Banco Macro Bansud S.A. ________ Class B Shares in the form of Class B Shares or American Depositary Shares Underwriting Agreement
Exhibit 1.1
Banco Macro Bansud S.A.
________ Class B Shares
in the form of Class B Shares or American Depositary Shares
_____ __, 2006
_____ __, 2006
UBS Securities LLC
Xxxxxxx Xxxxx & Associates, Inc.
as Managing Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxxx Xxxxx & Associates, Inc.
as Managing Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Banco Macro Bansud S.A., a corporation organized under the laws of Argentina (the
“Bank”), proposes to issue and sell, and certain shareholders of the Bank named in
Schedule B annexed hereto (the “Selling Shareholders”), propose to sell, to the
international underwriters named in Schedule A annexed hereto (the “Underwriters”),
for whom you are acting as representatives, an aggregate of ___(the “Firm Shares”)
Class B shares, Ps.1 par value per share (the “Class B Shares”), of the Bank, directly or
in the form of American Depositary Shares (“ADSs”), each representing the right to receive
ten Class B Shares, of which ___of the Firm Shares are to be issued and sold by the Bank and
___of the Firm Shares are to be sold by the Selling Shareholders. In addition, solely for the
purpose of covering over-allotments, the Selling Shareholders propose to grant to the Underwriters
the option to purchase from the Selling Shareholders up to an additional ___Class B Shares
(the “Additional Shares”), directly or in the form of ADSs. The Firm Shares and the
Additional Shares are hereinafter collectively sometimes referred to as the “Shares”. The
Shares and the ADSs are described in the Prospectus which is referred to below.
The ADSs will be issued in accordance with a deposit agreement (the “Deposit
Agreement”), to be dated no later than closing, among the Bank, The Bank of New York, as
depositary (in such capacity, the “Depositary”), and all owners and holders from time to
time of American Depositary Receipts (“ADRs”) issued thereunder and evidencing ADSs.
The Bank has prepared and filed, in accordance with the provisions of the U.S. Securities Act
of 1933, as amended, and the rules and regulations thereunder (collectively, the “Act”),
with the U.S. Securities and Exchange Commission (the “SEC”) a registration statement on
Form F-1 (File No. 333-___) under the Act, including a prospectus, relating to the Shares and the
ADSs. Except where the context otherwise requires, “Registration Statement,” as used
herein, means the registration statement, as amended at the time of such registration statement’s
effectiveness for purposes of Section 11 of the Act, as such section applies to the respective
Underwriters (the “Effective Time”), including (i) all documents filed as a part thereof,
(ii) any information contained in a prospectus filed with the SEC pursuant to Rule 424(b) under the
Act and deemed, pursuant to Rule 430A or Rule 430C under the Act, to be part of the registration
statement at the Effective Time, and (iii) any registration statement filed to register the offer
and sale of Shares pursuant to Rule 462(b) under the Act. The Bank has furnished to you, for use
by the Underwriters and by dealers in connection with the offering of the Shares and ADSs, copies
of one or more preliminary prospectuses relating to the Shares and ADSs. Except where the context
otherwise requires, “Preliminary Prospectus,” as used herein, means each such preliminary
prospectus, in the form so furnished.
Except where the context otherwise requires, “Prospectus,” as used herein, means the
prospectus filed by the Bank with the SEC pursuant to Rule 424(b) under the Act on or before the
second business day after the date hereof (or such earlier time as may be required under the Act),
or, if no such filing is required, the final prospectus included in the Registration Statement at
the time it became effective under the Act, in each case in the form furnished by the Bank to you
for use by the Underwriters and by dealers in connection with the offering of the Shares and ADSs.
“Permitted Free Writing Prospectuses”, as used herein, means the documents listed on
Schedule C annexed hereto and each “road show” (as defined in Rule 433 under the Act), if any,
related to the offering of the Shares and the ADSs contemplated hereby that is a “written
communication” (as defined in Rule 405 under the Act) (each such road show, a “Road Show”).
“Disclosure Package”, as used herein, means any Preliminary Prospectus together with any
combination of one or more of the Permitted Free Writing Prospectuses, if any.
As used in this Agreement, “business day” shall mean a day on which both the New York
Stock Exchange (the “NYSE”) and the Bolsa de Comercio de Buenos Aires (the “BASE”)
are open for trading. The terms “herein”, “hereof”, “hereto”, “hereunder”, “hereby”, “hereinafter”
and similar terms, as used in this Agreement, shall in each case refer to this Agreement as a whole
and not to any particular section, paragraph, sentence or other subdivision of this Agreement.
A registration statement on Form F-6 (File No. 333-___), for the registration of the ADSs
under the Act, has also been filed with the SEC. The registration statement on Form F-6, as
amended at the time it becomes effective (including by the filing of any post-effective amendments
thereto, if applicable) is herein called the “ADS Registration Statement”.
The Bank has prepared and filed, in accordance with Section 12 of the U.S. Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange
Act”), a registration statement (as may be amended prior to the time of execution of this
Agreement, the “Exchange Act Registration Statement”) on Form 8-A (File No. ___)
under the Exchange Act to register, under Section 12(b) of the Exchange Act, the class of
securities consisting of the ADSs.
It is understood that, in order to complete the proposed capital increase in accordance with
Argentine law, the Bank has launched and will consummate a preemptive rights and accretion rights
offer to its existing shareholders as described in the Registration Statement, each Preliminary
Prospectus and the Prospectus (the “Preferential Subscription”). In order for the
Underwriters to acquire the Firm Shares being issued and sold by the Bank hereunder, (i) the
Selling Shareholders have, pursuant to the Acuerdo de Cesión de Derechos de Preferencia, attached
hereto as Annex A (the “Preemptive Rights Assignment Agreement”), assigned to the
Underwriters (the “Preemptive Rights Assignment”) all their preemptive rights to acquire
Class B Shares pursuant to the Preferential Subscription, representing [63]% of the Bank’s proposed
capital increase (the “Selling Shareholders’ Preemptive Rights”), and (ii) the Underwriters
shall, subject to the terms and conditions set forth herein, exercise such preemptive rights (the
“Preemptive Rights Exercise”) pursuant to the Contrato de Subscripción in the form attached
hereto as Annex B (the “Preemptive Rights Exercise Agreement”). In no case,
however, shall the Underwriters exercise any related accretion rights. Additionally, in order to
ensure that the Bank sells all Class B Shares offered to the minority shareholders in the
Preferential Subscription, the Selling Shareholders have, subject to the terms and conditions set
forth in the Acuerdo de Compra Condicional, attached hereto as Annex C (the “Standby
Subscription Agreement”), agreed to purchase from the Bank any such shares offered but not
otherwise sold to the minority shareholders pursuant to the Preferential Subscription (the
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“Standby Subscription Obligation”). The Preferential Subscription, the Preemptive
Rights Assignment, the Preemptive Rights Exercise and the Standby Subscription Obligation are
collectively referred to herein as the “Preferential Subscription Transactions”, and the
Preemptive Rights Assignment Agreement, the Preemptive Rights Exercise Agreement and the Standby
Subscription Agreement are collectively referred to herein as the “Preferential Subscription
Documents”.
In order to ensure satisfaction of the Standby Subscription Obligation, the Selling
Shareholders will enter into an escrow agreement in form and substance reasonably satisfactory to
you (the “Escrow Agreement”), and the Selling Shareholders will direct the deposit in an
escrow account (the “Escrow Account”) with The Bank of New York, as escrow agent (in such
capacity, the “Escrow Agent”), by the Underwriters of the purchase price (net of
underwriters’ commissions) for the Firm Shares sold by the Selling Shareholders hereunder (the
“Escrowed Funds”). The Escrow Agreement shall provide that the Escrowed Funds shall only
be released and paid out pursuant to the terms of the Escrow Agreement.
It is further understood that the Bank and the Selling Shareholders are concurrently entering
into an Argentine underwriting agreement, dated the date hereof (the “Argentine Underwriting
Agreement”), with Xxxxxxx Xxxxx Argentina Sociedad de Bolsa S.A. and any other Argentine
underwriters that may accede to the Argentine Underwriting Agreement (the “Argentine
Underwriters”), providing for the sale by the Bank and the Selling Shareholders through
arrangements with the Argentine Underwriters of ___Class B Shares (the “Argentine
Shares”).
To provide for the coordination of their activities, the Underwriters and the Argentine
Underwriters have entered into an agreement among themselves (the “Intersyndicate
Agreement”). Pursuant to the Intersyndicate Agreement, UBS Securities LLC (“UBS”) and
Xxxxxxx Xxxxx & Associates, Inc. (“RJ”) are the managing underwriters (the “Managing
Underwriters”) and representatives of the Underwriters. The Bank and the Selling Shareholders
hereby acknowledge the position of the Managing Underwriters.
The closing under this Agreement is hereby expressly made conditional upon the closing under
the Argentine Underwriting Agreement and each such closing shall be deemed to occur simultaneously.
The Bank and the Selling Shareholders hereby acknowledge that the Underwriters are acting
solely as underwriters in connection with the purchase and sale of the Shares and ADSs. The Bank
further acknowledges that the Underwriters are acting pursuant to a contractual relationship
created solely by this Agreement entered into on an arm’s length basis and in no event do the
parties intend that the Underwriters act or be responsible as a fiduciary to the Bank, its
management, shareholders, creditors, the Selling Shareholders or any other person in connection
with any activity that the Underwriters may undertake or has undertaken in furtherance of the
purchase and sale of the Shares and ADSs, either before or after the date hereof. The Underwriters
hereby expressly disclaim any fiduciary or similar obligations to the Bank and the Selling
Shareholders, either in connection with the transactions contemplated by this Agreement or any
matters leading up to such transactions, and the Bank and the Selling Shareholders hereby confirm
their understanding and agreement to that effect. The Bank, the Selling Shareholders and the
Underwriters agree that they are each responsible for making their own independent judgments with
respect to any such transactions, and that any opinions or views expressed by the Underwriters to
the Bank or the Selling Shareholders regarding
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| such transactions, including but not limited to any opinions or views with respect to the price or market for the Shares or ADSs, do not constitute advice or recommendations to the Bank or the Selling Shareholders. The Bank and the Selling Shareholders hereby waive and release, to the fullest extent permitted by law, any claims that the Bank and the Selling Shareholders may have against the Underwriters with respect to any breach or alleged breach of any fiduciary or similar duty to the Bank or the Selling Shareholders in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions. |
The Bank, the Selling Shareholders and the Underwriters further agree as follows:
1. Sale and Purchase. Subject to the terms and conditions and in reliance upon the
representations and warranties set forth herein, the Bank agrees to issue and sell, and each
Selling Shareholder agrees to sell, in each case severally and not jointly, to the Underwriters the
respective number of Firm Shares set forth in Schedule B hereto opposite its name, and each of the
Underwriters, severally and not jointly, agrees to purchase from the Bank and the Selling
Shareholders the respective number of such Firm Shares (subject to such adjustment as UBS and RJ
may determine to avoid fractional shares) which bears the same proportion to the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule A hereto, subject to adjustment
in accordance with Section 11 hereof, in each case at a purchase price of US$ per Share. A
commission of US$ per Share (the “Commission”) shall be deducted from such purchase
price as set forth herein.
The Bank, the Selling Shareholders and the Underwriters agree that, to the extent that the
Selling Shareholders are required to purchase Class B Shares pursuant to the Standby Subscription
Agreement, any Commission paid by the Selling Shareholders in respect of Shares sold hereunder, the
proceeds of which are used to purchase such Class B Shares in accordance with the Escrow Agreement,
shall be deemed to have been paid by the Bank.
The Bank is advised by you that the Underwriters intend (i) to make a public offering of their
respective portions of the Firm Shares as soon after the effective date of the Registration
Statement as in your judgment is advisable and (ii) initially to offer the Firm Shares upon the
terms set forth in the Prospectus. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may determine.
To effectuate the sale and purchase of the Firm Shares to be issued and sold by the Bank
hereunder to the Underwriters, the Underwriters shall, upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, exercise, at the time of
purchase, the Assigned Preemptive Rights by executing with the Bank the Preemptive Rights Exercise
Agreement.
In addition, each Selling Shareholder, severally and not jointly, hereby grant to the several
Underwriters the option (the “Over-Allotment Option”) to purchase, and, upon the basis of
the representations and warranties and subject to the terms and conditions herein set forth, the
Underwriters shall have the right to purchase, severally and not jointly, from the Selling
Shareholders, all or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm Shares, at the same purchase price
per share (less the same Commission) to be paid by the Underwriters to the Bank and the Selling
Shareholders for the Firm Shares. This option may be exercised by UBS and RJ on behalf of the
several Underwriters at any time and from time to time on or before the 30th day following the date
hereof by written
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notice to the Selling Shareholders. Such notice shall set forth the aggregate number of
Additional Shares as to which the option is being exercised and the date and time when such
Additional Shares are to be delivered (any such date and time being herein referred to as an
“additional time of purchase”); provided, however, that the additional time of purchase shall not
be earlier than the time of purchase (as defined below) nor earlier than the second business day
after the date on which the option shall have been exercised nor later than the tenth business day
after the date on which the option shall have been exercised. The number of Additional Shares to
be sold to each Underwriter shall be the number which bears the same proportion to the aggregate
number of Additional Shares being purchased as the number of Firm Shares set forth opposite the
name of such Underwriter on Schedule A hereto (subject to adjustment in accordance with Section 11
hereof) bears to the total number of Firm Shares (subject to such adjustment as UBS and RJ may
determine solely to eliminate fractional shares). Upon any exercise of the Over-Allotment Option,
the number of Additional Shares to be purchased from each Selling Shareholder shall be the number
which bears the same proportion to the aggregate number of Additional Shares being purchased
pursuant to such exercise as the number of Additional Shares set forth in Schedule B hereto
opposite its name bears to ___, subject, in each case, to such adjustment as UBS and RJ may
determine solely to eliminate fractional shares.
Pursuant to a power of attorney attached hereto as Annex D (the “Power of
Attorney”) granted by the Selling Shareholders and their spouses, ___and ___
shall act as representatives of the Selling Shareholders. The foregoing representatives (the
“Representatives of the Selling Shareholders”) are authorized, on behalf of the Selling
Shareholders, to execute any documents necessary or desirable in connection with the sale of the
Shares to be sold hereunder by the Selling Shareholders, the Preemptive Rights Assignment by the
Selling Shareholders with respect to the Firm Shares to be sold hereunder by the Bank and any
purchase Class B Shares under the Standby Subscription Obligation by the Selling Shareholders, to
receive and provide notices on behalf of the Selling Shareholders and to take such other action as
may be necessary or desirable in connection with the transactions contemplated by this Agreement.
2. Payment and Delivery. Payment of the purchase price less the Commission for (i) the
Firm Shares sold by the Bank hereunder shall be made by Federal Funds wire transfer to an account
specified by the Bank to UBS and RJ and (ii) the Firm Shares sold by the Selling Shareholders
hereunder shall be made by Federal Funds wire transfer to (a) the Escrow Account, in the case of
amounts that may be necessary for the purchase of Class B Shares pursuant to the Standby
Subscription Agreement and (b) with respect to any remaining amounts, to accounts designated by the
Selling Shareholders; in each case against delivery of the Firm Shares, or the ADRs evidencing the
ADSs representing such Shares, to you through the facilities of The Depository Trust Bank
(“DTC”) (or the Caja de Valores S.A. (the “Caja de Valores”) in the case of Firm
Shares) for the respective accounts of the Underwriters. Such payment shall be made at 10:00 A.M.,
New York City time, on ___, 2006 (unless another time shall be agreed to by you and the
Bank and the Representatives of the Selling Shareholders or unless postponed in accordance with the
provisions of Section 11 hereof). The time at which such payment and delivery are to be made is
hereinafter sometimes called “the time of purchase”. Electronic transfer of the Firm Shares, or
ADRs evidencing the ADSs representing such Shares, shall be made to you at the time of purchase in
such names and in such denominations as you shall specify.
Payment of the purchase price for the Additional Shares (after deducting the Commission) shall
be made at the additional time of purchase by Federal Funds wire transfer to accounts specified by
the Selling Shareholders to UBS and RJ in the same manner and at the same
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office as the payment for the Firm Shares. Electronic transfer of Additional Shares, or the
ADRs evidencing the ADSs representing such Shares, shall be made to you at the time of purchase of
such Additional Shares in such names and in such denominations as you shall specify.
Deliveries of the documents described in Section 9 hereof with respect to the purchase of the
Shares shall be made at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New York City time, on the date of the closing of the purchase
of the Firm Shares or the Additional Shares, as the case may be.
