SHAREHOLDERS’ AGREEMENT between REPSOL YPF, S.A. REPSOL EXPLORACIÓN, S.A. CAVEANT, S.A. REPSOL YPF CAPITAL S.L. and PETERSEN ENERGÍA, S.A. February 21, 2008
Exhibit
7.02
Execution
Version
SHAREHOLDERS’
AGREEMENT
between
REPSOL
YPF, S.A.
REPSOL
EXPLORACIÓN, S.A.
CAVEANT,
S.A.
REPSOL
YPF CAPITAL S.L.
and
XXXXXXXX
ENERGÍA, S.A.
February
21, 2008
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"This
is a
convenience translation into English of a Spanish-language original
document. This translation is without legal effect and, in the event
of any discrepancy with the Spanish-language original document, the
Spanish-language original shall prevail."
TABLE
OF CONTENTS
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PARTIES:
PREAMBLE:
STIPULATIONS
1. DEFINITIONS
2. RULES
OF INTERPRETATION
3.
OBJECTIVE OF THE AGREEMENT. NATURE OF THE
AGREEMENT. GOVERNING GUIDING PRINCIPLES
3.1 Objective
of the Agreement
3.2 Nature
of the Agreement
4. MAJORITIES
REGIME
4.1 General
regime for operation of the Meetings of Shareholders
4.2 General
regime for adopting resolutions in the General Meeting of
Shareholders
4.3 Special
Matters
5. BOARD
OF DIRECTORS, MANAGEMENT AND SUPERVISION
5.1 Structure
of the management body
5.2 Composition
of the Board of Directors
5.3 Designation
of positions within the Board of Directors
5.4 Redistribution
of positions within the Board of Directors
5.5 Directors
5.5.1 Duration
5.5.2 Designation
5.5.3 Removal
5.5.4 Replacement
5.6 Operation
of the Board of Directors
5.6.1 General
operating regime
5.6.2 Guests
5.6.3 General
regime for adopting decisions of the Board of Directors
5.6.4 Special
matters in the Board of Directors
5.7
Actions by the Directors
6. TRANSFER
OF STOCK REGIME
6.1 Temporary
restriction of transfer by PESA (“lock-up”)
6.2 Transfer
by Grupo Repsol YPF during the Restriction Period
6.3 Transferability
of the shares after the Restriction Period
6.4
Right of Joint Sale (“Tag-along”) in favor of PESA on Sales of Material
Blocs to Third Parties by Grupo Repsol YPF
6.5 Calculation
of participations
6.6 Right
of First Offer
6.7 Direct
or indirect transfers in PESA and Grupo Repsol YPF
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7. CORPORATE
AND OTHER POLICIES
8. INFORMATION
9. DEFAULT
10. DURATION,
MODIFICATIONS, AND ASSIGNMENT
11. MISCELLANEOUS
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In
Madrid,
on February 21, 2008.
I. PARTIES
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(1)
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Of
the first part Repsol
YPF, S.A.,
the parent company of grupo Repsol YPF (hereinafter “Repsol YPF”),
established pursuant to Spanish law on November 12, 1986 in virtue
of
public articles of incorporation granted before the notary public
of
Madrid, Xx. Xxxxxx Xxxxxxxx Fraguero on the same date under number
4,293
of those of his / her Protocol, a company duly recorded in the
Commercial
Registry of Madrid in Volume 7063, 6058 of Section 3rd
of the Companies Book, Sheet 119, Page 72.059-1. Repsol has its
principal
executive offices at Xxxxx xx xx Xxxxxxxxxx 000, 00000 Xxxxxx and
its tax
identification code (CIF), X-00000000, is
current.
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Herein
represented by Xx. Xxxxxxx Xxxxxx Niubó, of age of majority, married, a
Spanish national, with professional domicile at Madrid, Xxxxx xx
xx
Xxxxxxxxxx 000, and holder of Spanish National Identification Document
number 40.824.513-L, current, in virtue of a power of attorney
granted on
October 29, 2004, before the Notary of Madrid Xxxxxx Xxxxx Xxxxxx,
under
number 2,889 of his protocol.
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(2)
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Repsol
Exploración, S.A.,
(hereinafter “Repsol
Exploración”), established pursuant to Spanish law on May 5, 1965
in virtue of public articles of incorporation granted before the
notary
public of Xxxxxx Xxxxxxx Xxxxxxx Xxxxx del Real on the same date under
number 2,098 of those of his / her Protocol, a company duly recorded
in
the Commercial Registry of Madrid in Volume 3146, Sheet 1, Page
M-53739.
Repsol Exploración has its principal executive offices at Xxxxx xx xx
Xxxxxxxxxx 000, 00000 Xxxxxx and its tax identification code (CIF),
X-00000000, is current.
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Herein
represented by Xx. Xxxxxxx Xxxxxxxxx-Xxxxxx Xxxx xx Xxxx, of age of
majority, married, a Spanish national, with professional domicile
at
Madrid, Xxxxx xx xx Xxxxxxxxxx 000, and holder of Spanish National
Identification Document number 786.139-E, current, in virtue of
a power of
attorney granted on January 26, 2005, before the Notary of Madrid
Xxxxxx Xxxxx Xxxxxx, under number 150 of his
protocol.
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(3)
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Caveant,
S.A.,
(hereinafter “Caveant”), established
pursuant to Argentine law, with Bylaws recorded at the Inspectorate
General of Justice on July 2, 1980 under number 2,415 of Book 95
Volume A
of Business Companies. Caveant has its principal executive offices
at
Buenos Aires, Avda. President Xxxxx X. Xxxx 777, and its tax
identification code (CIF), 30-62881362-7, is
current.
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Herein
represented by Xx. Xxxxxxxx Xxxxxxx Mazarredo, of age of majority,
married, a Spanish national, with professional domicile at Madrid,
Xxxxx
xx xx Xxxxxxxxxx 000, and holder of Spanish National Identification
Document number 1.485.502-R, current, in virtue of a power of attorney
granted on February 14, 2008, before the Notary of Buenos Aires
Xxxxxx
Xxxxxx del Río, under folio 110 of his
protocol.
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(4)
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Repsol
YPF Capital, S.L.,
a company wholly-owned by grupo Repsol (hereinafter “Repsol YPF Capital”),
Spanish on December 20, 2002 in virtue of public articles of incorporation
granted before the notary public of Madrid Xxxxxx Xxxxx Xxxxxx
on the same
date under number 4,116 of those of his / her Protocol, a company
duly
recorded in the Commercial Registry of Madrid in Volume 18308,
Sheet 171,
Page M-317473. Repsol YPF Capital has its principal executive offices
at
Xxxxx xx xx Xxxxxxxxxx 000, 00000 Xxxxxx and its tax identification
code
(CIF), X-00000000, is current.
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Herein
represented by Xx. Xxxxxxxx Xxxxxxx Mazarredo, of age of majority,
married, a Spanish national, with professional domicile at Madrid,
Xxxxx
xx xx Xxxxxxxxxx 000, and holder of Spanish National Identification
Document number 1.485.502-R, current, in virtue of a power of attorney
granted on February 19, 2008, before the Notary of Madrid Xxxxxx Xxxxxxx
Xxxxxxxx, under number 590 of his
protocol..
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Repsol
Exploración,
Caveant, and Repsol
YPF Capital are
wholly owned by Repsol YPF, which is the holder, directly or indirectly,
of 100% of the respective capital stock, with the exception of
0.000003%
of the capital stock of Repsol Exploración which, indirectly, is held by
private shareholders.
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(5)
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Of
the second part, Xxxxxxxx
Energía, S.A., a company established pursuant to Spanish law, for
purposes of this transaction, on July 23, 2007 in virtue of public
articles of incorporation granted before the notary public of Madrid,
Mr.
Xxxx Xxxx Xxxxxxxx-Xxx Xxxx on the same date under number 2918 of those of
his / her Protocol, a company duly recorded in the Commercial Registry
of
Madrid at Volume 24588, Sheet 88, Page M-443504. Xxxxxxxx Energía, S.A.
has its principal executive offices at Plaza Xxxxx Xxxx Xxxxxxx
1, Xxxxx
Picasso, 38th
Floor, 28020, Madrid, and its tax identification code (CIF), X-00000000,
is current.
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Herein
represented by Xx. Xxxxxx Xxxxxxxx Storey, of age of majority, married, an
Argentine national, with domicile at Xxxxxxx 000, 0xx
Xxxxx, Xxxxxx Xxxxx, Xxxxxxxxx, and holder of Alien National
Identification Document number X-9298890-J, current, in virtue
of
appointment as Managing Director pursuant to certified document
no. 16 of
the protocol of Xx. Xxxxxx Xxxxxxxx-Xxxxxxx Xxxxxx Valdecasas dated
January 9, 2008.
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Hereinafter
Xxxxxxxx Energía,
S.A. shall be referred to as “PESA.”
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Hereinafter,
Repsol YPF, Repsol Exploración, Caveant and Repsol YPF Capital shall be referred
to, jointly and/or any of them individually and indistinctly, “Grupo Repsol
YPF.”
Hereinafter
Repsol YPF, Repsol Exploración, Caveant and Repsol YPF Capital, and PESA, shall
be referred to, jointly, as the “Parties,” and any of them
individually as a “Party.”
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PREAMBLE
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(A)
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The
principal activity of Repsol YPF is focused on the hydrocarbons
sector
and, specifically, in the activities of exploration, exploitation,
and
production of crude and natural gas, the transportation of petroleum
products, liquid petroleum gases (LPG’s), and natural gas, refining,
production of a broad range of petroleum products and the sale
of
petroleum products, derived from petroleum, petrochemical products,
LPG
and natural gas.
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(B)
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Repsol
Exploración, Caveant and Repsol YPF Capital are companies held by Repsol
YPF, whose principal activity focuses on the hydrocarbons sector
and,
specifically, in the case of Repsol Exploración, on the activities of
exploration, exploitation, and production of crude and natural
gas, the
transportation of petroleum products, liquid petroleum gases (LPG’s) and
natural gas, refining, production of a broad range of petroleum
products
and the sale of petroleum products, derived from petroleum, petrochemical
products, LPG and natural gas. In the case of Caveant and Repsol
YPF
Capital, their principal activities are focused on holding shares
of and
interests in other companies.
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(C)
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PESA
is a Spanish company of Spanish nationality whose principal activity
is
the investment, management, and administration of securities, bonds
and/or
stock. PESA is wholly owned by Xxxxxxxx Energía PTY, Ltd., Xxxxxxxx
Energía PTY, Ltd., in turn, is wholly owned by the following natural
persons: Xx. Xxxxxxx Xxxxxxxx, Xx. Xxxxxxxxx Xxxxxxxx, Xx. Xxxxxx Xxxxxxxx
Xxxxxx, and Xx. Xxxxxxxx Xxxxxxxx Xxxxxx (hereinafter, jointly,
“Messrs.
