FIRST SHARE PURCHASE AND SALE OPTION AGREEMENT by and between Grupo Repsol YPF, S.A. and Mr. ENRIQUE ESKENAZI Mr. SEBASTIÁN ESKENAZI Mr. MATÍAS ESKENAZI STOREY Mr. EZEQUIEL ESKENAZI STOREY February 21, 2008
Exhibit
7.04
by
and between
Grupo
Repsol YPF, S.A.
and
Xx.
XXXXXXX XXXXXXXX
Xx.
XXXXXXXXX XXXXXXXX
Xx.
XXXXXX XXXXXXXX XXXXXX
Xx.
XXXXXXXX XXXXXXXX XXXXXX
February
21, 2008
"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."
In
Madrid,
on February 21, 2008
BY
AND BETWEEN
On
the first part,
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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
Protocol, a company duly recorded in the Commercial Registry of Madrid
at
Volume 7063,6058 of the 3rd
Section of
the Corporations Book, Sheet 119, Page M-72.059-1. Repsol YPF
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, married, a Spanish
citizen, with professional domicile at Madrid, Xxxxx xx xx Xxxxxxxxxx
000,
and holder of Spanish National Identification Document number
40.824.513-L, valid, by virtue of the power of attorney granted on
October
29, 2004, before the notary public of Madrid, Xx. Xxxxxx Xxxxx Xxxxxx,
protocol number 2,889.
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Hereinafter
Repsol YPF shall be referred to as the
“Vendor”.
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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 Madrid, Xx. Xxxxxxx
Xxxxxxx Xxxxx del Real on the same date under number 2,098 of those of his
Protocol, a company duly recorded in the Commercial Registry of Madrid
at
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, married,
a Spanish citizen, with professional domicile at Madrid, Xxxxx xx
xx
Xxxxxxxxxx 000, and holder of Spanish National Identification Document
number 786.139-E, valid, by virtue of the power of attorney granted
on
January 26, 2005, before the notary public of Madrid, Xx. Xxxxxx
Xxxxx
Xxxxxx, protocol number 150.
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(3)
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Caveant,
S.A., (hereinafter “Caveant”) established pursuant to Argentine law, with
Bylaws registered at the Superintendency of Corporations on July
2, 1980
under Corporations Book 95, Number 2,415, Volume A. Caveant has its
principal executive offices at Buenos Aires, Avda. Presidente 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, married, a Spanish
citizen, with professional domicile at Madrid, Xxxxx xx xx Xxxxxxxxxx
000,
and holder of Spanish National Identification Document number 1.485.502-R,
, valid, by virtue of the power of attorney granted on February 14,
2008,
before the notary public of Buenos Aires, Mr. Xxxxxx Xxxxxx del Río, folio
110 of his protocol.
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(4)
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Repsol
YPF Capital, S.L., a wholly owned subsidiary of the Repsol group
(hereinafter, “Repsol YPF Capital”) established pursuant to Spanish law on
December 20, 2002 in virtue of public articles of incorporation granted
before the notary public of Madrid, Xx. Xxxxxx Xxxxx Xxxxxx, on the
same
date under number 4,166 of those of his Protocol, a company duly
recorded
in the Commercial Registry of Madrid at 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, married, a Spanish
citizen, with professional domicile at Madrid, Xxxxx xx xx Xxxxxxxxxx
000,
and holder of Spanish National Identification Document number 1.485.502-R,
valid, by virtue of the power of attorney granted on February 19,
2008,
before the notary public of Madrid, Xx. Xxxxxx Xxxxxxx Xxxxxxxx, protocol
number 590.
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On
the second part,
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(1)
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Xx.
Xxxxxxx Xxxxxxxx, of age, married, a Spanish citizen, with professional
domicile at Buenos Aires (Argentina), Avenida Xxxxxxx Xxxx 2.748, 7º, and
holder or Argentine passport number 00000000X, valid and of Foreigner’s
Identity Number (N.I.E.) X-9298901-R,
valid.
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(2)
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Xx.
Xxxxxxxxx Xxxxxxxx, of age, married, a Spanish citizen, with professional
domicile at Buenos Aires (Argentina), Avenida Xxxxxxx Xxxx 2.748, 7º and
holder or Argentine passport number 00000000X, valid and of Foreigner’s
Identity Number (N.I.E.) X-9298838-F, en
valid.
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(3)
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Xx.
Xxxxxx Xxxxxxxx Storey, of age, married, a Spanish citizen, with
professional domicile at Acassuso, Buenos Aires (Argentina) and holder
or
Argentine passport number 00000000X, valid and of Foreigner’s Identity
Number (N.I.E.) X-9298890-J, valid.
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(4)
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Xx.
Xxxxxxxx Xxxxxxxx Xxxxxx, of age, married, a Spanish citizen, with
professional domicile at Acassuso, Buenos Aires (Argentina) and holder
or
Argentine passport number 00000000X,
valid.