With respect to all or any portion of the Shares to be sold hereunder, UBS and RJ on behalf of
the several Underwriters may elect to have ADSs delivered and paid for hereunder in lieu of, and in
satisfaction of, the Bank’s and the Selling Shareholders’ obligation to sell to the several
Underwriters and the several Underwriters’ obligations to purchase, such Shares. Not later than
4:00 P.M., New York City time, on the second business day prior to the time of purchase or
additional time of purchase, as applicable, UBS and RJ on behalf of the several Underwriters will
notify the Bank and the Selling Shareholders of the portion of Shares to be delivered in the form
of ADSs. If an election has been made to acquire ADSs, electronic transfer of the ADRs evidencing
the ADSs to be acquired shall be made to you at the time of purchase or the additional time of
purchase, as the case may be, in such names and in such denominations as you shall specify.
3. Representations and Warranties of the Bank. The Bank represents and warrants to and
agrees with each of the Underwriters that:
(a) the Registration Statement has heretofore become effective under the Act or, with respect to
any registration statement to be filed to register the offer and sale of Shares and ADSs pursuant
to Rule 462(b) under the Act, will be filed with the SEC and become effective under the Act no
later than 10:00 P.M., New York City time, on the date of determination of the public offering
price for the Shares and the ADSs; no stop order of the SEC preventing or suspending the use of any
Preliminary Prospectus or Permitted Free Writing Prospectus or the effectiveness of the
Registration Statement or the ADS Registration Statement has been issued, and no proceedings for
such purpose have been instituted or, to the knowledge of the Bank, are contemplated by the SEC;
the Registration Statement complied when it became effective, complies as of the date hereof and,
as amended or supplemented, at the time of purchase, each additional time of purchase, if any, and
at all times during which a prospectus is required by the Act to be delivered (whether physically
or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale
of Shares or ADSs, will comply, in all material respects, with the requirements of the Act; the ADS
Registration Statement complied when it became effective, complies as of the date hereof and, as
amended or supplemented, at the time of purchase, each additional time of purchase, if any, and at
all times during which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of
Shares or ADSs, will comply, in all material respects, with the requirements of the Act; the
Registration Statement did not, as of the Effective Time, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; the ADS Registration Statement did not, as of the Effective
Time, contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading; each Preliminary
Prospectus complied, at the time it was filed with the SEC, and complies as of the date hereof, in
all material respects with the requirements of the Act; at no time during the period that begins on
the earlier of the date of such Preliminary Prospectus and the date such Preliminary Prospectus was
filed with the SEC and ends at
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the time of purchase did or will any Preliminary Prospectus, as then amended or supplemented,
include an untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not
misleading, and at no time during such period did or will any Preliminary Prospectus, as then
amended or supplemented, together with any combination of one or more of the then issued Permitted
Free Writing Prospectuses, if any, include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; the Prospectus will comply, as of its
date, the date that it is filed with the SEC, the time of purchase, each additional time of
purchase, if any, and at all times during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares or ADSs, in all material respects, with the requirements of the
Act (including, without limitation, Section 10(a) of the Act); at no time during the period that
begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the
SEC and ends at the later of the time of purchase, the latest additional time of purchase, if any,
and the end of the period during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar rule) in connection
with any sale of Shares or ADSs did or will the Prospectus, as then amended or supplemented,
include an untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not
misleading; at no time during the period that begins on the date of such Permitted Free Writing
Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus, as
then amended or supplemented, together with any Preliminary Prospectus or other Permitted Free
Writing Prospectus then issued, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Bank makes
no representation or warranty with respect to any statement contained in the Registration
Statement, the ADS Registration Statement, any Preliminary Prospectus, the Prospectus or any
Permitted Free Writing Prospectus in reliance upon and in conformity with information concerning an
Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Bank
expressly for use in the Registration Statement, the ADS Registration Statement, such Preliminary
Prospectus, the Prospectus or such Permitted Free Writing Prospectus; the Exchange Act Registration
Statement has become effective as provided in Section 12 of the Exchange Act; any statutes,
regulations, contracts, related party transactions or other documents that are required to be
described in the Registration Statement, the ADS Registration Statement, any Preliminary Prospectus
or the Prospectus or to be filed as exhibits to the Registration Statement have been and will be so
described or filed as required;
(b) prior to the execution of this Agreement, the Bank has not, directly or indirectly, offered or
sold any Shares or any ADSs by means of any “prospectus” (within the meaning of the Act) or used
any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the
Shares, in each case other than the Preliminary Prospectuses and the Permitted Free Writing
Prospectuses, if any; the Bank has not, directly or indirectly, prepared, used or referred to any
Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act;
assuming that such Permitted Free Writing Prospectus is accompanied or preceded by the most recent
Preliminary Prospectus that contains a price range or the Prospectus, as the case may be, and that
such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was
filed with the SEC (and after such Permitted Free Writing Prospectus was, if required pursuant to
Rule 433(d) under the Act, filed with the SEC), the sending or giving, by any Underwriter, of any
Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without
reliance on subsections (b),
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(c) and (d) of Rule 164); the Preliminary Prospectus dated ___, 2006 is a prospectus that,
other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section
10 of the Act, including a price range where required by rule; neither the Bank nor the
Underwriters are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from
using, in connection with the offer and sale of the Shares, “free writing prospectuses” (as defined
in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; the Bank is not an
“ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date
for purposes of Rules 164 and 433 under the Act with respect to the offering of the Shares and the
ADSs contemplated by the Registration Statement; the parties hereto agree and understand that the
content of any and all “road shows” (as defined in Rule 433 under the Act) related to the offering
of the Shares and the ADSs contemplated hereby is solely the property of the Bank; the Bank has
caused there to be made available at least one version of a “bona fide electronic road show” (as
defined in Rule 433 under the Act) in a manner that, pursuant to Rule 433(d)(8)(ii) under the Act,
causes the Bank not to be required, pursuant to Rule 433(d) under the Act, to file, with the SEC,
any Road Show;
(c) as of the date of this Agreement, the Bank has an authorized and outstanding capitalization as
set forth in the sections of the Registration Statement, each Preliminary Prospectus and the
Prospectus entitled “Capitalization” and “Description of Capital Stock” (and any similar sections
or information, if any, contained in any Permitted Free Writing Prospectus) and, after giving
effect to the transactions contemplated by this Agreement (including, without limitation, the sale
of Argentine Shares pursuant to the Argentine Underwriting Agreement and the Preferential
Subscription Transactions), the Bank shall have an authorized and outstanding capitalization as set
forth in the section of the Registration Statement and the Prospectus entitled “Capitalization”
under the column “As Adjusted” (and any similar sections or information, if any, contained in any
Permitted Free Writing Prospectus); all of the issued and outstanding shares of capital stock of
the Bank have been, and the Shares will be at the time of purchase (or additional time of purchase
if applicable), duly authorized and validly issued and are fully paid and non-assessable, have been
issued in compliance with all applicable Argentine laws, rules and regulations, including, without
limitation, any requirements of the Comisión Nacional de Valores (the “Argentine Securities
Commission”) and the BASE, and were not issued in violation of any preemptive right, accretion
right, resale right, right of first refusal or similar right; no further approval or authority of
the shareholders or the Board of Directors of the Bank is required for the issuance and sale of the
Shares and the ADSs pursuant to this Agreement, the sale of the Argentine Shares pursuant to the
Argentine Underwriting Agreement or the conduct and consummation of the Preferential Subscription
Transactions; and the ADSs are duly listed, and admitted and authorized for trading, subject to
official notice of issuance and evidence of satisfactory distribution, on the NYSE;
(d) the Bank has been duly incorporated and is validly existing as a corporation under the laws of
Argentina, with full corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement, each Preliminary Prospectus, the
Prospectus and the Permitted Free Writing Prospectuses, if any, to execute and deliver this
Agreement, the Argentine Underwriting Agreement, the Deposit Agreement and the Preferential
Subscription Documents to which it is a party, and to carry out the terms and provisions hereof and
thereof to be carried out by it;
(e) the Bank is duly qualified to do business as a foreign corporation and is in good standing in
each jurisdiction where the ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified and in good standing would
not, individually or in the aggregate, either (i) have a material adverse effect on the business,
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properties, financial condition, results of operations or prospects of the Bank and the
Subsidiaries (as hereinafter defined) taken as a whole, (ii) prevent or materially interfere with
consummation of the transactions contemplated by this Agreement, the Argentine Underwriting
Agreement, the Deposit Agreement or the Preferential Subscription Documents, or (iii) result in the
delisting of the ADSs from the NYSE (the occurrence of any such effect or any such prevention or
interference or any such result described in the foregoing clauses (i), (ii) and (iii) being herein
referred to as a “Material Adverse Effect”);
(f) the Bank has no subsidiaries (as defined under the Act) other than the subsidiaries named on
Schedule D annexed hereto (collectively, the “Subsidiaries”); except as disclosed
in the Registration Statement, each Preliminary Prospectus and the Prospectus the Bank owns all of
the issued and outstanding capital stock or ownership interests of each of the Subsidiaries; other
than the capital stock of the Subsidiaries, except as disclosed in the Registration Statement, each
Preliminary Prospectus and the Prospectus the Bank does not own, directly or indirectly, any shares
of stock or any other equity or long-term debt securities of any corporation or have any equity
interest in any firm, partnership, joint venture, association or other entity; complete and correct
copies of the charters and the bylaws of the Bank and each Subsidiary and all amendments thereto
have been delivered to you, and no changes therein will be made on or after the date hereof or on
or before the time of purchase or, if later, any additional time of purchase except, as described
in the Registration Statement, the Preliminary Prospectus and the Prospectus, the amendment to
Section 14 of the Bank’s bylaws adopted by the Bank shareholders on September 26, 2005 and pending
approval by the CNV; each Subsidiary has been duly organized and is validly existing as an entity
under the laws of the jurisdiction of its organization, with full power and authority to own, lease
and operate its properties and to conduct its business as described in the Registration Statement,
each Preliminary Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any;
each Subsidiary is duly qualified to do business as a foreign entity and is in good standing in
each jurisdiction where the ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified and in good standing would
not, individually or in the aggregate, have a Material Adverse Effect; each Subsidiary is in
compliance in all respects with the laws, orders, rules, regulations and directives issued or
administered by such jurisdictions, except where the failure to be in compliance would not,
individually or in the aggregate, have a Material Adverse Effect; all of the outstanding shares of
capital stock or ownership interests of each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable, have been issued in compliance with all
applicable securities laws, were not issued in violation of any preemptive right, accretion right,
resale right, right of first refusal or similar right and, except as disclosed in the Registration
Statement, each Preliminary Prospectus and the Prospectus are owned by the Bank subject to no
security interest, other encumbrance or adverse claims; no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to convert any obligation into
shares of capital stock or ownership interests in the Subsidiaries are outstanding; the Bank has no
“significant subsidiary”, as that term is defined in Rule 1-02(w) of Regulation S-X under the Act,
other than Nuevo Banco Suquía S.A. (“Suquía”);
(g) this Agreement and the Argentine Underwriting Agreement have been duly authorized, executed and
delivered by the Bank;
(h) the Shares have been duly and validly authorized and, when issued and delivered against payment
therefor as provided in this Agreement and the Argentine Underwriting Agreement, respectively, will
be duly and validly issued, fully paid and non-assessable and free of statutory and contractual
preemptive rights, accretion rights, resale rights, rights of first refusal and similar rights;
- 9 -
the Shares, when issued and delivered against payment therefor as provided in this Agreement, will
be free of any restriction upon the voting or transfer thereof pursuant to the Bank’s bylaws or
other governing documents or any agreement or other instrument to which the Bank or any of the
Subsidiaries is a party or by which any of them or any of their respective properties may be bound
or affected;
(i) the Deposit Agreement has been duly authorized by the Bank and, when executed and delivered by
the Bank, assuming the authorization, execution and delivery by the other parties thereto, will
constitute the legal, valid and binding obligation of the Bank, enforceable against the Bank in
accordance with its terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and to
general principles of equity (regardless of whether the issue of enforceability is considered in a
proceeding in equity or at law);
(j) upon the due and valid issuance by the Depositary of the ADRs evidencing the ADSs against the
deposit of Shares in respect thereof in accordance with the Deposit Agreement, the ADSs evidenced
by such ADRs will be duly and validly issued and the persons in whose names such ADSs are
registered will be entitled to the rights of registered holders of ADSs specified in the Deposit
Agreement; and, except as disclosed in the Registration Statement, each Preliminary Prospectus and
the Prospectus, there are no limitations on the rights of holders of ADSs or ADRs evidencing ADSs
to hold or vote or transfer their respective securities;
(k) each of the Preferential Subscription Documents to which the Bank is a party has been duly
authorized by the Bank, and when executed and delivered by the Bank, assuming the authorization,
execution and delivery by the other parties thereto, will constitute the legal, valid and binding
obligation of the Bank, enforceable against the Bank in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ rights generally and to general principles of equity (regardless
of whether the issue of enforceability is considered in a proceeding in equity or at law);
(l) the capital stock of the Bank, including the Shares and the Argentine Shares, and the Deposit
Agreement and the ADSs, conform in all material respects to the description thereof contained in
the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus; and, except as disclosed in the Registration Statement, each Preliminary
Prospectus and the Prospectus the holders of the Shares or the Argentine Shares will not be subject
to personal liability by reason of being such holders;
(m) neither the Bank nor any of the Subsidiaries is in breach or violation of or in default under
(nor has any event occurred which with notice, lapse of time or both would result in any breach or
violation of, constitute a default under or give the holder of any indebtedness (or a person acting
on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a
part of such indebtedness under) (i) its respective charter or bylaws or equivalent constituent
documents, or (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which
the Bank or any of the Subsidiaries is a party or by which any of them or any of their respective
properties may be bound or affected, or (iii) any federal, state, local or foreign law, regulation
or rule, or (iv) any rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the rules and regulations of
the BASE and the NYSE), or (v) any decree, judgment or order applicable to the Bank or any of the
Subsidiaries or any of their respective
- 10 -
properties, except in the case of clauses (ii), (iii), (iv) or (v) above, where such conflict,
breach, violation or default would not, individually or in the aggregate, have a Material Adverse
Effect; and the execution, delivery and performance of this Agreement, the Deposit Agreement, the
Argentine Underwriting Agreement and the Preferential Subscription Documents to which the Bank is a
party and the consummation of the transactions contemplated hereby and thereby, including, without
limitation, the issuance and sale of the Shares, the ADSs and the Argentine Shares and the conduct
and consummation of the Preferential Subscription Transactions, will not conflict with, result in
any breach or violation of or constitute a default under (nor constitute any event which with
notice, lapse of time or both would result in any breach or violation of or constitute a default
under or give the holder of any indebtedness (or a person acting on such holder’s behalf) the right
to require the repurchase, redemption or repayment of all or a part of such indebtedness under) or
result in the creation or imposition of a lien, charge or encumbrance on any property or assets of
the Bank or any Subsidiary pursuant to (i) the charter or bylaws or equivalent constituent
documents of the Bank or any of the Subsidiaries, or (ii) any indenture, mortgage, deed of trust,
bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which the Bank or any of the Subsidiaries is a party or by which
any of them or any of their respective properties may be bound or affected, or (iii) any federal,
state, local or foreign law, regulation or rule (including, without limitation, any requirements of
the Argentine Securities Commission and the Banco Central de la República Argentina (the
“Central Bank of Argentina”)), or (iv) any rule or regulation of any self-regulatory
organization or other non-governmental regulatory authority (including, without limitation, the
rules and regulations of the BASE and the NYSE), or (v) any decree, judgment or order applicable to
the Bank or any of the Subsidiaries or any of their respective properties;
(n) no approval, authorization, consent or order of or filing with any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or agency, or of or with any
self-regulatory organization or other non-governmental regulatory authority (including, without
limitation, the BASE and the NYSE), or approval of the shareholders of the Bank is required in
connection with the consummation by the Bank of the transactions contemplated by this Agreement,
the Argentine Underwriting Agreement, the Deposit Agreement or the Preferential Subscription
Documents to which the Bank is a party, including, without limitation, the issuance and sale of the
Shares, the ADSs and the Argentine Shares and the conduct and consummation of the Preferential
