Exhibit 99.1
REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of May 18,
2004 of Grupo Financiero ▇▇▇▇▇▇▇ ▇.▇., an Argentine corporation (the "Company")
for the benefit of the Holders (as defined below). In order to induce the
creditors to participate in the debt restructuring (the "Restructuring") of
Banco ▇▇ ▇▇▇▇▇▇▇ y Buenos Aires S.A., a subsidiary of the Company, the Company
has agreed for the benefit of the Holders to provide the registration rights set
forth in this Agreement.
The Company agrees that for the benefit of the beneficial owners
from time to time of the Preferred Shares (as defined herein) and any securities
into or for which such Preferred Shares has been converted or exchanged, and the
beneficial owners from time to time thereof (each of the foregoing a "Holder"
and together the "Holders"), as follows:
SECTION 1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Pricing
Supplement. As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" means with respect to any specified person, an
"affiliate," as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 2(d) hereof.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
"Common Stock" means the ordinary "B" shares of the Company, with
Ps. 1.00 par value per share.
"Company" has the meaning set forth in the first paragraph hereof.
"Deferral Period" has the meaning set forth in Section 3(h) hereof.
"Effectiveness Deadline Date" has the meaning set forth in Section
2(a) hereof.
"Effectiveness Period" means the period commencing on the
Effectiveness Deadline Date and ending on September 30, 2005.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Holder" has the meaning set forth in the second paragraph of this
Agreement.
"Initial Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
"Issue Date" means the date the preferred shares of the Company are
issued to the Holders, which preferred shares are automatically convertible into
the Common Stock, on the first anniversary of the Issue Date.
"Material Event" has the meaning set forth in Section 3(h) hereof.
"Notice and Questionnaire" means a written notice delivered to the
Company containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire distributed by the Company to the
Holders prior to the Effectiveness Deadline Date.
"Notice Holder" means, on any date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date.
"Preferred Shares" means preferred shares of the Company which are
held by persons other than Regulation S investors (as defined in the Pricing
Supplement) issued pursuant to the equity prospectus dated April 26, 2004 which
will be automatically converted into Common Stock on the first (1st) anniversary
date of their issuance or, if earlier, on the occurrence of a change of control
of the Company.
"Pricing Supplement" means the pricing supplement, dated December
23, 2003, as supplemented on March 18, 2004 and April 6, 2004, relating to the
Restructuring.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated
by reference or explicitly deemed to be incorporated by reference in such
Prospectus.
"Registrable Securities" means the Common Stock resulting from
conversion of the Preferred Shares pursuant to the terms thereof and any
securities into or for which such Common Stock has been converted or exchanged,
and any security issued with respect thereto upon any stock dividend, split or
similar event until, in the case of any such security, (A) the earliest of (i)
such Common Stock's effective registration under the Securities Act and resale
in accordance with the Registration Statement covering it, (ii) two years from
the effectiveness of the Initial Shelf Registration Statement or (iii) the time
at which Rule 144 (or any similar provision then in force, but not Rule 144A)
becomes available for the Holder to immediately freely resell under the
Securities Act without restriction all Registrable Securities held by it, and
(B) as a result of the event or circumstance described in any of the foregoing
clauses (i) through (iii), the legend with respect to transfer restrictions
described in the Pricing Supplement is removed or removable in accordance with
the terms of such legend.
"Registration Statement" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all materials incorporated by reference or explicitly deemed to be incorporated
by reference in such registration statement.
"Restricted Securities" means "restricted securities" as defined in
Rule 144.
"Restructuring" has the meaning set forth in the first paragraph
hereof.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"Special Counsel" means Mayer, Brown, ▇▇▇▇ & Maw LLP or one such
other successor counsel as shall be specified by the Holders of a majority of
the Registrable Securities, but which may be another nationally recognized law
firm experienced in securities law matters designated by the Company that is
approved by the Holders of a majority of the Registrable Securities, the
reasonable fees and expenses of which will be paid by the Company pursuant to
Section 5 hereof.