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Herein
represented by Xx. Xxxxxx Xxxxxxxx Storey, by virtue of the power of
attorney granted in Argentina before the notary public of the City
of
Buenos Aires, Mr. Xxxxxx Xxxx Buasso, on February 11, 2008, duly
apostilled.
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Hereinafter
Xx. Xxxxxxx Xxxxxxxx, Mr.. Xxxxxxxxx Xxxxxxxx, Mr.. Xxxxxx Xxxxxxxx Xxxxxx
and Xx. Xxxxxxxx Xxxxxxxx Xxxxxx shall jointly be referred to as
the
“Purchaser” or the
“Beneficiary.”
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Hereinafter,
Vendor, Repsol Exploración, Caveant y Repsol YPF Capital, shall jointly be
referred to as the “Grupo Repsol YPF” or the
“Grantor.” Likewise, Grupo Repsol YPF and the Purchaser shall
jointly be referred to as the “Parties,” and each one of them individually
as a “Party.”
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WHEREAS
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I.
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YPF,
S.A. (hereinafter, the “Company”) is an international
company, leader in the hydrocarbons sector in Argentina, and a member
of
Grupo Repsol YPF.
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II.
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That
on this date, and simultaneously with the signing of this Agreement,
Grupo
Repsol YPF and Xxxxxxxx Energía, S.A., have entered into a share purchase
and sale agreement, in virtue of which Grupo Repsol YPF has transferred
to
Xxxxxxxx Energía, S.A., 58,603,606 shares of the Company in the form of
American Depositary Shares (“ADSs”) each
representing one Class D share and evidenced by American Depositary
Receipts (“ADRs”) issued by The Bank of New York
(hereinafter, the “Depositary”) in accordance with the
terms of the Deposit Agreement between the Depositary and the Company
dated July 1, 1993 (the “Deposit Agreement”) representing
14.9% of the capital stock of the Company (hereinafter, the
“Purchase and Sale Agreement”). Likewise, in a
single act with the signing of the Purchase and Sale Agreement, the
aforementioned parties have signed the Shareholders’
Agreement.
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III.
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That
on this date, and simultaneously with the signing of this Agreement,
Grupo
Repsol YPF and the Purchaser have entered into a purchase and sale
option
agreement for shares of the Company representing 10% of its capital
stock
(hereinafter, the “Second Option
Agreement”).
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IV.
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That
on this date, and simultaneously with the signing of this Agreement,
Grupo
Repsol YPF and Xxxxxxxx Energía, S.A., (a company which is wholly owned by
the Xxxxxxxx Family) have entered into a registration rights
agreement with respect to the shares purchased on this date by
virtue of the Stock Purchase Agreement, in which the Parties have
undertaken to enter into a new registration rights agreement with
respect
to the shares (and ADSs) covered by this Agreement and by the Second
Option Agreement (“Registration Rights
Agreement”)
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V.
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Grupo
Repsol YPF has the intention of transferring to Xxxxxxxx Group, which
in
turn is interested in acquiring, shares in the company representing
up to
25% of its capital stock. 14.9% is subject to transfer in the
Purchase and Sale Agreement, 10% is subject to the Second Option
Agreement
and the remaining 0.1% is subject to this Option Agreement. All
that under such terms and conditions as are agreed in the respective
agreements.
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VI.
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Grupo
Repsol YPF owns 330,933,384 class D shares of the Company’s capital
stock.
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VII.
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The
Purchaser is interested in obtaining and Grupo Repsol YPF is
interested in
granting, a purchase option on the Shares, for which they enter
into this
agreement (hereinafter, the “Agreement”) pursuant to the
following
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CLAUSES
1. DEFINITIONS
For
the
effects of this Agreement, the following terms shall have the meanings which
are
cited therefor below. All the terms used in this Agreement which are
not defined in this stipulation, but which are so in any other place in this
Agreement, shall have the meaning assigned to them in that other place in this
Agreement.
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•
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“Shares”: Class
D shares of the Company (including any “ADSs”, “ADRs” and/or any other
certificate of deposit or custody and/or representative of the Shares)
representing 0.1% of the capital stock of the Company (counting any
option, uncapitalized contribution, right to receive shares in the
Company
and any other security or debt convertible into shares as if such
right
and/or conversion had materialized, as well as all the rights and
shares
derived from capitalizations of reserves, revaluations, capital
adjustments, and any contributions, irrevocable or not, that are
pending
capitalization on the Exercise Date), as well as all the political
and
capital rights that appertain thereto, including any preferred option
or
right of subscription, the right to receive any dividend or distribution
corresponding thereto, either in stock, in kind, or in cash voted
and not
distribution by the Exercise Date and any other rights of any nature
that
the Vendor has in its capacity as owner of the
Shares.
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•
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“Shareholders’
Agreement”: The agreement signed today by Xxxxxxxx
Energía, S.A. and Grupo Repsol YPF that regulates a) its relationships
qua
shareholders of the Company and in particular, certain rights and
obligations derived from its status as shareholders of the Company;
and b)
certain aspects related to the functioning of the Company and its
organizational structure.