Xxxxxxxx”).
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(D)
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YPF,
S.A. (hereinafter, the “Company”) is a
company
listed on the international capital markets owned by Grupo Repsol
YPF, it
being the intention of the Parties that it remain in such
group.
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(E)
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Grupo
Repsol YPF and Messrs. Xxxxxxxx signed a purchase and sale option
agreement (hereinafter, the “First Option
Agreement”)
today, in virtue of which Messrs. Xxxxxxxx may acquire from Grupo
Repsol
YPF up to an additional 0.1 percent of the capital stock of the
Company
(hereinafter, the “Option
1”).
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Grupo
Repsol YPF and Messrs. Xxxxxxxx also signed a purchase and sale option agreement
(hereinafter, the “SecondOption
Agreement”) today, in
virtue of which Messrs. Xxxxxxxx (the “Holder of the Option”) may
acquire from Grupo Repsol YPF up to an additional ten (10) percent of the
capital stock of the Company (hereinafter, the “Option 2”).
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(F)
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Repsol
YPF and PESA state their will and commitment to remain in the long-term,
as herein contemplated, shareholder of the Company with a material
interest, as well as the desire to contribute to the performance
of a
shared project or strategy that results in the creation of value
for all
shareholders.
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The
Parties and the appearing persons, mutually recognizing sufficient
legal
capacity herefor, have freely agreed to commit themselves by signing
this
shareholders’ agreement (hereinafter, the “Agreement”) pursuant
to
the following
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STIPULATIONS
1. DEFINITIONS
For
the
effect of this Agreement, the terms that appear in Appendix 1, shall
be
construed pursuant to their correlative definitions.
2. RULES
OF
INTERPRETATION
This
Agreement shall be interpreted pursuant to the special precepts established
below and the general rules of contract interpretation pursuant to the
Applicable Law.
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(i)
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All
the appendices form an integral part of the Agreement, and they
have the
same validity and effectiveness as if they were incorporated into
its main
body.
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(ii)
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References
made to clauses are deemed made to clauses of this
Agreement.
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(iii)
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The
terms “including,” “included,” “inclusive,” and other similar acceptations
should be interpreted as if they were followed by the phrase, “without
limitation and merely by way of
example.”
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(iv)
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Provisions
introduced with the phrase “for greater clarity” have in and of themselves
full normative and binding effects, and they constitute clarifications
or
[particularities] that do not prejudice the generality of the preceding
precepts with respect to such as are
indicated.
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(v)
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Definitions
used in singular shall be construed “mutatis mutandis”
when
used in the plural.
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(vi)
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Except
if otherwise indicated, any reference to “days” shall be construed as
“calendar days” or “consecutive days.” Without prejudice to the foregoing,
when the phrase “business days” appears it shall be construed as referring
to the days that are also working days, from Monday to Friday,
in the
cities of Buenos Aires (Argentina), Madrid (Spain) and New York
(USA).
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(vii)
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Any
reference in this Agreement to shares or interest held in a specific
corporate entity will include shares, interest held and any other
form of
participation in the capital of such corporate entity, as well
as any
certificates issued by such corporate entity or by any third party
representative of shares, interest held or participation in such
corporate
entity, including without limitation, “American Depositary Shares”,
“American Depositary Receipts” and any other depositary certificate or
custody of the shares, interest held or participation in such corporate
entity.
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3.
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OBJECTIVE
OF THE
AGREEMENT. NATURE OF THE AGREEMENT. GOVERNING GUIDING
PRINCIPLES
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3.1 Objective
of the
Agreement
The
objective of this Agreement is to establish as binding precepts among the
Parties:
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(i)
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the
rules that must govern the relationship of Grupo Repsol YPF and
PESA in
the governance of the Company;
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(ii)
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the
framework of rights and obligations related to certain transfers
of the
Company’s shares; and
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(iii)
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other
provisions and precepts to which the Parties wish to subject their
relationship as shareholders of the
Company.
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3.2 Nature
of the
Agreement
This
Agreement has the nature of a quasi-corporate agreement of a binding nature
among the parties that sign it.
The
corporate bylaws of the Company shall not be amended in virtue of this Agreement
and it shall take all its effects with respect to good-faith third parties,
without prejudice to which the Parties acknowledge that the provisions
established in this Agreement shall govern their relations and shall prevail
in
the relationship among them above what is stipulated in the corporate bylaws.
Excepted from the preceding stipulation are the amendments to the Company’s
corporate bylaws expressly stipulated in this Agreement.
The
Parties undertake to comply with the provisions established in this Agreement
and to participate and vote in the General Meeting of Shareholders in full
performance hereof. The Parties undertake to take all Necessary Acts (i)
for the
Directors named by them to do the proper thing in any meeting of the Company’s
Board of Directors and/or in the performance of their functions; and (ii)
for
the better performance of all the provisions of this Shareholders’
Agreement.
Notwithstanding
any provisions made in the corporate bylaws, the Parties respectively undertake
at all times to do the Necessary Acts in order to ensure that the provisions
of
this Agreement to be applicable among them and with respect to the
Company.
4. MAJORITIES
REGIME
4.1 General
regime for operation
of the General Meeting of Shareholders
The
regime
for calling, publishing, a quorum, proxies, and holding the Company’s Meetings
of Shareholders shall be subject to the provisions in the Company’s corporate
bylaws. Without prejudice thereto, notifications of meetings of any nature
shall
be made, in addition to the publications stipulated by law, through written
notifications from one of the Parties to the other at least twenty (20) days
in
advance of the date the meeting is held.
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4.2 General
regime for adopting
resolutions in the General Meeting of Shareholders
Resolutions
of the General Meeting of Shareholders shall be adopted by the majorities
required by the applicable law except when otherwise stipulated in the Company’s
bylaws or this Agreement. The Parties agree to take all the Necessary Acts
for
the decisions that involve the approval of any of the matters stipulated
in
Clause 4.3 not
to be adopted by the Company if they do not have the favorable vote or express
consent of the representative of Grupo Repsol YPF and the representative
of PESA
for the approval of the specific proposal to be approved by the appropriate
body
of the Company pursuant to the Company’s corporate bylaws and the applicable
laws.
Such
consent or favorable agreement shall be made known in the prior meetings
of the
Parties to which this Agreement makes reference.
4.3 Special
Matters
The
Parties shall analyze in advance of the discussion of the general meeting
and
the notification thereof any resolutions related to the matters that are
listed
below in this Clause
4.3 (hereinafter, the “Special
Matters”).
To
that
end, the Parties undertake to meet in advance and, in any case, at least
five
(5) business days in advance of the general meeting in which any of the Special
Matters is included in the order of the day of the general meeting, to agree
on
the direction of the vote of the Parties in relation to that Special Matter,
leaving written evidence thereof.
The
Parties undertake to vote in the respective meeting pursuant to the agreement
reached in that meeting and, in the absence of an agreement, to vote against
the
adoption of the resolution related to the Special Matter.
The
Parties undertake to take all the Necessary Acts (including, without limitation,
not attending or attending and voting against in the general meeting) to
prevent
the adoption of any agreement related to a Special Matter that has not been
previously agreed by the Parties.
The
following shall be deemed Special Matters:
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(i)
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Increases
and/or returns of the Company’s capital in an amount with a par value
greater, as a whole considering all the increases approved from
the date
hereof, than two hundred and fifty million pesos ($250,000,000),
even if
they are made by issuing any convertible securities. All increases
shall
have a premium over par which, together with the par value, may
not be
less than the FMV (“Fair Market Value”). If capital is reduced for any
reason, this excess of two hundred and fifty million pesos in par
value
shall be reduced proportionally.
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(ii)
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Reductions
in the Company’s capital, except such as are legally
required.
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(iii)
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The
merger of the Company or any of its Material Subsidiaries, except
in the
case of mergers between Material Subsidiaries or between Material
Subsidiaries and other subsidiaries of the
Company.
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(iv)
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The
divestiture of the Company or of any of its Material
Subsidiaries.
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(v)
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The
transformation of the Company or of any of its Material
Subsidiaries.
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(vi)
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The
dissolution of the Company and/or its Material Subsidiaries, except
in
cases of obligatory performance pursuant to the applicable
law.
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(vii)
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Notwithstanding
the provisions of point (i) above, the issuance or granting of
options,
subscription rights, convertible obligations, warrants, or other
rights or
securities subject to being converted into certificates giving
certain
limited rights to holders of retired stock and bonds [acciones o bonos
de
goce] or preferred stock [acciones
de
participación] of any class.
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For
greater clarity, excepted from the application of the super-majorities
regime is the issuance of simple obligations and any other
nonconvertible serial issues of securities representing debt (bonds,
notes, etc.).
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(viii)
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The
transfer of the corporate or tax domicile outside of the Republic
of
Argentina.
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(ix)
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Modification
of the Company’s bylaws.
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(x)
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Suspension
of the preferred right of subscription to stock and/or convertible
instruments.
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(xi)
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Designation
or removal of outside auditors.
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(xii)
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The
exclusion of the Company from listing on the Buenos Aires and/or
New York
Stock Exchanges and/or the withdrawal of a public offering for
its
stock.
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(xiii)
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The
Removal or sale of a set of material assets and/or liabilities
of the
Company or of any Material
Subsidiary.
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(xiv)
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The
ratification or approval of a declaration of insolvency or bankruptcy
or
the start of an extrajudicial preventive agreement proceeding with
respect
to the Company or any of its Material
Subsidiaries.
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5. BOARD
OF DIRECTORS,
MANAGEMENT AND SUPERVISION
5.1 Structure
of the management
body
The
Company shall be managed by a Board of Directors which shall be governed
pursuant to the rules and regulations established in its corporate bylaws
and
pursuant to the provisions of this Agreement. The Parties shall perform the
Necessary Acts for the Board of Directors, the Audit Committee, the Executive
Committee and the Management Committee of the Company to be comprised at
all
times in the manner indicated in Clause 5, and for
the
positions and functions stipulated in this Clause 5 to be
distributed at all times in the manner indicated in such Clause
5.
5.2 Composition
of the Board of
Directors
5.2.1 Number
of
members
The
Board
of Directors of the Company shall be comprised of a total of up to twenty
one
(21) full Directors and a total of up to twenty one (21) alternate Directors.
The Parties undertake to modify the Company’s corporate bylaws to reflect such
maximum number of directors.
The
Directors shall be persons with experience and recognized professional
competency.
The
Company’s Class D Shares (in conjunction with the Class B Shares and the Class C
shares) shall have the authority to designate up to a total of twenty (20)
full
Directors and a total of up to twenty (20) alternate Directors.
Once
the
amendment indicated in this Clause 5.2.1 has been
made to the Company’s corporate bylaws, the number of members or conditions
required to hold the capacity of Director stipulated in the corporate bylaws
shall not be amended without prior consent of the Parties. If the Parties
do not
reach an agreement, current conditions shall remain unchanged.