Subscription Transactions, other than (i) as may be required and will have been obtained from the
Argentine Securities Commission and the BASE relating to the offering and listing of the Shares,
the ADSs and the Argentine Shares as contemplated by this Agreement, the Argentine Underwriting
Agreement and the Preferential Subscription Documents, (ii) as may be required and will have been
obtained from the Argentine Securities Commission and BASE relating to the payment of fees,
commissions and reimbursement of expenses pursuant to this Agreement and the Deposit Agreement,
(iii) registration of the Shares and the ADSs under the Act, which has been effected, and (iv) any
necessary qualification under the securities or blue sky laws of the various jurisdictions in which
the Shares and the ADSs are being offered by the Underwriters or under the rules and regulations of
the National Association of Securities Dealers, Inc. (the “NASD”);
(o) except as expressly set forth in the Registration Statement, each Preliminary Prospectus and
the Prospectus, (i) after consummation of the Preferential Subscription Transactions as described
therein (x) no person has the right, contractual or otherwise, to cause the Bank to issue or sell
to it any Class B Shares or shares of any other capital stock or other equity interests of the Bank
and (y) no person has any preemptive rights, accretion rights, resale rights, rights of first
refusal or other rights to purchase any Class B Shares or shares of any other capital stock of or
other equity interests
- 11 -
in the Bank and (ii) no person has the right to act as an underwriter or as a financial advisor to
the Bank in connection with the offer and sale of the Shares, the ADSs and the Argentine Shares, in
the case of each of the foregoing clauses (i) and (ii), whether as a result of the filing or
effectiveness of the Registration Statement, the sale of the Shares, the ADSs and the Argentine
Shares as contemplated in this Agreement or in the Argentine Underwriting Agreement, the conduct
and consummation of the Preferential Subscription Transactions or otherwise; no person has the
right, contractual or otherwise, to cause the Bank to register under the Act any Class B Shares or
shares of any other capital stock of or other equity interests in the Bank, or to include any such
shares or interests in the Registration Statement or the offering contemplated thereby, whether as
a result of the filing or effectiveness of the Registration Statement, the sale of the Shares, the
ADSs and the Argentine Shares as contemplated in this Agreement or in the Argentine Underwriting
Agreement, the conduct and consummation of the Preferential Subscription Transactions or otherwise;
(p) each of the Bank and the Subsidiaries has all necessary licenses, authorizations, consents and
approvals and has made all necessary filings required under any federal, state, local or foreign
law, regulation or rule, and has obtained all necessary licenses, authorizations, consents and
approvals from other persons, in order to conduct its respective business; neither the Bank nor any
of the Subsidiaries is in violation of, or in default under, or has received notice of any
proceedings relating to revocation or modification of, any such license, authorization, consent or
approval or any federal, state, local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Bank or any of the Subsidiaries, except where such violation, default,
revocation or modification would not, individually or in the aggregate, have a Material Adverse
Effect;
(q) all legal or governmental proceedings, affiliate transactions, off-balance sheet transactions
(including, without limitation, transactions related to, and the existence of, “variable interest
entities” within the meaning of Financial Accounting Standards Board Interpretation No. 46),
contracts, licenses, agreements, properties, leases or documents of a character required to be
described in the Registration Statement, any Preliminary Prospectus and the Prospectus or to be
filed as an exhibit to the Registration Statement have been so described or filed as required;
(r) there are no actions, suits, claims, investigations or proceedings pending or, to the knowledge
of the Bank, threatened or contemplated to which the Bank or any of the Subsidiaries or any of
their respective directors or officers is or would be a party or of which any of their respective
properties is or would be subject at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or agency, or before or by
any self-regulatory organization or other non-governmental regulatory authority (including, without
limitation, the rules and regulations of the BASE and the NYSE), except any such action, suit,
claim, investigation or proceeding which would not result in a judgment, decree or order having,
individually or in the aggregate, a Material Adverse Effect;
(s) Ernst & Young LLP, whose reports on the consolidated financial statements of the Bank and the
Subsidiaries and the consolidated financial statements of Suquía and its subsidiaries are included
in the Registration Statement, each Preliminary Prospectus and the Prospectus,
are independent
public accountants within the meaning of the rules and regulations of the Argentine Securities
Commission and are independent registered public accountants as required by the Act and by the
rules of the Public Company Accounting Oversight Board;
(t) the financial statements of the Bank and the Subsidiaries included in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus,
- 12 -
together with the related notes and schedules, present fairly the consolidated financial position
of the Bank and the Subsidiaries as of the dates indicated and the consolidated results of
operations and cash flows of the Bank and the Subsidiaries for the periods specified and have been
prepared in conformity with the Central Bank of Argentina’s accounting rules (“Argentine
Central Bank Accounting Rules”) applied on a consistent basis during the periods involved; the
financial information of the Bank and the Subsidiaries included in the Registration Statement, any
Preliminary Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, that
is described as having been prepared in conformity with generally accepted accounting principles in
the United States (“U.S. GAAP”) presents fairly the consolidated financial position of the
Bank and the Subsidiaries as of the dates indicated and the consolidated results of operations and
cash flows of the Bank and the Subsidiaries for the periods specified and have been prepared in
compliance with the requirements of the Act and Exchange Act and in conformity with U.S. GAAP
applied on a consistent basis during the periods involved; the financial statements of Suquía and
its subsidiaries included in the Registration Statement, any Preliminary Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any, together with the related notes and schedules,
present fairly the consolidated financial position of Suquía and its subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows of Suquía and its subsidiaries
for the periods specified and have been prepared in conformity with the Argentine Central Bank
Accounting Rules applied on a consistent basis during the periods involved; the financial
information of Suquía and its subsidiaries included in the Registration Statement, any Preliminary
Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, that is described
as having been prepared in conformity with U.S. GAAP presents fairly the consolidated financial
position of Suquía and its subsidiaries as of the dates indicated and the consolidated results of
operations and cash flows of Suquía and its subsidiaries for the periods specified and have been
prepared in compliance with the requirements of the Act and Exchange Act and in conformity with
U.S. GAAP applied on a consistent basis during the periods involved; all pro forma financial
statements or data included in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus comply with the requirements of Regulation S-X
of the Act, including, without limitation, Article 11 thereof, and the assumptions used in the
preparation of such pro forma financial statements and data are reasonable, the pro forma
adjustments used therein are appropriate to give effect to the transactions or circumstances
described therein and the pro forma adjustments have been properly applied to the historical
amounts in the compilation of those statements and data; the other financial and statistical data
set forth in the Registration Statement, any Preliminary Prospectus, the Prospectus or any
Permitted Free Writing Prospectus are accurately and fairly presented and prepared on a basis
consistent with the financial statements and books and records of the Bank; there are no financial
statements (historical or pro forma) that are required to be included in the Registration
Statement, any Preliminary Prospectus and the Prospectus (including, without limitation, as
required by Rules 3-12 or 3-05 or Article 11 of Regulation S-X under the Act) that are not included
as required; and the statistical information required by SEC Industry Guide 3 included in the
Registration Statement, any Preliminary Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any, presents fair
ly in all material respects the information set forth therein,
is in compliance in all material respects with the Act and such Guide 3, and is consistent in all
material respects with the Bank’s financial statements included in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus;
(u) subsequent to the time of execution of this Agreement or, if earlier, the respective dates as
of which information is given in the Registration Statement, each Preliminary Prospectus, the
Prospectus and the Permitted Free Writing Prospectuses, if any, in each case excluding any
amendments or supplements to the foregoing made after the execution of this Agreement, there has
- 13 -
not been (i) any material adverse change, or any development involving a prospective material
adverse change, in the business, properties, management, financial condition or results of
operations of the Bank and the Subsidiaries taken as a whole, (ii) any transaction which is
material to the Bank and the Subsidiaries taken as a whole, (iii) any obligation, direct or
contingent (including any off-balance sheet obligations), incurred by the Bank or any Subsidiary,
which is material to the Bank and the Subsidiaries taken as a whole, (iv) any change in the capital
stock or outstanding indebtedness of the Bank or any Subsidiaries or (v) any dividend or
distribution of any kind declared, paid or made on the capital stock of the Bank or any Subsidiary;
(v) the Bank has obtained for the benefit of the Underwriters the agreement (a “Lock-Up
Agreement”), in the form set forth as Exhibit A hereto, of each of its directors, each
of its senior management listed therein and each of the Selling Shareholders;
(w) neither the Bank nor any Subsidiary is, and at no time during which a prospectus is required by
the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or
any similar rule) in connection with any sale of Shares and ADSs will any of them be, and after
giving effect to the offering and sale of the Shares and the Argentine Shares and the conduct and
consummation of the Preferential Subscription Transactions neither of them will be, an “investment
company” or an entity “controlled” by an “investment company”, as such terms are defined in the
U.S. Investment Company Act of 1940, as amended (the “Investment Company Act”);
(x) except as disclosed in the Registration Statement, each Preliminary Prospectus and the
Prospectus, the Bank, and each of the Subsidiaries, has good and marketable title to all property
(real and personal) described in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus as being owned by each of them, free and clear
of all liens, claims, security interests or other encumbrances; and all the property described in
the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus as being held under lease by the Bank or a Subsidiary is held thereby under
valid, subsisting and enforceable leases, except with such exceptions as would not result in a
Material Adverse Effect;
(y) the Bank and the Subsidiaries own, or have obtained valid and enforceable licenses for, or
other rights to use, the inventions, patent applications, patents, trademarks (both registered and
unregistered), tradenames, service names, copyrights, trade secrets and other proprietary
information described in the Registration Statement, any Preliminary Prospectus, the Prospectus or
any Permitted Free Writing Prospectus as being owned or licensed by them or which are necessary for
the conduct of their respective businesses as currently conducted or as proposed to be conducted,
except where the failure to own, license or have such rights would not, individually or in the
aggregate, have a Material Adverse Effect (collectively, “Intellectual Property”); (i)
there are no third parties who have or, to the knowledge of the Bank after due inquiry, will be
able to establish rights to any Intellectual Property, except for, and to the extent of, the
ownership rights of the owners of the Intellectual Property which the Registration Statement
(excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus disclose is
licensed to the Bank; (ii) there is no infringement by third parties of any Intellectual Property;
(iii) there is no pending or to the knowledge of the Bank threatened action, suit, proceeding or
claim by others challenging the Bank’s rights in or to any Intellectual Property, and the Bank is
unaware of any facts which could form a reasonable basis for any such action, suit, proceeding or
claim; (iv) there is no pending or to the knowledge of the Bank threatened action, suit, proceeding
or claim by others challenging the validity, enforceability or scope of any Intellectual Property,
and the Bank is unaware of any facts which could form a reasonable basis for any such action, suit,
proceeding or claim; (v) there is no pending or to the knowledge of the
- 14 -
Bank threatened action, suit, proceeding or claim by others that the Bank or any Subsidiary
infringes or otherwise violates any patent, trademark, tradename, service name, copyright, trade
secret or other proprietary rights of others, and the Bank is unaware of any facts which could form
a reasonable basis for any such action, suit, proceeding or claim, except where such action, suit,
proceeding or claim would not result in a Material Adverse Effect; (vi) the Bank and the
Subsidiaries have complied with the terms of any agreement pursuant to which Intellectual Property
has been licensed to the Bank or any Subsidiary, and all such agreements are in full force and
effect; and (vii) there is no patent or patent application that contains claims that interfere with
the issued or pending claims of any of the Intellectual Property or that challenges the validity,
enforceability or scope of any of the Intellectual Property;
(z) except as described in the Registration Statement, each Preliminary Prospectus and the
Prospectus, no labor dispute with the employees of the Bank or any Subsidiary exists or, to the
knowledge of the Bank after due inquiry, is threatened or imminent that would, individually or in
the aggregate, have a Material Adverse Effect;
(aa) the Bank and the Subsidiaries and their properties, assets and operations each is in
compliance with, and holds all permits, authorizations and approvals required under, Environmental
Laws (as defined below), except to the extent that failure to so comply or to hold such permits,
authorizations or approvals would not, individually or in the aggregate, have a Material Adverse
Effect; there are no past, present or, to the knowledge of the Bank after due inquiry, reasonably
anticipated future events, conditions, circumstances, activities, practices, actions, omissions or
plans that could reasonably be expected to give rise to any material costs or liabilities to the
Bank or any Subsidiary under, or to interfere with or prevent compliance by the Bank or any
Subsidiary with, Environmental Laws; except as would not, individually or in the aggregate, have a
Material Adverse Effect, neither the Bank nor any of the Subsidiaries (i) is the subject of any
investigation, (ii) has received any notice or claim, (iii) is a party to or affected by any
pending or to the knowledge of the Bank threatened action, suit or proceeding, (iv) is bound by any
judgment, decree or order or (v) has entered into any agreement, in each case relating to any
alleged violation of any Environmental Law or any actual or alleged release or threatened release
or cleanup at any location of any Hazardous Materials (as defined below) (as used herein,
“Environmental Law” means any federal, state, local or foreign law, statute, ordinance,
rule, regulation, order, decree, judgment, injunction, permit, license, authorization or other
binding requirement, or common law, relating to health, safety or the protection, cleanup or
restoration of the environment or natural resources, including those relating to the distribution,
processing, generation, treatment, storage, disposal, transportation, other handling or release or
threatened release of Hazardous Materials, and “Hazardous Materials” means any material
(including, without limitation, pollutants, contaminants, hazardous or toxic substances or wastes)
that is regulated by or may give rise to liability under any Environmental Law);
(bb) all tax returns required to be filed by the Bank or any of the Subsidiaries have been timely
filed, and all taxes and other assessments of a similar nature (whether imposed directly or through
withholding) including any interest, additions to tax or penalties applicable thereto due or
claimed to be due from such entities have been timely paid, other than those being contested in
good faith and for which adequate reserves have been provided and those that would not,
individually or in the aggregate, result in a Material Adverse Effect;
(cc) the Bank, and each of the Subsidiaries, maintains insurance covering its properties,
operations, personnel and businesses as the Bank reasonably deems adequate; such insurance insures
against such losses and risks to an extent which is adequate in accordance with customary industry
- 15 -
practice to protect the Bank and the Subsidiaries and their businesses; all such insurance is fully
in force on the date hereof and will be fully in force at the time of purchase and any additional
time of purchase; neither the Bank nor any Subsidiary has reason to believe that it will not be
able to renew any such insurance as and when such insurance expires;
(dd) neither the Bank nor any of the Subsidiaries has sustained since the date of the last audited
financial statements of the Bank and the Subsidiaries included in the Registration Statement, each
Preliminary Prospectus and the Prospectus any loss or interference with its respective business
from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree;
(ee) neither the Bank nor any Subsidiary has sent or received any communication regarding
termination of, or intent not to renew, any of the contracts or agreements referred to or described
in any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus, or referred
to or described in or filed as an exhibit to, the Registration Statement, and no such termination
or non-renewal has been threatened by the Bank or any Subsidiary or, to the knowledge of the Bank
after due inquiry, any other party to any such contract or agreement;
(ff) the Bank, and each of the Subsidiaries, maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with Argentine Central Bank Accounting
Rules and to maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the recorded accounting
for assets is compared with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences;
(gg) the Bank has established and maintains and evaluates “disclosure controls and procedures” (as
such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and “internal control over
financial reporting” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act);
such disclosure controls and procedures are designed to ensure that material information relating
to the Bank, including its consolidated subsidiaries, is made known to the Bank’s Chief Executive
Officer and its Chief Financial Officer by others within those entities, and such disclosure
controls and procedures are effective to perform the functions for which they were established; the
Bank’s auditors and the Audit Committee of the Board of Directors of the Bank have been advised of:
(i) any significant deficiencies in the design or operation of internal controls which could
adversely affect the Bank’s ability to record, process, summarize, and report financial data; and
(ii) any fraud, whether or not material, that involves management or other employees who have a
role in the Bank’s internal controls; any material weaknesses in internal controls have been
identified for the Bank’s auditors; and the Bank has taken all necessary actions to ensure that,
upon and at all times after effectiveness of the Registration Statement, the Bank and the
Subsidiaries and their respective officers and directors, in their capacities as such, will be in
compliance in all material respects with the provisions of the U.S. Xxxxxxxx-Xxxxx Act of 2002 and
the rules and regulations promulgated thereunder;
(hh) Other than loans exempted under Rule 13k-1 of the Exchange Act, the Bank has not, directly or
indirectly, including through any Subsidiary, extended credit, arranged to extend credit, or
