Exhibit 99.2
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AGREEMENT
DATED AS OF
APRIL 27, 2004
AMONG
GRUPO FINANCIERO XXXXXXX X.X.,
INTERNATIONAL FINANCE CORPORATION,
INTER-AMERICAN INVESTMENT CORPORATION,
COMMODITY CREDIT CORPORATION,
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS NOTE PURCHASE AGREEMENT AGENT,
AND
AS NEW TRADE CREDIT AGREEMENT AGENT.
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AGREEMENT
This Agreement (this "Agreement") is made as of April 27, 2004
among:
(i) Grupo Financiero Xxxxxxx X.X. (together with its
successors and permitted assigns, "Grupo"),
(ii) International Finance Corporation (together with its
successors and assigns, "IFC"),
(iii) Inter-American Investment Corporation (together with its
successors and assigns, "IIC"),
(iv) Deutsche Bank Trust Company Americas, acting as agent
for the holders from time to time parties to the Note
Purchase Agreement (together with its successors and
assigns in such capacity, the "Note Purchase Agreement
Agent") and as Agent under the New Trade Credit
Agreement (defined below) (together with its successors
and assigns in such capacity, the "New Trade Credit
Agreement Agent"), and
(v) Commodity Credit Corporation (together with its
successors and assigns, "CCC").
PRELIMINARY STATEMENTS
A. Banco xx Xxxxxxx y Buenos Aires, S.A. ("Banco xx Xxxxxxx"), an
Argentine corporation, is a subsidiary of Grupo. Banco xx Xxxxxxx is entering
into a restructuring of its foreign currency-denominated unsecured indebtedness.
B. In connection with such restructuring, and in order to
encourage the other parties hereto to enter into the Transaction Documents
(defined below) and the Other Documents (defined below), Grupo is entering into
this Agreement.
NOW THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. As used in this Agreement, the following
terms shall have the following respective meanings:
"Accounting Principles" means the accounting principles generally
accepted in the Country in effect from time to time, relating to financial
holding companies, including without limitation Grupo, in the Country, applied
on a consistent basis.
"Affiliate" means a Person who directly or indirectly through one or
more intermediaries Controls or is Controlled by, or is under common Control
with, Grupo.
"Assignment Agreement" means the assignment agreement to be entered
into on or prior to the Effective Date and executed and delivered by and between
EBA Holding S.A. and First Trust of New York, National Association,
Representacion Permanente en Argentina, as trustee under the Trust Agreement.
"Auditors" means Price Waterhouse & Co., or such other "Big Four"
firm of internationally recognized independent public accountants, as Grupo may
from time to time appoint as its auditors.
"Authority" means any national, supranational, regional or local
government or governmental, administrative, fiscal, judicial, legislative,
regulatory, executive, government-owned (directly or indirectly) or
government-controlled (directly or indirectly) body, department, commission,
authority, tribunal, agency or entity, or central bank (or any Person, whether
or not government owned and howsoever constituted or called, that exercises the
functions of a central bank).
"Authorization" means any consent, registration, filing, agreement,
notarization, certificate, license, approval, permit, authority or exemption
from, by or with any Authority, whether given by express action or deemed given
by failure to act within any specified time period, and all applicable
corporate, creditors' and shareholders' approvals or consents.
"Banco xx Xxxxxxx" has the meaning set forth in the preliminary
statements to this Agreement.
"Business Day" means a day when banks are open for business in Xxx
Xxxx, Xxx Xxxx xxx Xxxxxx Xxxxx, Xxxxxxxxx.
"Capital Stock" means with respect to any Person, any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) equity of such Person,
including any preferred stock, but excluding any debt securities convertible
into such equity.
"CCC" has the meaning set forth in the preamble to this Agreement.
"Change of Control" means (i) the failure of EBA Holding S.A. to (A)
Control and (B) own Voting Stock which (except for those matters for which class
"A" shares of Grupo have the right to only one vote) has the right to at least
fifty-nine point forty-two percent (59.42%) of the total votes at shareholders
meetings of Grupo, provided that such percentage may be reduced (without
constituting a "Change of Control") to a percentage of Voting Stock which
(except for those matters for which class "A" shares of Grupo have the right to
only one vote) has the right to cast a majority of the votes at shareholders
meetings of Grupo in the event that Grupo issues equity securities by reason of
any transaction not prohibited under the terms of the Financing Agreements
(including, without limitation, the issuance of equity by the Borrower), (ii)
the failure of Grupo to (A) Control Banco xx Xxxxxxx and (B) to own at least
ninety-three percent (93%) of the Capital Stock and Voting Stock of Banco xx
Xxxxxxx (provided that such percentage may be reduced (without constituting a
"Change of Control") to sixty-five percent (65%) of the Capital Stock and Voting
Stock of Banco xx Xxxxxxx in the event that Banco xx Xxxxxxx issues equity
securities by reason of any transaction not prohibited under the terms of the
Transaction Documents (including, without limitation, the issuance of equity by
Banco xx Xxxxxxx).
"Charter" means, with respect to Grupo, its "estatutos sociales".
"Clearstream" means Clearstream Banking Societe Anonyme.
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"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ownership of Voting Stock, by contract or otherwise, and the
verb "Control" and the terms "Controlling" and "Controlled" have the meanings
correlative to the foregoing.
"Country" means the Republic of Argentina.
"Dollar Equivalent" means, with respect to (i) any monetary amount
denominated in Dollars, such amount, (ii) any monetary amount denominated in
Pesos, at any time for the determination thereof, the amount of Dollars obtained
by converting Pesos into Dollars at the EMTA Rate or, if such rate shall not be
available, at the rate determined by IFC, IIC, CCC, the Note Purchase Agreement
Agent and the New Trade Credit Agreement Agent, based on the average of exchange
rate for the purchase of Dollars with Pesos as reported at the close of business
two (2) Business Days prior to the date of determination by Banco Rio de la
Plata S.A., Deutsche Bank S.A. and the branch of Citibank, N.A. in the Country
(or if any of such entities shall not report such quotations, by any of HSBC
Bank Argentina S.A., Bankboston N.A. Buenos Aires Branch or XX Xxxxxx Xxxxx Bank
Buenos Aires Branch, respectively), and (iii) a currency other than Dollars or
Pesos, at any time for the determination thereof, the amount of Dollars obtained
by converting such other currency into Dollars at the average of the spot rates
for the purchase of Dollars with such other currency, as publicly quoted by the
Note Purchase Agreement Agent in the normal course of business at approximately
11:00 a.m. (New York City time), on the date of determination thereof specified
herein or, if the date of determination thereof is not otherwise specified
herein, in each case on the date two (2) Business Days prior to such
determination
"Dollars" or "$" or "US$" means the lawful currency of the United
States of America.
"Effective Date" means the latest to occur of the (i) "Effective
Date" (as defined in the Restructured IFC Long-Term Loan Agreement), (ii)
"Effective Date" (as defined in the Restructured IIC Long-Term Loan Agreement),
and (iii) "Effective Date" (as defined in the Note Purchase Agreement).
"EMTA" means the Emerging Markets Trading Association.
"EMTA Rate" means the rate of exchange used for the purchase of
Dollars with Pesos as quoted by the EMTA on its website at
xxx.xxxx.xxx/xxxxxxxxx (or such other web page of EMTA where the quotation is
published if this web address changes) two (2) Business Days prior to the date
of determination, at 2:00 p.m. (Buenos Aires time).
"Equity Participation Option" means the offering by Banco xx Xxxxxxx
to make available (i) Medium-Term Bonds up to a maximum amount of three hundred
million Dollars ($300,000,000) and (ii) up to one hundred and forty-nine million
(149,000,000) Preferred Shares (or Preferred Shares and cash, if any), to each
creditor of Banco xx Xxxxxxx participating in the equity participation option,
subject to the prorationing procedures set forth in the applicable Other
Documents.
"Escasany, Ayerza and Xxxxx Family Members" means any members of the
Escasany, Ayerza and Braun families who are holders of Class "A" Shares of EBA
Holding S.A., or their heirs, descendants and spouses who receive shares as a
result of dissolution of marriage and the
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Fundacion Banco xx Xxxxxxx y Buenos Aires S.A., which holders of class "A"
shares are identified in the shareholders' meeting minutes, Number 1, of EBA
Holding S.A., dated October 12, 1999, and registered in the Registro Publico de
Comercio under number 18,036, Libro VIII, Tomo de Sociedades por Acciones.
"Euroclear" means Euroclear Bank S.A/N.V.
"Fiscal Year" means the accounting year of Grupo commencing each
year on January 1 and ending on the following December 31, or such other
accounting period of Grupo as Grupo may from time to time designate as its
accounting year.
"Grupo" has the meaning set forth in the preamble to this Agreement.
"IFC" has the meaning set forth in the preamble to this Agreement.
"IIC" has the meaning set forth in the preamble to this Agreement.
"Long-Term Bonds" means the Dollar-denominated notes (obligaciones
negociables) due 2014 to be issued by Banco xx Xxxxxxx under, and pursuant to
the terms and conditions applicable to, the Restructuring.
"Material Adverse Effect" means a material adverse effect on:
(i) the condition (financial or otherwise), operations,
Property, business affairs or business prospects of
Grupo and its Subsidiaries taken as a whole;
(ii) the validity or enforceability of any of the Transaction
Documents;
(iii) the rights and remedies of, or benefits available to,
any party (other than Grupo) under any of the
Transaction Documents; or
(iv) the ability of Grupo to perform its obligations under
this Agreement or any other Transaction Document in
accordance with the terms hereof or thereof.