The
Parties agree that the designation of Directors shall be made respecting,
in all
cases, the principle of proportionality with respect to the interest in the
capital that each shareholders has in the capital stock of the Company. In
any
case, whenever Grupo Repsol YPF has an interest in the Company greater than
50%,
Grupo Repsol YPF shall have the right to nominate the majority of the members
of
the Board of Directors.
Without
prejudice to the foregoing, and insofar and inasmuch as there are other
shareholders in the Company, other than PESA (or companies controlled directly
or indirectly by the Eskenazi Family) and Grupo Repsol YPF, which are not
parties to this Agreement and which individually have an interest in the
capital
stock of the Company no greater than ten percent (10%), the designation of
Directors shall at all times be made respecting the provisions of Clause 5.2.2 and
Clause
5.2.3.
If there are shareholders who individually have an interest in the capital
stock
of the Company greater than ten percent (10%), including the
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case
stipulated in Clause
5.4, the designation of Directors shall be made by Repsol YPF and PESA
(taking into account, for the effects of calculating PESA’s interest, the
holdings in the other companies directly or indirectly controlled by the
Xxxxxxxx Family) proportionally, PESA having a right, however, always to
propose
a minimum of five (5) full directors and five (5) alternate Directors, except
in
the case contemplated in Clause 5.2.3 last
paragraph.
5.2.2 Directors
designated by
Repsol YPF
Grupo
Repsol YPF shall have a right to nominate up to thirteen (13) full Directors
and
up to thirteen (13) alternate Directors of the Company (hereinafter the “Directors designated by
Repsol
YPF”), from among the Directors whom Class D Shares are responsible for
designating, of whom at least two (2) full Directors and two (2) alternate
Directors must meet the requirements to be considered Independent
Directors.
5.2.3 Directors
designated by
PESA
PESA
shall
have a right to nominate five (5) full Directors and five (5) alternate
Directors of the Company (hereinafter, the “Directors designated by
PESA”), from among the Directors whom Class D Shares are responsible for
designating, of whom one (1) full director and one (1) alternate shall meet
the
requirements to be considered Independent Directors.
Without
prejudice to the foregoing, if the Holder of Option 2 does not exercise its
right to the Option within the effective period of that right and in addition
PESA decreases its interest in the Company (taking into account, for the
purpose
of calculating PESA’s interest, the interest held by the remaining companies
directly or indirectly controlled by the Eskenazi Family) of to 10% as a
result
of exercising the rights stipulated in its favor in Clause 6.4 and in
Clause 7.1, the
number of PESA directors on the Board of Directors shall fall to three (3)
full
Directors and three (3) alternate Directors. In such case, the Parties undertake
to perform the Necessary Acts to reduce to three the directors designated
by
PESA on the Board of Directors.
5.2.4 Composition
of the Board of
Directors
Each
Party
shall notify the other Party in writing, prior to March 7, 2008, the date
of the
Company’s meeting of shareholders convened by the Board of Directors, the
information on the persons proposed by each of them to be designated full
Directors and alternate Directors, as well as Trustees, in such
meeting.
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5.3 Designation
of positions
within the Board of Directors
5.3.1 Chairmanship
of the Board of
Directors
The
position of Chairman of the Board of Directors shall necessarily be assigned
to
one of the Directors designated by Grupo Repsol YPF. The Parties agree that
the
Chairman of the Board of Directors shall not in any case perform the functions
of General Manager or “Chief
Executive Officer” of the Company.
Initially,
the position of Chairman shall be performed by Xx. Xxxxxxx Xxxxxx
Niubó.
5.3.2 Executive
Vice
Presidency
The
executive vice presidency will necessarily be assigned to one of the Directors
designated by PESA.
The
Executive Vice President shall act as principal executive of the Company
(that
is to say, the “Chief
Executive Officer”) (hereinafter, the “Executive Vice President” or
“CEO”),
to which
position Don Xxxxxxxxx Xxxxxxxx is initially assigned.
Additionally,
while Xx. Xxxxxxx Xxxxxxxx holds the position of Director of the Company,
the
Board of Directors will have a nonexecutive vice presidency which shall be
performed by the same Xx. Xxxxxxx Xxxxxxxx. When Xx. Xxxxxxx Xxxxxxxx ceases
to
hold the position of Director of the Company, such executive vice presidency
will remain vacant.
The
Parties undertake to perform all the Necessary Acts to amend the Company’s
corporate bylaws if necessary for the effectiveness of this Clause.
5.3.3 Chief
Operating Officer
The
Board
of Directors shall designate from among its members a Chief Operating Officer
(hereinafter, the “COO”)
who shall have the authorities stipulated for such position in the corporate
bylaws and who shall report to the Executive Vice President.
The
position of COO shall necessarily fall to one of the members of the Board
of
Directors named by Grupo Repsol YPF.
Initially,
the position of COO shall be performed by Xx. Xxxxxxx Xxxxx Xxxx.
Without
prejudice to the provisions of Clause 5.5.3, the CEO
may remove the COO (both in his capacity as COO and as Director, and he may
not
resume performance of his services either for the Company or for any of its
Subsidiaries) when the CEO believes that objective and justified circumstances
occur that reasonably require such. In such case, the CEO may request the
Board
of Directors to agree to remove the COO. In which case, the Parties shall
perform the Necessary Acts to remove the COO from his position and Grupo
Repsol
YPF shall cause his resignation or removal as Director. The Parties shall
perform the Necessary Acts to designate his replacement as director and COO,
pursuant to the proposal made by Grupo Repsol YPF.
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5.3.4 Executive
Committee
The
Board
of Directors shall designate from among its members the members of the Executive
Committee, which shall be comprised of up to six (6) members, as well as
the
Executive Vice President who shall be the one who presides over the Executive
Committee (hereinafter, the “Executive Committee”), who
shall be designated in all cases respecting the principle of proportionality
with respect to the interest in capital that each shareholders has in the
capital stock of the Company.
Without
prejudice to the foregoing, insofar and inasmuch as there are other shareholders
in the Company, other than Grupo Repsol YPF and PESA who individually hold
an
interest in the capital stock of the Company greater than twenty five percent
(25), the members of the Executive Committee shall be designated
thus:
Grupo
Repsol YPF shall have a right to propose four (4) members of the Executive
Committee.
PESA
shall
have a right to propose one (1) member of the Executive Committee who shall
form
part of such body together with the CEO.
The
Executive Vice President shall preside over the Executive
Committee.
5.3.5 Management
Committee
The
Management Committee shall be comprised of the CEO and COO and by the managers
that they both designate jointly by common accord (hereinafter, the “Management
Committee”).
The
managers of the principal business and corporate areas and the other relevant
personnel shall be designated and removed jointly by the CEO and COO by common
accord.
The
Management Committee shall be the body supporting the Executive Vice President
and the COO in the regular management and operation of the Company’s
business.
The
Management Committee shall be presided over by the Executive Vice President
and,
in his absence, by the COO. The Executive Vice President, taking into
consideration the requests made to that end by the COO and the Company’s
managers, shall set the points of the order of the day in meetings and the
COO
shall assume responsibility for its organization and operation.
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5.3.6 Audit
Committee
The
Audit
Committee shall be comprised of three (3) full Trustees and three (3) alternate
Trustees.
Among
the
Trustees that Class D Shares are responsible for designating, Grupo Repsol
YPF
shall have a right to propose one (1) full Trustee, who shall act in all
cases
as Chairman of the Committee, and one (1) alternate Trustee.
Among
the
Trustees that Class D Shares are responsible for designating, PESA shall
have a
right to propose one (1) full Trustee, and one (1) alternate
Trustee.
Notwithstanding,
Grupo Repsol YPF has proposed to the General Shareholders’ Meeting to be held on
March 8, 2008, an amendment to the corporate bylaws to change the maximum
number
of Trustees stipulated in the Company’s corporate bylaws, such that the Audit
Committee may come to be comprised of five (5) full Trustees and five (5)
alternate Trustees, of which one (1) full Trustee and one (1) alternate Trustee
shall be designated by the Class A Shares and the rest of the full and alternate
Trustees shall be designated by the Class D Shares. As a result, and if the
General Shareholders’ Meeting approves such amendment, the Parties agree that,
among the Trustees that Class D Shares are responsible for designating, Grupo
Repsol YPF shall have a right to designate three (3) full Trustees, of whom
one
shall in all cases act as Chairman of the Committee, and three (3) alternate
Trustees. Likewise, among the Trustees that Class D Shares have a right to
designate, PESA shall have a right to designate one (1) full Trustee and
one (1)
alternate Trustee. PESA undertakes, as necessary, to vote in favor of this
modification of the audit Committee at the General Shareholders’ Meeting to be
held on March 8, 2008.
5.4 Redistribution
of positions
within the Board of Directors
Pursuant
to Clause 7 of
this Agreement, it is the intention of the Parties that the Company prepare
and
perform the necessary acts to increase the number of the Company shares listed
for trading on the Stock Exchange, by the formulation by Repsol YPF of the
Initial Public Offering (OPV, as such term is defined below).
The
Parties acknowledge and accept that the aforementioned OPV and /or future
legal
or regulatory requirements may require the naming of a greater number of
Independent Directors than those stipulated in this Agreement. The Parties
agree
that, in such case, the naming of such Independent Directors shall be done
respecting, in all cases, the principles established in Clause 5.2.1,
including, in accordance with the foreseen in such clause, the proportional
designation of directors with respect to the shareholdings that each shareholder
has in the capital stock of the Company and majority presence of Grupo Repsol
YPF. The Parties undertake to perform all the Necessary Acts to amend the
Company’s corporate bylaws if such were necessary to implement this
paragraph.
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The
Independent Directors designated by each Party shall meet the required to
meet
the independence requirements stipulated in the applicable regulations and
their
designation shall have the agreement of the other Party, which may not be
unreasonably denied. Each Party may request, with just cause, that the Party
that designated an Independent Director remove him and designate new ones
to
replace him.
Likewise,
in the case that new shareholders acquire an interest in the capital stock
of
the Company that gives them a right to designate Directors, the Parties
undertake that the designation by each Party of the members of the Board
of
Directors which together they have a right to designate be done by respecting,
in all cases, the principle established in Clause 5.2.1 on the
proportional designation of Directors respecting the capital interest that
each
shareholder has in the capital stock of the Company.
The
Parties hereafter undertake to perform all the Necessary Acts to enable the
redistribution of the positions on the Board of Directors, pursuant to the
provisions of this Clause 5.4, as soon
as: (i) it is necessary pursuant to future legal or regulatory requirements;
or
(ii) new shareholders acquire an interest in the capital stock of the Company
that legally gives them a right to designate directors.
5.5 Directors
5.5.1 Duration
The
term of office of the position of
Director shall be three (3) years.
5.5.2 Appointment
The
Directors initially proposed by Grupo Repsol YPF and PESA, pursuant to the
provisions of Clause
5.2 shall be named by the Company’s General Meeting of
Shareholders.