renewed any extension of credit, in the form of a personal loan, to or for any director or
executive officer of the Bank, or to or for any family member or affiliate of any director or
executive officer of
- 16 -
the Bank;
(ii) each “forward-looking statement” (within the meaning of Section 27A of the Act or Section 21E
of the Exchange Act) contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus has been made or reaffirmed with a reasonable
basis and has been disclosed in good faith;
(jj) all market-related data included in the Registration Statement, any Preliminary Prospectus,
the Prospectus or any Permitted Free Writing Prospectus are based on or derived from sources that
the Bank believes to be reliable and accurate, and the Bank has obtained the written consent to the
use of such data from such sources to the extent required;
(kk) neither the Bank nor any of the Subsidiaries nor, to the knowledge of the Bank, any director,
officer, agent, employee or affiliate of the Bank or any of the Subsidiaries is aware of or has
taken any action, directly or indirectly, that would result in a violation by such persons of the
U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder
(the “Foreign Corrupt Practices Act”), including, without limitation, making use of the
mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any “foreign official” (as
such term is defined in the Foreign Corrupt Practices Act) or any foreign political party or
official thereof or any candidate for foreign political office, in contravention of the Foreign
Corrupt Practices Act; and the Bank, the Subsidiaries and, to the knowledge of the Bank, its
affiliates have conducted their businesses in compliance with the Foreign Corrupt Practices Act and
have instituted and maintain policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith;
(ll) the operations of the Bank and the Subsidiaries are and have been conducted at all times in
compliance with applicable requirements in Argentina in connection with the Money Laundering Law
No. 25,246, as amended; Decrees No. 169/2001 and 1500/2001; the Resolutions of the Financial
Information Unit, in particular Resolution No. 2/2002; Communications No. A4353, A4383 and A4424 of
the Central Bank of Argentina and any amendments thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any Argentine governmental agency
(collectively, the “Argentine Money Laundering Regulations”); and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator or
non-governmental authority involving the Bank or any of the Subsidiaries with respect to the
Argentine Money Laundering Regulations is pending or, to the best knowledge of the Bank,
threatened;
(mm) neither the Bank nor any of the Subsidiaries nor, to the knowledge of the Bank, any director,
officer, agent, employee or affiliate of the Bank or any of the Subsidiaries is currently subject
to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the Bank will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint
venture partner or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC;
(nn) no Subsidiary is currently prohibited, directly or indirectly, from paying any dividends to
the Bank, from making any other distribution on such Subsidiary’s capital stock, from repaying to
the
- 17 -
Bank any loans or advances to such Subsidiary from the Bank or from transferring any of such
Subsidiary’s property or assets to the Bank or any other Subsidiary of the Bank, except as
described in the Registration Statement (excluding the exhibits thereto), each Preliminary
Prospectus and the Prospectus;
(oo) immediately after the issuance and sale of the Shares, the ADSs and the Argentine Shares as
contemplated in this Agreement and in the Argentine Underwriting Agreement, and the conduct and
consummation of the Preferential Subscription Transactions, no shares of preferred stock of the
Bank shall be issued or outstanding; and the issuance and sale of the Shares, the ADSs and the
Argentine Shares as contemplated in this Agreement and in the Argentine Underwriting Agreement, and
the conduct and consummation of the Preferential Subscription Transactions, will not cause any
holder of any shares of capital stock, securities convertible into or exchangeable or exercisable
for capital stock or options, warrants or other rights to purchase capital stock or any other
securities of the Bank to have any right to acquire any shares of preferred stock of the Bank;
(pp) the Bank is in compliance with the rules of the NYSE, including, without limitation, the
requirements for initial and continued listing of the ADSs on the NYSE; and the Class B Shares are
listed on the BASE and the Bank has not received any notice of any proceedings relating to the
delisting of the Class B Shares from such stock exchange;
(qq) except pursuant to this Agreement and the Argentine Underwriting Agreement, neither the Bank
nor any of the Subsidiaries has incurred any liability for any finder’s or broker’s fee or agent’s
commission in connection with the execution and delivery of this Agreement or the Argentine
Underwriting Agreement or the consummation of the transactions contemplated hereby or thereby or by
the Prospectus;
(rr) neither the Bank nor any of the Subsidiaries nor any of their respective directors, officers,
affiliates or controlling persons has taken, directly or indirectly, any action designed, or which
has constituted or might reasonably be expected to cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any security of the Bank to facilitate
the sale or resale of the Shares, the ADSs or the Argentine Shares;
(ss) to the Bank’s knowledge after due inquiry, there are no affiliations or associations between
(i) any member of the NASD and (ii) the Bank or any of the Bank’s officers, directors or 5% or
greater securityholders or any beneficial owner of the Bank’s unregistered equity securities that
were acquired at any time on or after the 180th day immediately preceding the date the Registration
Statement was initially filed with the SEC, except as set forth in the Registration Statement
(excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus;
(tt) this Agreement, the Argentine Underwriting Agreement and the Deposit Agreement are, and all
Preferential Subscription Documents to which the Bank is a party are or shall be, in proper legal
form under the laws of Argentina for the enforcement thereof in Argentina against the Bank, and to
ensure the legality, validity, enforcement or admissibility into evidence of this Agreement, the
Deposit Agreement or any of the Preferential Subscription Documents to which the Bank is a party in
Argentina, it is not necessary that this Agreement, the Deposit Agreement, any Preferential
Subscription Documents or any other document related hereto or thereto be filed, registered or
recorded with or executed or notarized before any court or other authority in Argentina or that any
tax or fee be paid in Argentina on or in respect of this Agreement, the Deposit Agreement, any
Preferential Subscription Documents or any other document, other than court costs, including
- 18 -
(without limitation) filing fees and except that a certified Spanish translation by a sworn public
translator is required for each document in a language other than the Spanish language sought to be
enforced in the courts of Argentina;
(uu) except as otherwise disclosed in the Registration Statement, each Preliminary Prospectus and
the Prospectus, there is no tax, duty, levy, impost, deduction, charge or withholding imposed by
Argentina or any political subdivision thereof or taxing authority therein either (a) on or by
virtue of the Bank’s execution, delivery, performance or enforcement of this Agreement, the
Argentine Underwriting Agreement, the Deposit Agreement, all the Preferential Subscription
Documents to which the Bank is a party or of any other document to be furnished hereunder or
thereunder, other than a court tax of 3% of the amount in controversy imposed with respect to the
initiation of any judicial proceeding to enforce this Agreement, the Argentine Underwriting
Agreement, the Deposit Agreement or any of the Preferential Subscription Documents to which the
Bank is a party in the City of Buenos Aires or (b) on any payment to be made pursuant to this
Agreement or the Argentine Underwriting Agreement (other than withholding income tax or value added
tax on commissions payable to Argentine entities), or the Deposit Agreement or any of the
Preferential Subscription Documents to which the Bank is a party, or on payments by the Bank to any
holder of Shares or the ADSs; under current and, to the knowledge of the Bank after due inquiry,
proposed or pending, Argentine law and regulations, dividends, either in cash or any other form,
paid on the Class B Shares (including the Shares) or the ADSs are not subject to any Argentine
withholding or any other tax, except as otherwise described in the Registration Statement, each
Preliminary Prospectus and the Prospectus;
(vv) the Bank has the power to submit, and pursuant to Section 16 of this Agreement has legally,
validly, effectively and irrevocably submitted, to the jurisdiction of any federal or state court
in the State of New York, County of New York, and has the power to designate, appoint and empower,
and pursuant to Section 16 of this Agreement has legally, validly and effectively designated,
appointed and empowered, an agent for service of process in any suit or proceeding based on or
arising under this Agreement in any federal or state court in the State of New York;
(ww) except as otherwise described in the Registration Statement, each Preliminary Prospectus and
the Prospectus, no exchange control authorization or any other authorization, approval, consent or
license of any governmental authority or agency is required for the payment by the Bank to holders
of the Shares or ADSs pursuant to the terms of the Deposit Agreement or the ADRs of any amounts in
United States dollars; and
(xx) none of the Bank, its affiliates or any person acting on their behalf has, directly or
indirectly, made any offers or sales of any preemptive rights or accretion rights, pursuant to the
Preferential Subscription or otherwise, under circumstances that would require registration under
the Act.
In addition, any certificate signed by any officer of the Bank or any of the Subsidiaries and
delivered to the Underwriters or counsel for the Underwriters in connection with the offering of
the Shares and the ADSs and the Preferential Subscription Transactions shall be deemed to be a
representation and warranty by the Bank or Subsidiary, as the case may be, as to matters covered
thereby, to each Underwriter.
4. Representations and Warranties of the Selling Shareholders. Each Selling Shareholder,
severally and not jointly, further represents and warrants to each of the Underwriters that:
- 19 -
(a) such Selling Shareholder has, and will have, valid and marketable title to the Shares to be
sold by such Selling Shareholder hereunder and to the Argentine Shares to be sold by the Selling
Shareholder pursuant to the Argentine Underwriting Agreement; upon the sale of such Shares to the
Underwriters pursuant to this Agreement (whether the time of purchase or any additional time of
purchase, as the case may be), all right, title and interest in such Shares will be transferred to
the Underwriters free and clear of any claim, lien, encumbrance, security interest, community
property right, restriction on transfer or other defect in title; upon the sale of such Argentine
Shares to the Argentine Underwriters pursuant to the Argentine Underwriting Agreement, all right,
title and interest in such Argentine Shares will be transferred to the Argentine Underwriters free
and clear of any claim, lien, encumbrance, security interest, community property right, restriction
on transfer or other defect in title;
(b) such Selling Shareholder has valid and marketable title to the Selling Shareholders’ Preemptive
Rights to be assigned by such Selling Shareholder pursuant to the Preemptive Rights Assignment
Agreement; all right, title and interest in such Selling Shareholders’ Preemptive Rights have been
transferred to the Underwriters free and clear of any claim, lien, encumbrance, security interest,
community property right, restriction on transfer or other defect in title; and, upon the exercise
of such Selling Shareholders’ Preemptive Rights by the Underwriters at the time of purchase
pursuant to the Preemptive Rights Exercise Agreement and this Agreement, the Underwriters will
acquire all right, title and interest in the Firm Shares to be issued and sold by the Bank
hereunder free and clear of any claim, lien, encumbrance, security interest, community property
right, restriction on transfer or other defect in title;
(c) such Selling Shareholder has and, at the time of delivery of the Shares to be sold by such
Selling Shareholder pursuant to this Agreement (whether the time of purchase or any additional time
of purchase, as the case may be), at the times of delivery of the Argentine Shares to be sold by
such Selling Shareholder pursuant to the Argentine Underwriting Agreement, and at the time of
settlement, if any, of the Standby Subscription Obligation by such Selling Shareholder, will have
full legal right, power and capacity, and all authorizations and approvals required by law (other
than those imposed by the Act and state securities or blue sky laws), to (i) enter into this
Agreement, the Argentine Underwriting Agreement, the Escrow Agreement the Custody Agreement (as
defined below) and all Preferential Subscription Documents to which such Selling Shareholder is a
party and to execute the Power of Attorney, (ii) sell, assign, transfer and deliver such Shares,
ADSs and Argentine Shares in the manner provided in this Agreement and the Argentine Underwriting
Agreement, (iii) deposit such Shares (including, without limitation, Shares subject to the
Over-Allotment Option) in the Caja de Valores account(s) designated by the Managing Underwriters as
described in the Custody Agreement, (iv) assign and transfer to the Underwriters the Selling
Shareholders’ Preemptive Rights assigned by such Selling Shareholder in the manner provided in the
Preemptive Rights Assignment Agreement, (v) purchase Class B Shares in the manner provided in the
Standby Subscription Agreement and (vi) make the representations, warranties and agreements made by
such Selling Shareholder herein and therein;
(d) this Agreement, the Argentine Underwriting Agreement, the Escrow Agreement, the custody
agreement (the “Custody Agreement”), dated ___, 2006, between ___, as custodian (the
“Custodian”), and the Selling Shareholders and the Power of Attorney have each been duly executed
and delivered by such Selling Shareholder, and each is a legal, valid and binding agreement of such
Selling Shareholder enforceable in accordance with its terms;
(e) the Preferential Subscription Documents to which such Selling Shareholders is a party have
- 20 -
each been duly executed and delivered by such Selling Shareholder, and each is a legal, valid and
binding agreement of such Selling Shareholder enforceable in accordance with its terms;
(f) the Registration Statement complied when it became effective, complies as of the date hereof
and, as amended or supplemented, at the time of purchase, each additional time of purchase, if any,
and at all times during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar rule) in connection
with any sale of Shares or ADSs, will comply, in all material respects, with the requirements of
the Act; the ADS Registration Statement complied when it became effective, complies as of the date
hereof and, as amended or supplemented, at the time of purchase, each additional time of purchase,
if any, and at all times during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar rule) in connection
with any sale of Shares or ADSs, will comply, in all material respects, with the requirements of
the Act; the Registration Statement did not, as of the Effective Time, contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; the ADS Registration Statement did not, as of the
Effective Time, contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading; each
Preliminary Prospectus complied, at the time it was filed with the SEC, and complies as of the date
hereof, in all material respects with the requirements of the Act; at no time during the period
that begins on the earlier of the date of such Preliminary Prospectus and the date such Preliminary
Prospectus was filed with the SEC and ends at the time of purchase did or will any Preliminary
Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and at no time during such period did or
will any Preliminary Prospectus, as then amended or supplemented, together with any combination of
one or more of the then issued Permitted Free Writing Prospectuses, if any, include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
the Prospectus will comply, as of its date, the date that it is filed with the SEC, the time of
purchase, each additional time of purchase, if any, and at all times during which a prospectus is
required by the Act to be delivered (whether physically or through compliance with Rule 172 under
the Act or any similar rule) in connection with any sale of Shares or ADSs, in all material
respects, with the requirements of the Act (including, without limitation, Section 10(a) of the
Act); at no time during the period that begins on the earlier of the date of the Prospectus and the
date the Prospectus is filed with the SEC and ends at the later of the time of purchase, the latest
additional time of purchase, if any, and the end of the period during which a prospectus is
required by the Act to be delivered (whether physically or through compliance with Rule 172 under
the Act or any similar rule) in connection with any sale of Shares or ADSs did or will the
Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; at no time during the period that begins
on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will
any Permitted Free Writing Prospectus include an untrue statement of a material f
act or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that
such Selling Shareholder makes no representation or warranty with respect to any statement
contained in the Registration Statement, the ADS Registration Statement, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in
conformity with information concerning an Underwriter and furnished in writing by or on behalf of
such Underwriter through you
- 21 -
to the Bank expressly for use in the Registration Statement, the ADS Registration Statement, such
Preliminary Prospectus, the Prospectus or such Permitted Free Writing Prospectus;
(g) such Selling Shareholder has no reason to believe, after due inquiry, that the representations
and warranties of the Bank contained in Section 3 hereof are not true and correct in all material
respects;
(h) all information with respect to such Selling Shareholder included in the Registration
Statement, any Preliminary Prospectus or the Prospectus complied and will comply with all
applicable provisions of the Act and Exchange Act;
(i) such Selling Shareholder has duly and irrevocably authorized the Representatives of the Selling
Shareholders, on behalf of such Selling Shareholder, to execute and deliver this Agreement, the
Argentine Underwriting Agreement, the Escrow Agreement, the Preemptive Rights Assignment and the
Standby Subscription Agreement and any other documents necessary or desirable in connection with
the transactions contemplated hereby or thereby, to deliver the Shares and ADSs to be sold by such
Selling Shareholder pursuant to this Agreement and receive payment therefor pursuant hereto and the
Escrow Agreement, to deliver the Argentine Shares to be sold by such Selling Shareholder pursuant
to the Argentine Underwriting Agreement, to assign the Selling Shareholders’ Preemptive Rights
assigned by such Selling Shareholder in the manner provided in the Preemptive Rights Assignment
Agreement and to pay for and receive the Class B Shares, if any, to be purchased by such Selling
Shareholder in the manner provided in the Standby Subscription Agreement and the Escrow Agreement;
(j) the sale of the Shares to be sold by such Selling Shareholder pursuant to this Agreement is not
prompted by any information concerning the Bank or any Subsidiary which is not set forth in the
Registration Statement (excluding exhibits thereto), each Preliminary Prospectus and the
Prospectus;
(k) neither such Selling Shareholder nor any of its affiliates has taken, directly or indirectly,
any action designed to, or which has constituted or might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any
security of the Bank to facilitate the sale or resale of the Shares, the ADSs or the Argentine
Shares;
(l) there are no affiliations or associations between any member of the NASD and such Selling
Shareholder, except as set forth in the Registration Statement (excluding exhibits thereto), each
Preliminary Prospectus and the Prospectus; none of the proceeds received by such Selling
Shareholder from the sale of the Shares or the Argentine Shares to be sold by such Selling
Shareholder pursuant to this Agreement or the Argentine Underwriting Agreement will be paid to a
member of the NASD or any affiliate of such member;
(m) at the time of purchase, each additional time of purchase, and at the time of settlement, if
any, of the Standby Subscription Obligation by such Selling Shareholder, all stock transfer or
other taxes, if any, that are required to be paid in connection with the sale and transfer of the