"Medium-Term Bonds" means the Dollar-denominated notes (obligaciones
negociables) due 2010 to be issued by Banco xx Xxxxxxx under, and pursuant to
the terms and conditions applicable to, the Restructuring.
"NASDAQ" means, The Nasdaq Stock Market, Inc.
"New Trade Credit Agreement" means the trade credit agreement, dated
as of April 27, 2004, by and among Banco xx Xxxxxxx, the New Trade Credit
Agreement Agent, the letter of credit bank party thereto and the lenders party
thereto from time to time.
"New Trade Credit Agreement Agent" has the meaning set forth in the
preamble to this Agreement.
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"Note Purchase Agreement" means the note purchase agreement, dated
as of April 27, 2004, by and among Banco xx Xxxxxxx, the Note Purchase Agreement
Agent, Barclays Bank PLC, as Documentation Agent and the holders party thereto
from time to time.
"Other Documents" means:
(i) the Restructured IFC Loan Agreements;
(ii) the Restructured IIC Loan Agreements;
(iii) the Restructured CCC Loan Agreement;
(iii) the Restructured Bonds;
(iv) the Trust Agreement;
(v) the Assignment Agreement;
(vi) the New Trade Credit Agreement;
(vii) the Note Purchase Agreement; and
(viii) all and any other documents, instruments, indentures,
fiscal and paying agency agreements and/or other
agreements relating to, and/or in connection with, any
of the foregoing agreements and documents.
"Person" means any natural person, corporation, company,
partnership, firm, voluntary association, joint venture, trust, business trust,
joint stock company, limited liability company, unincorporated association,
unincorporated organization, Authority or any other entity whether acting in an
individual, fiduciary or other capacity and whether or not having a separate
legal personality.
"Pesos" means the lawful currency of the Country.
"Preferred Shares" means preferred shares of Grupo issued pursuant
to the equity prospectus dated April 26, 2004 which will be automatically
converted into class "B" shares of Grupo on the first (1st) anniversary date of
their issuance or, if earlier, on the occurrence of a change of control of
Grupo.
"Property" means any asset, revenue or other property, whether
tangible or intangible, real or personal, including without limitation any right
to receive income.
"Purchase Agreement" means the purchase agreement to be entered into
on or prior to the Effective Date between Banco xx Xxxxxxx and Grupo.
"Registration Rights Agreement" means the registration rights
agreement in the form of Exhibit A attached hereto, to be dated as of the
Effective Date and executed and delivered by Grupo.
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"Regulation S" means Regulation S under the United States Securities
Act of 1933, as amended.
"Restructured Bonds" means, collectively, (i) the Long-Term Bonds,
(ii) the Medium-Term Bonds, and (iii) the Subordinated Bonds.
"Restructured CCC Loan Agreement" means the dollar loan agreement,
dated as of April 27, 2004, between Banco xx Xxxxxxx and CCC.
"Restructured IFC Loan Agreements" means, collectively, (i) the
Restructured IFC Long-Term Loan Agreement; (ii) the Restructured IFC Medium-Term
Loan Agreement and (iii) the Restructured IFC Subordinated Loan Agreement.
"Restructured IFC Long-Term Loan Agreement" means the amended and
restated long-term loan agreement, dated as of April 27, 2004, between Banco xx
Xxxxxxx and IFC.
"Restructured IFC Medium-Term Loan Agreement" means the amended and
restated medium-term loan agreement, dated as of April 27, 2004, between Banco
xx Xxxxxxx and IFC.
"Restructured IFC Subordinated Loan Agreement" means the amended and
restated subordinated loan agreement, dated as of April 27, 2004, between Banco
xx Xxxxxxx and IFC.
"Restructured IIC Loan Agreements" means, collectively, (i) the
Restructured IIC Long-Term Loan Agreement; (ii) the Restructured IIC Medium-Term
Loan Agreement and (iii) the Restructured IIC Subordinated Loan Agreement.
"Restructured IIC Long-Term Loan Agreement" means the amended and
restated long-term loan agreement, dated as of April 27, 2004, between Banco xx
Xxxxxxx and IIC.
"Restructured IIC Medium-Term Loan Agreement" means the amended and
restated medium-term loan agreement, dated as of April 27, 2004, between Banco
xx Xxxxxxx and IIC.
"Restructured IIC Subordinated Loan Agreement" means the amended and
restated subordinated loan agreement, dated as of April 27, 2004, between Banco
xx Xxxxxxx and IIC.
"Restructuring" means the restructuring of the foreign
currency-denominated unsecured indebtedness of Banco xx Xxxxxxx.
"SEC" means the United States Securities and Exchange Commission.
"SOX Act" means the U.S. Xxxxxxxx-Xxxxx Act of 2002, as amended, and
the rules and regulations promulgated thereunder from time to time.
"Subordinated Bonds" means the Dollar-denominated notes
(obligaciones negociables) due 2019 to be issued by Banco xx Xxxxxxx under, and
pursuant to the terms and conditions applicable to, the Restructuring.
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"Subscription Agreement" means the subscription agreement, to be
entered into on or prior to the Effective Date and executed and delivered by and
between First Trust of New York, National Association, Representacion Permanente
en Argentina, as Trustee and Grupo.
"Subsidiary" means any Person of which, at the time of
determination, Grupo and/or one or more of its Subsidiaries owns or Controls
directly or indirectly more than fifty percent (50%) of the shares of such
Person's capital voting stock.
"Taxes" means any present or future taxes, assessments, withholding
obligations, duties and other charges of whatever nature levied, imposed and/or
collected by any Authority, and all interest, penalties, or similar liabilities
with respect thereto.
"Transaction Documents" means:
(i) this Agreement;
(ii) the Subscription Agreement;
(iii) the Purchase Agreement; and
(iv) the Registration Rights Agreement.
"Trust" means the trust created pursuant to the Trust Agreement.
"Trust Agreement" means the trust agreement, to be entered into on
or prior to the Effective Date, between Banco xx Xxxxxxx and First Trust of New
York, National Association, Representacion Permanente en Argentina, as Trustee.
"Voting Stock" means, with respect to a Subsidiary or an Affiliate,
any stock of the class or classes having general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of such Person; provided, however, that, for the purposes hereof,
stock which carries only the right to vote conditionally on the happening of an
event shall not be considered Voting Stock, whether or not such event shall have
happened.
SECTION 2. Covenants. Until all principal and interest owing by
Banco xx Xxxxxxx under the Other Documents, and all other amounts owing under
any of the Transaction Documents have been paid in full,
(a) Grupo shall: (i) from and after the six-month
anniversary of the Effective Date, cause the audit committee (which shall be at
all times sufficiently and broadly empowered to perform internal audits and to
review compensation of directors and senior management of Grupo as well as
transactions with Affiliates) of its board of directors to have at least three
members, a majority of which shall be "Independent Directors" (as such term is
defined in NASDAQ Stock Market Inc. Rule 4350(d)(2)(A)); (ii) comply, as and
when required to by foreign private issuers, with Section 402 of the SOX Act and
the rules and regulations adopted by the SEC and the Public Company Accounting
Oversight Board thereunder; (iii) comply with the internal control report
requirements under Section 404(a) of the SOX Act and the rules and regulations
adopted by the SEC and the Public Company Accounting Oversight Board
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thereunder; (iv) implement a code of ethics as defined in Section 406(c) of the
SOX Act, which code of ethics shall be applicable to its chief executive and
senior financial officers or persons performing similar functions; and (v) to
the extent required under the SOX Act with respect to any reports that Grupo
files with the SEC, NASDAQ or other national securities market and in annual
reports distributed to Class B shareholders include certifications from its
chief executive officer and chief financial officer.
(b) Grupo shall not:
(i) pay fees to the members of its board of directors
during any Fiscal Year, or enter into agreements or any other kind of
transactions pursuant to which Grupo shall (or shall be obligated to) pay
fees, salaries, retainers or any other kind of compensation to the members
of its board of directors during any Fiscal Year, if the aggregate amount
of fees, salaries, retainers or other compensation covered by this clause
(i) during such Fiscal Year would exceed one million five hundred thousand
Dollars ($1,500,000) (or the Dollar Equivalent in any other
currency), provided that Grupo, in accordance with clause (ii) below,
shall be permitted to make additional payments to members of the board who
hold executive positions of Grupo for performing executive functions; or
(ii) make any payment to its Management in excess of
Market Compensation. For this purpose: "Management" means full-time
employees, full-time officers or members of the board of Grupo who hold
executive positions of Grupo; and "Market Compensation" means compensation
that is within the normal range of compensation for similar executives in
the Country.