Hereafter,
the determination of the Directors designated by Grupo Repsol YPF shall belong
exclusively to Repsol YPF, and the determination of the Directors designated
by
PESA shall belong exclusively to PESA, all this subject to the provisions
of
Clause 5.2. To
implement such appointments it shall be sufficient for the General Meeting
to
adopt a resolution by ordinary majority.
Repsol
YPF
undertakes, as necessary, to vote in favor of the Directors proposed by PESA,
for it to be able to maintain on the Board of Directors the number of
representatives that corresponds to it pursuant to the stipulations of Clause 5.2. In turn,
PESA undertakes, as necessary, to vote in favor of the Directors proposed
by
Grupo Repsol YPF for it to be able to maintain on the Board of Directors
the
number of representatives that corresponds to it pursuant to the provisions
of
Clause
5.2.
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5.5.3 Removal
Designated
Directors may only be removed upon instruction from the Party who nominated
them. As necessary, the other Party undertakes to cast an affirmative vote
for
such removal to take effect in each case, when so authorized by the nominating
Party.
Notwithstanding,
and without prejudice to the case of the COO whose removal is governed by
Clause 5.5.3,
exceptionally, when there are justified circumstances that so reasonably
require, any of the parties may request the other Party, and if it were
necessary insist, to remove any of the Directors who hold executive positions
in
the Company. In such case, the Party that named that Director shall proceed
to
remove him, both from his position as Director and his executive position
in the
Company, and it may freely appoint his replacement.
5.5.4 Replacement
In
case of
resignation or removal of any Director, whatever the cause, the party who
appointed him (Grupo Repsol YPF or PESA, as the case may be) shall be
responsible for filling the vacancy, subject to the provisions of Clause 5.2. As
necessary, Grupo Repsol YPF and PESA undertake: (a) to cooperate as necessary
to
enable the prompt and immediate replacement; and (b) as necessary, to perform
the Necessary Acts, including voting in favor of the nomination of PESA or
Grupo
Repsol YPF (as the case may be), pursuant to the provisions of Clause
5.2.
Without
prejudice to the foregoing, when there are legally established requirements,
the
vacancy may be covered by designation by the Audit Committee, the Parties
undertaking (a) to instruct the Trustees whom they named, to vote, within
the
Audit Committee, in favor of the naming of the replacement designated by
the
party responsible for filling the vacancy; and (b) to ratify, in the first
General Meeting held, such appointment.
5.6 Operation
of the Board of
Directors
5.6.1 General
operating
regime
The
regime
for convening meetings, establishing, publishing, representing, holding,
compensation and conflicts of interest on the Company’s Board of Directors,
shall be subject to the provisions of the Company’s corporate bylaws and this
Agreement.
5.6.2 Guests
Third
party non-directors may attend meetings of the Board of Directors provided
that
they are invited by the President and the Executive Vice President and their
presence is justified by reason of the matters to be discussed in each
meeting.
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5.6.3 General
regime for adopting
decisions of the Board of Directors
The
resolutions of the Board of Directors shall be adopted by the majorities
required by the applicable law except when the Company’s corporate bylaws or
this Resolution stipulate otherwise. The Parties agree to perform all the
Necessary Steps for the decisions that involve the approval of any of the
matters stipulated in Clause 5.6.4 not to
be adopted by the Board of Directors nor for it to convene a general or special
meeting of shareholders for treatment thereof if it does not have the favorable
vote of the majority of the non-independent directors designated by PESA
and
Grupo Repsol YPF.
5.6.4 Special
matters in the Board
of Directors
The
Parties shall analyze prior to their treatment by the Board of Directors
and the
convening thereof any resolutions that are related to the Special Matters
and
the matters that are listed below in this Clause 5.6.4
(hereinafter, jointly, the “Special Matters in the
Board of
Directors”).
To
that
end, the Parties undertake to meet in advance of the inclusion of any Special
Matter in the Board of Directors in the order of the day of any notification
of
a meeting of the Board of Directors, and, in any case, at least two (2) business
days in advance of the date the Board of Directors meeting is held if any
of the
Special Matters in the Board of Directors is included on the order of the
day
for the Board of Directors meeting (when the inclusion in the order of the
day
is due to a request by any director not designated by the Parties or a
shareholder other than the Parties), to decide who the Parties will vote
in
relation to that Special Matter by the Board of Directors and to perform
all the
Necessary Acts for the Board of Directors to vote pursuant to the agreement
reached by the Parties or, in the absence of an agreement, to vote against
the
adoption of the resolution related to the Special Matter in the Board of
Directors.
The
Parties undertake to perform all Necessary Acts to prevent the adoption of
any
resolution related to a Special Matter in the Board of Directors that has
not
been previously agreed by the Parties.
The
following shall be deemed Special Matters in the Board of
Directors:
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(i)
|
Any
action that results in the reduction of the percentage of Company’s direct
or indirect interest in any of its Material
Subsidiaries.
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(ii)
|
The
contracting of debts, including issuance [of] negotiable obligations
and/or debt instruments, the granting of guaranties or making investments
that (a) contractually limit the payment of dividends; and (b)
cause the
consolidated debt / consolidated EBITDA ratio, measured quarterly,
to
reach or exceed 3 to 1.
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(iii)
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The
execution, termination, or modification of any transaction, contract,
agreement, or obligation between the Company and a Shareholder
or its
Affiliates or the Directors or Trustees of the Company or companies
related or affiliated to any of
them.
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(iv)
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Making
investments, contributions, or acquisitions of interests in companies
or
investing or acquiring any assets not contemplated in the budget
whose
total amount per transaction, as a whole, exceeds (both if done
on one or
more occasions) two hundred and fifty million United States dollars
(US$
250,000,000).
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(v)
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The
assignment or transfer of a line of business or any material set
of assets
and/or liabilities of the Company or of any Material
Subsidiary.
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(vi)
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A
request for the declaration of insolvency or bankruptcy or the
start of an
extrajudicial preventive agreement with respect to the Company
or any of
its Material Subsidiaries.
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(vii)
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The
resolutions related to Material Matters and Special Matters in
the Board
of Directors of the Material Subsidiaries cited in Clause
4.3.
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(viii)
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While
the Term Loan is in effect, the deregistration with
the
SEC or with the Buenos Aires Stock Exchange or other applicable
bodies
with respect to the Company’s Class D Shares or the instruments that
represent them (ADRs) that are listed and traded on the New York
Stock
Exchange (USA) or Buenos Aires.
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5.7
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Actions
by the
Directors.
|
Each
one
of the Parties shall be liable to the other for the acts and omission of
the
Nominee Directors and other persons designated or proposed by it, with respect
to the full performance and observance at all times of the provisions of
this
Agreement and the performance by the nominee Directors and such persons as
are
designated or proposed by it of the Necessary Acts leading to such performance.
Without prejudice to the aforesaid, the Parties shall perform all the Necessary
Acts to replace or remove, at the sole request of the other Party, immediately
or not beyond five (5) business days from receiving such request from the
other
Party, any of the nominee Directors or persons designated by them who do
not act
in accordance and consistent with the terms of this Agreement and they shall
perform the Necessary Acts to nullify the acts performed in violation of
the
provisions of this Agreement and to return the situation to the state existing
before the nonperformance.
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6. TRANSFER
OF STOCK
FRAMEWORK
6.1 Temporary
restriction of
transfer BY PESA (“lock-up”)
6.1.1 Restriction
Period
During
the
five (5) years after the date of the Agreement (hereinafter, the “Restriction Period”), PESA
undertakes not to transfer its Shares under any title or for any
cause.
(i) While
the Term Loan is in effect
Notwithstanding,
during the Restriction Period, PESA may dispose of its Shares provided that
comply with all the following requirements (a) that PESA maintains an equivalent
interest equal to, at minimum, the Minimum PESA Participation in the capital
stock of the Company; (b) that the amounts obtained by PESA as a result of
such
transfers are destined wholly, totally and exclusively to the amortization,
as
interest or principal, of any financing obtained by PESA for the acquisition
of
the Shares that are the object of the transfer and, (c) that such amortizations
can not be covered by dividends paid by the Company o are necessary to
reestablish coverage ratios or to prevent defaults or executions stipulated
in
such financings.
(ii) After
the Term Loan is extinguished
Additionally,
and without prejudice to the foregoing, insofar as PESA has paid all the
amounts
owed as interest and principal corresponding to the Term Loan, PESA may dispose
of its Shares during the Restriction Period, as long as it maintains an interest
equal to the Minimum PESA Participation in the capital stock of the Company,
both (i) pursuant to the provisions of Clause 6.4; and (ii)
pursuant to the provisions of Clause
7.1.
For
greater clarity, PESA’s percentage in the capital stock of the Company may in no
case be less than the Minimum PESA Participation.
6.1.2 Accelerated
termination of
the restriction in certain cases
The
limitations on PESA’s transfers during the Restriction Period stipulated in
Clause 6.1.1
shall end in advance if the participation of Grupo Repsol YPF in the Company
is
less: (i) than thirty-five percent (35%); or (ii) in the case stipulated
in the
second paragraph of Clause 6.5, at the
greater percentage participation thereat stipulated.
At
all
times the restrictions shall be deemed above any other additional restrictions
that might exist in virtue of this Agreement.
For
greater clarity, for the effects of calculating the percentage of Repsol
YPF’s
capital stock, the provisions of Clause 6.5 shall
be
taken into account.
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6.2 Transfer
by Repsol YPF
during the Restriction Period
During
the
Restriction Period, Grupo Repsol YPF undertakes to maintain an interest greater
than or equal to fifty point zero one percent (50.01%) of the capital stock
of
the Company. Such 50.01% shall not in any case include Grupo Repsol YPF’s shares
that are subject to performance of Option 1 and Option 2.
Notwithstanding,
Grupo Repsol YPF may transfer its shares of the Company without being subject
to
the restriction established in the previous paragraph if two requirements
are
met: (i) the buyer is a first order company order incorporated in a “Permitted Country” (as such
term is defined in the Term Loan) primarily dedicated to the oil and gas
business and that at the time of the transfer has an A1
or better
rating from Xxxxx’x and of A+ or better from Standard and Poor’s (and
such rating will not fall below such level pursuant to the transfer nor will
it
be placed in a “negative Watch” due to the same), and (ii) the buyer will adhere
to this Agreement (for greater clarity, adhesion is understood to be the
assumption by the buyer of the same obligations of Group Repsol YPF under
this
Agreement, in such a way that the buyer and Group Repsol YPF constitute only
one
Party in the terms of the current Shareholders Agreement).
The
undertaking by Grupo Repsol YPF, established in the first paragraph of this
Clause, shall remain for the period initially stipulated for the Term Loan,
except if PESA pays off the Term Loan in full in advance.