"Subsequent Shelf Registration Statement" has the meaning set forth
in Section 2(b) hereof.
SECTION 2. Shelf Registration. (a) The Company shall prepare and
file or cause to be prepared and filed with the SEC, not later than the date
(the "Filing Deadline Date") that is one hundred eighty (180) days after the
Issue Date, a Registration Statement for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 of the Securities Act registering the
resale from time to time by Holders thereof of all of the Registrable Securities
(the "Initial Shelf Registration Statement") permitted under applicable law to
be registered thereon. The Initial Shelf Registration Statement shall be on Form
F-1 or another appropriate form permitting registration of such Registrable
Securities for resale by such Holders in accordance with the methods of
distribution elected by the Holders and set forth in the Initial Shelf
Registration Statement and will use its reasonable best efforts to cause such
registration statement as amended to become effective under the Securities Act
as promptly as is reasonably practicable thereafter; provided, however, that if
the Company files the Initial Shelf Registration Statement or any Subsequent
Shelf Registration Statement on Form F-1 and subsequently becomes eligible to
use Form F-3, it will file a post-effective amendment to such Form F-1 on Form
F-3 prior to the end of the fiscal year in which it becomes eligible to use such
Form F-3. The Company shall use its reasonable best efforts to cause the Initial
Shelf Registration Statement to be declared effective under the Securities Act
by no later than June 1, 2005 (the "Effectiveness Deadline Date"), and to keep
the Initial Shelf Registration Statement (or any Subsequent Shelf Registration
Statement (as defined below)) continuously effective under the Securities Act
until the expiration of the Effectiveness Period. At the time the Initial Shelf
Registration Statement is declared effective, each Holder that is a Notice
Holder or its nominee, as applicable, shall be named as a selling security
holder in the Initial Shelf Registration Statement and the related Prospectus in
such a manner as to permit such Holder to deliver such
Prospectus to purchasers of Registrable Securities in accordance with applicable
law. None of the Company's security holders (other than the Holders of
Registrable Securities) shall have the right to include any of the Company's
securities in the Initial Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any Subsequent
Shelf Registration Statement ceases to be effective for any reason at any time
during the Effectiveness Period (other than because all Registrable Securities
registered thereunder shall have been resold pursuant thereto or shall have
otherwise ceased to be Registrable Securities), the Company shall use its
reasonable best efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof, and in any event shall within thirty (30) Business
Days of such cessation of effectiveness amend the Initial Shelf Registration
Statement in a manner reasonably expected to obtain the withdrawal of the order
suspending the effectiveness thereof, and file an additional registration
statement covering all of the securities that as of the date of such filing are
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use its
reasonable best efforts to cause the Subsequent Shelf Registration Statement to
become effective as promptly as is reasonably practicable after such filing and
to keep such Registration Statement (or Subsequent Shelf Registration Statement)
continuously effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend (including by means of a
post-effective amendment) a Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Registration Statement, if required by the Securities Act or
Exchange Act or as necessary to name a Notice Holder as a selling security
holder pursuant to Section (d) below.
(d) Each Holder agrees that if such Holder wishes to sell
Registrable Securities pursuant to a Registration Statement and related
Prospectus, it will do so only in accordance with this Agreement. Following the
date that the Initial Shelf Registration Statement is declared effective, each
Holder wishing to sell Registrable Securities pursuant to a Registration
Statement and related Prospectus agrees to deliver a Notice and Questionnaire
pursuant to Section 4, which Notice and Questionnaire shall be provided to
Holders at least fifteen (15) days prior to the effective date of the Initial
Shelf Registration Statement and any Subsequent Shelf Registration Statement,
unless a Notice and Questionnaire has previously been delivered to the Company.
