of their affiliates or any of their respective directors, officers, agents,
employees or representatives. Unless otherwise expressly agreed, no one other
than Client is authorized to rely upon Client's engagement of each Bookrunner or
any statements, advice, opinions or conduct by each Bookrunner, and Client will
not disclose such statements, advice, opinions or conduct to others (except
Client's professional advisors and except as required by law). Without limiting
the foregoing, any opinions or advice rendered to Client's Board of Directors or
management in the course of Client's engagement of the Bookrunners are for the
purpose of assisting the Board or management, as the case may be, in evaluating
the Offering and do not constitute a recommendation to any shareholder of Client
concerning action that such shareholder might or should take in connection with
the Offering. The role of each Bookrunner herein is that of independent
contractor; nothing herein is intended to create or shall be construed as
creating a fiduciary relationship between Client and each Bookrunner. The
opinions or advice provided by one Bookrunner to the Client will not imply any
liability or obligation to the other Bookrunner or any of their affiliates or
any of their respective directors, officers, agents, employees or
representatives.
SECTION 11. DISCLOSURE
Client acknowledges that each Bookrunner and its affiliates may have and may
continue to have investment banking, financial advisory and other relationships
with parties other than Client (including, without limitation, CCU) pursuant to
which each Bookrunner may acquire information of interest to Client. Each
Bookrunner shall have no obligation to disclose such information to Client or to
use such information in the execution of the Offering.
Each Bookrunner and its affiliates are engaged, to the extent permitted by law,
in securities trading and brokerage activities as well as investment banking and
financial advisory services. In the ordinary course of their trading and
brokerage activities, each Bookrunner and its affiliates may hold positions, for
their own account or the account of customers, in equity, debt or other
securities of Anheuser-Busch Companies, Inc. or CCU. Likewise, in the ordinary
course of their financial advisory services, each Bookrunner and its affiliates
may report on or recommend to customers equity investments in Anheuser-Busch
Companies, Inc. or CCU.
SECTION 12. CONFIDENTIALITY
The Client and the Bookrunners agree that the contents of this Agreement shall
be treated as confidential unless otherwise agreed by the Client and the
Bookrunners or required by applicable laws or regulations.
SECTION 13. COMPLIANCE WITH LAWS; FOREIGN CORRUPT PRACTICES ACT
Each of the Bookrunners hereby agrees to adhere to all applicable laws, orders
and regulations of the United States, Chile and other relevant markets in
rendering its services under this Agreement.
The Bookrunners will immediately and fully report to, and request guidance from,
Client on any situation in relation to this Agreement that it encounters which
may be in violation of this Section 13 or the laws, orders or regulations of the
United States or Chile.
Page 20 of 22 Pages
Notwithstanding anything to the contrary contained in Section 2 or 4 of this
Agreement, Client may immediately terminate this Agreement for any breach of
this Section 13 and, in such case, Client will not be liable to the Bookrunners
for any compensation described in Sections 2 or 3 of this Agreement (including,
but not limited to, any costs and expenses incurred by any Bookrunner) or as may
otherwise be provided in this Agreement.
SECTION 14. CUSTODIAL SERVICES
Prior to the registration of the Remate, Client and Larrain Vial will enter into
a Custody Agreement providing for the appointment of Larrain Vial as custodian
of the CCU shares to be sold pursuant to the Offering and the delivery by Client
to Larrain Vial of the stock certificate evidencing Client's ownership of such
shares. Larrain Vial, acting in its capacity as custodian, shall comply with all
applicable Chilean securities regulations, including article 179 of Law N DEG.
18,045 (LEY DE MERCADO DE VALORES) and CIRCULARES Nos. 549 and 1429 of the
Securities and Insurance Commission (SUPERINTENDENCIA DE VALORES Y SEGUROS).
SECTION 15. MISCELLANEOUS
At the option of Client, Client may transfer all shares of common stock of CCU
to be sold in the Offering to its affiliate, Anheuser-Busch International
Holdings, Inc. Chile I Limitada ("Anheuser-Busch Chile I") prior to the
registration of the Remate. In such event, Anheuser-Busch Chile I shall be
substituted in this Agreement for Client, Anheuser-Busch Chile I shall acquire
all rights and obligations of Client under the Agreement and Client shall be
released from all rights and obligations under this Agreement. Nothing in this
Agreement is intended to obligate or commit each Bookrunner or any of their
affiliates to provide any services other than as set out above. This Agreement
may be executed in two or more counterparts, all of which together shall be
considered a single instrument. This Agreement constitutes the entire agreement,
and supersedes all prior agreements and understandings (both written and oral)
of the parties hereto with respect to the subject matter hereof, and cannot be
amended or otherwise modified except in writing executed by the parties hereto.
The provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of Client and each Bookrunner.
We are delighted to accept this engagement and look forward to working with you
on this assignment. Please confirm that the foregoing is in accordance with your
understanding by signing and returning to us the enclosed duplicate of this
Agreement, whereupon this Agreement shall become effective as of the date
hereof.
Very truly yours,
William J. Kimmins
Deutsche Bank Larrain Vial
/s/ Juan Guillermo Aguero /s/ Jose Miguel Barros
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Juan Guillermo Aguero Jose Miguel Barros
Director Director
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AGREED, as of the date first written above.
Anheuser-Busch International Holdings, Inc. Chile II Ltda.
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By:
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