CONDITIONAL SUBSCRIPTION AGREEMENT
Exhibit 4.2
This conditional subscription agreement (hereinafter the “Agreement”) is entered into in the
Autonomous City of Buenos Aires, on this [ ] day of [ ] 2006, by and among:
1. XXXXX XXXXXXX XXXXX I.D. [ ], of 53 years of age, married in [first] wedlock, of Argentine
nationality, [profession], XXXXXX XXXXX XXXXXXXX XXXXXXXX D.N.I. [ ], of 53 years of age, married
in [first] wedlock, of Argentine nationality, [profession], XXXXXXXX XXXXXX SANSUSTE I.D. [ ], of
53 years of age, married in [first] wedlock, of Argentine nationality, [profession], and XXXX XXXXX
XXXXX XXXXXX I.D. [ ], of 45 years of age, married in [first] wedlock, of Argentine nationality,
[profession], shareholders of Banco Macro Bansud S.A., all of them domiciled at Xxxxxxxxx 447, in
the Autonomous City of Buenos Aires, Republic of Argentina (hereinafter, the “Subscribing
Shareholders”); and
BANCO MACRO BANSUD S.A., a financial entity organized and existing under the laws of the Republic
of Argentina, domiciled at Xxxxxxxxx 000, Xxxxxxxxxx Xxxx xx Xxxxxx Xxxxx, Xxxxxxxx of Argentina
(hereinafter, the “Issuer” and collectively with the Subscribing Shareholders, the
“Parties”).
WHEREAS:
(a) Pursuant to the ordinary and extraordinary shareholders meeting dated September 26, 2005 and
the Board of Directors’ meeting dated [ ] of [ ] 2005 of the Issuer, it was resolved, inter alia:
(i) to increase the Issuer’s capital stock in the amount of up to $ 75,000,000 nominal value
(nominal value seventy five million pesos) and the pertinent issue of up to 75,000,000
(seventy-five million) new Class B book-entry ordinary shares, entitled to 1 (one) vote each and of
$1 peso par value each (the “New Shares”); (ii) to make a public offering of the New Shares
in Argentina and abroad within a range of 85% and 115% of the average traded prices, weighted by
the volume traded, of the quotations of the Issuer’s share as recorded by the Buenos Aires Stock
Exchange (the “BCBA”) during the five stock exchange business days immediately preceding
the date on which the Subscription Price (as such term is defined hereinbelow) (the “Range”); (iii)
to apply to the Argentine Securities Commission (“CNV”), the Buenos Aires Stock Exchange
(the “BCBA”), the U.S. Securities and Exchange Commission (“SEC”), and the New York Stock
Exchange (“NYSE”) for the pertinent authorizations for the public offering and listing of the New
Shares pursuant to the provisions of Law Nº 17,811, as amended, and the CNV’s regulations, and to
the U.S. Securities Act of 1933 as amended, and the SEC’s regulations, for the purposes of a public
offering of the New Shares; (iv) to reduce the term for the Issuer’s shareholders to exercise their
preemptive and first refusal rights in respect of the New Shares (the “Preemptive Rights”)
up to the legal minimum of ten (10) calendar days (the “Preferred Subscription Term”) in
accordance with the provisions of Section 194 of the Argentine Business Companies Law Nº 19,550, as
amended (the “Companies Law”); (v) to establish that the subscription price of the New
Shares will be fixed by the Issuer, within the Range, during the sixth (6º) stock exchange business
day immediately preceding the closing of the Preferred Subscription Term (the “Subscription
Price”), and (vi) to establish that the Subscription Price will be fixed in (x): United States
dollars for the public offering of ADSs, each representing 10 Class B shares of the Issuer; (y) in
pesos for the public offering in Argentina, through conversion of the subscription price set forth
in United States dollars in accordance with (x) above at the reference exchange rate reported by
the Central Bank of the Republic of Argentina on the date of determination of the Subscription
Price, divided by ten; and (z) in United States dollars and divided by ten for the purposes of
computing the price per Class B Share for each New Share subscribed, for the subscription of New
Shares on the part of the Subscribing Shareholders hereunder.