From and after the date the Initial Shelf Registration Statement is declared
effective, the Company shall, as promptly as practicable after the date a Notice
and Questionnaire is delivered pursuant to Section 8(c), and in any event upon
the later of (x) five (5) Business Days after such date or (y) five (5) Business
Days after the expiration of any Deferral Period in effect when the Notice and
Questionnaire is delivered or put into effect:
(i) if required by applicable law, file with the SEC a
post-effective amendment to a Registration Statement or prepare and,
if required by applicable law, file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated
therein by reference or file any other required document so that the
Holder delivering such Notice and Questionnaire is named as a
selling security holder in the applicable Registration Statement and
the related Prospectus in such a manner as to permit such Notice
Holder to deliver such Prospectus to purchasers of the Registrable
Securities in accordance with
applicable law and, if the Company shall file a post-effective
amendment to the Registration Statement, use its reasonable best
efforts to cause such post-effective amendment to be declared
effective under the Securities Act within thirty days after the
filing of the post-effective amendment, (the "Amendment
Effectiveness Deadline Date");
(ii) promptly following the Amendment Effectiveness Deadline,
provide such Holder copies of any Prospectus or supplement or
amendment thereto filed pursuant to Section 2(d)(i); and
(iii) notify such Holder as promptly as is reasonably
practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section 2(d)(i);
provided, that if such Notice and Questionnaire is delivered during
a Deferral Period, the Company shall so inform the Holder delivering
such Notice and Questionnaire and shall, to the extent required,
take the actions set forth in clauses (i), (ii) and (iii) above upon
expiration of the Deferral Period in accordance with Section 3(h).
Notwithstanding anything contained herein to the contrary, if a
Deferral Period shall be in effect on the Amendment Effectiveness
Deadline Date (i) the Company shall be under no obligation to name
any Holder that is not a Notice Holder as a selling security holder
in any Registration Statement or related Prospectus until the
expiration of the relevant time period specified in Section 2(d),
provided, however, that the Company shall use its reasonable best
efforts to name such Holder as a selling security holder as soon as
is otherwise practicable and (ii) the Company shall use its
reasonable best efforts to cause any post-effective amendment filed
by the Company to be declared effective under the Securities Act
within thirty days after the expiration of a Deferral Period.
SECTION 3. Registration Procedures. In connection with the
registration obligations of the Company under Section 2 hereof, from the date
hereof until the expiration of the Effectiveness Period, the Company shall:
(a) Prepare and file, subject to the provisions of Section 2(a)
hereof, with the SEC a Registration Statement or Registration Statements
on Form F-1 or another appropriate form under the Securities Act available
for the sale of the Registrable Securities by the Holders thereof in
accordance with the intended method or methods of distribution thereof,
and use its reasonable best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein;
provided that before filing the Initial Shelf Registration Statement with
the SEC, furnish to the Special Counsel of such offering, if any, copies
of all such documents proposed to be filed at least three (3) Business
Days prior to the filing of such Initial Shelf Registration Statement or
amendment thereto or Prospectus or supplement thereto.
(b) Subject to Section 3(h), prepare and file with the SEC such
amendments and post-effective amendments to each Registration Statement as
may be necessary to keep such Registration Statement continuously
effective for the applicable period specified in
Section 2(a); cause the related Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and use its reasonable best efforts to comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement
during the Effectiveness Period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration
Statement as so amended or such Prospectus as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders,
(i) when any Prospectus, prospectus supplement, Registration Statement or
post-effective amendment to a Registration Statement has been filed with
the SEC and, with respect to a Registration Statement or any
post-effective amendment, when the same has been declared effective, (ii)
of any request, following the effectiveness of the Initial Shelf
Registration Statement under the Securities Act, by the SEC or any other
federal or state governmental authority for amendments or supplements to
any Registration Statement or related Prospectus or for additional
information, (iii) of the issuance by the SEC or any other federal or
state governmental authority of any stop order suspending the
effectiveness of any Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the receipt by
the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, (v) of the occurrence of, but not the
nature of or details concerning, a Material Event or (vi) of the
determination by the Company that a post-effective amendment to a
Registration Statement will be filed with the SEC, which notice may, at
the discretion of the Company (or as required pursuant to Section 3(h)),
state that it constitutes a Deferral Notice, in which event the provisions
of Section 3(h) shall apply.