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•
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“Auditor”: Accounting
firm designated in accordance with the provisions of Appendix
A.
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•
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“Beneficiary”
or “Purchaser”: jointly, Xx. Xxxxxxxxx Xxxxxxxx, Xx.
Xxxxxx Xxxxxxxx, Xx. Xxxxxxx Xxxxxxxx and Xx. Xxxxxxxx Xxxxxxxx or the
company to which this Agreement is assigned to pursuant to Clause
8.2.
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•
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“Company”: Means
the Argentine company YPF, S.A., registered at the Superintendency
of
Corporations under Corporations Book 108, Number 404, Volume A, with
principal executive offices at Avda. Presidente Xxxxx Xxxxx Xxxx 000,
X0000XXX Xxxxxx xx Xxxxxx Xxxxx, Xxxxxxxxx and current tax identification
code (CIF), 30-54668997-9, current.
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•
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“Agreement”: This
purchase option agreement.
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•
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“Purchase
and Sale Agreement”: The purchase and sale agreement
signed today by Grupo Repsol YPF and Xxxxxxxx Energía, S.A., in virtue of
which Grupo Repsol YPF has transferred to Xxxxxxxx Energía, S.A., shares
in the Company representing 14.9% of its capital
stock.
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•
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“Second
Option Agreement”: the agreement entered into on this
date by Grupo Repsol YPF and the Purchaser, by virtue of which, Grupo
Repsol YPF has granted the Purchaser a purchase and sell option for
certain shares of the Company representing 10% of its capital
stock.
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•
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“Business
Day”: Any day of the week excluding Saturdays,
Sundays, and holidays set by the official calendars for Madrid (Spain),
the City of Buenos Aires (Argentina) and New York (United
States).
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•
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“Xxxxxxxx
Family”: Messrs.
Xxxxxxx Xxxxxxxx and/or Xxxxxxxxx Xxxxxxxx and/or Xxxxxx Xxxxxxxx Storey
and/or Xxxxxxxx Xxxxxxxx and/or their inheritors and individually
and
indistinctly, any of them, as well as (a) the spouse and/or any
lineal
descendant (including adopted children) of Xx. Xxxxxxx Xxxxxxxx,
Xx.
Xxxxxxxxx Xxxxxxxx, Xx. Xxxxxx Xxxxxxxx Xxxxxx, and/or Xx. Xxxxxxxx
Xxxxxxxx Storey, (b) any trust solely for the benefit of any
one or more
persons referred to in clause (a), (c) any family trust, partnership
or
limited liability company established solely for the benefit
of any one or
more persons referred to in clause (a), or for estate planning
purposes,
of Xx. Xxxxxxx Xxxxxxxx, Xx. Xxxxxxxxx Xxxxxxxx, Xx. Xxxxxx Xxxxxxxx
Xxxxxx, and Xx. Xxxxxxxx Xxxxxxxx Xxxxxx, and/or (d) the heirs,
executors,
administrators, guardian or conservator of any of Xx. Xxxxxxx
Xxxxxxxx,
Xx. Xxxxxxxxx Xxxxxxxx, Xx. Xxxxxx Xxxxxxxx Xxxxxx, and/or Xx. Xxxxxxxx
Xxxxxxxx Storey, any of them, or of a trust under any of their
xxxxx and
following their death or
disability.
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•
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“Exercise
Price Date”: The date on which the Exercise Price is
determined under the terms stipulated in the Third Clause of the
Agreement. If the Exercise Price is determined by a lack of
response to any of the communications of the Parties within the agreed
period, Exercise Price Date shall be construed as the calendar day
after
the end of the aforementioned
period.
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•
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“Exercise
Date”: The date on which the Beneficiary duly sends
written correspondence to Grupo Repsol YPF stating its desire in
the sense
of exercising the Option free and clear under the terms of this
Agreement.
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•
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“Execution
Date”: The date on which the purchase and sale of the
Shares is effectively formalized and executed by full or partial
exercise
of the Option.
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•
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“Index”: the
Consumer Price Index published monthly by the Bureau of Labor Statistics
for the period from the date of execution of this Agreement up to
the
Exercise Date.
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•
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“OPA”: Public
offering to buy shares of the Company under the terms and pursuant
to the
procedure stipulated in Article 7 of the corporate bylaws of the
Company,
as such article is amended from time to
time.
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•
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“Option” The
purchase option regulated by this Agreement over the
Shares.
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•
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“Grantor”: Grupo
Repsol YPF, acting jointly and
severally.
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•
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“Option
Exercise Period”: the four (4) years after the date on
which this Agreement is signed.
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•
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“Exercise
Price”: the amount that the Beneficiary must pay to
Grupo Repsol YPF for the Shares of the Company on which it exercises
the
Option, which shall be calculated under the terms detailed
below:
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•
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“Share
price”: shall be that resulting from the following
formula
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(Total
Value of the Company * Index) +/- Accumulated Results – Dividends +/-
Changes in Capital
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Total
number of shares (Shares issued in circulation (fully diluted, as
per
definition of Shares)
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where:
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Total
Value of the Company shall be 15,000,000,000 United States
dollars;
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Dividends: shall
be the dividends distributed by the Company in cash, in kind, in
capital
stock, or any distribution made by the Company between the date the
Agreement is signed and the Execution
Date.