Shares and the ADSs to be sold by such Selling Shareholder to the several Underwriters hereunder,
or the assignment and transfer to the several Underwriters of the Selling Shareholders’ Preemptive
Rights assigned by such Selling Shareholder in the manner provided in the Preemptive Rights
Assignment Agreement, or the purchase from the Bank of Class B Shares, if any, by such Selling
Shareholder in the manner provided in the Standby Subscription Agreement, shall have been fully
paid or provided for by such Selling Shareholder, and all laws imposing such taxes shall have been
fully complied
- 22 -
with;
(n) no approval, authorization, consent or order of or filing with any federal, state, local or
foreign governmental or regulatory commission, court, board, body, authority or agency, or of or
with any self-regulatory organization or other non-governmental regulatory authority (including,
without limitation, the BASE and the NYSE), is required in connection with the sale of the Shares,
the ADSs or the Argentine Shares to be sold by such Selling Shareholder, or the assignment and
transfer to the several Underwriters of the Selling Shareholders’ Preemptive Rights assigned by
such Selling Shareholder in the manner provided in the Preemptive Rights Assignment Agreement, or
the consummation by such Selling Shareholder of the transactions contemplated by this Agreement,
the Argentine Underwriting Agreement, the Deposit Agreement, the Escrow Agreement, the Custody
Agreement, the Power of Attorney or the Preferential Subscription Documents to which such Selling
Shareholder is a party other than (i) as may be required and will have been obtained from the
Argentine Securities Commission and the BASE relating to the offering and listing of the Shares and
the Argentine Shares as contemplated by this Agreement and the Argentine Underwriting Agreement and
the Preferential Subscription Documents, (ii) as may be required and will have been obtained from
the Argentine Securities Commission and BASE relating to the payment of fees, commissions and
reimbursement of expenses pursuant to this Agreement and the Deposit Agreement, (iii) registration
of the Shares and the ADSs under the Act, which has been effected, and (iv) any necessary
qualification under the securities or blue sky laws of the various jurisdictions in which the
Shares and the ADS are being offered by the Underwriters or under the rules and regulations of the
NASD;
(o) such Selling Stockholder has not, prior to the execution of this Agreement, offered or sold any
Shares or ADSs by means of any “prospectus” (within the meaning of the Act), or used any
“prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in
each case other than the then most recent Preliminary Prospectus;
(p) pursuant to the Custody Agreement, the Shares to be sold by such Selling Shareholder
(including, without limitation, Shares subject to the Over-Allotment Option) have been placed in
custody for the purpose of making delivery of such Shares in accordance with the Deposit Agreement;
such Selling Shareholder agrees that (i) such Shares are for the benefit of, and coupled with and
subject to the interest of, the Custodian, the Representatives of the Selling Shareholders, the
Underwriters and the Bank, (ii) the arrangements made by such Selling Shareholder for custody and
for the appointment of the Custodian and the Representatives of the Selling Shareholders by such
Selling Shareholder are irrevocable, and (iii) the obligations of such Selling Shareholder
hereunder shall not be terminated by operation of law, whether by the death, disability or
incapacity of such Selling Shareholder or the occurrence of any other event; if such Selling
Shareholder dies, becomes disabled or is incapacitated or if any other such event occurs before the
delivery of the Shares under the Deposit Agreement, the Shares shall be delivered by the Custodian
in accordance with the terms and conditions of the Power of Attorney, Custody Agreement, the
Deposit Agreement and this Agreement, and actions taken by the Custodian and the Representatives of
the Selling Shareholders pursuant to the Custody Agreement or the Power of Attorney shall be as
valid as if the death, disability, incapacity or other event had not occurred, regardless of
whether or not the Custodian or the Representatives of the Selling Shareholders, or either of them,
shall have received notice thereof;
(q) the spouse, if any, of such Selling Shareholder has irrevocably granted, pursuant to the Power
of Attorney, her consent, in accordance with Section 1277 of Argentina’s Código Civil, to the sale
of the Shares, the ADSs and the Argentine Shares pursuant to this Agreement and the Argentine
- 23 -
Underwriting Agreement and to the assignment by such Selling Shareholder of the Selling
Shareholders’ Preemptive Rights pursuant to the Preemptive Rights Assignment Agreement;
(r) neither the execution, delivery and performance of this Agreement, the Argentine Underwriting
Agreement, the Escrow Agreement, the Custody Agreement, the Power of Attorney or any Preferential
Subscription Documents to which such Selling Shareholder is a party, nor the sale by such Selling
Shareholder of the Shares, the ADSs or the Argentine Shares to be sold by such Selling Shareholder
pursuant to this Agreement and the Argentine Underwriting Agreement, nor the consummation of the
Preferential Subscription Transactions or the other transactions contemplated hereby or thereby,
will conflict with, result in any breach or violation of or constitute a default under (or
constitute any event which with notice, lapse of time or both would result in any breach or
violation of or constitute a default under) (i) any indenture, mortgage, deed of trust, bank loan
or credit agreement or other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which such Selling Shareholder is a party or by which such Selling
Shareholder or any of its properties may be bound or affected, or (ii) any federal, state, local or
foreign law, regulation or rule, or (iii) any decree, judgment or order applicable to such Selling
Shareholder;
(s) this Agreement, the Argentine Underwriting Agreement and all the Preferential Subscription
Documents to which such Selling Shareholder is a party are in proper legal form under the laws of
Argentina for the enforcement thereof in Argentina against such Selling Shareholder, provided that
to ensure the legality, validity, enforcement or admissibility into evidence of this Agreement in
Argentina, it is not necessary that this Agreement, any Preferential Subscription Document or any
other document related thereto be filed, registered or recorded with or executed or notarized
before any court or other authority in Argentina or that any tax or fee be paid in Argentina on or
in respect of this Agreement, any Preferential Subscription Document or any other document, other
than court costs, including (without limitation) filing fees and except that a certified Spanish
translation by a sworn public translator is required for each document in a language other than the
Spanish language sought to be enforced in the courts of Argentina; and
(t) such Selling Shareholder has the power to submit, and pursuant to Section 16 of this Agreement
has legally, validly, effectively and irrevocably submitted, to the jurisdiction of any federal or
state court in the State of New York, County of New York, and has the power to designate, appoint
and empower, and pursuant to Section 16 of this Agreement has legally, validly and effectively
designated, appointed and empowered, an agent for service of process in any suit or proceeding
based on or arising under this Agreement in any federal or state court in the State of New York.
In addition, any certificate signed by any Selling Shareholder or by any Representatives of
the Selling Shareholders and delivered to the Underwriters or counsel for the Underwriters in
connection with the offering of the Shares and the ADSs and the Preferential Subscription
Transactions shall be deemed to be a representation and warranty by such Selling Shareholder as to
matters covered thereby, to each Underwriter.
5. Certain Covenants of the Bank. The Bank hereby agrees:
(a) to conduct and consummate the Preferential Subscription in accordance with the terms set forth
in the Registration Statement, each Preliminary Prospectus, the Prospectus and the Preferential
Subscription Documents; and to sell Class B Shares, to the extent all such shares are otherwise not
purchased in the Preferential Subscription, to the Selling Shareholders under the Standby
- 24 -
Subscription Obligation in accordance with the terms set forth in the Registration Statement, each
Preliminary Prospectus and the Prospectus;
(b) to furnish such information as may be required and otherwise to cooperate in qualifying the
Shares and the ADSs for offering and sale under the securities or blue sky laws of such states or
other jurisdictions as you may designate and to maintain such qualifications in effect so long as
you may request for the distribution of the Shares and the ADSs; provided, however,
that the Bank shall not be required to qualify as a foreign corporation or to consent to the
service of process under the laws of any such jurisdiction (except service of process with respect
to the offering and sale of the Shares and the ADSs); and to promptly advise you of the receipt by
the Bank of any notification with respect to the suspension of the qualification of the Shares or
the ADSs for offer or sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose;
(c) to make available to the Underwriters in New York City, as soon as practicable after the
Registration Statement becomes effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if
the Bank shall have made any amendments or supplements thereto after the effective date of the
Registration Statement) as the Underwriters may request for the purposes contemplated by the Act;
in case any Underwriter is required to deliver (whether physically or through compliance with Rule
172 under the Act or any similar rule) a prospectus after the nine-month period referred to in
Section 10(a)(3) of the Act in connection with the sale of the Shares and the ADSs, the Bank will
prepare, at its expense, promptly upon request such amendment or amendments to the Registration
Statement, the ADS Registration Statement and the Prospectus as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act;
(d) if, at the time this Agreement is executed and delivered, it is necessary for the Registration
Statement or any post-effective amendment thereto, or the ADS Registration Statement or any
post-effective amendment thereto, to be declared effective before the Shares and the ADSs may be
sold, the Bank will use its best efforts to cause the Registration Statement or such post-effective
amendment, or the ADS Registration Statement or any post-effective amendment thereto, as
applicable, to become effective as soon as possible, and the Bank will advise you promptly and, if
requested by you, will confirm such advice in writing, (i) when the Registration Statement and any
such post-effective amendment thereto, or the ADS Registration Statement or any post-effective
amendment thereto, as applicable, has become effective, and (ii) if Rule 430A under the Act is
used, when the Prospectus is filed with the SEC pursuant to Rule 424(b) under the Act (which the
Bank agrees to file in a timely manner in accordance with such Rules);
- 25 -
(e) to advise you promptly, confirming such advice in writing, of any request by the SEC for
amendments or supplements to the Registration Statement, the ADS Registration Statement or the
Exchange Act Registration Statement or any Preliminary Prospectus, the Prospectus or any Permitted
Free Writing Prospectus or for additional information with respect thereto, or of notice of
institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the
Registration Statement or the ADS Registration Statement and, if the SEC should enter a stop order
suspending the effectiveness of the Registration Statement or the ADS Registration Statement, to
use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise
you promptly of any proposal to amend or supplement the Registration Statement, the ADS
Registration Statement or the Exchange Act Registration Statement or any Preliminary Prospectus,
the Prospectus or any Permitted Free Writing Prospectus and to provide you and Underwriters’
counsel copies of any such documents for review and comment a reasonable amount of time prior to
any proposed filing and to file no such amendment or supplement to which you shall object in
writing;
(f) subject to Section 5(e) hereof, to file promptly all reports and documents required to be filed
by the Bank with the SEC in order to comply with the Exchange Act subsequent to the date of the
Prospectus and for so long as a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar rule) in connection
with the offering or sale of the Shares and the ADSs; and to provide you, for your review and
comment, with a copy of such reports and statements and other documents to be filed by the Bank
pursuant to Section 13 or 15(d) of the Exchange Act during such period a reasonable amount of time
prior to any proposed filing, and make such modifications as you may reasonably request; and to
promptly notify you of such filing;
(g) if necessary or appropriate, to file a registration statement pursuant to, and in accordance
with, Rule 462(b) under the Act and pay the applicable fees in accordance with the Act;
(h) to advise the Underwriters promptly of the happening of any event within the time during which
a prospectus relating to the Shares and the ADSs is required to be delivered under the Act (whether
physically or through compliance with Rule 172 under the Act or similar rule) which could require
the making of any change in the Prospectus then being used so that the Prospectus would not include
an untrue statement of material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they are made, not misleading,
and, during such time, subject to Section 5(e) hereof, to prepare and furnish, at the Bank’s
expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be
necessary to reflect any such change;
(i) to make generally available to its security holders, and to deliver to you, an earnings
statement of the Bank (which will satisfy the provisions of Section 11(a) of the Act) covering a
period of twelve months beginning after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of
such twelve-month period but in any case not later than June 30, 2007;
(j) to furnish to you two copies of the Registration Statement, as initially filed with the SEC,
and of all amendments thereto (including all exhibits thereto) and sufficient copies of the
foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(k) to the extent not available on the SEC’s XXXXX system, to furnish to you promptly and, upon
request, to each of the other Underwriters for a period of five years from the date of this
- 26 -
Agreement (i) copies of any reports, proxy statements, or other communications which the Bank shall
send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of
all annual, quarterly, transition and current reports filed with the SEC on Forms 20-F or 6-K, or
such other similar forms as may be designated by the SEC, (iii) copies of documents or reports
filed with any national securities exchange on which any class of securities of the Bank is listed
and (iv) such other information as you may reasonably request regarding the Bank or the
Subsidiaries;
(l) to furnish to you as early as practicable prior to the time of purchase and any additional time
of purchase, as the case may be, but not later than two business days prior thereto, a copy of the
latest available unaudited interim and monthly consolidated financial statements, if any, of the
Bank and the Subsidiaries which have been read by the Bank’s independent certified public
accountants, as stated in their letter to be furnished pursuant to Section 9(d) hereof;
(m) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption
“Use of proceeds” in the Prospectus and to file such reports with the SEC with respect to the sale
of the Shares and the application of the proceeds therefrom as may be required by Rule 463 under
the Act;
(n) for a period of 180 days after the date hereof (the “Lock-Up Period”), without the
prior written consent of UBS and RJ, not to (i) sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of,
directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Exchange Act and the rules and
regulations of the SEC promulgated thereunder, with respect to, any shares of its capital stock or
ADSs representing those shares, or securities convertible into or exchangeable or exercisable for
any shares of its capital stock or ADSs representing those shares, or warrants or other rights to
purchase any shares of its capital stock or ADSs representing those shares or any other securities
of the Bank that are substantially similar to such shares or ADSs, (ii) file or cause to be
declared effective a registration statement under the Act relating to the offer and sale of any
shares of its capital stock or ADSs representing those shares, or securities convertible into or
exercisable or exchangeable for shares of its capital stock or ADSs representing those shares, or
warrants or other rights to purchase shares of its capital stock or ADSs representing those shares
or any other securities of the Bank that are substantially similar to any shares of its capital
stock or ADSs representing those shares, (iii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of ownership of shares
of its or ADSs representing those shares, or any securities convertible into or exercisable or
exchangeable for shares of its capital stock or ADSs representing those shares, or warrants or
other rights to purchase shares of its capital stock or ADSs representing those shares or any such
securities, whether any such transaction is to be settled by delivery of shares of its capital
stock or ADSs representing those shares or such other securities, in cash or otherwise or (iv)
publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii),
except, in each case, for (A) the registration of the Shares and the ADSs and the sales to the
Underwriters pursuant to this Agreement, (B) the sale of the Argentine Shares to the Argentine
Underwriters pursuant to the Argentine Underwriting Agreement and (C) the sale of Class B Shares
pursuant to the Preferential Subscription Transactions as set forth in the Registration Statement,
each Preliminary Prospectus and Prospectus; provided, however, that if (a) during
the period that begins on the date that is fifteen (15) calendar days plus three (3) business days
before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Bank
issues an earnings release or material news or a material event relating to the Bank occurs; or (b)
prior to the expiration of the Lock-Up Period, the Bank announces that it will release earnings
results during the sixteen (16) day
- 27 -
period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this
Section 5(o) shall continue to apply until the expiration of the date that is fifteen (15) calendar
days plus three (3) business days after the date on which the issuance of the earnings release or
the material news or material event occurs;
(o) prior to the time of purchase or any additional time of purchase, as the case may be, to issue
no press release or other communication directly or indirectly and hold no press conferences with
respect to the Bank or any Subsidiary, the financial condition, results of operations, business,
properties, assets, or liabilities of the Bank or any Subsidiary, or the offering of the Shares and
the ADSs, without your prior consent, which consent shall not be unreasonably withheld;
(p) not, at any time at or after the execution of this Agreement, to offer or sell any Shares or
ADSs by means of any “prospectus” (within the meaning of the Act), or use any “prospectus” (within
the meaning of the Act) in connection with the offer or sale of the Shares or ADSs, in each case
other than the Prospectus;
(q) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action
designed, or which has constituted or might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the
Bank to facilitate the sale or resale of the Shares, the ADSs or the Argentine Shares;
(r) to use its best efforts to cause the ADSs to be listed on the NYSE and to maintain such
listing;
(s) to use its best efforts to maintain the listings of the Class B Shares on the BASE and to
maintain the registration of the Bank with the Argentine Securities Commission;
(t) to use its best efforts to file any documents or reports with respect to the Class B Shares or
ADSs required to be file with the Argentine Securities Commission and the BASE in the time period
required for such filing;
(u) to use its best efforts in cooperation with the Underwriters to permit the ADSs to be eligible
for clearance and settlement through DTC;
(v) to comply with the Deposit Agreement so as to permit ADRs evidencing ADSs to be executed and
delivered by the Depositary to the Underwriters for their respective accounts at closing of the
purchase of the Firm Shares or the Additional Shares, as the case may be; and
(w) to furnish to the Depositary and to holders of the ADSs, directly or through the Depositary,
such reports, documents and other information described in each Preliminary Prospectus and the
Prospectus under the caption “Description of American Depositary Shares” in accordance with the
procedures stated thereunder.
