EXHIBIT 4.8
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
AMONG
DORAL FINANCIAL CORPORATION
AS ISSUER,
AND
WACHOVIA CAPITAL MARKETS, LLC,
DATED AS OF SEPTEMBER 29, 2003
REGISTRATION RIGHTS AGREEMENT dated as of September 29, 2003 between
Doral Financial Corporation, a Puerto Rico corporation (the "COMPANY"), and
Wachovia Capital Markets, LLC, for itself and as representative of the several
Initial Purchasers under the Purchase Agreement dated September 23, 2003 (the
"PURCHASE AGREEMENT"), between the Company and the Initial Purchasers. In order
to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Purchase Agreement.
The Company agrees with the Initial Purchasers, (i) for their benefit
as Initial Purchasers and (ii) for the benefit of the beneficial owners
(including the Initial Purchasers) from time to time of the Preferred Stock (as
defined herein) and the beneficial owners from time to time of the Underlying
Common Stock (as defined herein) issued upon conversion of the Preferred Stock
(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 Purchase Agreement. 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.
"CERTIFICATE OF DESIGNATION" means the Certificate of Designation,
dated as of September 25, 2003 setting forth the preferences and rights,
qualifications, limitations and restrictions of the Preferred Stock.
"COMMON STOCK" means the shares of common stock, $1.00 par value, of
the Company, and any other securities as may constitute "Common Stock" for
purposes of the Certificate of Designation, including the Underlying Common
Stock.
"CONVERSION PRICE" has the meaning assigned such term in the
Certificate of Designation.
"DAMAGES ACCRUAL PERIOD" has the meaning set forth in Section 2(e)
hereof.
"DAMAGES PAYMENT DATE" means each March 15, June 15, September 15 and
December 15.
"DEFERRAL NOTICE" has the meaning set forth in Section 3(i) hereof.
"DEFERRAL PERIOD" has the meaning set forth in Section 3(i) hereof.
"DIVIDEND PAYMENT DATE" has the meaning assigned to such term in the
Certificate of Designation.
"EFFECTIVENESS DEADLINE DATE" has the meaning set forth in Section 2(a)
hereof.
"EFFECTIVENESS PERIOD" means the period commencing on the date the
Initial Shelf Registration Statement is declared effective and ending on the
date that all Registrable Securities have ceased to be Registrable Securities.
"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 PURCHASERS" has the meaning set forth in the preamble to this
Agreement.
"INITIAL SHELF REGISTRATION STATEMENT" has the meaning set forth in
Section 2(a) hereof.
"ISSUE DATE" means the first date of original issuance of the Preferred
Stock.
"LIQUIDATED DAMAGES AMOUNT" has the meaning set forth in Section 2(e)
hereof.
"LIQUIDATED DAMAGES PAYMENTS" has the meaning set forth in Section
2(e).
"LOSSES" has the meaning set forth in Section 6 hereof.
"MATERIAL EVENT" has the meaning set forth in Section 3(i) 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 attached as Annex A to the offering
memorandum of the Company dated September 23, 2003 relating to the Preferred
Stock.
"NOTICE HOLDER" means, on any date, any Holder that has delivered a
completed and signed Notice and Questionnaire to the Company on or prior to such
date.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble hereof.
"PREFERRED STOCK" means the 4.75% Cumulative Convertible Perpetual
Preferred Stock (par value $1.00 per share) of the Company that has the rights,
powers and preferences set forth in the Certificate of Designation.
"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,
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including post-effective amendments, and all materials incorporated by reference
or explicitly deemed to be incorporated by reference in such Prospectus.
"RECORD DATE" has the meaning assigned to such term in the Certificate
of Designation.
"RECORD HOLDER" means (i) with respect to any Damages Payment Date
relating to any Preferred Stock as to which any such Liquidated Damages Amount
has accumulated, the holder of record of such share of Preferred Stock on the
Record Date with respect to the Dividend Payment Date on which such Damages
Payment Date shall occur and (ii) with respect to any Damages Payment Date
relating to the Underlying Common Stock as to which any such Liquidated Damages
Amount has accrued, the registered holder of such Underlying Common Stock on the
Record Date immediately preceding the relevant Damages Payment Date.
