Registration Rights Agreement
Exhibit
7.13
EXECUTION
COPY
REGISTRATION
RIGHTS AGREEMENT, dated
as of February 21, 2008, among YPF Sociedad Anónima, an Argentine company (the
“Company”), Repsol YPF, S.A., a Spanish company (the
“Seller”), Xxxxxxxx Energía, S.A., a Spanish special purpose
company (the “Borrower”), Xxxxxxx Xxxxxxxx, Xxxxxxxxx Xxxxxxxx,
Xxxxxx Xxxxxxxx Xxxxxx and Xxxxxxxx Xxxxxxxx Xxxxxx (collectively,
“Xxxxxxxx” and, together with Borrower, the “Option
Parties”), the Option Collateral Agent (as defined below), the Option
Administrative Agent (as defined below) and the Holders (as defined
below).
Whereas, the
Company has established, with the Bank of New York, as depositary (the
“Depositary”), an American depositary receipt program (such
program and any successor or replacement program, the “ADR
Program”) pursuant to the deposit agreement, dated as of July 1,
1993, among the Company and the Depositary and the holders from time to time
of
the American depository shares (“YPF ADS”) issued thereunder
(the “ADR Deposit Agreement”);
Whereas, the
Borrower, Credit Suisse, London Branch, acting as sole administrative agent
through one or more of its branches or affiliates, and the other lenders
identified therein (together with Credit Suisse, the “Senior
Lenders”) have entered into a Senior Secured Term Loan Facility, dated
as of February 21, 2008 (the “Senior Term Loan Facility”), the
proceeds of which will be used by the Borrower, on the date of the initial
borrowing thereunder, together with other proceeds, to pay, among other things,
the purchase price of 58,603,606 YPF ADSs, whose underlying Class D shares,
par value 10 pesos per share (each, a “Class D
Share”), of the Company, represented, as of the date hereof, 14.9% of
the total share capital of the Company (the “Acquired
ADSs”);
Whereas, the
Borrower has issued a US$1,015,000,000 subordinated secured note to the Seller,
the obligations of the Borrower under which will be secured by a perfected
first-priority pledge over 9,832,819 of the Acquired ADSs for the benefit
of
Repsol YPF, S.A., as such pledged American depository shares may be adjusted
under the Senior Collateral Documents (as defined below) (the “Repsol
Pledged ADSs,” and the Acquired ADSs excluding the Repsol Pledged ADSs
are the “Senior Loan ADSs”);
Whereas, each
Senior Loan ADS is represented by one American depositary receipt issued
by the
Depositary (collectively, the “Restricted ADRs”);
Whereas,
the obligations of the
Borrower under the Senior Term Loan Facility will be secured by, among other
things, a perfected first priority pledge of all the Senior Loan ADSs and
Restricted ADRs pursuant to the Senior Collateral Documents;
Whereas,
the Seller has granted to
the Option Parties an option to purchase from Seller additional YPF ADSs
and/or
Class D Shares of the Company representing up to an additional 10.1% of the
total share capital of the Company (the “Option” and
any
such
additional ADSs or Class D Shares, the “Option Securities”) in
accordance with the terms and subject to the conditions set forth in one
or more
Option Agreements, dated February 21, 2008 (the “Option
Agreements”);
Whereas,
in connection with the
exercise of the Option, the Option Parties may seek to finance all or a portion
of the purchase price of the Option Securities (each such financing, an
“Option Financing” and any loan or credit agreement entered in
connection therewith, the “Option Financing
Facility”);
Whereas,
on the date hereof and
concurrently herewith, the Company, the Seller, the Borrower, the Senior
Collateral Agent and the Senior Administrative Agent are entering into a
separate Registration Rights Agreement in respect of the Senior Loan ADSs
(the
“Senior Lenders RRA”) in the form attached as Exhibit A
hereto;
Whereas,
as contemplated herein, the
Option Parties may, in connection with any Option Financing, assign to the
relevant providers of such Option Financing (the “Option
Lenders”) the registration rights provided hereunder (which
registration rights are substantially similar to the registration rights
granted
to the Senior Holders under the Senior Lenders RRA), upon which assignment
the
Option Collateral Agent and Option Administrative Agent shall become a party
to
this Agreement and in the case that the Option Parties exercise the Option
on
more than one occasion and obtain financing from one or more separate groups
of
Option Lenders, the Seller and the Company hereby agree to enter into additional
Registration Rights Agreements, in substantially the same form as this
Agreement, in connection with each such separate Option Financing;
Whereas,
the Company filed with the
U.S. Securities and Exchange Commission (the “SEC”) a
Registration Statement (as defined below) under the Securities Act (as defined