(d) Use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction in which they have been qualified for sale, in either case at
the earliest possible moment, and provide immediate notice to each Notice
Holder and the Special Counsel of the withdrawal of any such order.
(e) As promptly as practicable furnish to each Notice Holder and the
Special Counsel, upon request and without charge, at least one conformed
copy of the Registration Statement and any amendment thereto, including
exhibits and all documents incorporated or deemed to be incorporated
therein by reference.
(f) During the Effectiveness Period, deliver to each Notice Holder
and, upon request, the Special Counsel, in connection with any sale of
Registrable Securities pursuant to a Registration Statement, without
charge, as many copies of the Prospectus or Prospectuses relating to such
Registrable Securities (including each preliminary prospectus) and any
amendment or supplement thereto as such Notice Holder and Special Counsel
may reasonably request; and the Company hereby consents (except during
such periods that a Deferral Notice is outstanding and has not been
revoked) to the use of such
Prospectus or each amendment or supplement thereto by each Notice Holder
in connection with any offering and sale of the Registrable Securities
covered by such Prospectus or any amendment or supplement thereto in the
manner set forth therein.
(g) Prior to any public offering of the Registrable Securities
pursuant to a Registration Statement, use its reasonable best efforts to
register or qualify or cooperate with the Notice Holders and the Special
Counsel in connection with the registration or qualification (or exemption
from such registration or qualification) of such Registrable Securities
for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any Notice Holder reasonably
requests in writing (which request may be included in the Notice and
Questionnaire); prior to any public offering of the Registrable Securities
pursuant to a Registration Statement, use its reasonable best efforts to
keep each such registration or qualification (or exemption therefrom)
effective during the Effectiveness Period in connection with such Notice
Holder's offer and sale of Registrable Securities pursuant to such
registration or qualification (or exemption therefrom) and do any and all
other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of such Registrable Securities in the
manner set forth in the relevant Registration Statement and the related
Prospectus; provided that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it would not be
required to qualify but for this paragraph (g), (ii) subject itself to
taxation in any such jurisdiction, or (iii) consent to general service of
process in any such jurisdiction.
(h) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of a Registration Statement or the initiation of proceedings
with respect to a Registration Statement under Section 8(d) or 8(e) of the
Securities Act, (B) the occurrence of any event or the existence of any
fact (a "Material Event") as a result of which any Registration Statement
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, or any Prospectus shall contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, (C) the occurrence or existence of any pending corporate
development that, in the sole and reasonable judgment of the Company upon
the receipt of an appropriate opinion from counsel to the Company, makes
it appropriate to suspend the availability of a Registration Statement and
the related Prospectus, including, without limitation, the determination
by the Company that a post-effective amendment to a Registration Statement
is required to be filed or (D) the issuance of a notification by the SEC
to the Company that has the effect of, or upon the Company's reasonable
determination following the receipt of advice of counsel satisfactory to
the Holders that the rules and regulations of the SEC have the effect of,
requiring the Company to identify Notice Holders as selling security
holders in the Registration Statement by means of a post-effective
amendment to the Registration Statement:
(i) in the case of clause (B) above, subject to the next
sentence, as promptly as reasonably practicable prepare and file, if
necessary pursuant to applicable law, a post-effective amendment to
such Registration Statement or a
supplement to the related Prospectus or any document incorporated
therein by reference or file any other required document that would
be incorporated by reference into such Registration Statement and
Prospectus so that such Registration Statement does not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, and such Prospectus does not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, and,
in the case of a post-effective amendment to a Registration
Statement, subject to the next sentence, use its reasonable best
efforts to cause it to be declared effective as promptly as is
practicable, and
(ii) in the case of any of clauses (A) through (D) above, give
notice to the Notice Holders, and the Special Counsel, if any, that
the availability of a Registration Statement is suspended (a
"Deferral Notice") and, upon receipt of any Deferral Notice, each
Notice Holder agrees not to sell any Registrable Securities pursuant
to the Registration Statement until such Notice Holder's receipt of
copies of the supplemented or amended Prospectus provided for in
clause (i) above, or until it is advised in writing by the Company
that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus.