Without
prejudice to the foregoing, once PESA has paid the amounts owed as interest
and
principal corresponding to the Term Loan, Grupo Repsol YPF may transfer the
Company’s shares provided that Grupo Repsol YPF maintains (i) a percentage
greater than or equal to third-five percent (35%); or (ii) in the case
stipulated in the second paragraph of Clause 6.5, the
greater percentage participation thereat stipulated.
If
during
the Restriction Period, PESA’s participation were below the Minimum PESA
Participation calculated as stipulated in Clause 6.5, such
will
not generate any liability whatsoever for Grupo Repsol YPF. Notwithstanding,
Grupo Repsol YPF may transfer its participation without any amount
limit.
In
any
case, while there are outstanding balances on the Vendor’s Loan, the funds that
PESA obtains from the transfers that leave it below the Minimum Participation
shall be fully allocated to paying off the outstanding balances of the Vendor
Loan as stipulated in the Vendor’s Loan agreement.
6.3 Transferability
of the
shares after the Restriction Period
From
the
expiration of the Restriction Period onward, PESA may transfer its shares
by any
means and without limitation. For its part, Grupo Repsol YPF may transfer
its
shares in the Company until its participation reaches a percentage which,
provided that PESA maintains Minimum PESA Participation, adds together with
PESA’s real participation to forty percent (40%) of the capital stock of the
Company.
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For
greater clarity, if PESA’s participation were less than the Minimum PESA
Participation, this will not generate any responsibility for PESA with regard
to
Repsol YPF Group, notwithstanding, Grupo Repsol YPF will be able to freely
transfer its shares without limit.
In
any
case, while there are outstanding balances on the Vendor’s Loan, the funds that
PESA obtains from the transfers that leave it below the Minimum Participation
shall be fully allocated to paying off the outstanding balances of the Vendor
Loan as stipulated in the Vendor’s Loan agreement.
While
PESA’s participation is equal or exceeds the Minimum PESA Participation, Grupo
Repsol YPF could only transfer its shares for below such percentage as added
to
PESA’s real participation represents, after the expiration of the Restriction
period, forty percent (40%) of the Company’s capital, provided that the
purchaser (i) is a first-tier company in the oil and gas industry (Oil &
Gas); and (ii) it adheres to the Shareholders’ Agreement.
For
the
effects of the provisions of this Clause, to calculate PESA’s percentage of
capital stock, the provisions of Clause 6.5 shall
be
used.
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6.4
|
Right
of Joint Sale
(“Tag-along”) in favor of PESA on Sales of Material Blocs to Third Parties
by Repsol YPF
|
Without
prejudice to the provisions of Clause 6.2, the
Parties agree that in the case that (i) PESA has paid all the amounts owed
as
interest and principal corresponding to the Term Loan; and (ii) Grupo Repsol
YPF
were to transfer or sell, directly or indirectly, to a Third Party, in any
manner, including the assignment of its right to subscribe to shares, a number
of shares in the Company greater (together with any other sale or transfer
made
by Grupo Repsol YPF, directly or indirectly, to such third party or to any
of
its Affiliates) to five percent (5%) of the capital stock of the Company
(hereinafter, the “Material
Block”), PESA shall have a right to exercise a follow-on right, to sell
to the Third Party (to the detriment of the Repsol YPF shares) a number of
shares of the Company directly proportional to the participation that PESA
has,
at that time, calculated on all of PESA and Repsol YPF’s shares together (PESA
being able to exercise such right for the total or for a smaller number of
the
shares corresponding to such proportion). Such transfer shall be made at
the
same time and under the same terms and conditions agreed by Repsol YPF with
the
acquiring third party.
For
greater clarity, the joint right of sale granted to PESA does not mean for
PESA
an obligation to sell to the acquiring third party.
If
outstanding balances exist on the Vendor’s Loan, PESA may exercise that right of
joint sale provided that the funds that PESA obtains from participating in
this
joint sale are fully allocated to paying off the outstanding balances of
the
Vendor’s Loan, as stipulated in the Vendor’s Loan.
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23
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Pursuant
to the aforesaid, if Grupo Repsol YPF were to receive an offer to purchase
in
any form, including the assignment of its right to subscribe to shares or
rights
inherent to the shares, of a Material Block (counting any other sale or transfer
made by Grupo Repsol YPF, directly or indirectly, to such third party or
to any
of its affiliates, to calculate such Material Block) from any third party
(the
“Third-Party
Acquirer”):
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(i)
|
Grupo
Repsol YPF shall send through certifiable means a copy of the offer
received from the Third-Party Acquirer to PESA which shall indicate
the
price per share, the number of shares that the Third-Party Acquirer
is
offering to acquire, and the other terms and conditions of the
offer.
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(ii)
|
Once
such copy is received, PESA shall have a period of thirty (30)
business
days (the “Exercise
Period”) to exercise the right contained in this Clause
6.4.
through notification to Grupo Repsol YPF within such Exercise
Period.
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(iii)
|
Once
the Exercise Period has lapsed without PESA having given any response
whatsoever to the preceding offer, it shall be construed that PESA
waives
the right to exercise the right granted to it in this Clause
6.4,
with respect to such offer in
particular.
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(iv)
|
Repsol
YPF shall sign the contract by which the shares indicated in the
Third-Party Acquirer’s offer are transferred at the price and under the
conditions indicated therein within a thirty (30) business day
period
following the expiration of the Exercise Period, otherwise the
transfer of
such shares shall once again be subject to the terms of this
Clause.
|
If
PESA
were to exercise in the manner herein stipulated its follow-on right, Grupo
Repsol YPF shall notify the Third-Party Acquirer in order for it to undertake
the acquisition of the affected shares.
6.5 Calculation
of
participations
For
greater clarity and for the effects of the provisions of Clauses 6.1, Clause
6.2
andClause
6.3, to calculate the Minimum PESA Participation during the Restriction
Period and after and for the effects of the provisions in Clause 5.2, in Clause
10.1 and in
Clause
10.2 to
calculate PESA’s participation, any dilutions from increases in capital
stipulated in Clause
4.3.(i) or such other increases as are adopted without the favorable vote
of PESA, shall not be taken into account.
As
a
result of the foregoing, if during the Restriction Period PESA’s real
participation were lower than the Minimum PESA Participation, Grupo Repsol
YPF
shall maintain a participation which, added to PESA’s real participation, is
greater than fifty percent (50%) of the capital stock of the Company and
it may
only transfer its participations pursuant to the provisions of Clause
6.2.
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24
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Likewise,
if after the Restriction Period PESA’s real participation were below the Minimum
PESA Participation, Grupo Repsol YPF shall maintain a participation which,
added
to PESA’s real participation, is greater than or equal to forty percent (40%) of
the capital stock of the Company (without calculating the shares of Grupo
Repsol
YPF that are subject to execution of Option 1 and of Option 2) and it may
only
transfer pursuant to the provisions of Clause
6.4.
For
greater clarity, the Parties acknowledge and accept that Grupo Repsol YPF’s
participation thresholds described in the preceding two paragraphs shall
only be
applicable in those cases in which PESA’s real participation were less than the
Minimum PESA Participation as a sole consequence of any dilution which might
derive from capital increases approved pursuant to the provisions of Clause 4.3.(i) or
capital increases that were adopted without the favorable vote of
PESA.
6.6 Rights
to First
Offer
If
any of
the Parties (hereinafter, the “Transferring Party”) were to
decide to transfer a block of the Company Shares greater than ten percent
10% of
the Company’s capital stock (hereinafter, a “Material Block of Shares”),
the other Party shall have a right to a first offer on the Material Block
of
Shares under the following terms:
(i)
The
Transferring Party shall send written notification to the other party
(hereinafter, “Notification of
Intent to Transfer”) indicating (a) its intent to transfer a Material
Block of Shares; (b) the number of Shares included in the aforementioned
Material Block of Shares; and (c) the minimum price at which the Transferring
Party wishes to transfer the Material Block of Shares (hereinafter, the “Minimum Price”).
(ii)
Within a period of fifteen (15) business days from the date of receipt of
the
Notification of Intent to Transfer (hereinafter, the “Exercise Period”), the other
Party shall inform the Transferring Party in writing whether it wishes to
acquire all (and in no case part) of the Material Block of Shares for the
Minimum Price (hereinafter, the “Notification of
Exercise”).
(iii)
If
during the Exercise Period the Transferring Party does not receive a
Notification of Exercise from the other Party, the Transferring Party may
freely
transfer all (and in no case part) of the Material Block of Shares to a Third
Party within a maximum period of two (2) months from the expiration of the
Exercise Period provided that the consideration received by the Transferring
Party for the transfer of the Material Block of Shares is greater than or
equal
to the Minimum Price.
(iv)
If
the other Party notifies the Transferring Party during the Exercise Period
and
by the Notification of Exercise, of its intent to acquire the Material Block
of
Shares for the Minimum Price, the Transferring Party shall be obligated to
transfer all of the Material Block of Shares for the Minimum Price within
a
period of forty five (45) days from the date the Notification of Exercise
is
received.
| Shareholders' Agreement |
25
|
6.7 Direct
or indirect transfers
in PESA and Grupo Repsol YPF
PESA’s
obligation not to transfer its shares in the Company during the Restriction
Period stipulated in Clause 6.1.1, shall
likewise be applicable mutatis
mutandis with respect to the ownership of PESA’s shares or participations
and with respect to ownership of shares of all the companies which in turn
are
shareholders or direct or indirect members of PESA (among them, Xxxxxxxx
PTY,
Ltd.), as well as with respect to ownership of the shares or participations
of
companies adhered to the Shareholders’ Agreement belonging directly or
indirectly to the Xxxxxxxx family.
Once
the
Restriction Period has lapsed, the Eskenazi Family and/or blood heirs shall
directly or directly maintain at least sixty percent (60%) of PESA’s shares or
participations. Any transfer of PESA’s direct or indirect participation by the
Eskenazi Family shall require the prior consent of Repsol YPF. Repsol YPF
undertakes not to deny such consent without reasonable
justification.
Repsol
YPF
shall maintain, directly or indirectly, the participation percentages in
Repsol
Exploración, Caveant and Repsol YPF Capital that are listed in heading I.(4),
last paragraph hereof.
| Shareholders' Agreement |
26
|
7. CORPORATE
AND OTHER
POLICIES
7.1 Public
Offering for
Sale
The
Parties shall attempt through the exercise of their voting rights within
the
General Meeting or on the Board of Directors, as applicable, to have the
Company
adopt and execute the Necessary Acts to allow a public offering for sale
that
would allow certain shares owned by Grupo Repsol YPF to be listed for trading
on
regulated securities markets (hereinafter, the “OPV”).
The
Parties agree that the sale price per Share that is set in the OPV shall
be set
in view of the “Fair Market Value” and the number of Shares owned by Grupo
Repsol YPF that will be transferred through the OPV shall be determined only
and
exclusively by Grupo Repsol YPF, without in any case the block to be transferred
by Grupo Repsol YPF being less than ten percent (10%) of the Company’s capital
stock.