6. Certain Covenants of the Selling Shareholders. Each Selling Shareholder hereby,
severally and not jointly, agrees:
(a) to the extent that there remain unsold Class B Shares offered in the Preferential Subscription,
to purchase from the Bank, on the date of the settlement of the Preferential Subscription, Class B
Shares in the manner provided for in the Standby Subscription Obligation, at the price per share
set
- 28 -
forth herein; and, in order to effectuate such purchase, the Selling Shareholders shall, pursuant
to the terms of the Escrow Agreement, instruct the Escrow Agent to release Escrow Funds to the Bank
in an amount equal to the aggregate purchase price for such shares as set forth in Standby
Subscription Obligation;
(b) not, at any time at or after the execution of this Agreement, to offer or sell any Shares or
ADSs by means of any “prospectus” (within the meaning of the Act), or use any “prospectus” (within
the meaning of the Act) in connection with the offer or sale of the Shares or ADSs, in each case
other than the Prospectus;
(c) not to take, directly or indirectly, any action designed to or which may constitute or which
might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any security of the Bank to facilitate the sale or
resale of the Shares, the ADSs or the Argentine Shares;
(d) to pay or cause to be paid all taxes, if any, on the transfer and sale of the Shares and the
ADSs being sold by such Selling Shareholder, the assignment and transfer of the Selling
Shareholders’ Preemptive Rights being assigned by such Selling Shareholder in the manner provided
in the Preemptive Rights Assignment Agreement and the transfer and purchase, if any, of Class B
Shares in the manner provided in the Standby Subscription Agreement;
(e) to advise you promptly, and if requested by you, to confirm such advice in writing, so long as
a prospectus is required by the Act to be delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with any sale of Shares or ADSs, of (i)
any material change in the Bank’s condition (financial or otherwise), prospects, earnings, business
or properties, (ii) any change in information in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus relating to such Selling
Shareholder or (iii) any new material information relating to the Bank or relating to any matter
stated in the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted
Free Writing Prospectus which comes to the attention of such Selling Shareholder;
(f) prior to or concurrently with the execution and delivery of this Agreement, to execute and
deliver to the Underwriters the Power of Attorney, Custody Agreement and a Lock-Up Agreement; and
(g) to deposit the Shares, in accordance with instructions provided by UBS and RJ on behalf of the
Underwriters pursuant to Section 2 hereof, with the Depositary or the Depositary’s agent acting as
custodian on or prior to closing of the purchase of the Firm Shares or the Additional Shares, as
the case may be, in accordance with the Deposit Agreement so that the ADRs evidencing the ADSs will
be executed and delivered by the Depositary to the respective accounts of the Underwriters at
closing of the purchase of the Firm Shares or the Additional Shares, as the case may be.
7. Certain Covenants of the Bank and the Selling Shareholders. The Bank agrees to pay all
costs, expenses, fees and taxes in connection with (i) the preparation and filing of the
Registration Statement, the ADS Registration Statement, the Exchange Act Registration Statement,
each Preliminary Prospectus, the Prospectus, each Permitted Free Writing Prospectus and any
amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration,
issue, sale and delivery of the Shares and the ADSs including any stock or transfer taxes and stamp
or similar
- 29 -
duties payable upon the sale, issuance or delivery of the Shares and the ADSs to the Underwriters,
(iii) the producing, word processing and/or printing of this Agreement, the Intersyndicate
Agreement, any Agreement Among Underwriters, any dealer agreements, the Power of Attorney, the
Custody Agreement, the Deposit Agreement, the Preferential Subscription Agreements and any closing
documents (including compilations thereof) and the reproduction and/or printing and furnishing of
copies of each thereof to the Underwriters and (except closing documents) to dealers (including
costs of mailing and shipment), (iv) the qualification of the Shares and the ADSs for offering and
sale under state or foreign laws and the determination of their eligibility for investment under
state or foreign law as aforesaid (including the legal fees and filing fees and other disbursements
of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys
or legal investment surveys to the Underwriters and to dealers, (v) any listing of the ADSs on any
securities exchange or qualification of the ADSs for quotation on the NYSE and any registration
thereof under the Exchange Act, (vi) any filing for review of the public offering of the Shares and
the ADSs by the NASD, including the legal fees and filing fees and other disbursements of counsel
to the Underwriters relating to NASD matters, (vii) all reasonable and duly documented fees and
disbursements of the U.S. legal counsel and the Argentine legal counsel of the Underwriters; (viii)
the fees and disbursements of any transfer agent or registrar, (ix) the fees and expenses of the
Escrow Agent; (x) all reasonable and duly documented costs and expenses relating to due diligence
investigations and presentations or meetings undertaken in connection with the marketing of the
offering and sale of the Shares, the ADSs and the Argentine Shares to prospective investors and the
Underwriters’ sales forces, including, without limitation, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants engaged in connection with
the road show presentations, travel, lodging and other expenses and the cost of any aircraft
chartered in connection with the road show, provided, however, that any such travel
costs and expenses incurred by the Underwriters shall be borne exclusively by the Underwriters,
(xi) the costs and expenses of qualifying the ADSs for inclusion in the book-entry settlement
system of DTC, (xii) the costs and expenses of the Preferential Subscription Transactions; and
(xiii) the performance of the Bank’s and each Selling Shareholder’s other obligations hereunder.
All payments to be made by the Bank or the Selling Shareholders to the Underwriters under this
Agreement (including any deemed payment relating to the Commission) shall be made without
withholding or deduction for or on account of any present or future Argentine taxes, duties or
governmental charges whatsoever unless required by law. In that event, the Bank and the Selling
Shareholders severally agree to pay to the Underwriters, on an after-tax basis, such additional
amounts as may be necessary in order that the net amounts received after such withholding or
deduction shall equal the amounts that would have been received if no withholding or deduction had
been made.
8. Reimbursement of Underwriters’ Expenses. If the Shares are not delivered for any reason
other than the termination of this Agreement pursuant to the fifth paragraph of Section 11 hereof
or the default by one or more of the Underwriters in its or their respective obligations hereunder,
the Bank and the Selling Shareholders, jointly and severally, agree that they shall, in addition to
paying the amounts described in Section 7 hereof, reimburse the Underwriters for all of their
out-of-pocket expenses, including the fees and disbursements of their counsel. The Selling
Shareholders hereby, jointly and severally, agree that they will pay any such amounts not so paid
by the Bank.
9. Conditions of Underwriters’ Obligations. The several obligations of the Underwriters
hereunder are subject to the accuracy of the representations and warranties on the part of the Bank
- 30 -
and each Selling Shareholder on the date hereof, at the time of purchase and, if applicable, at the
additional time of purchase, the performance by the Bank and each Selling Shareholder of each of
their respective obligations hereunder and to the following additional conditions precedent:
(a) The Bank and the Selling Shareholders shall furnish to you at the time of purchase and, if
applicable, at the additional time of purchase, an opinion of Shearman & Sterling LLP, counsel for
the Bank and the Selling Shareholders, addressed to the Underwriters, and dated the time of
purchase or the additional time of purchase, as the case may be, with executed copies for each of
the other Underwriters, and in form and substance satisfactory to Xxxxxxx Xxxxxxx & Xxxxxxxx LLP,
counsel for the Underwriters, in the form set forth in Exhibit B hereto.
(b) The Bank and the Selling Shareholders shall furnish to you at the time of purchase and, if
applicable, at the additional time of purchase, an opinion of Bruchou, Xxxxxxxxx Xxxxxx, Xxxxxxxx &
Xxxxxxx, Argentine counsel for the Bank and the Selling Shareholders, addressed to the
Underwriters, and dated the time of purchase or the additional time of purchase, as the case may
be, with executed copies for each of the other Underwriters, and in form and substance satisfactory
to Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, in the form set forth in
Exhibit C hereto.
(c) You shall have received at the time of purchase an opinion of Xxxxx, Xxxxxx & Xxxxxx, LLP,
counsel for the Depositary, dated the time of purchase, with executed copies for each of the other
Underwriters, and in form and substance satisfactory to Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for
the Underwriters, in the form set forth in Exhibit D hereto.
(d) You shall have received from Ernst & Young LLP letters dated, respectively, as of (i) the time
of the pricing of the offering of the Shares and ADSs on the date hereof, (ii) the date of the
Prospectus and (iii) the time of purchase and, if applicable, the additional time of purchase, and
addressed to the Underwriters (with executed copies for each of the Underwriters) in the forms
approved by UBS and RJ, which letters shall cover, without limitation, the various financial
disclosures contained in the Prospectus, each Preliminary Prospectus and the Permitted Free Writing
Prospectuses, if any.
(e) You shall have received at the time of purchase and, if applicable, at the additional time of
purchase, the favorable opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the
Underwriters, dated the time of purchase or the additional time of purchase, as the case may be, in
form and substance reasonably satisfactory to UBS and RJ.
(f) You shall have received at the time of purchase and, if applicable, at the additional time of
purchase, the favorable opinion of Cabanellas, Xxxxxxxxxx, Xxxxx & Dell’oro Xxxxx, Argentine
counsel for the Underwriters, dated the time of purchase or the additional time of purchase, as the
case may be, in form and substance reasonably satisfactory to UBS and RJ.
(g) The Deposit Agreement shall be in full force and effect.
(h) The Escrow Agreement shall be in full force and effect.
(i) Each of the Preferential Subscription Documents shall be in full force and effect.
(j) Each Selling Shareholder shall have delivered to you a duly executed Power of Attorney and
- 31 -
a duly executed Custody Agreement, in each case in form and substance satisfactory to Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters.
(k) You shall have received each of the signed Lock-Up Agreements referred to in Section 3(u)
hereof, and each such Lock-Up Agreement shall be in full force and effect at the time of purchase
and the additional time of purchase, as the case may be.
(l) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall
have been filed to which you object in writing.
(m) The Registration Statement, the ADS Registration Statement and the Exchange Act Registration
Statement shall become effective not later than 5:30 P.M., New York City time, on the date of this
Agreement and, if Rule 430A under the Act is used, the Prospectus shall have been filed with the
SEC pursuant to Rule 424(b) under the Act at or before 5:30 P.M., New York City time, on the second
full business day after the date of this Agreement and any registration statement pursuant to Rule
462(b) under the Act required in connection with the offering and sale of the Shares and the ADSs
shall have been filed and become effective no later than 10:00 P.M., New York City time, on the
date of this Agreement.
(n) Prior to the time of purchase, and, if applicable, the additional time of purchase, (i) no stop
order with respect to the effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration
Statement and all amendments thereto shall not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading; (iii) none of the Preliminary Prospectuses or the Prospectus, and no
amendment or supplement thereto, shall include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they are made, not misleading; (iv) no Disclosure
Package, and no amendment or supplement thereto, shall include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading; and (v) none of the Permitted
Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(o) Between the time of execution of this Agreement and the time of purchase or the additional time
of purchase, as the case may be, (A) no material adverse change or any development involving a
prospective material adverse change in the business, properties, management, financial condition or
results of operations of the Bank and the Subsidiaries taken as a whole shall occur or become known
and (B) no transaction which is material and adverse to the Bank has been entered into by the Bank
or any of the Subsidiaries.
(p) The Bank will, at the time of purchase and, if applicable, at the additional time of purchase,
deliver to you a certificate of its Chief Executive Officer and its Chief Financial Officer, dated
the time of purchase or the additional time of purchase, as the case may be, in the form attached
as Exhibit E hereto.
(q) The Selling Shareholders will, at the time of purchase or additional time of purchase, as the
case may be, deliver to you a certificate signed by the Representatives of the Selling
Shareholders, dated the time of purchase or the additional time of purchase, as the case may be, in
the form
- 32 -
attached as Exhibit F hereto.
(r) The Depositary shall have furnished or caused to be furnished to UBS and RJ a certificate of
one of its authorized officers in the form attached as Exhibit G hereto.
(s) The Bank and each Selling Shareholder shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in the Registration Statement,
any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus as of the time
of purchase and, if applicable, the additional time of purchase, as you may reasonably request.
(t) The ADSs shall have been approved for listing on the NYSE, subject only to notice of issuance
at or prior to the time of purchase or the additional time of purchase, as the case may be; and the
listing of the Class B Shares on the BASE shall be in full force and effect.
(u) DTC shall have accepted the Shares and the ADSs for its book-entry settlement system.
(v) The NASD shall not have raised any objection with respect to the fairness or reasonableness of
the underwriting, or other arrangements of the transactions, contemplated hereby.
(w) The Bank shall have received the approvals of the Argentine Securities Commission and the BASE
referred to in Section 3(m)(i) and (ii) hereof.
(x) The Selling Shareholders shall have provided notice to the Bank and to the Caja de Valores of
their transfer of Shares pursuant to this Agreement and Argentine Shares pursuant to the Argentine
Underwriting Agreement and of their assignment of the Selling Shareholders’ Preemptive Rights
pursuant to the Preemptive Rights Assignment Agreement; and the Selling Shareholders shall have
instructed the Caja de Valores to transfer the coupons representing the Selling Shareholders’
Preemptive Rights to the Underwriters and the Argentine Underwriters as set forth in the Preemptive
Rights Assignment Agreement.
(y) Contemporaneously with the purchase by the Underwriters of the Shares under this Agreement, the
closing of the transactions described by the Argentine Underwriting Agreement shall have occurred.
10. Effective Date of Agreement; Termination. This Agreement shall become effective when
the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to termination in the
absolute discretion of UBS and RJ if (x) since the time of execution of this Agreement or the
earlier respective dates as of which information is given in the Registration Statement, the
Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, there
has been any material adverse change or any development involving a prospective material adverse
change in the business, properties, management, financial condition or results of operations of the
Bank and the Subsidiaries taken as a whole, which would, in UBS’s and RJ’s judgment or in the
judgment of such group of Underwriters, make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares or the ADSs on the terms and in the manner
contemplated in the Registration Statement, the Preliminary Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, or (y) since the time of execution of this Agreement,
there shall have occurred: (i) a suspension or material limitation in trading in securities
generally on
- 33 -
the NYSE, the American Stock Exchange, the NASDAQ or the BASE; (ii) a suspension or material
limitation in trading in the Bank’s securities on the NYSE or the BASE; (iii) a general moratorium
on commercial banking activities declared by U.S. federal, New York State or Argentine authorities
or a material disruption in commercial banking or securities settlement or clearance services in
the United States or Argentina; (iv) an outbreak or escalation of hostilities or acts of terrorism
involving the United States or Argentina or a declaration by the United States or Argentina of a
national emergency or war; (v) any other calamity or crisis or any change in financial, political
or economic conditions in the United States, Argentina or elsewhere; or (vi) any change, or
development involving a prospective change, in Argentine taxation affecting the Bank, the Class B
Shares or the ADSs, any material change in the currency exchange rate between the U.S. dollar and
the Argentine peso or the United States or Argentina impose new exchange controls, if the effect of
any such event specified in clause (iv), (v) or (vi) in UBS’s and RJ’s judgment or in the judgment
of such group of Underwriters makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares or the ADSs on the terms and in the manner contemplated in
the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any.
If UBS and RJ or any group of Underwriters elects to terminate this Agreement as provided in
this Section 10, the Bank and each other Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement, or if such sale is
not carried out because the Bank or the Selling Shareholders, as the case may be, shall be unable
to comply with any of the terms of this Agreement, the Bank or the Selling Shareholders, as the
case may be, shall not be under any obligation or liability under this Agreement (except to the
extent provided in Sections 7, 8, 12 hereof), and the Underwriters shall be under no obligation or
liability to the Bank or any Selling Shareholder under this Agreement (except to the extent
provided in Section 12 hereof) or to one another hereunder.