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Changes
in Capital shall mean the contributions made in cash or in kind by
partners or third parties and that result in an increase in the Company’s
capital (which shall be added in the preceding formula) or disbursements
made by the Company to its shareholders by reason of capital reductions
(which shall be subtracted in the formula stipulated above) which
occur
between the date the Agreement is signed and the Execution
Date.
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•
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Total
Number of Shares means the number of shares on the Execution Date
(Fully
diluted).
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•
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“Registration
Rights Agreement”: an registration rights agreement
between Repsol YPF, S.A. and the Purchaser and certain financial
institutions for the execution of a “Registration Statement” according to
the securities laws in New York (USA), with respect to the shares
(and
ADSs) covered by this Agreement and by the Second Option
Agreement.
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•
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“Accumulated
Results”: the accumulated results of the Company,
provided that they come from gains or losses, as applicable, obtained
by
the Company after the signing of this Agreement and deducting from
them
the amount that the Company must pay as gains tax. For purposes
of calculating accumulated results, the result of each fiscal year
ended
after the date of the present Agreement, as it arises from each of
the
financial statements corresponding to such fiscal
year
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approved
by the Company (deducting the incidence of taxes from the earnings)
will
be taken and, for each current exercise as of the Exercise Date the
provisional result for the current exercise as it is shown on the
report
prepared by the Company’s accounting and financial management and
submitted to the Boar of Directors (deducting the incidence of taxes
from
earnings), will be taken, all of this without duplication. For
purposes of this definition, the financial statements approved by
the
Company are those approved as such without considering the possible
qualification or exceptions or limitations within reach of the opinion
that could be contained in the auditor’s opinion about such financial
statements, except in the case that such qualification, exceptions
or
limitations could have an effect over the Results that was quantified
by
the auditor on such opinion, in which case such qualifications, exceptions
or limitations will be considered up to the amount indicated therein
by
the auditor.
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•
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“Vendors
Loan”: the financing agreement entered into by the
Parties dated February 21, 2008 and which is included as Appendix
E-X to
the Purchase and Sale Agreement.
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The
terms
that are used in singular shall have an equivalent meaning when used in the
plural, and vice-versa. 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, “ADSs”, “ADRs” and any other certificate
of deposit or custody of the shares, interest held or participation in such
corporate entity.
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2.
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PURCHASE
OPTION
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2.1
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Grupo
Repsol YPF hereby grants jointly and severally to the Beneficiary,
which
accepts, the Purchase Option, whereby the Beneficiary shall have
a right
to purchase from Grupo Repsol YPF, which assumes the obligation to
sell
the Shares, free of charges, liens, and third-party rights, pursuant
to
the terms and conditions established in this
Agreement.
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2.2
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This
Purchase Option includes any other shares in the Company, including
any
shares that Grupo Repsol YPF might subscribe to or acquire during
the
Option Exercise Period, that is necessary for the Beneficiary to
acquire a
percentage interest in the Company of 0.1% in addition to the 14.9%
acquired in virtue of the Purchase and Sale
Agreement.
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3.
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EXERCISE
PRICE
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3.1
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The
purchase and sale price of the Shares resulting from exercising the
Option
shall be equal to the Exercise
Price.
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3.2
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The
Exercise Price shall be calculated by the Purchaser and reported
to Grupo
Repsol YPF on the Exercise Date. In such correspondence, the
Purchaser shall indicate the Exercise Price it deems is applicable
and it
shall provide (i) the documentation and financial information used
to
calculate the Exercise Price; and (ii) an explanation of the procedure
followed to calculate it.
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3.3
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If
Grupo Repsol YPF agrees with the Exercise Price calculated by the
Purchaser or does not respond within the five (5) calendar days following
the Exercise Date, the Exercise Price will be the one indicated by
the
Purchaser, we will proceed with the provisions foreseen in Clause
6. If
Grupo Repsol YPF were not in agreement with the calculation made
by the
Purchaser of the Exercise Price of the Shares over which the Option
is
exercised, it shall report such to the Purchaser within five (5)
calendar
days after the Exercise Date on which the Beneficiary has effected
the
corresponding written notification to Grupo Repsol YPF. In such
notification (the “Grupo Repsol YPF Notification”), Grupo
Repsol YPF shall indicate the Exercise Price it deems applicable
and it
shall provide (i) the documentation and financial information used
to
calculate the Exercise Price; and (ii) an explanation of the procedure
followed to calculate such price.
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3.4
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Once
the Grupo Repsol YPF Notification is received by the Purchaser, it
shall
have a period of five calendar days to state to Grupo Repsol YPF
whether
(i) it accepts the Option Exercise Price included in the Grupo Repsol
YPF
Notification; or whether (ii) it disagrees with the calculation of
the
Exercise Price made by Grupo Repsol
YPF.