Pursuant to the Business Companies Law, the Issuer’s shareholders have Preemptive Rights with
respect to the capital increase referred to in (a) above. Accordingly, the shareholders will be
entitled to subscribe the New Shares during the Preferred Subscription Term at the Subscription
Price.
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(c) The Subscribing Shareholders are willing to offer on a pro rata basis to their respective
shareholdings, [ ] Class B ordinary shares in book-entry form of one peso ($1) par value each,
and entitled to one (1) vote each (the “Shares of the Subscribing Shareholders”).
(d) The Shares of the Subscribing Shareholders jointly with the New Shares will be offered for
public subscription in the Republic of Argentina and abroad (in the latter case, in the form of
American Depositary Shares (“ADS”), in accordance with the following particulars: (i) [ ] Shares of
the Subscribing Shareholders to the investing public at large abroad; (ii) [ ] New Shares to the
investing public at large in the Republic of Argentina, by virtue of the assignment of the
Preemptive Rights made by the Subscribing Shareholders in favor of the Argentine Underwriters (as
such term is defined hereinbelow), on account of their [ ] % interest in the capital stock of the
Issuer and in the manner described in (f) below; (iii) [ ] New Shares to the investing public at
large abroad, by virtue of the assignment of the Preemptive Rights made by the Subscribing
Shareholders in favor of the Leading International Underwriters (as such term is defined
hereinbelow), in the manner described in paragraph (f) below (jointly (i), (ii) and (iii), the
“Shares for the Investing Public”); and (iv) New Shares for the shareholders of the Issuer in the
Republic of Argentina for the exercise of their Preemptive Rights, except to the Subscribing
Shareholders who will assign their Preemptive Rights in accordance with the provisions of paragraph
(f) (the “New Shares Offered to the Minority Shareholders”).
(e) The Issuer and the Subscribing Shareholders have entered with [ ] and [ ] (the “Argentine
Underwriters”) into an offering agreement providing for the concurrent offering and sale of [ ]
New Shares to the Investing Public in Argentina (the “Argentine Offering Agreement”). In
addition, the Bank and the Subscribing Shareholders have entered with [ ] and [ ] (the “Leading
International Underwriters”) and, collectively with the Argentine Underwriters, the
“Underwriters”) into an international offering agreement providing for the concurrent
offering and sale of [ ] ADS in the United States of America and other jurisdictions outside of
Argentina (the “International Offering Agreement”).
(f) The Subscribing Shareholders, pursuant to a rights assignment agreement, will assign to the
Underwriters their Preemptive Righst over [ ] Class B New Shares to be issued as a consequence of
the increase in capital stock of the Issuer (the “Assignment of Rights”), and the
Underwriters, subject to the closing terms provided for in the International Offering Agreement and
in the Argentine Offering Agreement,respectively, will exercise such Preemptive Rights for the
purposes of placing the New Shares among the investing public at large.
(g) Pursuant to an agreement with the Issuer and subject to the provisions set forth herein, and
for the purposes of ensuring to the Issuer the raising of the estimated net funds that it expects
to receive from the subscription and/or placement of the New Shares, the Subscribing Shareholders
intend to subscribe, in the proportions set forth in Annex I hereto and at the Subscription Price,
any and all New Shares Offered to the Minority Shareholders as may have not been subscribed by the
minority shareholders in the exercise of their Preemptive Rights during the Preferred Subscription
Term (the “Remaining New Shares”).
| (h) | On [ ] the Subscribing Shareholders have entered into an escrow agreement with [The Bank of New York], in its capacity as escrow agent (the “Escrow Agent”), for the purposes of ensuring compliance of their payment obligation hereunder (the “Escrow Agreement”). |
NOW, THEREFORE, the parties to this Agreement agree as follows:
1. Subscription of Shares. Closing
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(a) Subject to the terms and conditions set forth herein, the Subscribing Shareholders agree with
the Issuer upon the subscription on a joint basis, at the Subscription Price fixed in accordance
with the provisions of whereas (a) (vi) (z) of this Agreement [and the International Offering
Agreement], of the aggregate of the Remaining New Shares in the proportions set forth in Annex I
hereto; it being hereby agreed that the Issuer will pay the fees of the Underwriters relative to
the Shares of the Subscribing Shareholders which proceeds shall have been allocated to purchase the
Remaining New Shares.