The Company will use its reasonable best efforts to ensure that the use of
the Prospectus may be resumed or commence, as applicable (x) in the case
of clauses (A) and (D) above, as promptly as is reasonably practicable,
(y) in the case of clause (B) above, as soon as, in the sole and
reasonable judgment of the Company, public disclosure of such Material
Event would not be prejudicial to or contrary to the interests of the
Company or, if necessary to avoid unreasonable burden or expense, as soon
as reasonably practicable thereafter and (z) in the case of clause (C)
above, as soon as in the sole and reasonable judgment of the Company upon
the receipt of an appropriate opinion from counsel to the Company, such
suspension is no longer appropriate or required under applicable law. The
Company shall be entitled to exercise its right under this Section 3(h) to
suspend the availability of the Registration Statement or any Prospectus
and, subject to clause (z) below, any such period during which the
availability of the Registration Statement and any Prospectus is suspended
(the "Deferral Period") shall not exceed 5 days; provided that the
aggregate duration of any Deferral Periods shall not exceed 25 days in any
120-day period (or 45 days in any 120-day period in the event of a
Material Event pursuant to which the Company has delivered a second notice
as permitted below); (y) in the case of a Material Event relating to an
acquisition or a probable acquisition or financing, recapitalization,
business combination or other similar transaction, the Company may deliver
to Notice Holders a second notice to the effect set forth above, which
shall have the effect of extending the Deferral Period by up to an
additional 5 days, or such shorter period of time as is specified in such
second notice; or (z) in the case of clause (D) above, the Company shall
use its reasonable best efforts to terminate such Deferral Period as
promptly as is reasonably practicable but shall not be subject to the
provisions of clauses (x) and (y) of this sentence. Each Notice Holder
agrees to hold any notice by the Company in respect of any Deferral Period
or Material Event described in clause (y) of the preceding sentence in
confidence.
(i) If requested in writing in connection with an underwritten
disposition of Registrable Securities pursuant to a Registration
Statement, make reasonably available for inspection during normal business
hours by a representative for the underwriters of such Registrable
Securities, any attorneys and accountants retained by such underwriters
all relevant financial and other records and pertinent corporate documents
and properties of the Company and its subsidiaries, and cause the
appropriate officers, directors and employees of the Company and its
subsidiaries to make reasonably available for inspection during normal
business hours on reasonable notice all relevant information reasonably
requested by such representative for such underwriters, or any attorneys
or accountants in connection with such disposition, in each case as is
customary for similar "due diligence" examinations; provided that such
persons shall first agree in writing with the Company that any non-public
information shall be kept confidential by such persons and shall be used
solely for the purposes of exercising rights under this Agreement, 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 required by law (including any
disclosure requirements pursuant to federal securities laws in connection
with the filing of any Registration Statement or the use of any prospectus
referred to in this Agreement), (iii) such information becomes generally
available to the public other than as a result of a disclosure or failure
to safeguard by any such person or (iv) such information becomes available
to any such person from a source other than the Company and such source is
not known to be bound by a confidentiality agreement, and provided further
that the foregoing inspection and information gathering shall, to the
greatest extent possible, be coordinated on behalf of all underwriters and
the other parties entitled thereto by the Special Counsel. Any person
legally compelled to disclose any such confidential information made
available for inspection shall provide the Company with prompt prior
written notice of such requirement so that the Company may seek a
protective order or other appropriate remedy.
(j) Provide a CUSIP number for all Registrable Securities covered by
each Registration Statement not later than the effective date of such
Registration Statement and, if required, provide the transfer agent for
the Common Stock with printed certificates for the Registrable Securities
that are in a form eligible for deposit with The Depository Trust Company.
(k) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
(l) Use its reasonable best efforts to list all Registrable
Securities sold pursuant to a Registration Statement on the Nasdaq Small
Cap Market.