(c) Grupo shall furnish to the other parties hereto:
(i) as soon as available but in any event not later
than one hundred twenty (120) days after the close of each Fiscal Year in
the case of the documents referred to in clauses (1), (3), (6), and (7)
below, within one hundred thirty (130) days after the close of each Fiscal
Year in the case of the document referred to in clause (8), and within one
hundred eighty (180) days after the close of each Fiscal Year in the case
of the documents referred to in clauses (2), (4) and (5) below: (1) a
complete copy of its annual report in the English language (an "Annual
Report", which shall include a consolidated balance sheet, consolidated
statement of income, consolidated statement of changes in stockholders'
equity and consolidated statement of cash flows for such Fiscal Year of
Grupo and will be audited and accompanied by a report thereon of the
Auditors), (2) a certificate from the Auditors containing a reconciliation
to U.S. generally accepted accounting principles of net income and
shareholders' equity of Grupo, (3) a management letter from the Auditors
to Grupo or to its management commenting on, among other things, the
adequacy of Grupo's financial control procedures and accounting systems
and management information system, together with copies of any other
communication sent by the Auditors in relation to such procedures and
systems; (4) a certificate from Grupo, certifying that it was in
compliance with Section 402 of the SOX Act, and setting forth all
outstanding loans and other obligations between Grupo and Escasany, Ayerza
and Xxxxx Family Members or any Person holding five percent (5%) or
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more of the Grupo's Capital Stock shareholders or between Grupo and Banco
xx Xxxxxxx during such Fiscal Year, (5) commencing with the Fiscal Year
ending in 2005, an internal control report by Grupo containing the
information required under Section 404(a) of the SOX Act and the rules and
regulations adopted by the SEC and the Public Company Accounting Oversight
Board thereunder, together with an attestation from the Auditors with
respect to such reporting as would be required by Section 404(b) of the
SOX Act and the rules and regulations adopted by the SEC and the Public
Company Accounting Oversight Board thereunder; (6) a certificate from
Grupo certifying compliance with the covenants in Section 2(a) and 2(b);
(7) a certificate from Grupo setting forth the organizational structure of
Grupo, listing the percentages of Capital Stock and Voting Stock of Grupo
held by EBA Holding S.A. and certifying that no Change of Control has
occurred in the relevant Fiscal Year; and (8) a certificate from Grupo
setting forth all claims, contingencies or commitments (broken down into
cash and non-cash items) of Grupo against its controlling shareholders or
Banco xx Xxxxxxx;
(ii) as soon as available but in any event not later
than sixty (60) days after the end of each quarter of each Fiscal Year, a
quarterly report of Grupo in the English language (a "Quarterly Report",
which Quarterly Report shall include an unaudited, consolidated balance
sheet, consolidated statement of income and consolidated statement of
changes in shareholders' equity for such Fiscal Year or quarter of Grupo
and shall be subject to limited review by the Auditors in accordance with
the Accounting Principles);
(iii) promptly by facsimile or telex not less than
twenty (20) days before it takes place, notice of any meeting of its
shareholders including the agenda of the meeting;
(iv) promptly, copies of (A) all notices, reports and
other communications of Grupo to its shareholders, and (B) the minutes of
all shareholders' meetings;
(v) promptly, notice of any proposed material change
in the business or operations of Grupo and of any event or condition that
has had or might reasonably be expected to have a Material Adverse Effect;
(vi) notice, as soon as Grupo becomes aware of any
litigation or administrative proceedings before any Authority or arbitral
body which might reasonably be expected to have a Material Adverse Effect,
which notice shall specify the nature of such litigation or proceedings
and the steps Grupo is taking or proposes to take with respect thereto;
(vii) promptly after the sending or filing thereof,
copies of all material proxy statements, financial statements and reports
and copies of all material regular, periodic and special reports that
Grupo files with the Argentine Comision Nacional de Valores, the NASDAQ,
the SEC or any Authority that may be substituted therefor, or with any
national securities exchange;
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(viii) promptly upon receipt thereof, all amendments,
modifications or waivers of any provision of any of the Transaction
Documents; and
(ix) promptly, such information as any party hereto may
from time to time reasonably request about Grupo and its Property.
(d) On or before the Effective Date, (i) execute and deliver
the Subscription Agreement and the Purchase Agreement, and (ii) fully comply
with any and all of its obligations under the Subscription Agreement and
Purchase Agreement.
(e) From and after the Effective Date, fully comply with any
and all of its obligations under the Transaction Documents.
SECTION 3. Representations and Warranties. Grupo represents and
warrants to the other parties hereto, as of the date hereof and the Effective
Date, except as expressly set forth herein, that:
(a) Grupo (i) is a company duly incorporated and validly
existing under the laws of the jurisdiction of its incorporation, (ii) has
obtained all required Authorizations to own its assets and conduct its business
as presently conducted, and (iii) has the power, authority and legal right to
enter into and perform its obligations under this Agreement and the Transaction
Documents or will, in the case of any Transaction Document not executed as at
the date of this Agreement, when that Transaction Document is executed, have the
power, authority and legal right to enter into and comply with its obligations
under such Transaction Document.
(b) Neither the execution, delivery or performance of this
Agreement or any Transaction Document nor the compliance with its terms will
conflict with or result in a breach of any of the terms, conditions or
provisions of, or constitute a default or require any consent under, any
indenture, mortgage, agreement or other instrument or arrangement to which Grupo
is a party or by which it is bound, or violate any of the terms or provisions of
Grupo's Charter or any Authorization, judgment, decree or order or any statute,
rule or regulation applicable to Grupo or result in or require the creation or
imposition of any lien upon or with respect to any of the properties of Grupo.
(c) This Agreement and each other Transaction Document to
which Grupo is a party has been, or will be, duly authorized and executed by
Grupo and constitutes, or will constitute when so executed, a valid and legally
binding obligation of Grupo, enforceable against Grupo in accordance with its
terms, subject to (i) applicable bankruptcy, insolvency and other similar laws
affecting creditor's rights generally, and (ii) general equitable principles
regardless of whether the issue of enforceability is considered in a proceeding
in equity or at law.
(d) All of the Authorizations needed by Grupo to conduct its
business and execute and comply with its obligations under this Agreement and
each of the other Transaction Documents have been obtained and are final and in
full force and effect and Grupo has not received any notice of proceedings
relating to the revocation, cancellation, expropriation or modification of any
such Authorization.
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(e) Grupo and each of its Subsidiaries is not in violation
of any material statute or regulation of any Authority (including social
security laws and retirement and pension funds laws and all regulations and
requirements of the Argentine National Securities Commission (Comision Nacional
de Valores), the NASDAQ, the SEC, and their respective successors.
(f) All material tax returns and reports of Grupo required
by law to be filed have been duly filed and all material Taxes, obligations,
fees and other governmental charges upon Grupo, or its Properties, or its income
or assets, which are due and payable or to be withheld, have been paid or
withheld, other than any such liabilities that are being contested in good faith
and by appropriate proceedings, and for which adequate reserves with respect
thereto have been established to the extent required by Accounting Principles.
(g) There is no Tax, impost, deduction, charge or
withholding imposed by the Country or any political subdivision or taxing
authority thereof or therein on or by virtue of the execution or delivery of
this Agreement.
(h) Neither any information, financial statement, exhibit,
schedule nor any report furnished in writing by or on behalf of Grupo to any of
the other parties hereto in connection with the negotiation of the Transaction
Documents or pursuant to the terms of the Transaction Documents (other than any
projections, estimates or information of a general economic nature) contain,
when taken as a whole, any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made therein not misleading in
light of the circumstances under which they were made. All written information
furnished after the date hereof by Grupo to any of the other parties hereto in
connection with this Agreement and the transactions contemplated in the
Transaction Documents will be true, complete and accurate in all material
respects or (in the case of projections) based on estimates believed by Grupo to
be reasonable, on the date of which such information is stated or certified.
There is no fact known to Grupo that could reasonably be expected to have a
Material Adverse Effect that has not been disclosed herein or in a report,
financial statement, exhibit, schedule, disclosure letter or other writing
furnished by Grupo to the other parties hereto on or prior to the date hereof
for use in connection with the transactions contemplated hereby, in the other
Transaction Documents or in the Other Documents.
(i) This Agreement and the other Transaction Documents are
in proper legal form under the laws of the Country for the enforcement thereof
against Grupo under the laws of the Country, and the obligations of Grupo under
this Agreement and the other Transaction Documents may be enforced (by judgment
and levy) in accordance with their respective terms in a proceeding at law in
any competent court in the Country; provided, however, that (i) an official
Spanish translation of this Agreement or the other Transaction Documents, as
applicable, is required to bring an action thereon in the courts of the Country
and (ii) the enforcement of foreign judgments in the Country would be recognized
if the requirements of Article 517 of the Federal Code on Civil and Commercial
Procedure are met, including: (A) the judgment, which must be final in the
jurisdiction where rendered, was issued by a competent court in accordance with
Argentine laws regarding conflict of laws and jurisdiction and resulted from a
personal action, or an in rem action regarding property that was transferred
into the Country during or after the prosecution of the foreign action; (B) the
defendant against whom enforcement of the
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judgment is sought was personally served with the summons, in accordance with
due process of law, and was given an opportunity to defend against the foreign
action; (C) the judgment must be valid in the jurisdiction where rendered and
its authenticity must be established in accordance with the requirements of
Argentine law; (D) the judgment does not violate the principles of public policy
of Argentine law; and (E) the judgment is not contrary to a prior or
simultaneous judgment of an Argentine court.
(j) Grupo is not an "investment company" subject to
regulation under the U.S. Investment Company Act of 1940, as amended.
(k) The financial statements of Grupo for the Fiscal Years
ending on December 31, 2003 and December 31, 2002, copies of which have been
furnished to the other parties hereto:
(i) have been prepared in accordance with the
Accounting Principles applicable to Grupo, and present fairly, in all
material respects, the financial condition of Grupo as of the date as of
which they were prepared and the results of Grupo's operations during the
period then ended; and
(ii) disclose all liabilities (contingent or otherwise)
of Grupo, and the reserves, if any, for such liabilities and all
unrealized or anticipated liabilities and losses arising from commitments
entered into by Grupo (whether or not such commitments have been disclosed
in such financial statements) required, pursuant to the Accounting
Principles, to be disclosed therein.