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a)
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In
the case contemplated in section 3.4.(i), the Exercise Price shall
be that
included in the Grupo Repsol YPF Notification and we will proceed
with the
provisions foreseen in Clause 6.
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b)
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In
the case contemplated in section 3.4 (ii), the Parties agree that
the
Exercise Price will be determined, definitively and irrevocably,
by the
Auditor, such price cannot be higher than the Exercise Price calculated
by
Grupo Repsol YPF nor lower than the Exercise Price calculated by
the
Purchaser. For this, any of the Parties may ask the Auditor to calculate
the Exercise Price, providing him a copy of the calculations made
by the
Purchaser and by Grupo Repsol YPF, with its corresponding precedents.
The
auditor must prepare a report determining the Exercise Price, definitively
and irrevocably by the Parties, within 10 days following the receipt
of
the request by the corresponding Party. The Auditor’s fees and expenses
will be borne by the Party whose calculation most differed, above
or
below, from the Fixed Exercise Price determined by the
Auditor.
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3.5
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If
within the timeframes stipulated in sections 3.3 and 3.4, above,
Grupo
Repsol YPF or the Purchaser, as the case may be, have not notified
the
other Party of its response, or the correspondences stipulated in
sections
3.3, and 3.4, above, were not made under the agreed terms, it shall
be
construed that they accept the Exercise Price calculated by the other
Party, and they undertake to formalize the purchase and sale of the
Shares
at such price.
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4.
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OPTION
EXERCISE PERIOD
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4.1
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The
Purchaser shall be authorized to exercise the Option at any time
during
the Option Exercise Period which shall start on the date this Agreement
is
signed and which will end within a period of four (4) years calculated
from the aforementioned date.
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5.
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METHOD
OF EXERCISING THE PURCHASE
OPTION
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5.1
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The
Beneficiary shall exercise the Option with respect to Grantor through
written correspondence made in the manner stipulated in this Agreement
and
within the term stipulated in the foregoing clause, stating its desire
in
the sense of exercising the Option under the terms of this
Agreement.
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The
Option shall be deemed exercised one each date on which the Beneficiary
duly sends the aforementioned correspondence (the “Exercise
Date”).
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5.2
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The
Beneficiary may only exercise the Option with respect to all the
Shares,
and at once.
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5.3
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In
the Option exercise notification, the Beneficiary shall notify Grantor
of
the Exercise Price under the terms stipulated in Clause 3 of the
Agreement.
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6.
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EXECUTION
OF THE OPTION
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6.1
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The
purchase and sale resulting from exercising the Option shall be formalized
and executed by transfer of ownership of the Shares, including
registration of ownership of the Shares in the respective records
in favor
of the Beneficiary and, simultaneously, payment of the Exercise Price,
within a period of ten (10) Days after the Exercise Price
Date.
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6.2
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To
this end, the Parties undertake to take, within the aforementioned
period,
all actions needed for the valid transfer of ownership of the Company’s
Shares on which the Option is exercised and payment of the Exercise
Price
pursuant to applicable Argentine law. The date on which the
aforementioned purchase and sale is formalized and effectively executed
shall hereinafter be called the “Execution
Date.” The ADS certificates representing the Shares to
be delivered by the Vendor to the Purchaser will include an English
language legend indicating that their circulation has been limited
by the
agreement with the Depositary according to the Spanish language text
as
detailed in Appendix 6.2.
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6.3
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If
Grantor breaches its obligation to formalize and execute the purchase
and
sale of the Shares resulting from exercising the Option in the manner
stipulated above, Grantor shall pay the Beneficiary an amount equal
to the
Exercise Price as a penalty, not replacing such indemnification for
damages and injuries as, if applicable, correspond, and that without
prejudice to Grantor’s obligation to perform its obligation to formalize
and execute the purchase and sale of the
Shares.
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6.4
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Notwithstanding
the foregoing, taking into account that Article 7 of the corporate
bylaws
of the Company establishes the obligation to make a Public Offer
to
Acquire (“OPA”) all of the shares of the Company in
certain cases, the Parties agree that if the Purchaser is obligated
to
make an OPA as a result of exercising the Option, the Execution of
the
Option shall not take place within the period of ten (10) Days after
the
Exercise Price Date, but rather within the period of Ten (10) Days
after
the date on which the statutory OPA process would have completed,
and
therefore the Purchaser is authorized to acquire the Shares covered
by the
Option, if the Company’s bylaws were to require the OPA to be completed to
perfect the transfer of the Shares over which the Option would have
been
exercised.
|
|
6.5
|
In
this case, the Purchaser shall send notification to Grupo Repsol
YPF as
soon as the aforementioned procedure has ended, indicating to it
the date,
place, time, and Notary before whom the transfer of the Shares shall
be
formalized.
|
|
6.6
|
The
Shares with respect to which the Option were exercised shall be sold
and
transferred by Grupo Repsol YPF to the Purchaser free of charges,
liens,
guaranties, and privileges of any type and shall be freely transferrable,
all of which shall be certified in writing by the Grantor at the
time of
transfer.