11. Increase in Underwriters’ Commitments. Subject to Sections 9 and 10 hereof, if any
Underwriter shall default in its obligation to take up and pay for the Firm Shares to be purchased
by it hereunder (otherwise than for a failure of a condition set forth in Section 9 hereof or a
reason sufficient to justify the termination of this Agreement under the provisions of Section 10
hereof) and if the number of Firm Shares which all Underwriters so defaulting shall have agreed but
failed to take up and pay for does not exceed 10% of the total number of Firm Shares, the
non-defaulting Underwriters shall take up and pay for (in addition to the aggregate number of Firm
Shares they are obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares
agreed to be purchased by all such defaulting Underwriters, as hereinafter provided. Such Firm
Shares shall be taken up and paid for by such non-defaulting Underwriters in such amount or amounts
as you may designate with the consent of each Underwriter so designated or, in the event no such
designation is made, such Firm Shares shall be taken up and paid for by all non-defaulting
Underwriters pro rata in proportion to the aggregate number of Firm Shares set forth opposite the
names of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations hereunder, the Bank and the
Selling Shareholders each agrees with the non-defaulting Underwriters that it will not sell any
Firm Shares hereunder unless all of the Firm Shares are purchased by the Underwriters (or by
substituted Underwriters selected by you with the approval of the Bank or selected by the Bank
- 34 -
with your approval).
If a new Underwriter or Underwriters are substituted by the Underwriters or by the Bank for a
defaulting Underwriter or Underwriters in accordance with the foregoing provision, the Bank or you
shall have the right to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The term “Underwriter” as used in this Agreement shall refer to and include any Underwriter
substituted under this Section 11 with like effect as if such substituted Underwriter had
originally been named in Schedule A hereto.
If the aggregate number of Firm Shares which the defaulting Underwriter or Underwriters agreed
to purchase exceeds 10% of the total number of Firm Shares which all Underwriters agreed to
purchase hereunder, and if neither the non-defaulting Underwriters nor the Bank shall make
arrangements within the five business day period stated above for the purchase of all the Firm
Shares which the defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall terminate without further act or deed and without any liability on the part of the
Bank to any non-defaulting Underwriter and without any liability on the part of any non-defaulting
Underwriter to the Bank or to any Selling Shareholder. Nothing in this paragraph, and no action
taken hereunder, shall relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
12. Indemnity and Contribution.
(a) The Bank agrees to indemnify, defend and hold harmless each Underwriter, its partners,
directors and officers, and any person who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, and the successors and assigns of all of the
foregoing persons, from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, any such Underwriter or any such
person may incur under the Act, the Exchange Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the Bank) or any
omission or alleged omission to state a material fact required to be stated therein or necessary to
make the statements made therein not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact included in any Prospectus (the term Prospectus for the purpose of
this Section 12 being deemed to include any Preliminary Prospectus, the Prospectus and any
amendments or supplements to the foregoing), in any Permitted Free Writing Prospectus or any
amendment or supplement thereto, in any “issuer information” as defined in Rule 433 under the Act
that is filed or would have been required to be filed with the Commission or in any Prospectus
together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, or
any omission or alleged omission to state a material fact necessary in order to made the statements
therein, in the light of the circumstances under which they were made, not misleading, except
insofar as any such loss, damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in, and in conformity
with information concerning such Underwriter furnished in writing by or on behalf of such
Underwriter through you to the Bank expressly for use in, such Registration Statement, Prospectus
or Permitted Free Writing Prospectus.
- 35 -
(b) Each Selling Shareholder agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and the successors and assigns of all of
the foregoing persons from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, any such Underwriter or any such
person may incur under the Act, the Exchange Act, the common law or otherwise, except that such
liability shall in no event exceed the amount of net proceeds received by each Selling Shareholder,
insofar as such loss, damage, expense, liability or claim arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective amendment thereof by
the Bank) or any omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements made therein not misleading, (ii) any untrue statement
or alleged untrue statement of a material fact included in any Prospectus, in any Permitted Free
Writing Prospectus or any amendment or supplement thereto, in any “issuer information” as defined
in Rule 433 under the Act that is filed or would have been required to be filed with the Commission
or in any Prospectus together with any combination of one or more of the Permitted Free Writing
Prospectuses, if any, or any omission or alleged omission to state a material fact necessary in
order to made the statements therein, in the light of the circumstances under which they were made,
not misleading, except insofar as any such loss, damage, expense, liability or claim arises out of
or is based upon any untrue statement or alleged untrue statement of a material fact contained in,
and in conformity with information concerning such Underwriter furnished in writing by or on behalf
of such Underwriter through you to the Bank expressly for use in, such Registration Statement,
Prospectus or Permitted Free Writing Prospectus.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against an
Underwriter or any such person in respect of which indemnity may be sought against the Bank or any
Selling Shareholder pursuant to Sections 12(a) or 12(b), such Underwriter or such person shall
promptly notify the Bank or any Representative of the Selling Shareholders, as the case may be, in
writing of the institution of such Proceeding and the Bank or the applicable Selling Shareholder,
as the case may be, shall assume the defense of such Proceeding, including the employment of
counsel reasonably satisfactory to such indemnified party and payment of all fees and expenses;
provided, however, that the omission to so notify the Bank or any Representative of
the Selling Shareholders shall not relieve the Bank or any Selling Shareholder from any liability
which the Bank or such Selling Shareholder may have to any Underwriter or any such person or
otherwise. Such Underwriter or such person shall have the right to employ its or their own counsel
in any such case, but the fees and expenses of such counsel shall be at the expense of such
Underwriter or of such person unless the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such Proceeding or the
indemnifying party shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such Proceeding or such
indemnified party or parties shall have reasonably concluded that there may be defenses available
to it or them which are different from, additional to or in conflict with those available to the
indemnifying party (in which case the indemnifying party shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying party and paid as incurred (it being
understood, however, that the indemnifying party shall not be liable for the expenses of more than
one separate counsel (in addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who are parties to such
Proceeding). The indemnifying party shall not be liable for any settlement of any Proceeding
effected without its written consent but, if settled with the
- 36 -
written consent of the indemnifying party, the indemnifying party agrees to indemnify and hold
harmless any Underwriter and any such person from and against any loss or liability by reason of
such settlement. 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 sentence of this Section 12(c), then 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 60 business days after receipt by such
indemnifying party (or, in the case of a Selling Shareholder, by any Representative of the Selling
Shareholders) of the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying party at least 30
days’ prior notice of its intention to settle. 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 and does not include an admission of fault or culpability or a failure to
act by or on behalf of such indemnified party.
(d) Each Underwriter severally agrees to indemnify, defend and hold harmless the Bank, its
directors and officers, each Selling Shareholder and any person who controls the Bank within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and assigns
of all of the foregoing persons, from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally, the Bank, any Selling
Shareholder or any such person may incur under the Act, the Exchange Act, the common law or
otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in, and in conformity
with information concerning such Underwriter furnished in writing by or on behalf of such
Underwriter through you to the Bank expressly for use in, the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the Bank), a
Prospectus or a Permitted Free Writing Prospectus, or arises out of or is based upon any omission
or alleged omission to state a material fact in connection with such information required to be
stated in such Registration Statement, Prospectus or Permitted Free Writing Prospectus or necessary
to make such information not misleading.
(e) If any Proceeding is brought against the Bank, any Selling Shareholder or any such person in
respect of which indemnity may be sought against any Underwriter pursuant to Section 12(d) hereof,
the Bank, such Selling Shareholder or such person shall promptly notify such Underwriter in writing
of the institution of such Proceeding and such Underwriter shall assume the defense of such
Proceeding, including the employment of counsel reasonably satisfactory to such indemnified party
and payment of all fees and expenses; provided, however, that the omission to so
notify such Underwriter shall not relieve such Underwriter from any liability which such
Underwriter may have to the Bank, such Selling Shareholder or any such person or otherwise. The
Bank, such Selling Shareholder or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of the Bank, such
Selling Shareholder or such person unless the employment of such counsel shall have been authorized
in writing by such Underwriter in connection with the defense of such Proceeding or such
Underwriter shall not have, within a reasonable period of time in light of the circumstances,
employed counsel to defend such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which are different from or
additional to or in conflict
- 37 -
with those available to such Underwriter (in which case such Underwriter shall not have the right
to direct the defense of such Proceeding on behalf of the indemnified party or parties, but such
Underwriter may employ counsel and participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of such Underwriter), in any of which events such fees and
expenses shall be borne by such Underwriter and paid as incurred (it being understood, however,
that such Underwriter shall not be liable for the expenses of more than one separate counsel (in
addition to any local counsel) in any one Proceeding or series of related Proceedings in the same
jurisdiction representing the indemnified parties who are parties to such Proceeding). No
Underwriter shall be liable for any settlement of any such Proceeding effected without the written
consent of such Underwriter but, if settled with the written consent of such Underwriter, such
Underwriter agrees to indemnify and hold harmless the Bank, such Selling Shareholder and any such
person from and against any loss or liability by reason of such settlement. 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
sentence of this Section 12(e), then 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 60 business days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall not have fully reimbursed the indemnified party in accordance
with such request prior to the date of such settlement and (iii) such indemnified party shall have
given the indemnifying party at least 30 days’ prior notice of its intention to settle. 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 and does not include an
admission of fault or culpability or a failure to act by or on behalf of such indemnified party.
(f) If the indemnification provided for in this Section 12 is unavailable to an indemnified party
under subsections (a), (b) or (d) of this Section 12 or insufficient to hold an indemnified party
harmless in respect of any losses, damages, expenses, liabilities or claims referred to therein,
then each applicable indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, damages, expenses, liabilities or claims (i) in such
proportion as is appropriate to reflect the relative benefits received by the Bank or each Selling
Shareholder, as the case may be, on the one hand and the Underwriters on the other hand from the
offering of the Shares and the ADSs 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 Bank and the Selling
Shareholders on the one hand and of the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, damages, expenses, liabilities or claims, as well as
any other relevant equitable considerations. The relative benefits received by the Bank and the
Selling Shareholders on the one hand and the Underwriters on the other shall be deemed to be in the
same respective proportions as the total proceeds from the offering (net of underwriting discounts
and commissions but before deducting expenses) received by the Bank and the Selling Shareholders,
and the total underwriting discounts and commissions received by the Underwriters, bear to the
aggregate public offering price of the Shares. The relative fault of the Bank or each Selling
Shareholder, as the case may be, on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission relates to information supplied by the
Bank or any Selling Shareholder or by the Underwriters and the parties’ relative intent, knowledge,
access to information and
- 38 -
opportunity to correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, damages, expenses, liabilities and claims referred to in this
subsection shall be deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating, preparing to defend or defending any Proceeding.
(g) The Bank, the Selling Shareholders and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 12 were determined by pro rata allocation (even
if the Underwriters 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 subsection (f)
above. Notwithstanding the provisions of this Section 12, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Shares
underwritten by such Underwriter and distributed to the public were offered to the public exceeds
the amount of any damage which such Underwriter has otherwise been required to pay by reason of
such untrue statement or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters’ obligations to contribute pursuant to this Section 12 are several in proportion
to their respective underwriting commitments and not joint.
(h) The indemnity and contribution agreements contained in this Section 12 and the covenants,
warranties and representations of the Bank and the Selling Shareholders contained in this Agreement
shall remain in full force and effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person (including each partner, officer or
director of such person) who controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, or by or on behalf of the Bank or any of its directors or
officers or any Selling Shareholder or any person who controls the Bank within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and shall survive any termination of this
Agreement or the issuance and delivery of the Shares. The Bank, the Selling Shareholders and each
Underwriter agree promptly to notify each other of the commencement of any Proceeding against it
and, in the case of the Bank, against any of the Bank’s officers or directors in connection with
the issuance and sale of the Shares, or in connection with the Registration Statement, any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus.
13. Information Furnished by the Underwriters. The statements set forth in the [last
paragraph] of the cover page of the Prospectus and the statements set forth in the [eleventh,
seventeenth, eighteenth, nineteenth, twentieth, twenty-first and twenty-second paragraphs] under
the caption “Underwriting” in the Prospectus, only insofar as such statements relate to the amount
of selling concession and reallowance or to over-allotment and stabilization activities that may be
undertaken by the Underwriters, constitute the only information furnished by or on behalf of the
Underwriters as such information is referred to in Sections 3 and 12 hereof. The Underwriters have
not and will not use any “free writing prospectus” as defined in Rule 405 of the Act that is
required to be filed with the Commission pursuant to Rule 433 of the Act other than a Permitted
Free Writing Prospectus or as consented to by the Bank.
14. Notices. Except as otherwise herein provided, all statements, requests, notices and
agreements shall be in writing or by telegram or facsimile and, if to the Underwriters, shall be
sufficient in all respects if delivered or sent to UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx,
XX 00000-0000, Attention: Syndicate Department and Xxxxxxx Xxxxx & Associates, Inc., ___,
Attention: ___; if to the Bank, shall be sufficient in all respects if delivered
- 39 -
or sent to the Bank at the offices of the Bank at Xxxxxxxxx 000, 0000 Xxxxxx Xxxxx, Xxxxxxxxx
(facsimile: ___), Attention: ___; and, if to any Selling Shareholder, shall be
sufficient in all respects if delivered or sent to any Representative of the Selling Shareholder at
___(facsimile: ___), Attention: ___.
15. Governing Law; Construction. This Agreement and any claim, counterclaim or dispute of
any kind or nature whatsoever arising out of or in any way relating to this Agreement
(“Claim”), directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York. The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this Agreement.
16. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such matters, and the Bank and
the Selling Shareholders each consents to the jurisdiction of such courts and personal service with
respect thereto. The Bank and the Selling Shareholders each hereby consents to personal
jurisdiction, service and venue in any court in which any Claim arising out of or in any way
relating to this Agreement is brought by any third party against any Underwriter or any indemnified
party. Each Underwriter and the Bank (on its behalf and, to the extent permitted by applicable
law, on behalf of its shareholders and affiliates) and the Selling Shareholders each waive all
right to trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort
or otherwise) in any way arising out of or relating to this Agreement. The Bank and the Selling
Shareholders each agrees that a final judgment in any such action, proceeding or counterclaim
brought in any such court shall be conclusive and binding upon the Bank and the Selling
Shareholders and may be enforced in any other courts to the jurisdiction of which the Bank or any
Selling Shareholder is or may be subject, by suit upon such judgment. Each of the Bank and the
Selling Shareholders hereby appoints, without power of revocation, CT Corporation System as its
agent (the “Authorized Agent”) to accept and acknowledge on its behalf service of any and
all process which may be served in any action, proceeding or counterclaim in any way relating to or
arising out of this Agreement. Each of the Bank and the Selling Shareholders hereby represents and
warrants that the Authorized Agent has accepted such appointment and has agreed to act as said
agent for service of process, and the Bank agrees to take any and all action, including the filing
of any and all documents that may be necessary to continue such appointment in full force and
effect as aforesaid. Service of process upon the Authorized Agent shall be deemed, in every
respect, effective service of process upon the Bank and the Selling Shareholders. Notwithstanding
the foregoing, any action arising out of or based upon this Agreement may be instituted by any
Underwriter, the partners, directors and officers of any Underwriter, or by any person who controls
any Underwriter, in any court of competent jurisdiction in Argentina.
17. Parties at Interest. The Agreement herein set forth has been and is made solely for
the benefit of the Underwriters and the Bank and the Selling Shareholders and to the extent
provided in Section 12 hereof the controlling persons, partners, directors and officers referred to
in such Section, and their respective successors, assigns, heirs, personal representatives and
executors and administrators. No other person, partnership, association or corporation (including
a purchaser, as such purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
18. Counterparts. This Agreement may be signed by the parties in one or more
- 40 -
counterparts which together shall constitute one and the same agreement among the parties.
19. Successors and Assigns. This Agreement shall be binding upon the Underwriters and the
Bank and the Selling Shareholders and their successors and assigns and any successor or assign of
any substantial portion of the Bank’s and any of the Underwriters’ respective businesses and/or
assets.
20. Miscellaneous. UBS, an indirect, wholly owned subsidiary of UBS AG, is not a bank and
is separate from any affiliated bank, including any U.S. branch or agency of UBS AG. Because UBS
is a separately incorporated entity, it is solely responsible for its own contractual obligations
and commitments, including obligations with respect to sales and purchases of securities.
Securities sold, offered or recommended by UBS are not deposits, are not insured by the Federal
Deposit Insurance Corporation, are not guaranteed by a branch or agency, and are not otherwise an
obligation or responsibility of a branch or agency.