"REGISTRABLE SECURITIES" means the shares of Preferred Stock until any
such share of Preferred Stock has been converted into the Underlying Common
Stock and, at all times subsequent to any such conversion, the Underlying Common
Stock and any securities into or for which such Underlying 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) its effective registration under the Securities Act and
resale in accordance with the Registration Statement covering it, (ii)
expiration of the holding period that would be applicable thereto under Rule
144(k) to a sale by a non-Affiliate of the Company or (iii) its sale to the
public pursuant to Rule 144 (or any similar provision then in force, but not
Rule 144A) under the Securities Act, and (B) as a result of the event or
circumstance described in any of the foregoing clauses (A)(i) through (iii), the
legend with respect to transfer restrictions required by the Certificate of
Designation is removed or removable in accordance with the terms of the
Certificate of Designation or such legend, as the case may be.
"REGISTRATION DEFAULT" has the meaning set forth in Section 2(e)
hereof.
"REGISTRATION DEFAULT DATE" has the meaning set forth in Section 2(e)
hereof.
"REGISTRATION DEFAULT TERMINATION DATE" has the meaning set forth in
Section 2(e) hereof.
"REGISTRATION EXPENSES" has the meaning set forth in Section 5 hereof.
"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.
"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.
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"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.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in Section
2(a) hereof.
"SPECIAL COUNSEL" means a nationally recognized law firm experienced in
securities law matters designated by the Company, with the written consent of
the Initial Purchasers (which shall not be unreasonably withheld), the
reasonable fees and expenses of which will be paid by the Company pursuant to
Section 5 hereof, or one such other successor counsel as shall be specified by
the Holders of a majority of the Registrable Securities.
"SUBSEQUENT SHELF REGISTRATION STATEMENT" has the meaning set forth in
Section 2(b) hereof.
"TRANSFER AGENT" means Mellon Investor Services, LLC the Transfer Agent
for the Preferred Stock or any successor Transfer Agent pursuant to the terms of
the Certificate of Designation.
"UNDERLYING COMMON STOCK" means the Common Stock into which the
Preferred Stock is convertible or that is issued upon any such conversion.
Section 2 . Shelf Registration. (a) The Company shall prepare and file
or cause to be prepared and filed with the SEC, by the date (the "FILING
DEADLINE DATE") ninety (90) 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 (a "SHELF REGISTRATION STATEMENT") registering the resale
from time to time by Holders thereof of all of the Registrable Securities (the
"INITIAL SHELF REGISTRATION STATEMENT"). The Initial Shelf Registration
Statement shall be on Form S-3 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. The Company shall use its
reasonable best efforts to cause the Initial Shelf Registration Statement to be
declared effective under the Securities Act as promptly as is practicable but in
any event by the date (the "EFFECTIVENESS DEADLINE DATE") that is one hundred
eighty (180) days after the Issue Date, and, to keep the Initial Shelf
Registration Statement (or any Subsequent Shelf Registration Statement)
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 became a Notice Holder on or prior to the
date ten (10) Business Days prior to such time of effectiveness shall be named
as a selling securityholder 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 Shelf Registration Statement.
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(a) 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 best
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within thirty (30) days of such
cessation of effectiveness amend the Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf 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
commercially reasonable best efforts to cause the Subsequent Shelf Registration
Statement to become effective as promptly as is practicable after such filing
and to keep such Registration Statement (or subsequent Shelf Registration
Statement) continuously effective until the end of the Effectiveness Period.
(b) The Company shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration Statement,
if required by the Securities Act or as necessary to name a Notice Holder as a
selling securityholder pursuant to Section (d) below.
(c) Each Holder agrees that if such Holder wishes to sell
Registrable Securities pursuant to a Shelf Registration Statement and related
Prospectus, it will do so only in accordance with this Section 2(d) and Section
3(i). Each Holder wishing to sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus agrees to deliver a Notice and
Questionnaire to the Company at least three (3) Business Days prior to any
intended distribution of Registrable Securities under the Shelf Registration
Statement. 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, and in any event upon the later of (x)
ten (10) Business Days after such date or (y) ten (10) Business Days after the
expiration of any Deferral Period in effect when the Notice and Questionnaire is
delivered or put into effect within ten (10) Business Days of such delivery
date:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf 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
securityholder in the Shelf Registration Statement and the related
Prospectus in such a manner as to permit such 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 Shelf Registration Statement, use its commercially
reasonable best efforts to cause such post-effective amendment to be
declared effective under the Securities Act as promptly as is
practicable, but in any event by the date (the "AMENDMENT EFFECTIVENESS
DEADLINE DATE") that is forty-five (45) days after the date such
post-effective amendment is required by this clause to be filed;
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(ii) provide such Holder copies of any documents filed
pursuant to Section 2(d)(i); and
(iii) notify such Holder as promptly as 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 take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Deferral Period in accordance with Section
3(i). Notwithstanding anything contained herein to the contrary, (i) the Company
shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Registration Statement or related Prospectus and
(ii) the Amendment Effectiveness Deadline Date shall be extended by up to ten
(10) Business Days from the expiration of a Deferral Period (and the Company
shall incur no obligation to pay Liquidated Damages during such extension) if
such Deferral Period shall be in effect on the Amendment Effectiveness Deadline
Date.