(m) Use its reasonable best efforts to comply with the Securities
Act in connection with the offer and sale of the Registrable Securities to
be sold pursuant to a
Registration Statement, and, make available to its security holders, as
soon as reasonably practicable, an earning statement covering at least
twelve (12) months which shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder.
(n) If required to complete the sale, cooperate with the Holders to
facilitate the timely preparation and delivery of certificates
representing their Registrable Securities to be sold pursuant to a
Registration Statement and not bearing any legends; and enable
certificates for such Registrable Securities to be issued for such numbers
of shares and registered in such names as such Holders may reasonably
request at least two (2) business days prior to any sale of their
Registrable Securities.
(o) Enter into customary agreements (including an underwriting
agreement or securities sales agreement, if any, in customary form)
containing such representations and warranties to the Holders of such
Registrable Securities and the underwriters, if any, in form, substance
and scope as are customarily made by issuers to underwriters in similar
underwritten offerings as may be reasonably requested of them and take
such other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities.
(p) Furnish to each registering Holder of Registrable Securities and
to each underwriter, if any, a signed counterpart, addressed to such
registering Holder of Registrable Securities or underwriter, of (i) an
opinion or opinions of counsel to the Company and (ii) a comfort letter or
comfort letters from the Company's independent public accountants, each in
customary form and covering such matters of the type customarily covered
by opinions or comfort letters, as the case may be, as the Holders of a
majority of the Registrable Securities included in such offering or the
managing underwriters therefore reasonably request; and
SECTION 4. Holder's Obligations. Each Holder agrees, by acquisition
of the Registrable Securities, that no Holder shall be entitled to sell any of
such Registrable Securities pursuant to a Registration Statement or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company with a
Notice and Questionnaire as required pursuant to Section 2(d) hereof.
Each Notice Holder agrees promptly to furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Notice Holder not misleading and any other
information regarding such Notice Holder and the distribution of such
Registrable Securities as the Company may from time to time reasonably request.
Any sale of any Registrable Securities by any Holder shall constitute a
representation and warranty by such Holder that the information relating to such
Holder and its plan of distribution is as set forth in the Prospectus delivered
by such Holder in connection with such disposition, that such Prospectus does
not as of the time of such sale contain any untrue statement of a material fact
relating to or provided by such Holder or its plan of distribution and that such
Prospectus does not as of the time of such sale omit to state any material fact
relating to or provided by such Holder or its plan of distribution necessary to
make the statements in such Prospectus, in the light of the circumstances under
which they were made, not misleading.
Each Holder acknowledges and agrees that a Notice and Questionnaire
will only be valid for a period of 30 Business Days commencing with the proposed
sales date and that if any of the Registrable Securities to which such Notice
and Questionnaire relates are not sold during such period, a new Notice and
Questionnaire will need to be submitted to the Company not later than five (5)
Business Days prior to the new proposed sales date. Notwithstanding the
foregoing, no Notice and Questionnaire may be submitted, or if submitted will be
of no force and effect, and no Registrable Securities may be sold pursuant to
the Registration Statement if a Deferral Period is then in effect.
SECTION 5. Registration Expenses. The Company shall bear all fees
and expenses incurred in connection with the performance by the Company of its
obligations under Sections 2 and 3 of this Agreement whether or not any
Registration Statement is declared effective. Such fees and expenses shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (y) of
compliance with federal and state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of the Special Counsel in
connection with Blue Sky qualifications of the Registrable Securities under the
laws of such jurisdictions as Notice Holders may designate pursuant to Section
3(g) of this Agreement and any filings required to be made with the National
Association of Securities Dealers, Inc.), (ii) printing expenses, (iii)
duplication expenses relating to copies of any Registration Statement or
Prospectus delivered to any Holders hereunder, (iv) reasonable fees and
disbursements of counsel for the Company and of the Special Counsel in
connection with any Registration Statement; provided, that the reimbursement of
fees to Special Counsel shall be limited to $25,000, and (v) any Securities Act
liability insurance obtained by the Company in its sole discretion. In addition,
the Company shall pay the internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees performing legal
or accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing by the Company of the Registrable
Securities on any securities exchange on which similar securities of the Company
are then listed and the fees and expenses of any person, including special
experts, retained by the Company. Notwithstanding the provisions of this Section
5, each seller of Registrable Securities shall pay selling expenses, including
any underwriting discount and commissions, and all registration expenses to the
extent required by applicable law.