(b) The Issuer will transfer the Remaining New Shares to the name of the Subscribing
Shareholders in accordance with the proportions set forth in Annex I hereto, on or before the fifth
stock exchange business day following the closing date of the Preferred Subscription Term or any
other date within five (5) stock exchange business days of the latter, as agreed upon in writing by
the Issuer and the Subscribing Shareholders (the “Closing Date”), to the accounts with Caja
de Valores S.A. (“Caja de Valores”) listed in the instructions given in writing by each of
the Subscribing Shareholders both to the Issuer and Caja de Valores. Concurrently therewith, on
the Closing Date, the Issuer jointly with the Subscribing Shareholders shall instruct the Escrow
Agent to release and transfer, net of the fees of the Underwriters which shall be for the Issuer’s
account, the Subscription Price pertinent to the Remaining New Shares credited to each of them,
through the transfer of the respective amount in United States dollars for the crediting thereof on
the Closing Date, to the account or accounts abroad designated in writing by the Issuer. The
transfer of the Remaining New Shares shall be credited through certificates issued by Caja de
Valores evidencing the registration thereof in the name of each Subscribing Shareholder in the
stock ledger of book-entry shares of the Issuer that is kept by Caja de Valores. Both the
instructions of the Subscribing Shareholders addressed to Caja de Valores and to the Issuer (in
connection with the accounts with Caja de Valores in which to credit the Remaining New Shares) as
the instructions of the Issuer addressed to the Escrow Agent (in connection with the account to
which to transfer the Subscription Price of the Remaining New Shares) shall be sent with a minimum
advance of 2 (two) stock exchange business days of the Closing Date (the “Instructions”).
2. Conditions Precedent
The obligation of the Subscribing Shareholders to subscribe and pay the Remaining New Shares
on the Closing Date by virtue of the provisions of this Agreement, shall be subject to the prior
compliance by the Issuer of its obligations hereunder, and to the compliance prior to the Closing
Date of the following conditions:
(a) On or before the Closing Date, the Subscribing Shareholders shall have received a
certificate evidencing the authorizations for the public offering and listing of the New Shares
issued by the CNV and by the BCBA and of the ADS issued by the SEC and by the NYSE.
(b) On or before the Closing Date, the Caja de Valores shall have issued the authorizations
and codes required in order for the New Shares to be subscribed by the investing public pursuant to
the applicable regulations in force, and such authorizations and codes shall be in force.
(c) On or before the Closing Date, there shall have been fully perfected the Assignment of
Rights and the Underwriters shall have exercised the Preemptive Rights assigned in order to proceed
to place the New Shares.
(d) On or before the Closing Date, the aggregate of the Shares for the Investing Public and
the New Shares Offered to the Minority Shareholders shall have been actually issued (if
applicable), settled and credited.
(e) No New Shares shall have been issued in violation of the Preemptive Rights or other rights
of the shareholders of the Issuer.
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(f) With a minimum advance of two stock exchange business days to the Closing Date, the
Instructions shall have been submitted in accordance to the provisions of paragraph 1 (b) above.
(g) The proceeds of the placement of the aggregate of the Shares for the Investing Public
outside of the Republic of Argentina shall have been deposited in the pertinent account, as the
parties may agree in the Escrow Agreement.