(d) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if
(i) the Initial Shelf Registration Statement has not been
filed on or prior to the Filing Deadline Date,
(ii) the Initial Shelf Registration Statement has not been
declared effective under the Securities Act on or prior to the
Effectiveness Deadline Date,
(iii) the Company has failed to perform its obligations set
forth in Section 2(d) within the time period required therein,
(iv) any post-effective amendment to a Shelf Registration
Statement filed pursuant to Section 2(d)(i) has not become effective
under the Securities Act on or prior to the Amendment Effectiveness
Deadline Date,
(v) the aggregate duration of Deferral Periods in any
period exceeds the number of days permitted in respect of such period
pursuant to Section 3(i) hereof, or
(vi) the number of Deferral Periods in any period exceeds
the number permitted in respect of such period pursuant to Section 3(i)
hereof.
Each event described in any of the foregoing clauses (i) through (vi) is
individually referred to herein as a "REGISTRATION DEFAULT." For purposes of
this Agreement, each Registration Default set forth above shall begin on the
dates set forth in the table set forth below and shall continue until the ending
dates set forth in the table below:
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Type of Registration Default by
Clause Beginning Date Ending Date
---------------------------------- ------------------------------ -----------------------------------
Filing Deadline Date the date the Initial Shelf
(i) Registration Statement is filed
(ii) Effectiveness Deadline Date the date the Initial Shelf
Registration Statement becomes
effective under the Securities
Act
(iii) the date by which the Company is the date the Company performs
required to perform its its obligations set forth in
obligations under Section 2(d) Section 2(d)
(iv) the Amendment Effectiveness the date the applicable
Deadline Date post-effective amendment to a
Shelf Registration Statement
becomes effective under the
Securities Act
(v) the date on which the aggregate termination of the Deferral
duration of Deferral Periods in Period that caused the limit on
any period exceeds the number of the aggregate duration
days permitted by Section 3(i) Deferral Periods to be exceeded
(vi) the date of commencement of a termination of the Deferral
Deferral Period that causes the Period that caused the number of
number of Deferral Periods to Deferral Periods to exceed the
exceed the number permitted by number permitted by Section 3(i)
Section 3(i)
Commencing on (and including) any date that a Registration Default has
begun and ending on (but excluding) the next date on which there are no
Registration Defaults that have occurred and are continuing (a "DAMAGES ACCRUAL
PERIOD"), the Company shall pay, as liquidated damages and not as a penalty, to
Record Holders of Registrable Securities an amount (the "LIQUIDATED DAMAGES
AMOUNT") accruing, for each day in the Damages Accrual Period, (i) in respect of
any share of Preferred Stock, at an annual rate equal 0.50% of the aggregate
liquidation preference of the Preferred Stock and (ii) in respect of each share
of Underlying Common Stock, at a rate per annum equal to 0.50% of the Conversion
Price in effect on the first
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day of any such period (the total of such amounts the "LIQUIDATED DAMAGES
PAYMENTS"); provided that in the case of a Damages Accrual Period that is in
effect solely as a result of a Registration Default of the type described in
clause (iii) or (iv) of the preceding paragraph, such Liquidated Damages Amount
shall be paid only to the Holders (as set forth in the succeeding paragraph)
that have delivered Notices and Questionnaires that caused the Company to incur
the obligations set forth in Section 2(d) the non-performance of which is the
basis of such Registration Default. In calculating the Liquidated Damages Amount
on any date on which no Preferred Stock is outstanding, the Conversion Price and
the Liquidated Damages Amount shall be calculated as if the Preferred Stock were
still outstanding. Notwithstanding the foregoing, no Liquidated Damages Amount
shall cumulate as to any Registrable Security from and after the earlier of (x)
the date such security is no longer a Registrable Security and (y) expiration of
the Effectiveness Period. The rate of accumulation of the Liquidated Damages
Amount with respect to any period shall not exceed the rate provided for in this
paragraph notwithstanding the occurrence of multiple concurrent Registration
Defaults.