below) on February 20, 2008 with respect to the Class D shares comprising
or
underlying the Registrable Shares and the Senior Loan ADSs;
Whereas,
the Company has unrestricted
American depositary shares, each representing one Class D Share issued
under the ADR Deposit Agreement (the “Unrestricted ADRs”) which
are listed on the New York Stock Exchange and the Class D Shares are
authorized for public offering in Argentina and are listed on the Buenos
Aires
Stock Exchange;
Whereas,
in connection with the
Option Agreements, the Company and the Seller have agreed to provide the
Option
Parties and each Option Lender with the rights set forth in this Agreement;
and
Now,
Therefore, in consideration of
the mutual covenants and agreements set forth herein, and for other good
and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree
as
follows:
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Section
1. Definitions. As
used in this Agreement, the following terms shall have the following
meanings:
“Acquired
ADSs”
shall have the meaning set forth in the introductory clauses
hereof.
“Additional
Amounts”
shall have the meaning set forth in Section 10(o) hereof.
“ADR
Program” shall
have the meaning set forth in the introductory clauses hereof.
“Authorized
Agent”
shall have the meaning set forth in Section 10(n) hereof.
“Advice”
shall
have
the meaning set forth in Section 4 hereof.
“Affiliate”
means,
with respect to any specified person, any other person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified person. For the purposes of this definition, “control”
when used with respect to any specified person means the power to direct
the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the
foregoing.
“Business
Day” means
any day that is not a Saturday, a Sunday or a legal holiday on which banking
institutions in the State of New York, London or Buenos Aires,
Argentina are not required to be open.
“Capital
Stock”
means, with respect to any person, any and all shares, interests,
participations
or other equivalents (however designated) of corporate stock issued by such
person, including each class of common stock and preferred stock of such
person
and any depositary receipts evidencing Capital Stock.
“Collateral
Trigger
Event” means acceleration of the Option Financing Facility following
the occurrence and continuation of an “event of default” (as such term may be
defined in the Option Financing Facility).
“Company”
shall
have
the meaning set forth in the introductory clauses hereof.
“Controlling
Holder”
means one or more Holders representing more than 50% of the number
of
outstanding Registrable Shares.
“Delay
Period” shall
have the meaning set forth in Section 2(c) hereof.
“Depositary”
shall
have the meaning set forth in the introductory clauses hereof.
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“Effectiveness
Period” shall have the meaning set forth in Section 2(b)
hereof.
“Exchange
Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC promulgated thereunder.
“FINRA”
shall
have
the meaning set forth in Section 4(m) hereof.
“Holder”
means
(i) initially the Option Collateral Agent and (ii) upon the occurrence
of a Collateral Trigger Event each holder of Registrable Shares.
“Interruption
Period” shall have the meaning set forth in Section 4
hereof.
“indemnified
party”
shall have the meaning set forth in Section 7(c) hereof.
“indemnifying
party”
shall have the meaning set forth in Section 7(c) hereof.
“Inspector”
shall
have the meaning set forth in Section 4(i) hereof.
“Liquidated
Damages
Amount” shall mean, as of the relevant date of determination, an amount
payable per Registrable Share outstanding equal to the aggregate outstanding
principal amount under the Option Financing Facility as of such date of
determination divided by the number of Registrable Shares outstanding as
of such
date (adjusted for any share split or combination), multiplied by the number
of
days during which a Collateral Trigger Event has occurred and is continuing
and
a Registration Default exists, multiplied by 0.05, and divided by
365.
“Lock-Up
Notice” means a written notice, provided by the Option Administrative
Agent, with a copy delivered to the Option Collateral Agent, informing the
Company that the Holders intend to offer their Registrable Shares in a firm
underwritten offering and that the managing underwriter thereof has informed
the
Option Administrative Agent in writing that it is advisable and beneficial
to
the success of the offering (including the price per share of the Registrable
Shares to be sold) that the Company enter into a lock-up agreement with respect
to its capital stock. The Option Administrative Agent may only
deliver a Lock-Up Notice if the Holders have a good faith intention to sell
at
least one half of the number of Registrable Shares outstanding.