(l) Grupo has obtained all necessary governmental approvals
to consummate the transactions contemplated in the Subscription Agreement and in
the Purchase Agreement, including the Comision Nacional de Valores approval for
the public offering of the Preferred Shares and the Bolsa de Comercio de Buenos
Aires and the Bolsa de Comercio de Cordoba approvals for the listing of the
Preferred Shares.
(m) On the Effective Date, the Preferred Shares shall
constitute twelve percent (12%) of the issued and outstanding capital stock of
Grupo on a fully diluted basis. From and after the Effective Date, the Preferred
Shares shall be registered in the stock records of Grupo noting the names of the
beneficial owners thereof.
(n) As of the Effective Date, the stock register of Grupo
will accurately record the issuance of the Preferred Shares through: (i) a
global certificate held by Caja de Valores S.A. in respect of Euroclear and
Clearstream on behalf of the beneficial owners of Preferred Shares that do not
fall within the category of U.S. Persons as such term is defined under
Regulation S, and (ii) definitive form in respect to each of the beneficial
owners of Preferred Shares that do fall under the category of U.S. Persons as
such term is defined under Regulation S.
(o) As of the Effective Date, the Preferred Shares will be
duly issued, subscribed, and paid in, in accordance with their respective terms
and conditions of issuance, have no voting rights, and have a par value per
share of Ps. 1.00. The Preferred Shares shall automatically convert into
ordinary "B" shares of Grupo on the first anniversary of the date of their
issuance or, if earlier, upon the occurrence of a Change of Control of Grupo.
The Preferred
12
Shares have preferential rights over the remaining shares of Grupo in the event
of liquidation of Grupo.
(p) Except for the preferential and accretion rights
corresponding to holders of ordinary shares of Grupo, there are no outstanding
options, subscription coupons, or rights of any kind exist to acquire additional
shares of Grupo's stock, or bonds convertible into, or exchangeable for, stock
or otherwise conferring upon the shareholders of Grupo, the right to acquire
additional shares, and no undertaking was made by Grupo to issue any of such
options, subscription coupons, rights or bonds. Except for the capital increase
for the issuance of the Preferred Shares, Grupo has no pending: (a) capital
increase or reduction, (b) subscription, issuance, or redemption of shares, (c)
re-statement or amendment of its by-laws, (d) mergers, split-offs or transfers
of goodwill, or (e) anything that will adversely affect the consummation of the
Restructuring.
SECTION 4. Survival. All covenants, agreements, representations and
warranties made by Grupo herein and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement shall be considered
to have been relied upon by the other parties hereto and shall survive the
execution and delivery of this Agreement, regardless of any investigation made
by any such other party or on its behalf and notwithstanding that any party
hereto may have had notice or knowledge of any incorrect representation or
warranty, and shall continue in full force and effect as long as any amount
payable under any Other Document is outstanding and unpaid. Without prejudice to
the survival of any other agreement of Grupo hereunder, the provisions of
Sections 6, 7, 8, 9, 10, 11, 13, 14, 15 and 16 of this Agreement shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby or the payment in full of principal, interest
and all other amounts payable under any of the other Other Documents.
SECTION 5. Counterparts; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on separate
counterparts), each of which when so executed shall constitute an original, and
all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be as effective as delivery of a manually executed counterpart of
this Agreement. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, except that
Grupo shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the other parties hereto. This
Agreement represents the entire agreement of Grupo and the other parties hereto
with respect to the subject matter hereof.
SECTION 6. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof, and the invalidity, illegality or
unenforceability of a particular provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 7. Jurisdiction; Consent to Service of Process. (a) Each of
the parties hereto (other than the Commodity Credit Corporation) hereby
irrevocably and unconditionally submits,
13
for itself and its property, to the nonexclusive jurisdiction of any New York
State court or Federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or any of the other Transaction
Documents or Other Documents to which it is a party, or for recognition or
enforcement of any judgment, and each of the parties hereto (other than the
Commodity Credit Corporation) hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the fullest extent permitted
by law, in such Federal court. The Commodity Credit Corporation hereby
irrevocably and unconditionally submits to the jurisdiction of any Federal court
of the United States of America and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement or any of the
Other Documents to which it is a party, or for recognition or enforcement of any
judgment, and the Commodity Credit Corporation hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such Federal court; provided, any
suit against the Commodity Credit Corporation shall be brought in the District
of Columbia, or in the Federal district wherein the plaintiff resides or is
engaged in business. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the party hereto may
otherwise have to bring any action or proceeding relating to this Agreement in
the courts of any jurisdiction. Grupo irrevocably and unconditionally waives any
right to claim a lack of jurisdiction should any Transaction Document or Other
Document be enforced in the Country. Grupo hereby irrevocably appoints CT
Corporation System (the "Process Agent") with an office on the date hereof at
000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx, as its agent to
receive on behalf of Grupo and its property service of copies of the summons and
complaint and any other process which may be served in any such action or
proceeding arising out of or relating to this Agreement or any other Transaction
Document governed by New York law. Such service may be made by mailing or
delivering a copy of such process to Grupo in care of the Process Agent at the
Process Agent's above address, and Grupo hereby irrevocably authorizes and
directs the Process Agent to accept such service on its behalf. As an
alternative method of service, Grupo also irrevocably consents to the service of
any and all process in any such action or proceeding by sending copies of such
process by mail to Grupo at its address specified in Section 8. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
(b) Each of the parties hereto hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Transaction Document in any New York State or Federal court referred
to in subparagraph (a) of this Section 7. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 8. Notices. Any notice, request or other communication to be
given or made under this Agreement shall be in writing. Except as otherwise
provided in Section 2(c), any such communication may be delivered by hand,
airmail, facsimile or established courier service to the
14
party's address specified below or at such other address as such party notifies
to the other parties hereto from time to time, and will be effective upon
receipt.
For Grupo:
Tte. Gral. Xxxx X. Xxxxx 456, 2 degrees piso
X0000XXX Xxxxxx
Xxxxx Xxxxxxxxx Argentina
Facsimile: 4331-9183
Attention: Xxxxx X. Xxxxxxxx
with a copy (which shall not constitute notice) to:
WHITE & CASE LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile: (x0 000) 000-0000
Attention: Xxxxxxxxx Xxxxxxxxx
For IIC:
INTER-AMERICAN INVESTMENT CORPORATION
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Xxxxxx Xxxxxx of America
Facsimile: (x0 000) 000-0000 or 623-3807
Attention: General Manager (with a copy to General Counsel)
With a copy (which shall not constitute notice) to:
MARVAL, X'XXXXXXX & MAIRAL
Xx. Xxxxxxx X. Xxxx 000
(X0000XXX) Xxxxxx Xxxxx
Xxxxxxxx of Argentina
Facsimile: (x00 00) 0000-0000
Attention: Xxxxxxx X. Xxxxx, Xx./Xxxxxxx Xxxx Xxxxxxxx.
MAYER, BROWN, XXXX & MAW LLP,
000 X. XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (x0 000) 000-0000
Attention: Xxxxxxx Xxxxxxx
15
For IFC:
INTERNATIONAL FINANCE CORPORATION
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Xxxxxx Xxxxxx of America
Facsimile: (x0 000) 000-0000
Attention: Director, Global Financial Markets
With a copy (in the case of communications relating to payments)
sent to the attention of the Senior Manager, Financial Operations
Unit, at:
Facsimile: (x0 000) 000-0000.
With a copy (which shall not constitute notice) to:
MARVAL, X'XXXXXXX & MAIRAL
Xx. Xxxxxxx X. Xxxx 000
(X0000XXX) Xxxxxx Xxxxx
Xxxxxxxx of Argentina
Facsimile: (x00 00) 0000-0000
Attention: Xxxxxxx X. Xxxxx, Xx./Xxxxxxx Xxxx Xxxxxxxx.
MAYER, BROWN, XXXX & MAW LLP,
000 X. XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (x0 000) 000-0000
Attention: Xxxxxxx Xxxxxxx
For CCC:
COMMODITY CREDIT CORPORATION
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxxxxx, Xxxxxxxx 00000,
Telecopy: (x0 000) 000-0000
Attention: Xxxxxxxx Xxxxxxxx
With a copy (which shall not constitute notice) to:
MARVAL, X'XXXXXXX & MAIRAL
Xx. Xxxxxxx X. Xxxx 000
(X0000XXX) Xxxxxx Xxxxx
Xxxxxxxx of Argentina
16
Facsimile: (x00 00) 0000-0000
Attention: Xxxxxxx X. Xxxxx, Xx./Xxxxxxx Xxxx Xxxxxxxx.
MAYER, BROWN, XXXX & MAW LLP,
000 X. XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (x0 000) 000-0000
Attention: Xxxxxxx Xxxxxxx
For Note Purchase Agreement Agent:
DEUTSCHE BANK TRUST COMPANY AMERICAS
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (x0 000) 000-0000
Attention: Xxxxxxx Xxxxxxxx.
With a copy (which shall not constitute notice) to:
MARVAL, X'XXXXXXX & MAIRAL
Xx. Xxxxxxx X. Xxxx 000
(X0000XXX) Xxxxxx Xxxxx
Xxxxxxxx of Argentina
Facsimile: (x00 00) 0000-0000
Attention: Xxxxxxx X. Xxxxx, Xx./Xxxxxxx Xxxx Xxxxxxxx.