SECTION 6. Indemnification and Contribution.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Holder, each person, if any, who controls any Holder
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, and each affiliate of any Holder within the meaning of Rule
405 under the Securities Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Holder furnished to the Company in writing by such
Holder expressly for use therein; provided that the indemnification contained in
this paragraph shall not inure to the benefit of any Holder (or to the benefit
of any affiliate of such Holder or any person controlling such Holder) on
account of any such losses, claims, damages or liabilities caused by any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Registration Statement; provided in each case the Company has performed its
obligations under Section 3(f) hereof if either (A) (x) such Holder failed to
send or deliver a copy of the Prospectus with or prior to the delivery of
written confirmation of the sale by such Holder to the person asserting the
claim from which such losses, claims, damages or liabilities arise and (y) the
Prospectus would have corrected such untrue statement or alleged untrue
statement or such omission or alleged omission, or (B) (x) such untrue statement
or alleged untrue statement, omission or alleged omission is corrected in an
amendment or supplement to the Prospectus and (y) having previously been
furnished by or on behalf of the Company with copies of the Prospectus as so
amended or supplemented, such Holder thereafter fails to deliver such Prospectus
as so amended or supplemented, with or prior to the delivery of written
confirmation of the sale of a Registrable Security to the person asserting the
claim from which such losses, claims, damages or liabilities arise.
(b) Indemnification by Holders. Each Holder agrees severally and not
jointly to indemnify and hold harmless the Company and its directors, its
officers and each person, if any, who controls the Company (within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act)
and each affiliate of the Company within the meaning of Rule 405 under the
Securities Act or any other Holder, to the same extent as the foregoing
indemnity from the Company to such Holder, but only with reference to
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in such Registration Statement or Prospectus or
amendment or supplement thereto. In no event shall the liability of any Holder
hereunder be greater in amount than the dollar amount of the proceeds received
by such Holder upon the sale of the Registrable Securities pursuant to the
Registration Statement giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to Section 6(a) or
6(b) hereof, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonable fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by, in the case of parties indemnified pursuant to
Section 6(a), the Holders of a majority of the Registrable Securities covered by
the Registration Statement held by Holders that are indemnified parties pursuant
to Section 6(a) and, in the case of parties indemnified pursuant to Section
6(b), the Company. The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff the indemnifying party
agrees to indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) Contribution. To the extent that the indemnification provided
for in Section 6(a) or 6(b) is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party or parties on the other hand or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the other
hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company shall be deemed to
be equal to the aggregate face value of the subordinated notes (as defined in
the Pricing Supplement) that are being used by Holders to purchase Preferred
Shares as part of the equity participation offer (as defined in the Pricing
Supplement), before deducting expenses. The relative benefits received by any
Holder shall be deemed to be equal to the value of receiving Registrable
Securities that are registered under the Securities Act. The relative fault of
the Holders on the one hand and the Company on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Holders or by the
Company, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this Section 6 are several
in proportion to the respective number of Registrable Securities they have sold
pursuant to a Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding this Section 6, no indemnifying party that is a selling Holder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities sold by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such indemnifying party 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 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
an indemnified party at law or in equity, hereunder or otherwise.
(f) The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder, any person controlling any Holder or any affiliate of any Holder
or by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) the sale of any Registrable Securities by any
Holder.