Without
prejudice to the foregoing, if PESA has paid all the amounts owed as interest
and principal corresponding to the Term Loan, PESA may request and it shall
have
a right, as well as the shares owned by Repsol YPF, for a percentage of its
shares of the Company that is directly proportional to the participation
that
PESA holds, at that time, with respect to all the shares owned by PESA and
Grupo
Repsol YPF, to be included in the OPV.
PESA
may
participate in the OPV in the percentage indicated in the prior paragraph
provided that the funds that PESA obtains from selling that percentage of
shares
in the OPV are allocated entirely to pay off the outstanding balance of the
Vendor’s Loan, pursuant to the provisions of the Vendor’s Loan.
Grupo
Repsol YPF undertakes not to accept offers to purchase and not to transfer
shares of the Company in the OPV before the Waiting Period has ended.
Additionally, on the basis of said OPV process, Grupo Repsol YPF will not
transfer its shares of the Company before the Waiting Period has ended without
previously obtaining from the eventual buyer (i) an identical undertaking to
that assumed by Grupo Repsol YPF in Clause 7.5 of this
Agreement and (ii) commitment to not transfer its shares of the Company before
the Waiting Period has ended.
7.2 Acquisitions
and
reorganization of assets in Latin America
The
Parties share the Company’s strategic vision as a leading continental company in
the hydrocarbons sector. To execute this vision, it is desirable for the
Company
to proceed with a certain expansion and diversification of the geographic
areas
in which its assets are located and its business executed.
To
allow
for such expansion, the Parties shall enable the Company to study and evaluate
the possible acquisition at market price and conditions of certain of grupo
Repsol YPF’s businesses and assets in certain jurisdictions in Latin America,
which are described in Appendix 7.2
(hereinafter, the “Latin
American Assets”). Such acquisition shall be undertaken if it is
beneficial and in the best interest and benefit of the Company.
| Shareholders' Agreement |
27
|
To
proceed
with the acquisition of the Latin American Assets, it shall be necessary
for
such acquisitions, taken as a whole, to be “accretive” (that
is to say, “that increase”)
for the Company, in relation to its net
profit
and ability to distribute dividends, both in the short-term and under
reasonable
medium- and long-term estimates.
The
Parties undertake that such acquisitions be made in all cases charged to
the
financial resources to which the Company has access, and without recourse
to its
shareholders.
Likewise,
for the same purpose, the Parties share the judgment on the convenience of
disposing in favor of third parties of certain non-strategic assets in certain
areas. The cash flow that such transfers should produce will allow the Company
to undertake with greater efficiency the investment plans designed to strengthen
and optimize its strategic resources without reducing the dividends paid
to its
shareholders.
7.3 Dividends
The
Parties agree to strengthen a dividend policy that is satisfactory to the
Parties and that contributes to the characterization of the Company shares
in
the market as particularly attractive for their payout.
The
Parties agree to distribute as a dividend ninety percent (90%) of the profit
of
the Company, which will be made in two (2) payments each year.
The
Parties shall vote in favor of the corporate resolutions needed for the Company
to decided to distribute a special dividend of eight hundred and fifty thousand
United States dollars (US$ 850,000,000) which shall be paid (i) 50% during
2008
(25% during the first six months and 25% in the second half of the year);
and
(ii) the remaining 50% during the year 2009 (25% during the first six months
and
25% in the second half of the year).
7.4 Business
Plan and Annual
Budget
The
Company’s business or strategic plan (hereinafter, the “Business Plan”) and the
Company’s annual budget (hereinafter, the “Annual Budget”) shall be
overseen and presented only by the CEO assisted by the Company’s management, and
submitted for approval by the Board of Directors. The Annual Budget shall
be
submitted for consideration by the Board of Directors at least two (two)
months
in advance of the end of the current fiscal year. The Business Plan shall
have a
duration greater than one year.
The
minimum content of the Business Plan shall be: (i) the expenses and investments
to be made during the next four (4) years; (ii) the estimated revenue during
the
next four (4) years; and (iii) the debt level forecast during the next four
(4)
years.
The
Annual
Budget shall include all of the immediately prior fiscal year, and its minimum
content shall be: (i) the expenses and investments to be made during the
year;
(ii) the estimated income during the year; (iii) the debt level forecast
during
the year.
| Shareholders' Agreement |
28
|
The
Parties agree that the Business Plan and the Annual Budget shall, in all
cases,
be compatible with (i) compliance with the Company’s concession agreements; (ii)
the efficient use of the resources of the Company itself; (ii) the
reorganization of its assets increasing the value of the Company; (iv) the
characterization of the Company shares in the markets as particularly attractive
because of their payout; and (v) the investment levels and the performance
of
projects need to create the Company’s value.
The
CEO
shall be solely responsible for presenting the Business Plan and the Annual
Budget for approval thereof by the Board of Directors. Once the draft Business
Plan and/or Annual Budget re presented by the CEO, the Board of Directors
may
only: (i) approve the Business Plan and/or Annual Budget as they are proposed
by
the CEO; or (ii) reject the proposed Business Plan and/or Annual Budget
entirely. In no case may the Board of Directors modify, add to, amend or
supplement or partially approve the CEO’s proposed Business Plan and/or Annual
Budget.
In
case of
non-approval by the Board of Directors of the Business Plan and/or the Annual
Budget, the Board of Directors shall limit itself to returning the proposal
to
the CEO for him to prepare and present a new proposed Business Plan and/or
Annual Budget to it.
This
new
proposal shall be presented within one month from the end of the current
fiscal
year. Prior to his new presentation, the CEO shall consult with the Chairman
of
the Board of Directors.
In
terms
of expenses, when the level of budgetary deviation of expenses or approval
of
unbudgeted expenses requires the approval of the Board of Directors, as per
the
Company’s Investment and Expense Rules, the proposal for it to be approved by
the Board of Directors shall be the sole and exclusive responsibility of
the
CEO.
|
|
7.5
|
Commitment
of Grupo
Repsol YPF with respect to the PESA Tender Offer [OPA] for taking
a
controlling interest in the Company in the supposed exercise of
Option 1
or Option 2
|
|
|
If
the Holder of the Option exercise, respectively, Option 1 or Option
2,
Grupo Repsol YPF irrevocably undertakes not to participate in the
Tender
Offer [OPA] that any of them or an Affiliate 100% owned by the
Eskenazi
Family has to make for shareholders of the Company as a result
of the
acquisition of more than 15% of the Company’s capital stock. To this end,
Grupo Repsol YPF shall present to the CNV, the SEC, and the National
Securities Commission, a formal statement to prove that commitment
not to
participate in the Tender Offer [OPA] under the terms of the pro-forma
document that is attached as Appendix 7.5, and any other document
that is
reasonably required by those authorities to that
end.
|
|
|
7.6
|
Compliance
with the terms of the Registration
Rights
Agreement by the Company
|
|
|
Grupo
Repsol YPF and PESA undertake to actively perform all the Necessary
Acts
for the Company to observe and comply fully with all the terms
of the
Registration
Rights
Agreement.
|
| Shareholders' Agreement |
29
|
|
|
7.7
|
Agreement
between Grupo Repsol YPF and PESA to modify Article 7d) of YPF’s
Corporate Bylaws
|
|
|
Grupo
Repsol and PESA undertake to actively perform all the Necessary
Acts for
the Company to amend its corporate bylaws so as to demand the launch
of a
Tender Offer [OPA] for 100% of the shares only in the following
cases: (i)
when an interest equal to or exceeding 15% of the capital stock
of the
Company is acquired; or (ii) when an interest equal to or exceeding
50% of
the capital stock of the Company is acquired, thereby, it shall
eliminate
the obligation in the bylaws, of launching a Tender Offer [OPA]
each time
an additional interest is acquired once 15% of the Company’s capital stock
has been previously acquired if such acquisition does not exceed
50% of
the capital stock of the Company.
|
8. INFORMATION
The
Parties acknowledge and accept that the Company will provide, through its
management line, to Grupo Repsol YPF all the corporate information that it
needs
to meet its obligations as controlling company of the Company, within the
timeframes established by Grupo Repsol YPF. The Parties shall perform all
the
Necessary Acts to that end.
Likewise,
the Company shall provide PESA with the information it needs to perform its
obligations as a material shareholder of the Company.
Any
of the
Parties may obtain a copy of the information provided by the Company to the
other. In any case the Corporate Information shall be treated by PESA as
confidential, undertaking to maintain that nature strictly while such
information is not made public by Repsol YPF and/or the Company, and it may
only
be used by PESA to perform this Agreement.
The
Board
of Directors by ordinary majority shall likewise be responsible for taking
the
measures needed to ensure the flows of information to the Parties for the
purpose of performing this Clause.
9. DEFAULT
Default
by
any of the Parties with respect to the matters stipulated in this Agreement
shall give a right to the other Party in bonis to be indemnified
for all damages or losses it may incur as a direct result of this
default.
10. DURATION,
MODIFICATIONS, AND
ASSIGNMENT
|
|
10.1
|
Duration
|
|
|
This
Agreement shall take effect on the day it is signed, and it shall
remain
in effect during the entire duration of the Company, including
all of its
extensions, provided that (i) Grupo Repsol YPF is the holder, directly
or
indirectly, of shares representing at least twelve point five percent
(12.5%) of the capital stock of the Company; and (ii) PESA is holder,
directly or indirectly, of shares representing at least ten percent
(10%)
of the capital stock of the Company (hereinafter, the “Effective
Period”).
|
|
|
For
greater clarity, the provisions of Clause
6.5
shall be applicable to this clause.
|
| Shareholders' Agreement |
30
|
|
|
10.2
|
Accelerated
Termination
|
|
|
This
Agreement may be terminated in advance and immediately by any of
the
Parties, notification to the other Party being sufficient therefore,
in
the cases indicated below:
|
|
|
(i)
|
If
the shareholdings of Grupo Repsol YPF in the Company were below
twelve
point five percent (12.5%) or that of PESA were below ten percent
(10%).