MAYER, BROWN, XXXX & MAW LLP,
000 X. XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (x0 000) 000-0000
Attention: Xxxxxxx Xxxxxxx
For New Trade Credit Agreement Agent:
DEUTSCHE BANK TRUST COMPANY AMERICAS
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (x0 000) 000-0000
Attention: Xxxxxxx Xxxxxxxx.
With a copy (which shall not constitute notice) to:
17
MARVAL, X'XXXXXXX & MAIRAL
Xx. Xxxxxxx X. Xxxx 000
(X0000XXX) Xxxxxx Xxxxx
Xxxxxxxx of Argentina
Facsimile: (x00 00) 0000-0000
Attention: Xxxxxxx X. Xxxxx, Xx./Xxxxxxx Xxxx Xxxxxxxx.
MAYER, BROWN, XXXX & MAW LLP,
000 X. XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (x0 000) 000-0000
Attention: Xxxxxxx Xxxxxxx
SECTION 9. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE ACTIONS OF
ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, OR PERFORMANCE THEREOF.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 10. Waiver of Sovereign Immunity. Grupo, in respect of
itself, its Subsidiaries, their respective process agents, and their properties
and revenues, hereby irrevocably agrees that, to the extent that Grupo, its
Subsidiaries or any of their respective properties and revenues has or may
hereafter acquire any right of immunity of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise, and whether characterized as sovereign
immunity or otherwise), whether in the United States, the Country or elsewhere,
to enforce or collect upon the this Agreement, the other Transaction Documents,
or any other liability or obligation of Grupo of any of its Subsidiaries related
to or arising from the transactions contemplated by this Agreement or the other
Transaction Documents, including without limitation immunity from service of
process, immunity from jurisdiction or judgment of any court or tribunal,
immunity from execution of a judgment, and immunity of any of its property from
attachment prior to any entry of judgment, or from attachment in aid of
execution upon a judgment, Grupo, for itself and on behalf of its Subsidiaries,
hereby expressly and irrevocably waives any such immunity in respect of its
obligations under this Agreement and the other Transaction Documents, and,
agrees, without limiting the generality of the foregoing, (i) that the waivers
set forth in this Section 11 shall have the fullest scope permitted under the
Foreign Sovereign Immunities Act of 1976 of the
18
United States and are intended to be irrevocable for purposes of such Act, and
(ii) not to assert any such right or claim in any such proceeding, whether in
the United States, the Country or elsewhere.
SECTION 11. English Language. This Agreement has been negotiated and
executed in the English language. The English language version of this Agreement
and each other Transaction Document shall control and be conclusive as to the
meaning of any terms and provisions hereof or thereof except in connection with
the enforcement thereof in the Country as may be required by Argentine law. All
agreements, documents, certificates, reports or notices to be delivered or
communications to be given or made by any party hereto pursuant to the terms of
any Transaction Document shall be in the English language or, if originally
written in another language, shall be accompanied by an accurate English
translation upon which the other parties hereto shall have the right to rely for
all purposes of this Agreement and the other Transaction Documents.
SECTION 12. Headings. Section headings used herein are for
convenience of reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION 13. Remedies. Each of the undersigned acknowledges that
damages would not be an adequate remedy for any breach of the provisions of this
Agreement and that, in addition to all other remedies available at law,
injunction, specific performance and any other form of equitable relief shall be
available to enforce the provisions of this Agreement.
SECTION 14. Third Party Beneficiaries. The parties to the
Transaction Documents or Other Documents that are not parties to this Agreement
are intended third party beneficiaries of this Agreement.
SECTION 15. Agents. The Note Purchase Agreement Agent and the New
Trade Credit Agreement Agent shall have no duties or responsibilities except for
those that are expressly set forth in the other Transaction Documents or in the
Other Documents to which they, respectively, are parties. The Note Purchase
Agreement Agent, the New Trade Credit Agreement Agent, and the Documentation
Agent shall have no responsibility for any recital, statement, representation or
warranty made in any Transaction Document or any Other Document by any other
party thereto or for the failure of any other party to any Transaction Document
or any Other Document to perform its obligations thereunder.
SECTION 16. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD
TO ITS CONFLICT OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 AND SECTION 5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
19
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first written above by their duly authorized officers.
GRUPO FINANCIERO XXXXXXX X.X.
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
---------------------------------
Title: Gerente
---------------------------------
S-1 Grupo Galicia Agreement
INTERNATIONAL FINANCE CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Director, Global Financial Markets
-----------------------------------
By:
Name:
-----------------------------------
Title:
-----------------------------------
S-2 Grupo Galicia Agreement
INTER-AMERICAN INVESTMENT CORPORATION
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: XXXXXX X. XXXX
--------------------------------
Title: Acting General Manager
--------------------------------
S-3 Grupo Galicia Agreement
COMMODITY CREDIT CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Controller
S-4 Grupo Galicia Agreement
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS NOTE PURCHASE AGREEMENT AGENT AND
AS NEW TRADE CREDIT AGREEMENT AGENT
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
S-5 Grupo Galicia Agreement
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of
_________ __, 2004 of Grupo Financiero Xxxxxxx X.X., an Argentine corporation
(the "Company") for the benefit of the Holders (as defined below). In order to
induce the creditors to participate in the debt restructuring (the
"Restructuring") of Banco xx Xxxxxxx y Buenos Aires S.A., a subsidiary of the
Company, the Company has agreed for the benefit of the Holders to provide the
registration rights set forth in this Agreement.
The Company agrees that for the benefit of the beneficial owners
from time to time of the Preferred Shares (as defined herein) and any securities
into or for which such Preferred Shares has been converted or exchanged, and the
beneficial owners from time to time thereof (each of the foregoing a "Holder"
and together the "Holders"), as follows:
SECTION 1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Pricing
Supplement. As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" means with respect to any specified person, an
"affiliate," as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 2(d) hereof.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
"Common Stock" means the ordinary "B" shares of the Company, with
Ps. 1.00 par value per share.
"Company" has the meaning set forth in the first paragraph hereof.
"Deferral Period" has the meaning set forth in Section 3(h) hereof.
"Effectiveness Deadline Date" has the meaning set forth in Section
2(a) hereof.
"Effectiveness Period" means the period commencing on the
Effectiveness Deadline Date and ending on September 30, 2005.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning set forth in Section 2(a)
hereof.
Exhibit A-1 Grupo Galicia Agreement
"Holder" has the meaning set forth in the second paragraph of this
Agreement.
"Initial Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
"Issue Date" means the date the preferred shares of the Company are
issued to the Holders, which preferred shares are automatically convertible into
the Common Stock, on the first anniversary of the Issue Date.
"Material Event" has the meaning set forth in Section 3(h) hereof.
"Notice and Questionnaire" means a written notice delivered to the
Company containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire distributed by the Company to the
Holders prior to the Effectiveness Deadline Date.
"Notice Holder" means, on any date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date.
"Preferred Shares" means preferred shares of the Company which are
held by persons other than Regulation S investors (as defined in the Pricing
Supplement) issued pursuant to the equity prospectus dated April 26, 2004 which
will be automatically converted into Common Stock on the first (1st) anniversary
date of their issuance or, if earlier, on the occurrence of a change of control
of the Company.
"Pricing Supplement" means the pricing supplement, dated December
23, 2003, as supplemented on March 18, 2004 and April 6, 2004, relating to the
Restructuring.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated
by reference or explicitly deemed to be incorporated by reference in such
Prospectus.
"Registrable Securities" means the Common Stock resulting from
conversion of the Preferred Shares pursuant to the terms thereof and any
securities into or for which such Common Stock has been converted or exchanged,
and any security issued with respect thereto upon any stock dividend, split or
similar event until, in the case of any such security, (A) the earliest of (i)
such Common Stock's effective registration under the Securities Act and resale
in accordance with the Registration Statement covering it, (ii) two years from
the effectiveness of the Initial Shelf Registration Statement or (iii) the time
at which Rule 144 (or any similar provision then in force, but not Rule 144A)
becomes available for the Holder to immediately freely resell under the
Securities Act without restriction all Registrable Securities held by it, and
(B) as a result of the event or circumstance described in any of the foregoing
clauses (i) through (iii), the legend with respect to transfer restrictions
described in the Pricing Supplement is removed or removable in accordance with
the terms of such legend.
Exhibit A-2 Grupo Galicia Agreement
"Registration Statement" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all materials incorporated by reference or explicitly deemed to be incorporated
by reference in such registration statement.
"Restricted Securities" means "restricted securities" as defined in
Rule 144.
"Restructuring" has the meaning set forth in the first paragraph
hereof.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"Special Counsel" means Mayer, Brown, Xxxx & Maw LLP or one such
other successor counsel as shall be specified by the Holders of a majority of
the Registrable Securities, but which may be another nationally recognized law
firm experienced in securities law matters designated by the Company that is
approved by the Holders of a majority of the Registrable Securities, the
reasonable fees and expenses of which will be paid by the Company pursuant to
Section 5 hereof.
"Subsequent Shelf Registration Statement" has the meaning set forth
in Section 2(b) hereof.