SECTION 7. Information Requirements. The Company covenants that, if
at any time before the end of the Effectiveness Period the Company is not
subject to the reporting requirements of the Exchange Act, it will cooperate
with any Holder and take such further commercially reasonable action as any
Holder may reasonably request in writing (including, without limitation, making
such reasonable representations as any such Holder may reasonably request), all
to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 and Rule 144A under the
Securities Act and customarily taken in connection with sales pursuant to such
exemptions. Upon the written request of any Holder, the Company shall deliver to
such Holder a written statement as to whether it has complied with such filing
requirements, unless such a statement has been included in the Company's most
recent report filed pursuant to Section 13 or Section 15(d) of Exchange Act.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities (other than the Common
Stock) under any section of the Exchange Act.
SECTION 8. Miscellaneous.
(a) No Conflicting Agreements. The Company is not, as of the date
hereof, a party to, nor shall it, on or after the date of this Agreement, enter
into, any agreement with respect to its securities that conflicts with the
rights granted to the Holders in this Agreement. The Company represents and
warrants that the rights granted to the Holders hereunder do not in any way
conflict with the rights granted to the holders of the Company's securities
under any other agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a majority of the then outstanding Registrable Securities. Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by
Holders of at least a majority of the Registrable Securities being sold by such
Holders pursuant to such Registration Statement; provided that the provisions of
this sentence may not be amended, modified or supplemented except in accordance
with the provisions of the immediately preceding sentence. Notwithstanding the
foregoing sentence, this Agreement may be amended by written agreement signed by
the Company and the Holders, without the consent of the Holders of Registrable
Securities, to cure any ambiguity or to correct or supplement any provision
contained herein that may be defective or inconsistent with any other provision
contained herein, or to make such other provisions in regard to matters or
questions arising under this Agreement that shall not adversely affect the
interests of the Holders of Registrable Securities. Each Holder of Registrable
Securities outstanding at the time of any such amendment, modification,
supplement, waiver or consent or thereafter shall be bound by any such
amendment, modification, supplement, waiver or consent effected pursuant to this
Section 8(b), whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
(i) if to a Holder, at the most current address given by such
Holder to the Company in a Notice and Questionnaire or any amendment
thereto:
with a copy to (which shall not constitute notice):
Mayer, Brown, ▇▇▇▇ & Maw LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Company, to:
Grupo Financiero ▇▇▇▇▇▇▇ ▇.▇.
Tte. Gral. ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇, ▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax No.: ▇▇▇-▇▇-▇▇-▇-▇▇▇-▇▇▇▇
with a copy to (which shall not constitute notice):
▇▇▇▇▇ & ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of Holders
of a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than subsequent Holders if
such subsequent Holders are deemed to be such affiliates solely by reason of
their holdings of such Registrable Securities) shall not be counted in either
the numerator or denominator in determining whether such consent or approval was
given by the Holders of such required percentage.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
and shall inure to the benefit of and be binding upon each Holder of any
Registrable Securities. If any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such person shall be entitled to
receive the benefits hereof.
(f) 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 original and all of which taken together
shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
(i) Severability. If any term provision, covenant or restriction of
this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their efforts to find
and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction, it
being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is 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 and the registration rights
granted by the Company with respect to the Registrable Securities. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein, with respect to the registration rights granted by the
Company with respect to the Registrable Securities. This Agreement supersedes
all prior agreements and undertakings among the parties with respect to such
registration rights. No party hereto shall have any rights, duties or
obligations other than those specifically set forth in this Agreement. In no
event will such methods of distribution take the form of an underwritten
offering of the Registrable Securities without the prior agreement of the
Company.
(k) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Section 4, 5 or 6 hereof, which shall
remain in effect in accordance with its terms.
(l) Specific Performance. In the event that the Company fails to
perform any of its obligations under this Agreement, any Holder shall be
entitled, in addition to any other remedies as may be available to such Holder
at law or in equity, to seek specific performance of the Company's obligations
hereunder.
IN WITNESS WHEREOF, the Company has executed this Agreement for the
benefit of the Holders as of the date first written above.
GRUPO FINANCIERO ▇▇▇▇▇▇▇ ▇.▇.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