Without prejudice to the termination of this Agreement, the Parties
shall
explore in good faith possible alternative agreements in accordance
with
their respective participations.
|
|
|
For
greater clarity, the provisions of Clause
6.5
shall be applicable in this clause.
|
|
|
(ii)
|
In
case of default on this Agreement by any of the Parties pursuant
to the
provisions of Clause
9.1, the
compliant party shall have the right to terminate this Agreement
immediately.
|
|
|
(iii)
|
If
Repsol YPF or PESA cannot provide the other party a sufficient
guaranty
within thirty (30) business days after its declaration of bankruptcy,
the
other Party shall have a right to terminate this Agreement
immediately.
|
|
|
In
such cases the Parties shall be obligated to adopt and provide
their
consent for such acts, decisions, and agreements as are necessary
to
terminate this agreement to be
adopted.
|
11. MISCELLANEOUS
|
|
11.1
|
Modifications
|
|
|
This
Agreement may not be modified except if made in writing signed
by the
Parties and with express and unequivocal mention of the modification
agreed.
|
|
|
If
any of the Parties does not exercise any right that appertains
to it with
respect to a specific act or event in virtue of this Agreement,
such shall
not imply a waiver of that right and it shall not prevent in any
manner
whatsoever the subsequent exercise of such right with respect to
other
acts or events during its effective
period.
|
|
|
11.2
|
Assignment
|
|
|
The
full or partial assignment, direct or indirect, to a third party
of the
Agreement or of any of the rights and obligations derived herefrom
may not
take place – nor be deemed valid – except upon express written consent of
all of the Parties, except the adhesion agreements stipulated in
this
Agreement.
|
|
|
The
Parties agree that the Term Loan and the “Securities Documents”
(as such term is defined in the Term Loan) signed by PESA by reason
of the
financing stipulated in the Term Loan, do not imply a breach of
this
Clause 11.2.
|
| Shareholders' Agreement |
31
|
|
|
11.3
|
Adhesion
to the
Shareholders’ Agreement
|
|
|
The
Holder of the Option who exercises such right in whole or in part
shall,
in all cases, adhere to this Shareholders’ Agreement by a statement of
express will in that sense certifiably notifying Grupo Repsol YPF,
at the
same time it acquires the Company shares that Grupo Repsol YPF
sells it
pursuant to such Option 2.
|
|
|
In
all cases, as soon as the adhesion to the Agreement by the Holder
of the
Option , the rights attributed to PESA pursuant to the same, will
be
understood to be attributed jointly and inseparably to PESA and
to the
Holder of the Option. To that effect, PESA and the Holder of the
Option
must exercise their rights in this Agreement through a single
representative which shall be communicated to all Parties in the
notification foreseen by the previous
paragraph.
|
|
|
The
Holder of the Option who exercises such option in whole or in part
shall
have this selfsame adhesion obligation with respect to the Registration
Rights
Agreement, assuming, pursuant to such adhesion, the same rights and
obligations as PESA, constituting with PESA a single
party.
|
|
|
11.4
|
Nonexistence
of
agreements with other shareholders and with third
parties
|
|
|
Grupo
Repsol YPF and PESA represent that they have not signed agreements
with
any other shareholder of the Company. Grupo Repsol YPF and PESA
undertake
to sign agreements with other shareholders with respect to the
ownership
or exercise of any rights corresponding to their shares of the
Company or
which grant rights or privileges of any nature related to the transfer
of
the shares of the Company.
|
|
|
Grupo
Repsol YPF and PESA represent that they have not signed agreements
with
any other third party, except for the Term Loan and the complementary
documents . Grupo Repsol YPF and PESA undertake to sign agreements
with
other shareholders with respect to the ownership or exercise of
any rights
corresponding to their shares of the Company or which grant rights
or
privileges of any nature related to the transfer of the shares
of the
Company.
|
|
|
11.5
|
Notifications
|
|
|
All
communications between the Parties to this Agreement shall be made
in
writing and sent by fax and confirmed by certified mail with
acknowledgment of receipt to the addresses and persons listed in
Appendix
11.4
of this Agreement.
|
|
|
The
Parties shall coordinate the time and content of any press release
or
public announce, in strict observance of the duties and obligations
required by applicable precepts.
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| Shareholders' Agreement |
32
|
|
|
11.6
|
Expenses
and
fees
|
|
|
Except
as otherwise stipulated, the expenses and taxes resulting from
signing
this Agreement shall be borne by the Party determined by the
applicable
law.
|
|
|
11.7
|
Partial
nullity
|
|
|
If
any clause of this Agreement were declared, in whole or in part,
null and
void or ineffective, such nullity or ineffectiveness shall only
affect
such provision or the part thereof that is null or ineffective,
the
Agreement subsisting in all other matters, and that provision,
or the part
thereof that is affected, being deemed not placed. The Parties
shall hold
mutual consultations and shall make their best effort to agree
on a valid
and enforceable clause that constitutes a reasonable replacement
for the
null and unenforceable stipulation pursuant to the spirit of this
Agreement.
|
|
|
In
the cases in which this document stipulates alternate requirements
or
alternate procedures to reach an agreement or approve a certain
matter, if
one or more of such requirements or alternate procedure were declared
in
whole or in part null or ineffective, such nullity or ineffectiveness
shall affect only such requirement or procedure or the part thereof
that
is null or ineffective, the other requirements or alternative procedures
stipulated subsisting and being applicable, and such requirement
or
procedure, or the part thereof that is affected, shall be deemed
not
put.
|
|
|
11.8
|
Applicable
law
|
|
|
The
Parties expressly agree that this Agreement is governed by the
laws of the
Argentine Republic.
|
|
11.9
|
Jurisdiction
|
The
Parties expressly subject any disagreement or controversy that might arise
on
this Agreement or its execution, or which is related to it, to legal
arbitration, pursuant to the regulation established by the rules and regulations
of the International Chamber of Commerce (hereinafter, “CCI”), before (3) arbitrators
appointed pursuant to the provisions of this Agreement, the Parties expressly
waiving any other forum that might appertain to them.
The
Parties state that they know and accept the rules and regulations of the
CCI,
pursuant to whose rules, if applicable, the arbitration proceeding shall
take
place.
The
arbitration proceeding shall take place in the Spanish language in the city
of
New York (USA), in the place designated by the CCI.
The
legal
arbitration shall be subject to Argentine law and three (3) arbitrators shall
hear it. Vendor and Purchaser shall appoint one (1) arbitrator, the third
of
them appointed jointly by the arbitrators so appointed. If the first two
(2)
arbitrators cannot agree on the selection of the third arbitrator, he shall
be
appointed pursuant to the current rules of the CCI.
| Shareholders' Agreement |
33
|
Likewise,
the prosecution of the arbitration proceeding shall be subject to the rules
and
regulations of the CCI.
The
Parties shall request that the arbitrators include in the arbitration decision
an express decision on the costs. The decision on costs shall be proportional
to
the estimate of the claims of the Parties contained in the arbitration
decision.
The
arbitration shall in all cases be final and the Parties are bound to perform
and
to voluntarily go through the provisions of the arbitration decision, within
the
timeframes set by common accord at the start of the arbitration proceeding.
On
lack of agreement, the provisions of the CCI Regulation shall be
applicable.
Subsidiarily,
and if necessary, especially in relation to the forced execution of the
arbitration, the holding of the preparatory proceedings as well as the request
for injunctions or measures of any other type, the Parties subject themselves,
with express waiver of any other forum that might appertain to them, to the
Courts and Tribunals of the city of Madrid or of city of Buenos Aires at
the
discretion of the complainant Party.
In
relation to requests for injunctions or preventive orders related to the
application of this Agreement:
(i)
the
Parties subject themselves, with express waiver of any other forum or
jurisdiction, the Courts and Tribunals of the city of Madrid or city of Buenos
Aires, at the discretion of the party complainant, to request injunctions
related to the regime to transfer shares stipulated in Clause 6 of this
Agreement.
(ii)
the
Parties subject themselves, with express waiver of any other forum or
jurisdiction that might appertain to them, to the arbitration body and procedure
to which they submit themselves in this Clause 11.8, to
request injunctions related to the rest of the Clauses of the Agreement,
and
especially in relation to Clauses 4, 5, and 7 hereof.
|
|
11.10
|
Initialization
of the
Agreement
|
|
|
The
Parties expressly authorize Messrs. Xxxxxxx Xxxxxxxxx Xxxxx, in behalf of
Grupo Repsol YPF, and Mr. Xxxxx Xxxxxx Dacomo, in behalf of PESA,
to
initialize each and every one of the pages of this Agreement, including
Appendices, and copies thereof.
|
|
|
11.11
|
Notification
of the
company
|
|
|
The
Parties undertake to notify the Company of this Agreement on the
date
hereof.
|
| Shareholders' Agreement |
34
|
|
|
11.12
|
Entirety
of the
Agreement
|
This
Agreement constitutes the entirety of that agreed by the Parties in relation
to
the matters treated herein and it shall prevail over any other prior
agreement
or understanding in relation to the same matters. All the Appendices
to this Agreement constitute an integral part hereof.
| Shareholders' Agreement |
35
|
AND
IN
WITNESS WHEREOF, the Parties sigh this Agreement in five (5) copies with
one
single effect in the place and on the date indicated in the
heading.
|
REPSOL
YPF, S.A.
|
REPSOL
EXPLORACIÓN,
S.A.
|
|
Xx.
Xxxxxxx Xxxxxx
Niubó
|
Xx. Xxxxxxx Xxxxxxxxx-Xxxxxx Xxxx xx Xxxx |
|
CAVEANT,
S.A.
|
REPSOL
YPF CAPITAL,
S.L.
|
| Xx. Xxxxxxxx Xxxxxxx Mazarredo |
Xx.
Xxxxxxxx Xxxxxxx
Mazarredo
|
|
XXXXXXXX
ENERGÍA, S.A.
|
|
|
Xx.
Xxxxxx Xxxxxxxx
Storey
|
| Shareholders' Agreement |
36
|
LIST
OF
APPENDICES
b
| Appendix 1 | Definitions |
| Appendix 7.2 | Repsol YPF’s exploration businesses and assets |
| Appendix 7.5 | Agreement not to participate in the Tender Offer [OPA] |
| Appendix 11.5 | Notifications |
| Shareholders' Agreement |
37
|
Appendix
1
Definitions
|
“Agreement”
|
Means
the present agreement entered into by and between shareholders
signed by
the Parties in the date presented in the title with all its annexes
and
possible modifications agreed to by the Parties in accordance with
the
foreseen in the same.
|
|
“Necessary
Acts”
|
Means,
in relation to the results whose obtainment is required, all measures
that
are reasonable in business terms and which, within the legal authority
of
the Party in charge of performing those “Necessary Acts” is pertinent for
the purposes of obtaining such result. Such measures include, without
limitation, (a) attending
the corresponding meetings and casting
votes with
respect to all of the shares of which the Party obligated to perform
the
“Necessary Acts” owns; (b) instructing the
Directors appointed by or at the proposal of such Party to convene
meetings of the
board of directors and/or meetings and to vote favorably
in
meetings of the board of directors and/or make entries into the
corporate
books and pertinent registries, and to make presentations and/or
notifications to Caja de Valores S.A., the CNV, the Buenos Aires
Stock
Exchange, the SEC, the Inspectorate General of Justice, the ADR
depositary
and any other authority or body which is necessary in order to
obtain the
result sought, and which are performed pursuant hereto or to order
that
they be removed from their positions if they do not perform such
acts or
do not act pursuant hereto; (c) preparing, executing, and/or signing
documents, presentations and notifications and/or registrations
or similar
acts that are required in order to reach the aforementioned result;
(d)
adoption by the Parties of other legitimate and suitable means
to prevent
third parties alien to this Agreement from jeopardizing the effectiveness
of its provisions, as well as to give instructions and recommendations
to
the directors designated by or proposed by the Party in relation
to such
measures to defend the Agreement.
|
|
“Affiliate”
|
Shall
mean:
|
a) those
companies or natural persons who hold a
participation or control, under any title or for any reason, directly or
indirectly, more than 50% of the capital stock and the votes of any of the
Parties;
b) those
companies whose capital stock and votes are by more than 50%, under any
title or
for any reason, directly or indirectly, owned or controlled by any of
the
Parties;
c) those
companies whose capital stock and votes are by more than 50%, under any
title
and for any reason, owned or controlled by companies or natural persons
who fall
under subparagraphs “a” and “b”, above.
| Shareholders' Agreement |
38
|
|
“CCI”
|
Means
the International Chamber of
Commerce.
|
|
“Executive
Committee”
|
Means
the collegial body cited in Clause
5.3.4.
|
|
“Management
Committee”
|
Means
the collegial body cited in Clause
5.3.5.
|
|
“Company”
|
Means
the company YPF, S.A.
|
|
“Purchase
and
Sale
|
|
Agreement”
|
Means
the purchase and sale agreement for 14.9% of the shares of the
Company,
signed on February 21, 2008 by and between PESA and GRUPO REPSOL
YPF.
|
|
“First
Option
Agreement”
|
Means
the option agreement signed today by and between Repsol YPF and
Messrs.