SECTION 2. Shelf Registration. (a) The Company shall prepare and
file or cause to be prepared and filed with the SEC, not later than the date
(the "Filing Deadline Date") that is one hundred eighty (180) days after the
Issue Date, a Registration Statement for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 of the Securities Act registering the
resale from time to time by Holders thereof of all of the Registrable Securities
(the "Initial Shelf Registration Statement") permitted under applicable law to
be registered thereon. The Initial Shelf Registration Statement shall be on Form
F-1 or another appropriate form permitting registration of such Registrable
Securities for resale by such Holders in accordance with the methods of
distribution elected by the Holders and set forth in the Initial Shelf
Registration Statement and will use its reasonable best efforts to cause such
registration statement as amended to become effective under the Securities Act
as promptly as is reasonably practicable thereafter; provided, however, that if
the Company files the Initial Shelf Registration Statement or any Subsequent
Shelf Registration Statement on Form F-1 and subsequently becomes eligible to
use Form F-3, it will file a post-effective amendment to such Form F-1 on Form
F-3 prior to the end of the fiscal year in which it becomes eligible to use such
Form F-3. The Company shall use its reasonable best efforts to cause the Initial
Shelf Registration Statement to be declared effective under the Securities Act
by no later than June 1, 2005 (the
Exhibit A-3 Grupo Galicia Agreement
"Effectiveness Deadline Date"), and to keep the Initial Shelf Registration
Statement (or any Subsequent Shelf Registration Statement (as defined below))
continuously effective under the Securities Act until the expiration of the
Effectiveness Period. At the time the Initial Shelf Registration Statement is
declared effective, each Holder that is a Notice Holder or its nominee, as
applicable, shall be named as a selling security holder in the Initial Shelf
Registration Statement and the related Prospectus in such a manner as to permit
such Holder to deliver such Prospectus to purchasers of Registrable Securities
in accordance with applicable law. None of the Company's security holders (other
than the Holders of Registrable Securities) shall have the right to include any
of the Company's securities in the Initial Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any Subsequent
Shelf Registration Statement ceases to be effective for any reason at any time
during the Effectiveness Period (other than because all Registrable Securities
registered thereunder shall have been resold pursuant thereto or shall have
otherwise ceased to be Registrable Securities), the Company shall use its
reasonable best efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof, and in any event shall within thirty (30) Business
Days of such cessation of effectiveness amend the Initial Shelf Registration
Statement in a manner reasonably expected to obtain the withdrawal of the order
suspending the effectiveness thereof, and file an additional registration
statement covering all of the securities that as of the date of such filing are
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use its
reasonable best efforts to cause the Subsequent Shelf Registration Statement to
become effective as promptly as is reasonably practicable after such filing and
to keep such Registration Statement (or Subsequent Shelf Registration Statement)
continuously effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend (including by means of a
post-effective amendment) a Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Registration Statement, if required by the Securities Act or
Exchange Act or as necessary to name a Notice Holder as a selling security
holder pursuant to Section (d) below.
(d) Each Holder agrees that if such Holder wishes to sell
Registrable Securities pursuant to a Registration Statement and related
Prospectus, it will do so only in accordance with this Agreement. Following the
date that the Initial Shelf Registration Statement is declared effective, each
Holder wishing to sell Registrable Securities pursuant to a Registration
Statement and related Prospectus agrees to deliver a Notice and Questionnaire
pursuant to Section 4, which Notice and Questionnaire shall be provided to
Holders at least fifteen (15) days prior to the effective date of the Initial
Shelf Registration Statement and any Subsequent Shelf Registration Statement,
unless a Notice and Questionnaire has previously been delivered to the Company.
From and after the date the Initial Shelf Registration Statement is declared
effective, the Company shall, as promptly as practicable after the date a Notice
and Questionnaire is delivered pursuant to Section 8(c), and in any event upon
the later of (x) five (5) Business Days after such date or (y) five (5) Business
Days after the expiration of any Deferral Period in effect when the Notice and
Questionnaire is delivered or put into effect:
(i) if required by applicable law, file with the SEC a
post-effective amendment to a Registration Statement or prepare and,
if required by applicable
Exhibit A-4 Grupo Galicia Agreement
law, file a supplement to the related Prospectus or a supplement or
amendment to any document incorporated therein by reference or file
any other required document so that the Holder delivering such
Notice and Questionnaire is named as a selling security holder in
the applicable Registration Statement and the related Prospectus in
such a manner as to permit such Notice Holder to deliver such
Prospectus to purchasers of the Registrable Securities in accordance
with applicable law and, if the Company shall file a post-effective
amendment to the Registration Statement, use its reasonable best
efforts to cause such post-effective amendment to be declared
effective under the Securities Act within thirty days after the
filing of the post-effective amendment, (the "Amendment
Effectiveness Deadline Date");
(ii) promptly following the Amendment Effectiveness Deadline,
provide such Holder copies of any Prospectus or supplement or
amendment thereto filed pursuant to Section 2(d)(i); and
(iii) notify such Holder as promptly as is reasonably
practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section 2(d)(i);
provided, that if such Notice and Questionnaire is delivered during
a Deferral Period, the Company shall so inform the Holder delivering
such Notice and Questionnaire and shall, to the extent required,
take the actions set forth in clauses (i), (ii) and (iii) above upon
expiration of the Deferral Period in accordance with Section 3(h).
Notwithstanding anything contained herein to the contrary, if a
Deferral Period shall be in effect on the Amendment Effectiveness
Deadline Date (i) the Company shall be under no obligation to name
any Holder that is not a Notice Holder as a selling security holder
in any Registration Statement or related Prospectus until the
expiration of the relevant time period specified in Section 2(d),
provided, however, that the Company shall use its reasonable best
efforts to name such Holder as a selling security holder as soon as
is otherwise practicable and (ii) the Company shall use its
reasonable best efforts to cause any post-effective amendment filed
by the Company to be declared effective under the Securities Act
within thirty days after the expiration of a Deferral Period.
SECTION 3. Registration Procedures. In connection with the
registration obligations of the Company under Section 2 hereof, from the date
hereof until the expiration of the Effectiveness Period, the Company shall:
(a) Prepare and file, subject to the provisions of Section 2(a)
hereof, with the SEC a Registration Statement or Registration Statements
on Form F-1 or another appropriate form under the Securities Act available
for the sale of the Registrable Securities by the Holders thereof in
accordance with the intended method or methods of distribution thereof,
and use its reasonable best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein;
provided that before filing the Initial Shelf Registration Statement with
the SEC, furnish to the Special Counsel of such offering, if any, copies
of all such documents proposed to be filed at
Exhibit A-5 Grupo Galicia Agreement
least three (3) Business Days prior to the filing of such Initial Shelf
Registration Statement or amendment thereto or Prospectus or supplement
thereto.
(b) Subject to Section 3(h), prepare and file with the SEC such
amendments and post-effective amendments to each Registration Statement as
may be necessary to keep such Registration Statement continuously
effective for the applicable period specified in Section 2(a); cause the
related Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 (or
any similar provisions then in force) under the Securities Act; and use
its reasonable best efforts to comply with the provisions of the
Securities Act applicable to it with respect to the disposition of all
securities covered by such Registration Statement during the Effectiveness
Period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement as so amended or
such Prospectus as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders,
(i) when any Prospectus, prospectus supplement, Registration Statement or
post-effective amendment to a Registration Statement has been filed with
the SEC and, with respect to a Registration Statement or any
post-effective amendment, when the same has been declared effective, (ii)
of any request, following the effectiveness of the Initial Shelf
Registration Statement under the Securities Act, by the SEC or any other
federal or state governmental authority for amendments or supplements to
any Registration Statement or related Prospectus or for additional
information, (iii) of the issuance by the SEC or any other federal or
state governmental authority of any stop order suspending the
effectiveness of any Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the receipt by
the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, (v) of the occurrence of, but not the
nature of or details concerning, a Material Event or (vi) of the
determination by the Company that a post-effective amendment to a
Registration Statement will be filed with the SEC, which notice may, at
the discretion of the Company (or as required pursuant to Section 3(h)),
state that it constitutes a Deferral Notice, in which event the provisions
of Section 3(h) shall apply.
(d) Use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction in which they have been qualified for sale, in either case at
the earliest possible moment, and provide immediate notice to each Notice
Holder and the Special Counsel of the withdrawal of any such order.
(e) As promptly as practicable furnish to each Notice Holder and
the Special Counsel, upon request and without charge, at least one
conformed copy of the Registration Statement and any amendment thereto,
including exhibits and all documents incorporated or deemed to be
incorporated therein by reference.
Exhibit A-6 Grupo Galicia Agreement
(f) During the Effectiveness Period, deliver to each Notice Holder
and, upon request, the Special Counsel, in connection with any sale of
Registrable Securities pursuant to a Registration Statement, without
charge, as many copies of the Prospectus or Prospectuses relating to such
Registrable Securities (including each preliminary prospectus) and any
amendment or supplement thereto as such Notice Holder and Special Counsel
may reasonably request; and the Company hereby consents (except during
such periods that a Deferral Notice is outstanding and has not been
revoked) to the use of such Prospectus or each amendment or supplement
thereto by each Notice Holder in connection with any offering and sale of
the Registrable Securities covered by such Prospectus or any amendment or
supplement thereto in the manner set forth therein.
(g) Prior to any public offering of the Registrable Securities
pursuant to a Registration Statement, use its reasonable best efforts to
register or qualify or cooperate with the Notice Holders and the Special
Counsel in connection with the registration or qualification (or exemption
from such registration or qualification) of such Registrable Securities
for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any Notice Holder reasonably
requests in writing (which request may be included in the Notice and
Questionnaire); prior to any public offering of the Registrable Securities
pursuant to a Registration Statement, use its reasonable best efforts to
keep each such registration or qualification (or exemption therefrom)
effective during the Effectiveness Period in connection with such Notice
Holder's offer and sale of Registrable Securities pursuant to such
registration or qualification (or exemption therefrom) and do any and all
other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of such Registrable Securities in the
manner set forth in the relevant Registration Statement and the related
Prospectus; provided that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it would not be
required to qualify but for this paragraph (g), (ii) subject itself to
taxation in any such jurisdiction, or (iii) consent to general service of
process in any such jurisdiction.