[The Remainder of This Page Intentionally Left Blank; Signatures Page Follow]
- 41 -
If the foregoing correctly sets forth the understanding among the Bank, the Selling
Shareholders and the several Underwriters, please so indicate in the space provided below for that
purpose, whereupon this Agreement and your acceptance shall constitute a binding agreement among
the Bank, the Selling Shareholders and the Underwriters, severally.
| Very truly yours, | ||||
| BANCO MACRO BANSUD S.A. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| THE SELLING SHAREHOLDERS NAMED IN SCHEDULE B HERETO | ||||
| By: [representative], Attorney-in-Fact | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Accepted and agreed to as of the date first above written, on behalf of itself and the other several Underwriters named in Schedule A | ||||
| UBS Securities LLC | ||||
| By: UBS Securities LLC | ||||
By: |
||||
Name: |
||||
Title: |
||||
By: |
||||
Name: |
||||
Title: |
||||
| Xxxxxxx Xxxxx & Associates, Inc. | ||||
By: |
||||
Name: |
||||
Title: |
||||
SCHEDULE A
| Underwriter | Number of Firm Shares | |||
UBS SECURITIES LLC |
— | |||
XXXXXXX XXXXX & ASSOCIATES, INC. |
— | |||
[_________________] |
— | |||
Total |
— | |||
SCHEDULE B
| Number of Firm | Number of | |||||||
| Shares | Additional Shares | |||||||
Bank |
— | N/A | ||||||
Selling Stockholders: |
||||||||
Xxxxx Xxxxxxx Xxxxx |
— | — | ||||||
Xxxxxx Xxxxx Xxxxxxxx Xxxxxxxx |
— | — | ||||||
Xxxxxxxx Xxxxxx Sansuste |
— | — | ||||||
Xxxx Xxxxx Xxxxx Xxxxxx |
— | — | ||||||
Total |
— | — | ||||||
SCHEDULE C
Permitted Free Writing Prospectuses
SCHEDULE D
Subsidiaries
ANNEX A
[Acuerdo de Cesión de Derechos de Preferencia]
ANNEX B
[Contrato de Subscripción]
ANNEX C
[Acuerdo de Compra Condicional]
ANNEX D
[Poder]
EXHIBIT A
Lock-Up Agreement
___________ ___, 2006
UBS Securities LLC and
Xxxxxxx Xxxxx & Associates, Inc.
Together with the other Underwriters
named in Schedule A to the Underwriting Agreement
referred to herein
Xxxxxxx Xxxxx & Associates, Inc.
Together with the other Underwriters
named in Schedule A to the Underwriting Agreement
referred to herein
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
This Lock-Up Agreement is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting Agreement”) to be entered into by Banco Macro Bansud S.A., a
corporation incorporated under the laws of Argentina (the “Bank”), the Selling Shareholders
named therein and you and the other underwriters named in Schedule A to the Underwriting Agreement,
with respect to the public offering (the “Offering”) of Class B shares, Ps.1 par value per
share (the “Class B Shares”), of the Bank. Capitalized terms not defined herein shall have
the meaning given to them in the Underwriting Agreement
In order to induce you to enter into the Underwriting Agreement, the undersigned agrees that,
for a period (the “Lock-Up Period”) beginning on the date hereof and ending on, and
including, the date that is 180 days after the date of the final prospectus relating to the
Offering, the undersigned will not, without the prior written consent of UBS Securities LLC and
Xxxxxxx Xxxxx & Associates, Inc., (i) sell, offer to sell, contract or agree to sell, hypothecate,
pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or
indirectly, or file (or participate in the filing of) a registration statement with the SEC in
respect of, or establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder (the “Exchange
Act”) with respect to, any shares of capital stock of the Bank or American Depositary Shares
(the “ADSs”) representing those shares, or any securities convertible into or exercisable
or exchangeable for shares of capital stock of the Bank or ADSs representing those shares, or
warrants or other rights to purchase shares of capital stock of the Bank or ADSs representing those
shares or any such securities, (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of shares of capital
stock of the Bank or ADSs representing those shares, or any securities convertible into or
exercisable or exchangeable for shares of capital stock of the Bank or ADSs representing those
shares, or warrants or other rights to purchase shares of capital stock of the Bank or ADSs
representing those shares or any such securities, whether any such transaction is to be settled by
delivery of shares of capital stock of the Bank or ADSs representing those shares or such other
securities, in cash or otherwise or (iii) publicly announce an intention to effect any transaction
A-1
specified in clause (i) or (ii). The foregoing sentence shall not apply to (a) the registration of
or sale to the Underwriters (as defined in the Underwriting Agreement) of any Shares or ADSs
pursuant to the Offering and the Underwriting Agreement, (b) the sale of the Argentine Shares to
the Argentine Underwriters pursuant to the Argentine Underwriting Agreement, (c) bona fide gifts,
provided the recipient thereof agrees in writing with the Underwriters to be bound by the terms of
this Lock-Up Agreement or (d) dispositions to any trust for the direct or indirect benefit of the
undersigned and/or the immediate family of the undersigned, provided that such trust agrees in
writing with the Underwriters to be bound by the terms of this Lock-Up Agreement. For purposes of
this paragraph, “immediate family” shall mean the undersigned and the spouse, any lineal
descendent, father, mother, brother or sister of the undersigned.
In addition, the undersigned hereby waives any rights the undersigned may have to require
registration of shares of capital stock or ADSs representing those shares in connection with the
filing of a registration statement relating to the Offering. The undersigned further agrees that,
for the Lock-Up Period, the undersigned will not, without the prior written consent of UBS
Securities LLC and Xxxxxxx Xxxxx & Associates, Inc., make any demand for, or exercise any right
with respect to, the registration of shares of capital stock of the Bank or ADSs representing those
shares, or any securities convertible into or exercisable or exchangeable for shares of capital
stock of the Bank or ADSs representing those shares, or warrants or other rights to purchase shares
of capital stock of the Bank or ADSs representing those shares or any such securities.
Notwithstanding the above, if (a) during the period that begins on the date that is fifteen
(15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends
on the last day of the Lock-Up Period, the Bank issues an earnings release or material news or a
material event relating to the Bank occurs; or (b) prior to the expiration of the Lock-Up Period,
the Bank announces that it will release earnings results during the sixteen (16) day period
beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Lock-Up
Agreement shall continue to apply until the expiration of the date that is fifteen (15) calendar
days plus three (3) business days after the date on which the issuance of the earnings release or
the material news or material event occurs;
In addition, the undersigned hereby waives any and all preemptive rights, accretion rights,
participation rights, resale rights, rights of first refusal and similar rights that the
undersigned may have in connection with the Offering or with any issuance or sale by the Bank of
any equity or other securities before the Offering, except for any such rights as have been
heretofore assigned to the Underwriters under the Preemptive Rights Assignment Agreement.
The undersigned hereby confirms that the undersigned has not, directly or indirectly, taken,
and hereby covenants that the undersigned will not, directly or indirectly, take, any action
designed, or which has constituted or will constitute or might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of
any security of the Bank to facilitate the sale or resale of Class B Shares or ADSs representing
those shares.
* * *
If (i) the Bank notifies you in writing that it does not intend to proceed with the Offering,
(ii) the registration statement filed with the SEC with respect to the Offering is withdrawn or
(iii) for any reason the Underwriting Agreement shall be terminated prior to the “time of
A-2
purchase” (as defined in the Underwriting Agreement), this Lock-Up Agreement shall be terminated
and the undersigned shall be released from its obligations hereunder.
| Yours very truly, | ||
| Name: |
X-0
XXXXXXX X-0
LIST OF PARTIES TO EXECUTE LOCK-UP AGREEMENTS
| Name | Position | |
1. Xxxxx Xxxxxxx Xxxxx
|
Chairman of the Board & CEO | |
2. Xxxxxx Xxxxx Xxxxxxxx
Xxxxxxxx
|
Vice Chairman of the Board & CFO | |
3. Xxxxxxxx Xxxxxx Sansuste
|
Director & Chief Comptroller | |
4. Xxxx Xxxxx Xxxxx Xxxxxx
|
Director & Chief Accounting Officer | |
5. Xxxxx Xxxxx Xxxxx
|
Director | |
6. Xxxx Xxxxxx Xxxxxxxx
|
Director | |
7. Xxxxxxx Xxxxx Xxxxxxx
|
Director | |
8. Xxxxxxxxx Xxxxxxxxxx
|
Director | |
9. Xxxxxx Xxxxxxx Xxxxxx
|
Director | |
10. Xxxxx Xxxx Xxxxxxxx
|
Alternate Director & Operations and Technology General Manager | |
11. Xxxxxxxxx Xxxxxxxxx Xxxxx
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Alternate Director |
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EXHIBIT B
[OPINION OF SHEARMAN & STERLING LLP]
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EXHIBIT C
[OPINION OF BRUCHOU, XXXXXXXXX XXXXXX, XXXXXXXX & XXXXXXX]
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EXHIBIT D
OPINION OF XXXXX, XXXXXX & XXXXXX, LLP
_____ __, 2006
UBS Securities LLC
Xxxxxxx Xxxxx & Associates, Inc.
as Managing Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxxx Xxxxx & Associates, Inc.
as Managing Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: BANCO MARCO BANSUD S.A.
Ladies and Gentlemen:
We are acting as counsel for The Bank of New York, as depositary, in connection with the
Deposit Agreement dated as of ___, 2006 (the “Deposit Agreement”) among Banco Marco Bansud
S.A. (the “Company”), The Bank of New York, as depositary (the “Depositary”), and all owners and
holders from time to time of American Depositary Receipts (“ADRs”) issued thereunder.
We are delivering this opinion at the request of the Depositary to you, as representatives of
the underwriters (the “Underwriters”) named in Schedule A to the Underwriting Agreement dated ___
___, 2006 between the Company and you, as representatives of the Underwriters, in connection with
the contemplated purchases by the Underwriters of up to ___Class B shares, par value Ps.
1 per share (the “Shares”), of the Company, to be delivered in the form of Shares or American
Depositary Shares (the “ADSs”) evidenced by ADRs.
Based on the foregoing, and subject to the accuracy of the assumptions and to the
qualifications set forth below, we are of the opinion that:
(i) The Deposit Agreement has been duly authorized, executed and delivered by the Depositary
and constitutes a valid and binding agreement of the Depositary enforceable against the Depositary
in accordance with its terms, except as enforcement of it may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar laws of general application relating to
or affecting creditors’ rights and by general principles of equity.
(ii) Upon execution and delivery by the Depositary of ADRs evidencing the ADSs against the
deposit of Shares in accordance with the provisions of the Deposit Agreement, the ADSs will be
validly issued and will entitle the holders of the ADSs to the rights specified in those ADRs and
in the Deposit Agreement.
These opinions are based upon the assumptions that (a) the Deposit Agreement has been duly
authorized, executed and delivered by the Company and constitutes a valid and binding agreement of
the Company enforceable against the Company in accordance with its terms, (b) all the
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Shares are duly authorized, validly issued, fully paid and non-assessable and are registered or not
required to be registered in accordance with the Securities Act of 1933, as amended, and (c) all
signatures on documents examined by us are genuine. In giving these opinions, we have also relied
as to certain matters, without independent verification, on information obtained from public
officials or officers of the Depositary.
We are members of the New York Bar only and do not hold ourselves out as practicing under, nor
do we express any opinion on or as to the effect of, any laws other than the laws of the State of
New York and the Federal laws of the United States.
We are giving the opinions set forth in this letter as of the date of this letter, and we
assume no obligation to advise you of factual or legal changes which may thereafter be brought to
our attention.
These opinions are solely for the benefit of the Underwriters and may not be relied upon by
any other person or entity without our prior written consent. Nothing in this letter shall be
construed to create any liability for the Depositary.
Very truly yours,
XXXXX, XXXXXX & XXXXXX, LLP
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EXHIBIT E
OFFICERS’ CERTIFICATE
Each of the undersigned, ___, Chief Executive Officer of Banco Macro Bansud S.A., a
corporation incorporated under the laws of Argentina (the “Bank”), and ___, Chief
Financial Officer of the Bank, on behalf of the Bank, does hereby certify pursuant to Section 9(p)
of that certain Underwriting Agreement dated ___, 2006 (the “Underwriting
Agreement”) between among the Bank, the Selling Shareholders named therein and, on behalf of
the several Underwriters named therein, UBS Securities LLC and Xxxxxxx Xxxxx & Associates, Inc.
that as of ___, 2006:
| 1. | He has reviewed the Registration Statement, each Preliminary Prospectus, the Prospectus and each Permitted Free Writing Prospectus. | |
| 2. | The representations and warranties of the Bank as set forth in the Underwriting Agreement are true and correct as of the date hereof and as if made on the date hereof. | |
| 3. | The Bank has performed all of its obligations under the Underwriting Agreement as are to be performed at or before the date hereof. | |
| 4. | The conditions set forth in paragraphs (n) and (o) of Section 9 of the Underwriting Agreement have been met. | |
| 5. | The financial statements and other financial information in the Registration Statement, each Preliminary Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, fairly present the financial condition, results of operations and cash flows of the Bank and the Subsidiaries as of, and for, the periods therein presented. |
Capitalized terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
In Witness Whereof, the undersigned have hereunto set their hands on this ___,
2006.
| Name: | ||||
| Title: Chief Executive Officer | ||||
| Name: | ||||
| Title: Chief Financial Officer | ||||
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EXHIBIT F
CERTIFICATE OF THE REPRESENTATIVES OF THE SELLING SHAREHOLDERS
The undersigned, ___, does hereby certify, on behalf of each Selling Shareholder (as
defined in the Underwriting Agreement referred to below), pursuant to Section 9(q) of that certain
Underwriting Agreement dated ___, 2006 (the “Underwriting Agreement”) among the
Bank, the Selling Shareholders named therein, and the Underwriters named therein, and pursuant to
the Power of Attorney, that as of ___, 2006:
| 1. | Each Selling Shareholder has reviewed the Registration Statement, each Preliminary Prospectus, the Prospectus and each Permitted Free Writing Prospectus. | |
| 2. | The representations and warranties of each Selling Shareholder as set forth in the Underwriting Agreement are true and correct as of the date hereof and as if made on the date hereof. | |
| 3. | Each Selling Shareholder has performed all of its obligations under the Underwriting Agreement as are to be performed at or before the date hereof. |
Capitalized terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
In Witness Whereof, the undersigned have hereunto set their hands on this ___
___, 2006 on behalf of each Selling Shareholder.
| The Selling Shareholders named in Schedule B to the Underwriting Agreement | ||||
| By: , Attorney-in-Fact | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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EXHIBIT G
CERTIFICATE OF THE DEPOSITARY
The undersigned, a Vice President of The Bank of New York, the Depositary (the
“Depositary”) under the Deposit Agreement, dated as of ___, 2006, (the “Deposit
Agreement”), among Banco Marco Bansud S.A., a company organized under the laws of Argentina
(the “Company”), the Depositary and Owners and holders from time to time of American
Depositary Shares, each representing ten Class B shares, par value Ps. 1 per share, of the Company
(the “Shares”), issued thereunder (the “ADSs”) hereby certifies as follows:
1. The Deposit Agreement has been duly executed and delivered in the name and on behalf of the
Depositary by one of its ___, who was at the time of such execution and delivery a duly elected
and appointed officer of The Bank of New York, authorized and empowered so to act and his signature
on such documents is genuine.
2. Attached hereto as Annex A is a true and complete specimen American Depositary Receipt
(“ADR”), which is substantially in the form set forth in Exhibit A to the Deposit Agreement
to be used to evidence the ADSs in accordance with the Deposit Agreement.
3. The Depositary has duly executed, registered and delivered in the manner required by the
Deposit Agreement, ADRs evidencing an aggregate of ___ADSs representing an aggregate ___
Shares in accordance with the instructions to the Depositary from the Company and the Selling
Shareholders.
4. Each officer referred to herein was at the date hereof, duly elected, appointed or
authorized, qualified and acting as an officer or authorized signatory of the Depositary and duly
authorized to perform such acts at the respective time of such acts, and the signature appearing on
such ADRs will be his or her genuine signature.
5. Attached hereto as Annex B is a true and correct copy of Section VI of the By-Laws of The
Bank of New York, as amended to date.
Capitalized terms used but not defined herein shall have the meaning ascribed thereto in the
Deposit Agreement.
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IN WITNESS WHEREOF, the undersigned has hereunto set his hand this ___day of ___, 2006.
| THE BANK OF NEW YORK | ||||
| By: | ||||
| Name: Title: |
||||
I, ___, a ___of The Bank of New York, hereby certify that ___was at the
time he executed and delivered the foregoing Certificate of The Bank of New York a duly executed,
qualified and acting ___of The Bank of New York, that was authorized and empowered to do so
and that signature thereon is genuine.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this ___day of ___, 2006.
| By: | ||||
| Name: Title: |
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