|
|
7.
|
OTHER
COMMITMENTS OF THE PARTIES
|
|
7.1
|
Representations
and Warranties of Grupo Repsol
YPF
|
|
|
Grupo
Repsol YPF makes through this Agreement, with effect on each Option
Exercise Date, in favor of the Beneficiary and with respect to the
Shares
which would have been covered by the Option, the same representations
and
warranties related to the capacity of Grupo Repsol YPF, the ownership
of
such shares, position of the Company and nonexistence of conflict
that are
included in the Stock Purchase and Sale Agreement (Clauses 8.1.1
to
8.1.4). Likewise, the representations and warranties
established in Clauses 8.1.6, 8.1.7, 8.1.8 and 8.2.4 of the Stock
Purchase
and Sale Agreement are deemed to be
reproduced.
|
|
7.2
|
Liability
of Grupo Repsol YPF for Representations and
Warranties
|
|
|
Grupo
Repsol YPF shall be liable to the Beneficiary, under the same terms
as
those stipulated in the Purchase and Sale Agreement, for any damage
or
loss that it might case to the Beneficiary as a result of default,
inaccuracy, omission, or lack of truth of the Representations and
Guarantees formulated under the scope of Clause 7.1 of this
Agreement.
|
|
|
Notwithstanding,
if at the time Xxxxxxxx Energía, S.A. exercises a claim against the Vendor
under the scope of Clause 8.3.2 of the Purchase and Sale Agreement
for
damages and injuries derived from any inexactitude, omission, or
lack of
veracity of that established in Clause 8.1.5 of the Purchase and
Sale
Agreement, whether this Option was exercised in whole or in part,
the
number of Shares purchased as a result of the exercise of the Option
shall
be calculated together with the 14.9% initially acquired to determine
the
amount of the monetary damages caused to the Purchaser and its possible
indemnification and the price of such Shares will be added at the
price
paid in the Purchase and Sale Agreement for purposes of calculating
the
limit foreseen in the Clause 8.3.2 of the Purchase and Sale
Agreement.
|
|
7.3
|
Financing
of the Purchase Price by Grupo Repsol
YPF
|
|
7.3.1
|
For
the purposes of facilitating the exercise of the Option by the Purchaser
and acquisition by it of the greatest percentage possible of the
capital
stock of the Company, Grupo Repsol YPF undertakes with respect to
the
Purchaser to finance, if the latter so requests of it, up to a maximum
of
48% of the Exercise Price that the Purchaser must pay Grupo Repsol
YPF as
a result of the exercise of the
Option.
|
|
7.3.2
|
If
the Beneficiary requires the Grupo Repsol YPF financing to pay the
Exercise Price, it shall notify Grupo Repsol YPF in the correspondence
that it sends it on the Exercise Date, including an express mention
of the
financing that it requests to pay the Exercise
Price.
|
|
7.3.3
|
The
Parties agree that the terms of the financing by Grupo Repsol YPF
of the
Shares covered by the Option shall be identical to those stipulated
in the
Vendors Loan.
|
|
7.4
|
Commitment
to guarantee the financing of the
OPA
|
|
7.4.1
|
Grupo
Repsol YPF undertakes with respect to the Purchaser, at Grupo Repsol
YPF’s
choice, to either finance or to guarantee the eventual financing
that the
Purchaser negotiates with credit institutions to finance up to 100%
of the
price that the Purchaser had to pay to acquire such shares as the
Company’s shareholders sold as are result of the OPA that the Purchaser
had to effect by reason of the full or partial exercise of the
Option. This guarantee commitment is limited to up to a maximum
amount equivalent to the acquisition of 0.9% of the Company’s shares,
which corresponds to a percentage of shares that are not Grupo Repsol
YPF’s property.
|
|
7.4.2
|
Without
prejudice to the foregoing, the guarantee commitment established
in
section 7.4.1 shall end, in any case, once three (3) months have
elapsed
from the execution of this
Agreement.
|
|
7.5
|
Adhesion
of the Beneficiary to the Shareholders’ Agreement and execution of the
Registration Rights Agreement by the
Company
|
|
7.5.1
|
If
the Option is exercised, the Beneficiary, or the entity to which
the
Option is assigned to in the terms of Clause 8.2 below, shall have
the
right and obligation, on the Execution Date, and with respect to
the
shares it acquires of the Company, to sign an adhesion document to
the
Shareholders Agreement, with the Parties providing their express
agreement
to such adhesion. In that case the Beneficiary, or its
legitimate assignee, shall form an integral part of the Party referred
to
as PESA in such Shareholders
Agreement.
|
|
|
The
Grantor undertakes to perform all the necessary acts for the Company
to
execute the Registration Rights Agreement before March 10,
2008.