(h) Upon (A) the issuance by the SEC of a stop order suspending
the effectiveness of a Registration Statement or the initiation of
proceedings with respect to a Registration Statement under Section 8(d) or
8(e) of the Securities Act, (B) the occurrence of any event or the
existence of any fact (a "Material Event") as a result of which any
Registration Statement shall contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or any Prospectus
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, (C) the occurrence or existence of any pending
corporate development that, in the sole and reasonable judgment of the
Company upon the receipt of an appropriate opinion from counsel to the
Company, makes it appropriate to suspend the availability of a
Registration Statement and the related Prospectus, including, without
limitation, the determination by the Company that a post-effective
amendment to a Registration Statement is required to be filed or (D) the
issuance of a notification by the SEC to the Company that has the effect
of, or upon the Company's reasonable determination following the receipt
of advice of counsel satisfactory to the
Exhibit A-7 Grupo Galicia Agreement
Holders that the rules and regulations of the SEC have the effect of,
requiring the Company to identify Notice Holders as selling security
holders in the Registration Statement by means of a post-effective
amendment to the Registration Statement:
(i) in the case of clause (B) above, subject to the next
sentence, as promptly as reasonably practicable prepare and file, if
necessary pursuant to applicable law, a post-effective amendment to
such Registration Statement or a supplement to the related
Prospectus or any document incorporated therein by reference or file
any other required document that would be incorporated by reference
into such Registration Statement and Prospectus so that such
Registration Statement does not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and such Prospectus does not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder, and, in the case
of a post-effective amendment to a Registration Statement, subject
to the next sentence, use its reasonable best efforts to cause it to
be declared effective as promptly as is practicable, and
(ii) in the case of any of clauses (A) through (D) above,
give notice to the Notice Holders, and the Special Counsel, if any,
that the availability of a Registration Statement is suspended (a
"Deferral Notice") and, upon receipt of any Deferral Notice, each
Notice Holder agrees not to sell any Registrable Securities pursuant
to the Registration Statement until such Notice Holder's receipt of
copies of the supplemented or amended Prospectus provided for in
clause (i) above, or until it is advised in writing by the Company
that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus.
The Company will use its reasonable best efforts to ensure that the use of
the Prospectus may be resumed or commence, as applicable (x) in the case
of clauses (A) and (D) above, as promptly as is reasonably practicable,
(y) in the case of clause (B) above, as soon as, in the sole and
reasonable judgment of the Company, public disclosure of such Material
Event would not be prejudicial to or contrary to the interests of the
Company or, if necessary to avoid unreasonable burden or expense, as soon
as reasonably practicable thereafter and (z) in the case of clause (C)
above, as soon as in the sole and reasonable judgment of the Company upon
the receipt of an appropriate opinion from counsel to the Company, such
suspension is no longer appropriate or required under applicable law. The
Company shall be entitled to exercise its right under this Section 3(h) to
suspend the availability of the Registration Statement or any Prospectus
and, subject to clause (z) below, any such period during which the
availability of the Registration Statement and any Prospectus is suspended
(the "Deferral Period") shall not exceed 5 days; provided that the
aggregate duration of any Deferral Periods shall not exceed 25 days in any
120-day period (or 45 days in any 120-day period in the event of a
Material Event pursuant to
Exhibit A-8 Grupo Galicia Agreement
which the Company has delivered a second notice as permitted below); (y)
in the case of a Material Event relating to an acquisition or a probable
acquisition or financing, recapitalization, business combination or other
similar transaction, the Company may deliver to Notice Holders a second
notice to the effect set forth above, which shall have the effect of
extending the Deferral Period by up to an additional 5 days, or such
shorter period of time as is specified in such second notice; or (z) in
the case of clause (D) above, the Company shall use its reasonable best
efforts to terminate such Deferral Period as promptly as is reasonably
practicable but shall not be subject to the provisions of clauses (x) and
(y) of this sentence. Each Notice Holder agrees to hold any notice by the
Company in respect of any Deferral Period or Material Event described in
clause (y) of the preceding sentence in confidence.
(i) If requested in writing in connection with an underwritten
disposition of Registrable Securities pursuant to a Registration
Statement, make reasonably available for inspection during normal business
hours by a representative for the underwriters of such Registrable
Securities, any attorneys and accountants retained by such underwriters
all relevant financial and other records and pertinent corporate documents
and properties of the Company and its subsidiaries, and cause the
appropriate officers, directors and employees of the Company and its
subsidiaries to make reasonably available for inspection during normal
business hours on reasonable notice all relevant information reasonably
requested by such representative for such underwriters, or any attorneys
or accountants in connection with such disposition, in each case as is
customary for similar "due diligence" examinations; provided that such
persons shall first agree in writing with the Company that any non-public
information shall be kept confidential by such persons and shall be used
solely for the purposes of exercising rights under this Agreement, unless
(i) disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory authorities,
(ii) disclosure of such information is required by law (including any
disclosure requirements pursuant to federal securities laws in connection
with the filing of any Registration Statement or the use of any prospectus
referred to in this Agreement), (iii) such information becomes generally
available to the public other than as a result of a disclosure or failure
to safeguard by any such person or (iv) such information becomes available
to any such person from a source other than the Company and such source is
not known to be bound by a confidentiality agreement, and provided further
that the foregoing inspection and information gathering shall, to the
greatest extent possible, be coordinated on behalf of all underwriters and
the other parties entitled thereto by the Special Counsel. Any person
legally compelled to disclose any such confidential information made
available for inspection shall provide the Company with prompt prior
written notice of such requirement so that the Company may seek a
protective order or other appropriate remedy.
(j) Provide a CUSIP number for all Registrable Securities covered
by each Registration Statement not later than the effective date of such
Registration Statement and, if required, provide the transfer agent for
the Common Stock with printed certificates for the Registrable Securities
that are in a form eligible for deposit with The Depository Trust Company.
Exhibit A-9 Grupo Galicia Agreement
(k) Cooperate and assist in any filings required to be made with
the National Association of Securities Dealers, Inc.
(l) Use its reasonable best efforts to list all Registrable
Securities sold pursuant to a Registration Statement on the Nasdaq Small
Cap Market.
(m) Use its reasonable best efforts to comply with the Securities
Act in connection with the offer and sale of the Registrable Securities to
be sold pursuant to a Registration Statement, and, make available to its
security holders, as soon as reasonably practicable, an earning statement
covering at least twelve (12) months which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder.
(n) If required to complete the sale, cooperate with the Holders
to facilitate the timely preparation and delivery of certificates
representing their Registrable Securities to be sold pursuant to a
Registration Statement and not bearing any legends; and enable
certificates for such Registrable Securities to be issued for such numbers
of shares and registered in such names as such Holders may reasonably
request at least two (2) business days prior to any sale of their
Registrable Securities.
(o) Enter into customary agreements (including an underwriting
agreement or securities sales agreement, if any, in customary form)
containing such representations and warranties to the Holders of such
Registrable Securities and the underwriters, if any, in form, substance
and scope as are customarily made by issuers to underwriters in similar
underwritten offerings as may be reasonably requested of them and take
such other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities.
(p) Furnish to each registering Holder of Registrable Securities
and to each underwriter, if any, a signed counterpart, addressed to such
registering Holder of Registrable Securities or underwriter, of (i) an
opinion or opinions of counsel to the Company and (ii) a comfort letter or
comfort letters from the Company's independent public accountants, each in
customary form and covering such matters of the type customarily covered
by opinions or comfort letters, as the case may be, as the Holders of a
majority of the Registrable Securities included in such offering or the
managing underwriters therefore reasonably request; and
SECTION 4. Holder's Obligations. Each Holder agrees, by acquisition
of the Registrable Securities, that no Holder shall be entitled to sell any of
such Registrable Securities pursuant to a Registration Statement or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company with a
Notice and Questionnaire as required pursuant to Section 2(d) hereof.
Each Notice Holder agrees promptly to furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Notice Holder not misleading and any other
information regarding such Notice Holder and the distribution of such
Registrable Securities as the Company may from time to time reasonably request.
Any sale of any Registrable Securities by any Holder shall constitute a
Exhibit A-10 Grupo Galicia Agreement
representation and warranty by such Holder that the information relating to such
Holder and its plan of distribution is as set forth in the Prospectus delivered
by such Holder in connection with such disposition, that such Prospectus does
not as of the time of such sale contain any untrue statement of a material fact
relating to or provided by such Holder or its plan of distribution and that such
Prospectus does not as of the time of such sale omit to state any material fact
relating to or provided by such Holder or its plan of distribution necessary to
make the statements in such Prospectus, in the light of the circumstances under
which they were made, not misleading.
Each Holder acknowledges and agrees that a Notice and Questionnaire
will only be valid for a period of 30 Business Days commencing with the proposed
sales date and that if any of the Registrable Securities to which such Notice
and Questionnaire relates are not sold during such period, a new Notice and
Questionnaire will need to be submitted to the Company not later than five (5)
Business Days prior to the new proposed sales date. Notwithstanding the
foregoing, no Notice and Questionnaire may be submitted, or if submitted will be
of no force and effect, and no Registrable Securities may be sold pursuant to
the Registration Statement if a Deferral Period is then in effect.