Xxxxxxxx.
|
|
“Second
Option
Agreement”
|
Means
the option agreement signed today by and between Repsol YPF and
the Holder
of the Option.
|
|
“COO”
|
Means
the person who shall be appointed by the Board of Directors pursuant
to
Clause 5.5.3.
|
|
“PESA”
|
Means
Xxxxxxxx Energía S.A., and/or any company 100% owned or controlled,
directly or indirectly, by the Eskenazi Family that adheres to
this
Agreement as a party pursuant to the provisions of Clause
11.3.
|
|
“Directors
designated by Repsol
YPF”
|
Means
the Directors that Grupo Repsol YPF has a right to designate,
both
full and alternate Directors, from among the Directs that
are appointed
by Class D
|
| Shareholders' Agreement |
39
|
|
|
Shares.
|
|
“Directors
designated by PESA”
|
Means
the Directors that PESA has a right to designate, both full and
alternate
Directors, from among the Directs that are appointed by Class D
Shares.
|
|
“Independent
Directors
|
Means
the Company directors who meet the requirements to be deemed independent
directors pursuant to the regulations applicable to the Company,
including
Decree 677-2001 and the CNV rules.
|
|
“Xxxxxxxx
Family”
|
Means,
jointly, Messrs. Xxxxxxxx and/or their heirs, and individually
and
indistinctly, any of them, as well as (a) the spouses and/or the
straight-line descendents (including adopted children) of Xx. Xxxxxxx
Xxxxxxxx, Xx. Xxxxxxxxx Xxxxxxxx, Xx. Xxxxxx Xxxxxxxx Xxxxxx and/or Xx.
Xxxxxxxx Xxxxxxxx Storey, (b) any trust to the exclusive benefit
of any
person or persons cited in clause (a), (c) any family trust, partnership
or limited-liability company established for the sole benefit of
any
person or any persons mentioned in clause (a), or for the purposes
of
estate planning, of Xx. Xxxxxxx Xxxxxxxx, Xx. Xxxxxxxxx Xxxxxxxx, Xx.
Xxxxxx Xxxxxxxx Xxxxxx and Xx. Xxxxxxxx Xxxxxxxx Xxxxxx, and/or (d)
their
heirs, executors named by testator, executors designated by probate
court,
curators or conservators of Xx. Xxxxxxx Xxxxxxxx, Xx. Xxxxxxxxx Xxxxxxxx
Xxxxxx, any of them, or a trust established in virtue of any of
their
xxxxx after their death or
disability.
|
|
“Default
/
Breach”
|
Means
(i) any full default of material obligations; (ii) defective, repeated,
and uncured performance of material or formal obligations; (iii)
prolonged
arrears in the performance of any obligations; assumed by any of
the
Parties in virtue of this Agreement or the agreements or contracts
to
which it refers.
|
|
“Meeting”
|
Means
the shareholders’ meeting .
|
|
“Applicable
Law”
|
Means
the Laws of the Argentine Republic.
|
|
“Option
1”
|
Means
Messrs. Xxxxxxxx’x option to acquire from Repsol YPF up to 0.1 percent
(0.1%) of the capital stock of the Company pursuant to the First
Option
Agreement.
|
| Shareholders' Agreement |
40
|
|
“Option
2”
|
Means
the option of the Holder of the Option to acquire from Repsol YPF
up to
ten percent (10%) of the capital stock of the Company pursuant
to the
Second Option Agreement.
|
|
“OPV”
|
Means
Public Offering for Sale of shares.
|
|
“Transferring
Party”
|
Has
the meaning established in Clause
6.5.
|
|
“Minimum
PESA
Participation”
|
Means
a participation in the Company’s capital stock by PESA and/or any company
100% owned or controlled, directly or indirectly, by the Eskenazi
Family,
calculated without taking into account any dilutions that such
participation might suffer because of increases in capital stipulated
in
Clause
4.3(i) or such other increases as are adopted without the favorable
vote of PESA, equivalent (i) in the instance where Option 2 has
not been
exercised, to 10%; (ii) if Option 2 has been fully exercised, 15%;
and
(iii) if Options 2 was partially exercised, at the percentage resulting
from adding to the 10% participation (applicable if Option 2 was
not
exercised), the percentage resulting from reducing proportionally
by 5%
(percentage difference between the case of a full exercise of Option
2 and
non-exercise) the percentage at which Option 2 was exercised (never
being
able to exceed the 15% applicable in the case of full exercise
of Option
2).
|
|
“Business
Plan and
Annual
Budget”
|
Means
the business plan and annual budget of the
Company.
|
|
“Party”
or
“Parties”
|
Mean
either Grupo Repsol YPF or PESA or both, as the case may
be.
|
|
“Waiting
Period”
|
Means
the 3 (three) month period starting from the execution of this
Agreement.
|
|
“Restriction
Period”
|
Means
the 5-year period for which PESA undertakes not to transfer its
shares
voluntarily, pursuant to the provisions and the exceptions stipulated
in
Clause
6.1.1.
|
|
“Effective
Period”
|
Means
the duration of the Agreement, as established in Clause
10.1.
|
| Shareholders' Agreement |
41
|
|
“Subsidiary
of the
Company”
|
Means
(a) those companies or legal entities whose capital stock and votes
are,
under any title or for any cause, directly or indirectly more than
50%
owned or controlled by the Company; or (b) owned or controlled,
in turn,
by any company or entity owned or controlled by the Company
.
|
|
“Material
Subsidiary”
|
Means
any Subsidiary of the Company that represents at least 5% of the
Company’s
net consolidated capital.
|
|
“Tag-along”
|
Means
the right of joint sale to PESA in sales of Material Blocks to
third
parties by Repsol YPF as stipulated in Clause
6.4.
|
|
“Term
Loan”
|
Means
the finance agreement signed by PESA with specific financial entities
that
is attached as Appendix E-IX to the Purchase and Sale Agreement,
signed on
February 21, 2008.
|
|
“Holder
of the
Option”
|
Means
Messrs. Xxxxxxxx and/or any company, 100% controlled, directly
or
indirectly, by the Eskenazi Family and/or any member of the Eskenazi
Family, or those that met the requirements of Clause
6.7 of
this Agreement.
|
|
“Vendor’s
Loan”
|
Means
the finance agreement signed by the Parties on February 21, 2008,
which is
attached as Appendix E-X to the Purchase and Sale
Agreement.
|
| Shareholders' Agreement |
42
|
Appendix
7.2
[NOT
FILED]
| Shareholders' Agreement |
43
|
Appendix
7.5
Agreement
not to participate in the Tender Offer [OPA]
[Place
and
Date]
[National
Securities Commission]
[National
Securities Exchange Commission]
[Securities
and Exchange Commission]
Dear
Sirs:
We
are writing to you, in order to
inform you that, (i) due to the statement of Xxxxxxxx Energía, S.A. (PESA) or
another entity of Grupo Xxxxxxxx of its intent to acquire 20,000 Class D
shares
of YPF, S.A. (the “Company”) (the “Additional Purchase”) after the date on which
the purchase by PESA from Grupo Repsol YPF of 58,603,606 Class D shares of
the
Company implemented through the purchase and sale of stock agreement signed
by
and between PESA and Grupo Repsol YPF on February 21, 2008, takes place;
and
(ii) in virtue of Clause 7.5 of the Shareholders’ Agreement dated February 21,
2008 by and between Grupo Repsol YPF and PESA:
|
|
(a)
|
Grupo
Repsol YPF has undertaken not to participate, from the date hereof
until [
] (the “Abstention Period”), in the public offer to acquire shares of the
Company made by PESA or another entity of Grupo Xxxxxxxx as a result
of
the Additional Purchase, in virtue of the provisions of Article
7 of the
Company’s Corporate Bylaws, either through the sale, offer to sell shares
or other securities convertible into shares, if they exist, and/or
American Depositary Shares (“ADS’s”) and their respective American
Depositary Receipts (“ADR’s”) belonging to Grupo Repsol YPF in the
Company, or the execution by Grupo Repsol YPF of any transaction
in virtue
of which the economic value of its shareholdings in the Company
is
transferred;
|
|
|
(b)
|
The
commitment assumed by Grupo Repsol does not cover any other public
offer
to acquire or analogous offer (i) made by any person other than
PESA or
another entity of Grupo Xxxxxxxx or (ii) made by PESA or another
entity of
Grupo Xxxxxxxx as a result of any reason other than the Additional
Purchase.
|
| Shareholders' Agreement |
44
|
Appendix
10.4
Notifications
|
Grupo
Repsol YPF
|
Xxxxx
xx xx Xxxxxxxxxx xx. 000-000
00000
Xxxxxx (Xxxxx)
Fax: (00)
00 000 00 00
Attention: Corporate
Director of Strategy and Development
With
copy to
Fax: (00)
00 000 00 00
Attention: Corporate
Legal Director
|
|
|
PESA
|
Xxxxxxx
000, 0xx
Xxxxx
X
0000 XXX Xxxx of Buenos Aires (Argentina)
Fax: (00)
00 00 00 00 00
Attention: Xx.
Xxxxxxx Xxxxx
With
copy
Fax:
(00) 00 00 00 00 00
Attention: Xx.
Xxxxx Dacomo
|
| Shareholders' Agreement |
45
|
|
Company
|
Xxxxxxx
Xxxxxxxxx Xxxxx Xxxxx Xxxx, 000
C
1035 AAC City of Buenos Aires (Argentina)
Fax:
54) 00 00 00 00 00
Attention: Director
Legal Matters
|
| Shareholders' Agreement |
46
|