|
|
7.6
|
Commitment
with respect to Grupo Repsol YPF Not To Sell in the
OPA
|
|
|
Grupo
Repsol YPF hereby irrevocably undertakes, directly or indirectly,
not to
participate with any of its shares or securities of the Company in
such
OPA. To these ends, Grupo Repsol YPF shall present to the CNV,
SEC, and the National Securities Exchange Commission, a formal statements
to prove such commitment not to appear in the OPA under the terms
of the
pro-forma document which is attached as Appendix 7.6 and any other
document that is reasonably required by these authorities to that
end.
|
|
8.
|
MISCELLANEOUS
STIPULATIONS
|
|
8.1
|
Notifications
|
|
8.1.1
|
Any
notifications and correspondence that might or must be made by and
between
the Parties in relation to this Agreement, shall always be made in
writing
through notarized correspondence or other procedure that proves the
delivery thereof and receipt by the
addressee.
|
|
|
For
the effects of notification, the Parties indicate the following
addresses:
|
|
(i)
|
If
addressed to the
Beneficiary:
|
To
the
attention of: Xx. Xxxxx Dacomo and/or Xxxxxxx Xxxxx
Address: Xxxxxxx
000, 0x. Xxxxxx xx Xxxxxx Xxxxx
Fax
number: 00 0000 00 00 00
|
(ii)
|
If
addressed to Grupo Repsol
YPF:
|
Xxxxx
xx
xx Xxxxxxxxxx xx 000-000
00000 Xxxxxx
(Xxxxxx)
Fax:
(00)
00 000 00 00
Attention:
Corporate Director for Strategy and Development
With
a
copy to:
Fax:
(00)
00 000 00 00
Attention:
Corporate Director for Legal Matters
|
8.1.2
|
Only
notifications sent to the addresses and in the manner indicated above
shall be deemed received. Notifications sent to a new address
of any of the Parties shall only take effect if the addressee Party
has
notified the other Party in advance of a change of address notifying
it
pursuant to this stipulation.
|
|
8.2
|
Assignment
|
|
8.2.1
|
Neither
the Beneficiary nor Grupo Repsol YPF may assign in whole or in part
the
obligations derived from this Agreement to any third party except
as
expressly agreed in advance in writing by the other
Party.
|
|
8.2.2
|
Notwithstanding
the foregoing, Grupo Repsol YPF shall not deny its consent if the
Beneficiary assigns the Option (i) to companies which are ultimately
wholly-owned, by 100% of their capital stock, by the Eskenazi Family
and/or any member of the Eskenazi Family, nor (ii) for the Beneficiary
to
assign, totally or partially, the rights to economic content but
not the
obligations, arising for the Beneficiary from this Agreement in favor
of
any person or entity, to guarantee performance of the financial
obligations assumed at the time the Option is exercise with respect
to
such Shares.
|
|
8.3
|
Confidentiality
|
|
8.3.1
|
The
content of this Agreement shall be entirely confidential, the Parties
being obligated not to disclose the content hereof to any third party,
except:
|
|
|
(a)
|
Pursuant
to a judicial or administrative resolution or other legal
obligation;
|
|
|
(b)
|
In
order to demand or facilitate performance of the rights and obligations
derived from the Agreement;
|
|
|
(c)
|
If
applicable, in order to meet legal or statutory requirements derived
from
the exercise of the Option and Acquisition of the
Shares;
|
|
|
(d)
|
Insofar
as required, to meet or comply with such reporting obligations as
are
required with respect to regulatory and supervisory bodies of the
capital
markets on which Company, Vendor, or if applicable, the Purchaser,
are
listed.
|
|
|
(e)
|
In
order to provide information to their advisors and auditors, and
when
financial entities reasonably need knowledge thereof, provided that
they
are bound by law or by contract to maintain the confidentiality of
the
information obtained.
|
|
8.3.2
|
Exceptionally,
Parties shall be authorized to make the mandatory communications
required
by an official body. The Parties to this Agreement shall agree,
insofar as possible, to any mandatory
communications.
|
|
8.4
|
Taxes
and Expenses
|
|
8.4.1
|
All
taxes and expenses of any type payable for the granting and execution
of
this Agreement, as well as for the formalization and execution of
the
purchase and sale of the Shares resulting from exercising the
Option, shall be borne by the Parties pursuant to the
law.
|
|
8.5
|
Full
Agreement
|
|
8.5.1
|
This
Agreement contains the full agreement of the Parties with respect
to the
objective thereof and it voids all other prior contracts and agreements
related thereto, except the sale option agreement signed on the same
date
as this Agreement.
|
|
8.6
|
Amendments
|
|
8.6.1
|
This
Agreement may only be amended by written document signed by the Parties
that expressly refers to this
Agreement.
|
|
8.7
|
Severability
|
|
8.7.1
|
If
any of the Stipulations of this Agreement, or any stipulation included
in
it in the future, were or were to become void or impossible to perform,
the validity or enforceability of the other Stipulations of this
Agreement
shall not be affected by such circumstance, except if the efficacy
of the
latter were to depend on the former. It shall be construed that
the stipulation voided or that cannot be executed shall be replaced
by an
adequate and equitable stipulation that, insofar as legally possible,
approximates insofar as possible the intention and objective of the
aforementioned stipulation voided or impossible to
execute.