SECTION 5. Registration Expenses. The Company shall bear all fees
and expenses incurred in connection with the performance by the Company of its
obligations under Sections 2 and 3 of this Agreement whether or not any
Registration Statement is declared effective. Such fees and expenses shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (y) of
compliance with federal and state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of the Special Counsel in
connection with Blue Sky qualifications of the Registrable Securities under the
laws of such jurisdictions as Notice Holders may designate pursuant to Section
3(g) of this Agreement and any filings required to be made with the National
Association of Securities Dealers, Inc.), (ii) printing expenses, (iii)
duplication expenses relating to copies of any Registration Statement or
Prospectus delivered to any Holders hereunder, (iv) reasonable fees and
disbursements of counsel for the Company and of the Special Counsel in
connection with any Registration Statement; provided, that the reimbursement of
fees to Special Counsel shall be limited to $25,000, and (v) any Securities Act
liability insurance obtained by the Company in its sole discretion. In addition,
the Company shall pay the internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees performing legal
or accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing by the Company of the Registrable
Securities on any securities exchange on which similar securities of the Company
are then listed and the fees and expenses of any person, including special
experts, retained by the Company. Notwithstanding the provisions of this Section
5, each seller of Registrable Securities shall pay selling expenses, including
any underwriting discount and commissions, and all registration expenses to the
extent required by applicable law.
SECTION 6. Indemnification and Contribution.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Holder, each person, if any, who controls any Holder
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, and each affiliate of
Exhibit A-11 Grupo Galicia Agreement
any Holder within the meaning of Rule 405 under the Securities Act from
and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to any Holder furnished to the Company in writing by such Holder
expressly for use therein; provided that the indemnification contained in
this paragraph shall not inure to the benefit of any Holder (or to the
benefit of any affiliate of such Holder or any person controlling such
Holder) on account of any such losses, claims, damages or liabilities
caused by any untrue statement or alleged untrue statement or omission or
alleged omission made in any Registration Statement; provided in each case
the Company has performed its obligations under Section 3(f) hereof if
either (A) (x) such Holder failed to send or deliver a copy of the
Prospectus with or prior to the delivery of written confirmation of the
sale by such Holder to the person asserting the claim from which such
losses, claims, damages or liabilities arise and (y) the Prospectus would
have corrected such untrue statement or alleged untrue statement or such
omission or alleged omission, or (B) (x) such untrue statement or alleged
untrue statement, omission or alleged omission is corrected in an
amendment or supplement to the Prospectus and (y) having previously been
furnished by or on behalf of the Company with copies of the Prospectus as
so amended or supplemented, such Holder thereafter fails to deliver such
Prospectus as so amended or supplemented, with or prior to the delivery of
written confirmation of the sale of a Registrable Security to the person
asserting the claim from which such losses, claims, damages or liabilities
arise.
(b) Indemnification by Holders. Each Holder agrees severally and not
jointly to indemnify and hold harmless the Company and its directors, its
officers and each person, if any, who controls the Company (within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act)
and each affiliate of the Company within the meaning of Rule 405 under the
Securities Act or any other Holder, to the same extent as the foregoing
indemnity from the Company to such Holder, but only with reference to
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in such Registration Statement or Prospectus or
amendment or supplement thereto. In no event shall the liability of any Holder
hereunder be greater in amount than the dollar amount of the proceeds received
by such Holder upon the sale of the Registrable Securities pursuant to the
Registration Statement giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to Section 6(a) or
6(b) hereof, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonable fees and disbursements of such counsel
related to such proceeding. In
Exhibit A-12 Grupo Galicia Agreement
any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by, in the case of parties indemnified pursuant to Section
6(a), the Holders of a majority of the Registrable Securities covered by the
Registration Statement held by Holders that are indemnified parties pursuant to
Section 6(a) and, in the case of parties indemnified pursuant to Section 6(b),
the Company. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff the indemnifying party
agrees to indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) Contribution. To the extent that the indemnification provided
for in Section 6(a) or 6(b) is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party or parties on the other hand or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the other
hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company shall be deemed to
be equal to the aggregate face value of the subordinated notes (as defined in
the Pricing Supplement) that are being used by Holders to purchase Preferred
Shares as part of the equity participation offer (as defined in the
Exhibit A-13 Grupo Galicia Agreement
Pricing Supplement), before deducting expenses. The relative benefits received
by any Holder shall be deemed to be equal to the value of receiving Registrable
Securities that are registered under the Securities Act. The relative fault of
the Holders on the one hand and the Company on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Holders or by the
Company, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this Section 6 are several in
proportion to the respective number of Registrable Securities they have sold
pursuant to a Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding this Section 6, no indemnifying party that is a selling Holder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities sold by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such indemnifying party has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
an indemnified party at law or in equity, hereunder or otherwise.
(f) The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder, any person controlling any Holder or any affiliate of any Holder
or by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) the sale of any Registrable Securities by any
Holder.
SECTION 7. Information Requirements. The Company covenants that, if
at any time before the end of the Effectiveness Period the Company is not
subject to the reporting requirements of the Exchange Act, it will cooperate
with any Holder and take such further commercially reasonable action as any
Holder may reasonably request in writing (including, without limitation, making
such reasonable representations as any such Holder may reasonably request), all
to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 and Rule 144A under the
Securities Act and customarily taken in connection with sales pursuant to such
exemptions. Upon the written request of any Holder, the Company shall deliver to
such Holder a written statement as to whether it has complied with
Exhibit A-14 Grupo Galicia Agreement
such filing requirements, unless such a statement has been included in the
Company's most recent report filed pursuant to Section 13 or Section 15(d) of
Exchange Act. Notwithstanding the foregoing, nothing in this Section 7 shall be
deemed to require the Company to register any of its securities (other than the
Common Stock) under any section of the Exchange Act.
SECTION 8. Miscellaneous.
(a) No Conflicting Agreements. The Company is not, as of the date
hereof, a party to, nor shall it, on or after the date of this Agreement, enter
into, any agreement with respect to its securities that conflicts with the
rights granted to the Holders in this Agreement. The Company represents and
warrants that the rights granted to the Holders hereunder do not in any way
conflict with the rights granted to the holders of the Company's securities
under any other agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a majority of the then outstanding Registrable Securities. Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by
Holders of at least a majority of the Registrable Securities being sold by such
Holders pursuant to such Registration Statement; provided that the provisions of
this sentence may not be amended, modified or supplemented except in accordance
with the provisions of the immediately preceding sentence. Notwithstanding the
foregoing sentence, this Agreement may be amended by written agreement signed by
the Company and the Holders, without the consent of the Holders of Registrable
Securities, to cure any ambiguity or to correct or supplement any provision
contained herein that may be defective or inconsistent with any other provision
contained herein, or to make such other provisions in regard to matters or
questions arising under this Agreement that shall not adversely affect the
interests of the Holders of Registrable Securities. Each Holder of Registrable
Securities outstanding at the time of any such amendment, modification,
supplement, waiver or consent or thereafter shall be bound by any such
amendment, modification, supplement, waiver or consent effected pursuant to this
Section 8(b), whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
(i) if to a Holder, at the most current address given by
such Holder to the Company in a Notice and Questionnaire or any amendment
thereto:
Exhibit A-15 Grupo Galicia Agreement
with a copy to (which shall not constitute notice):
Mayer, Brown, Xxxx & Maw LLP
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Fax No.: (000) 000-0000
(ii) if to the Company, to:
Grupo Financiero Xxxxxxx X.X.
Tte. Gral. Xxx X. Xxxxx 000, 0 Xxxx
X0000XX0 Xxxxxx Xxxxx
Xxxxxxxxx
Attention: Xxxxx Xxxxxxxx
Fax No.: 000-00-00-0-000-0000
with a copy to (which shall not constitute notice):
Xxxxx & Xxxx XXX
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of Holders
of a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than subsequent Holders if
such subsequent Holders are deemed to be such affiliates solely by reason of
their holdings of such Registrable Securities) shall not be counted in either
the numerator or denominator in determining whether such consent or approval was
given by the Holders of such required percentage.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
and shall inure to the benefit of and be binding upon each Holder of any
Registrable Securities. If any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such person shall be entitled to
receive the benefits hereof.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed
Exhibit A-16 Grupo Galicia Agreement
shall be deemed to be original and all of which taken together shall constitute
one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term provision, covenant or restriction of
this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their efforts to find
and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction, it
being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Company with respect to the Registrable Securities. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein, with respect to the registration rights granted by the
Company with respect to the Registrable Securities. This Agreement supersedes
all prior agreements and undertakings among the parties with respect to such
registration rights. No party hereto shall have any rights, duties or
obligations other than those specifically set forth in this Agreement. In no
event will such methods of distribution take the form of an underwritten
offering of the Registrable Securities without the prior agreement of the
Company.
(k) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Section 4, 5 or 6 hereof, which shall
remain in effect in accordance with its terms.
(l) Specific Performance. In the event that the Company fails to
perform any of its obligations under this Agreement, any Holder shall be
entitled, in addition to any other remedies as may be available to such Holder
at law or in equity, to seek specific performance of the Company's obligations
hereunder.
Exhibit A-17 Grupo Galicia Agreement
IN WITNESS WHEREOF, the Company has executed this Agreement for the
benefit of the Holders as of the date first written above.
GRUPO FINANCIERO XXXXXXX X.X.
By:____________________________
Name:
Title:
Exhibit A-18 Grupo Galicia Agreement