The Liquidated Damages Amount shall cumulate from the first day of the
applicable Damages Accrual Period, and shall be payable in cash on each Damages
Payment Date during the Damages Accrual Period to the Record Holder of the
Registrable Securities on the record date immediately preceding the applicable
Damages Payment Date (and on the Damages Payment Date next succeeding the end of
the Damages Accrual Period if the Damages Accrual Period does not end on a
Damages Payment Date) to the Record Holders of the Registrable Securities as of
the date that such Damages Accrual Period ends; provided, that, in the case of a
Registration Default of the type described in clause (iii) or (iv) of the first
paragraph of this Section 2(e), such Liquidated Damages Amount shall be paid
only to the Holders entitled thereto pursuant to such first paragraph by check
mailed to the address set forth in the Notice and Questionnaire delivered by
such Holder. Notwithstanding the foregoing, the parties agree that the sole
damages payable for a violation of the terms of this Agreement with respect to
which Liquidated Damages Payments are expressly provided shall be such
Liquidated Damages Payments. Nothing shall preclude any Holder from pursuing or
obtaining specific performance or other equitable relief with respect to this
Agreement.
All of the Company's obligations set forth in this Section 2(e) that
are outstanding with respect to any Registrable Security at the time such
security ceases to be a Registrable Security shall survive until such time as
all such obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section 8(k)) or, in
the case of Liquidated Damages Payments payable on any shares of Preferred
Stock, until such shares cease to be outstanding.
The parties hereto agree that the Liquidated Damages Payments provided
for in this Section 2(e) constitute a reasonable estimate of the damages that
may be incurred by Holders of Registrable Securities by reason of the failure of
the Shelf Registration Statement to be filed or declared effective or available
for effecting resales of Registrable Securities in accordance with the
provisions hereof.
Section 3 . Registration Procedures. In connection with the
registration obligations of the Company under Section 2 hereof, the Company
shall:
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(a) Prepare and file with the SEC a Registration
Statement or Registration Statements on any 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 any
Registration Statement or Prospectus or any amendments or supplements
thereto with the SEC, furnish to the Initial Purchasers and the Special
Counsel of such offering, if any, copies of all such documents proposed
to be filed and use its commercially reasonable best efforts to reflect
in each such document when so filed with the SEC such comments as the
Initial Purchasers or the Special Counsel, if any, reasonably shall
propose within five (5) Business Days of the delivery of such copies to
the Initial Purchasers and the Special Counsel.
(b) 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
commercially 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, the Initial Purchasers and the Special Counsel, (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 a Material Event and (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(i)), state that it constitutes a
Deferral Notice, in which event the provisions of Section 3(i) shall
apply.
(d) Use its 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
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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 Initial Purchasers of the
withdrawal of any such order.
(e) If reasonably requested by the Initial Purchasers or
any Notice Holder, as promptly as practicable incorporate in a
prospectus supplement or post-effective amendment to a Registration
Statement such information as the Initial Purchasers and the Special
Counsel, or such Notice Holder shall on the basis of an opinion of
nationally-recognized counsel experienced in such matters, determine to
be required to be included therein by applicable law and make any
required filings of such prospectus supplement or post-effective
amendment.
(f) As promptly as practicable furnish to each Notice
Holder, the Special Counsel and the Initial Purchasers, without charge,
at least one (1) conformed copy of the Registration Statement and any
amendment thereto, including exhibits and all documents incorporated or
deemed to be incorporated therein by reference.
(g) During the Effectiveness Period, deliver to each
Notice Holder, the Special Counsel, if any, and the Initial Purchasers,
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 may reasonably request; to provide a
"reasonable number" of copies thereof to the New York Stock Exchange as
contemplated by Rule 153 under the Securities Act; 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.
(h) Prior to any public offering of the Registrable
Securities pursuant to a Registration Statement, use its commercially
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 the Shelf
Registration Statement, use its commercially 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 will
not be required to (i) qualify as a foreign corporation or as a dealer
in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Agreement or (ii) take any action that
would subject it to
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general service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.