|
|
8.8
|
Timeframes
|
|
8.8.1
|
Timeframes
established in number of days stipulated in this Agreement shall
begin to
run on the day after the day indicated as a reference
date.
|
|
8.8.2
|
Timeframes
indicated in weeks shall be calculated from weekday to weekday and
those
indicated in months or years shall be calculated from date to
date.
|
|
8.8.3
|
The
expiration date, which shall expire at twenty-four hundred hours,
shall be
deemed included in all timeframes.
|
|
8.8.4
|
Timeframes
ending on a day other than a Business Day or a business day in the
City of
Buenos Aires, Argentina, shall be deemed extended through the next
Business Day.
|
|
8.9
|
Termination
|
|
|
This
agreement shall be automatically extinguished and nullified if the
Purchase and Sale Agreement is terminated as a result of the Argentine
antitrust officials not authorizing the purchase stipulated in that
agreement.
|
|
9.
|
APPLICABLE
LAW AND JURISDICTION
|
|
9.1
|
Applicable
Law
|
|
9.1.1
|
This
Agreement shall be governed and interpreted pursuant to the provisions
of
Spanish law. Notwithstanding the foregoing, the transfer of the
Shares in case of exercise of the Option, shall be governed by Argentine
law.
|
|
9.2
|
Jurisdiction
|
|
9.2.1
|
The
Parties expressly submit any disagreement or controversy that might
arise
on this Agreement or the execution hereof, 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 (three) arbitrators designated pursuant
to the provisions of this Agreement, the Parties expressly waiving
any
other forum that might appertain to
them.
|
|
9.2.2
|
The
Parties state that they know and accept the rules and regulations
of the
CCI, pursuant to whose rules the arbitration procedure, if applicable,
shall be undertaken.
|
|
9.2.3
|
The
arbitration procedure shall be undertaken in the Spanish language
in the
city of New York (United States of America), at such place designated
by
the CCI.
|
|
9.2.4
|
The
legal arbitration shall be subject to Spanish law and three (3)
arbitrators shall take cognizance of it. Grupo Repsol YPF and
the Beneficiary shall appoint one (1) arbitrator each, and the third
of
them shall be designated jointly by the arbitrators so
designated. If the first two (2) arbitrator cannot agree on the
selection of the third arbitrator, he shall be appointed pursuant
to the
current regulations of the CCI.
|
|
9.2.5
|
Likewise,
the arbitration proceeding shall be subject to the rules and regulations
of the CCI.
|
|
9.2.6
|
The
Parties shall request that the arbitrators include in the arbitration
decision, an express decision on the costs. The resolution on
the costs shall be proportional to the estimation of the claims of
the
Parties contained in the arbitration
decision.
|
|
9.2.7
|
The
arbitration shall in all cases be final and the Parties are obligated
to
execute and perform voluntarily the provisions of the arbitration
decision, within such terms as are established by common accord at
the
beginning of the arbitration decision. In the absence of an
agreement, the provisions of the CCI’s Regulation shall
apply.
|
|
9.2.8
|
Subsidiarily,
and if necessary, especially in relation to forced execution of the
arbitration, the holding of preliminary proceedings and 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 the city of
Buenos
Aires, at the option of the defendant or plaintiff
Party.
|
In
witness
whereof, the Parties sign this Purchase Option Agreement in one copy, in the
place and on the date indicated in the heading, to be delivered to a Notary
and
recorded in the public registry.
|
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
|
|
|
For
|
||
|
Xx.
Xxxxxxx Xxxxxxxx
|
||
|
Xx.
Xxxxxxxxx Xxxxxxxx
|
||
|
Xx.
Xxxxxx Xxxxxxxx Xxxxxx
|
||
|
Xx.
Xxxxxxxx Xxxxxxxx Storey
|
||
|
Xx.
Xxxxxx Xxxxxxxx Xxxxxx
|
||
Appendix
A
Procedures
for Auditor Appointment
The
Parties will select, within the ten (10) day period following the signing of
this Agreement, a list of three auditor firms, with international experience,
recognized prestige and independence and without professional conflict with
respect to the Parties. By drawing before a Notary, one of them will be selected
as Auditor.
Provided
that the Parties are not able to reach an agreement regarding the list of
Auditors, as well as if within the ten (10) day period from the signing of
this
agreement, the Parties are not able to reach such agreement, the firm designated
by the President of the Spanish Institute of Accounting and Auditing
(Instituto de Contabilidad y Auditoría de Cuentas ICAC) will be
appointed as Auditor. The appointment must be effected in the maximum period
of
5 days from the request to the ICAC.
At
the
start of its appointment, the Auditor must accept in writing the appointment
and
the obligations inherent to the same, will be compensated as set by the parties
at the time of its acceptance and will prepare in writing a declaration of
no
conflicts of interest with any of the Parties.
Appendix
6.2
ADR
Legend
[NOT
FILED]