3. Termination
(a) In case that any of the Conditions Precedent set forth in Section 2 above had not been
fulfilled on the occasion and manner provided for herein, any of the Parties may terminate this
Agreement by written notice to the other sent on or before the Closing Date.
(b) Similarly, the Subscribing Shareholders may individually or jointly terminate this
Agreement through notice sent to the other parties on or before the Closing Date if at their
exclusive criteria on or before such date: (i) it had occurred any event which implied or might
imply a material adverse change in the condition (financial or otherwise), revenues, operations,
legal framework, tax treatment, or prospects of the Issuer, whether or not arising in the ordinary
course of business except for gross negligence or willful misconduct of the Issuer and/or their
subsidiaries, directors or managers; or (ii) it had occurred any change, or event which might
result in a modification in the domestic or international financial, political or economic
condition or in the applicable regulations relative to tax, foreign exchange or capital markets
matters, or in the construction of any of them, which had had or might have a material adverse
effect on the Issuer or on the offering of New Shares, or (iii) it had occurred an outbreak or
escalation of hostilities or war, or any other calamity or crisis affecting the Republic of
Argentina; or (iv) the CNV, the SEC, the BCBA or the NYSE had cancelled or suspended the public
offering or listing of the existing shares of the Issuer or of the New Shares or the ADS, in each
case, or if there had been suspended the trading in general of securities in the BCBA or the NYSE,
or if maximum and minimum prices had been set for the trading of securities in such markets, or if
the CNV, the SEC, the BCBA or the NYSE or any other entity had fixed maximum price ranges for the
listing or trading of securities; or (v) there had been declared a general moratorium on the
commercial operations of banks or other institutional investors, whose material and adverse effect
could affect the trading in the market of the existing shares of the Issuer or the New Shares, the
successful completion of the offering, the development of a secondary market for the existing
shares of the Bank or the New Shares, or the performance of this Agreement.
4. Notices
All notices and other communications provided for hereunder shall be in writing and mailed or
delivered, addressed as follows:
If to the Subscribing Shareholders, individually, at:
Xxxxxxxxx 000, Xxxx [ ], Xxxxxx Xxxxxxxx xx Xxxxxx Xxxxx, X0000XXX, República Argentina.
If to the Issuer, at:
Xxxxxxxxx 000, Xxxx [ ], Ciudad Autónoma de Buenos Aires, C1041AAI, República Argentina.
or to such other domiciles as any of the Subscribing Shareholders or the Issuer may from time to
time notify in writing to the other parties. All notices and other communications if delivered by
mail shall be valid upon receipt thereof.
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5. Applicable law and jurisdiction
(a) This Agreement shall be governed by and construed in accordance with the Argentine law.
(b) The parties irrevocably submit to the jurisdiction of the ordinary courts in commercial
matters seating in the Autonomous City of Buenos Aires in respect of any suit, action, or
proceeding arising hereunder or in connection herewith, and expressly waive any other forum or
jurisdiction as may be available to them.
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IN WITNESS WHEREOF, the Parties have executed this agreement in five counterparts, of the same
tenor and to a single effect, to be delivered one to each of the Subscribing Shareholders and one
to the Issuer.
| The Issuer | ||||
By |
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Name: |
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Title: |
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| Xxxxx Xxxxxxx Xxxxx | ||||
| Xxxxxx Xxxxx Xxxxxxxx Xxxxxxxx | ||||
| Xxxxxxxx Xxxxxx Xxxxxxxx | ||||
| Xxxx Xxxxx Xxxxx Xxxxxx | ||||
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ANNEX I
SUBSCRIBING SHAREHOLDERS
Name of the Subscribing Shareholders
|
Proportion of the Remaining New Shares | |
| to be subscribed | ||
Xxxxx Xxxxxxx Xxxxx |
||
Xxxxxx Xxxxx Xxxxxxxx Xxxxxxxx |
||
Xxxxxxxx Xxxxxx Xxxxxxxx |
||
Xxxx Xxxxx Xxxxx Xxxxxx |
||
TOTAL
|
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