(i) Upon (A) the issuance by the SEC of a stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of proceedings with respect to the Shelf 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, or (C) the occurrence or existence of any pending
corporate development that, in the reasonable discretion of the
Company, makes it appropriate to suspend the availability of the Shelf
Registration Statement and the related Prospectus for a discrete period
of time:
(i) in the case of clause (B) above, subject to
clause (ii) below, as promptly as 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 commercially reasonable best efforts to
cause it to be declared effective as promptly as is
practicable, and
(ii) give notice to the Notice Holders, and the
Special Counsel, if any, that the availability of the Shelf
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 commercially reasonable best efforts
to ensure that the use of the Prospectus may be resumed (x) in the case
of clause (A) above, as promptly as is practicable, (y) in the case of
clause (B) above, as soon as, in the sole judgment of the
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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
practicable thereafter and (z) in the case of clause (C) above, as soon
as in the reasonable discretion of the Company, such suspension is no
longer appropriate. The Company shall be entitled to exercise its right
under this Section 3(i) to suspend the availability of the Shelf
Registration Statement or any Prospectus, without incurring or accruing
any obligation to pay liquidated damages pursuant to Section 2(e), no
more than one (1) time in any three month period or three (3) times in
any twelve month period, and any such period during which the
availability of the Registration Statement and any Prospectus is
suspended (the "DEFERRAL PERIOD") shall, without incurring any
obligation to pay liquidated damages pursuant to Section 2(e), not
exceed 30 days; provided that the aggregate duration of any Deferral
Periods shall not exceed 30 days in any three month period or 90 days
in any twelve (12) month period.
(j) If requested in writing in connection with a
disposition of Registrable Securities pursuant to a Registration
Statement, make reasonably available for inspection during normal
business hours by a representative for the Notice Holders of such
Registrable Securities, any broker-dealers, attorneys and accountants
retained by such Notice Holders, and any attorneys or other agents
retained by a broker-dealer engaged by such Notice Holders, 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 the Notice Holders, or any such
broker-dealers, 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 information that is reasonably and in good
faith designated by the Company in writing as confidential at the time
of delivery of such information shall be kept confidential by such
persons 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 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 the Notice
Holders and the other parties entitled thereto by Special Counsel.
(k) Comply with all applicable rules and regulations of
the SEC and make generally available to its securityholders earning
statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any
similar rule promulgated under the Securities Act) for a 12-month
period commencing on the first day of the first fiscal quarter of the
Company
12
commencing after the effective date of a Registration Statement, which
statements shall be made available no later than 45 days after the end
of the 12-month period or 90 days if the 12-month period coincides with
a fiscal year of the Company.
(l) Cooperate with each Notice Holder to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities sold or to be sold pursuant to a Registration
Statement, which certificates shall not bear any restrictive legends,
and cause such Registrable Securities to be in such denominations as
are permitted by the Certificate of Designation and registered in such
names as such Notice Holder may request in writing at least one (1)
Business Day prior to any sale of such Registrable Securities.
(m) Provide a CUSIP number for all Registrable Securities
covered by each Registration Statement not later than the effective
date of such Registration Statement and provide the Transfer Agent and
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.
(n) Cooperate and assist in any filings required to be
made with the National Association of Securities Dealers, Inc. or the
New York Stock Exchange, Inc.
(o) Upon (i) the filing of the Initial Shelf Registration
Statement and (ii) the effectiveness of the Initial Shelf Registration
Statement, announce the same, in each case by release to Reuters
Economic Services and Bloomberg Business News or other reasonable means
of distribution.
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 (including
the information required to be included in such Notice and Questionnaire) and
the information set forth in the next sentence. 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.
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
13
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. or New York Stock Exchange Inc. and (y) of compliance
with federal and state securities, 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 of a majority of the Registrable Securities
being sold pursuant to a Registration Statement may designate), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company), (iii) duplication expenses relating to copies of any Registration
Statement or Prospectus delivered to any Holders hereunder, (iv) fees and
disbursements of counsel for the Company and the Special Counsel in connection
with the Shelf Registration Statement (provided that the Company shall not be
liable for the fees and expenses of more than one separate firm for all parties
participating in any transaction hereunder), (v) reasonable fees and
disbursements of the Transfer Agent and of the registrar and transfer agent for
the Common Stock and (vi) 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 all underwriting discounts and commissions, transfers,
taxes, if any, and any other selling expenses and all registration expenses to
the extent required by applicable law, related to the sale or disposition of
such seller's registrable Securities pursuant to the Self Registration
Statement.
Section 6. Indemnification.
(a) Indemnification by the Company. The Company shall indemnify
and hold harmless each Notice Holder and each person, if any, who controls any
Notice Holder (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange 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) (collectively, "LOSSES") 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), or 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 in light of the circumstances under which they were made not
misleading, except insofar as such Losses are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to the Holders furnished to the Company in writing by or on
behalf of a Holder or any underwriter (in the case of an underwritten offering)
expressly for use therein; provided that if any Losses arise out of or are based
upon an untrue statement, alleged untrue statement, omission or alleged omission
contained in any preliminary prospectus that did not appear in the final
prospectus, the Company
14
shall not have any liability with respect thereto to any Holder if any Holder
delivered a copy of the preliminary prospectus to the person alleging such
Losses and failed to deliver a copy of the final prospectus, as amended or
supplemented if it has been amended or supplemented, to such person at or prior
to the written confirmation of the sale to that person.
(b) Indemnification by Holders. Each Holder agrees severally and
not jointly to indemnify and hold harmless the Company, the directors of the
Company, the officers of the Company who sign the Registration Statement, 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) each
underwriter and each person who controls any underwriter within the meaning of
the Securities Act (in the case of an underwritten offering), and any other
Holder, from and against all Losses 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, but only with reference to information
relating to such Holder furnished to the Company in writing by or on behalf of
such Holder expressly for use in such Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements 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 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 Holders and all
persons, if any, who control any Holder within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act and (ii) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In the case of any such separate firm for the Holders and such control
persons of any Holders, such firm shall be designated in writing by the Holders
of a
15
majority (with Holders of Preferred Stock deemed to be the Holders, for purposes
of determining such majority, of the number of shares of Underlying Common Stock
into which such Preferred Stock are or would be convertible as of the date on
which such designation is made) of the Registrable Securities covered by the
Registration Statement held by Holders that are indemnified parties pursuant to
Section 6(a). In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by 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 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 (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 from the offering of the Registrable Securities 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, as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the initial placement pursuant to the Purchase Agreement (after deducting
expenses) of the Registrable Securities to which such Losses relate. 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 or on behalf of 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 paragraph are
several in proportion to the respective number of Registrable Securities they
have sold pursuant to a Registration Statement, and not joint.
16
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation that does not take account of 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 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(d), an indemnifying party that
is a selling Holder shall not be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Securities sold by
such indemnifying party 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. 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
any indemnified party at law or in equity.
(e) The indemnity, contribution and expense reimbursement
obligations of the parties hereunder shall be in addition to any liability any
indemnified party may otherwise have hereunder, under the Purchase Agreement 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 or any person controlling any Holder, or the Company, or the
Company's 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 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
17
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 Underlying Common Stock constituting
Registrable Securities (with Holders of Preferred Stock deemed to be the
Holders, for purposes of this Section, of the number of outstanding shares of
Underlying Common Stock into which such Preferred Stock is or would be
convertible as of the date on which such consent is requested). 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. 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;
(ii) if to the Company, to:
Doral Financial Corporation
0000 X.X. Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx Xxxx 00000
Attention: Corporate Secretary's Office
Telephone: (000) 000-0000
with a copy to:
Xxxxxxxxxxx Xxxxxx & Xxxxxxx LLP
Popular Center Building
18
19th Floor
000 Xxxxx Xxxxxx
Xxxx Xxx, Xxxxxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
(iii) if to the Initial Purchasers, to:
Wachovia Capital Markets, LLC
Xxxxx Xxxxxx & Co., Inc.
Deutsche Bank Securities, Inc.
UBS Securities LLC
c/o Wachovia Capital Markets, LLC
00 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Syndicate Group
Telecopy No.: (000) 000-0000
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 the Initial
Purchasers or 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 determining whether such consent or approval
was given by the Holders of such required percentage.
(e) Successors and Assigns. Any person who purchases any
Registrable Securities from the Initial Purchasers shall be deemed, for purposes
of this Agreement, to be an assignee of the Initial Purchasers. 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.
(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.
19
(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 commercially
reasonable best 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. Except as
provided in the Purchase Agreement, 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 and the
obligations to make payments of and provide for liquidated damages payments
under Section 2(e) hereof to the extent such damages cumulate prior to the end
of the Effectiveness Period, each of which shall remain in effect in accordance
with its terms.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
DORAL FINANCIAL CORPORATION
By /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Executive Vice President
and Treasurer
Confirmed and accepted as of
the date first above written:
WACHOVIA CAPITAL MARKETS, LLC
Acting on behalf of itself and as a representative
of the several Initial Purchasers
By /s/ Xxxx Xxxxxx Xxxxxxxx
--------------------------------------------------------
Name: Xxxx Xxxxxx Xxxxxxxx
Title: Senior Vice President