“Lock-Up
Period”
shall have the meaning set forth in Section 4(l) hereof.
“Losses”
shall
have
the meaning set forth in Section 7(a) hereof.
“Offering
Notice”
shall mean any written communication provided to the Company in
accordance with
Section 10(c) hereof informing the Company of the good faith intention of
such Holder to sell or otherwise dispose of any Registrable Shares owned
by such
Holder. Such Offering Notice shall be effective until rescinded by
the delivering Holder.
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“Option”
shall
have
the meaning set forth in the introductory clauses hereof.
“Option
Administrative
Agent” means any bank or financial institution hereinafter appointed by
the Option Lenders as administrative agent under the Option Financing Facility,
which bank or financial institution shall become a party to this Agreement
upon
execution and delivery to the Company, the Seller and the Option Parties
of the
Joinder Agreement in the form attached hereto as Exhibit B.
“Option
Agreements”
shall have the meaning set forth in the introductory clauses
hereof.
“Option
Anti-Dilution
Filing” shall have the meaning set forth in Section 4(a).
“Option
Collateral
Agent” means any bank or financial institution hereinafter appointed by
the Option Lenders as collateral agent under the Option Financing Facility,
which bank or financial institution shall become a party to this Agreement
upon
execution and delivery to the Company, the Seller and the Option Parties
of the
Joinder Agreement in the form attached hereto as Exhibit B.
“Option
Collateral
Documents” means any security agreement, pledge agreement, account
control agreement and any other document or agreement ancillary or related
thereto entered into among the Option Parties, the Option Collateral Agent
and/or the Option Administrative Agent in connection with the Option
Financing.
“Option
Financing”
shall have the meaning set forth in the introductory clauses
hereof.
“Option
Financing
Facility” shall have the meaning set forth in the introductory clauses
hereof.
“Option
Lenders”
shall have the meaning set forth in the introductory clauses
hereof.
“Option
Parties”
shall have the meaning set forth in the introductory clauses
hereof.
“Option
Securities”
shall have the meaning set forth in the introductory clauses
hereof.
“Person”
means
any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
“Xxxxxxxx”
shall
have the meaning set forth in the introductory clauses hereof.
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“Prospectus”
means
the prospectus included in any registration statement (including a prospectus
that discloses information previously omitted from a prospectus filed as
part of
an effective registration statement in reliance upon Rule 430A or 430B), as
amended or supplemented by any prospectus supplement, with respect to the
terms
of the offering of any portion of the Registrable Shares and Senior Loan
ADSs
covered by such registration statement and all other amendments and supplements
to such prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference in such
prospectus.
“Records”
shall
have
the meaning set forth in Section 4(i) hereof.
“Registrable
Shares”
means any Option Securities, unless (i) they have been effectively
registered under Section 5 of the Securities Act and disposed of pursuant
to an
effective Registration Statement or (ii) such securities may be freely
transferred without registration under the Securities Act (as determined
by an
opinion (addressed to the Option Administrative Agent and the Depositary,
with a
copy delivered to the Option Collateral Agent) of nationally recognized U.S.
counsel to the Company, which counsel must also be reasonably satisfactory
to
the Option Administrative Agent). In addition, a Holder’s securities
shall cease to constitute Registrable Shares if all of the Registrable Shares
held by such Holder (and its affiliates, partners, members and former members)
may be sold under Rule 144 during any 90-day period (as determined by an
opinion (addressed to the Option Administrative Agent and the Depositary,
with a
copy delivered to the Option Collateral Agent) of nationally recognized U.S.
counsel to the Company, which counsel must also be reasonably satisfactory
to
the Option Administrative Agent). Registrable Shares shall not include any
securities owned by the Company or any of its subsidiaries.
“Registration
Default” shall have the meaning set forth in Section 8
hereof.
“Registration
Statement” means the Company’s Registration Statement on Form F-3
(Reg. No. 333-149313) or any other registration statement under the Securities
Act filed by the Company that registers the transfer of any of the Class
D
shares comprising or underlying Registrable Shares pursuant to the provisions
of
this Agreement and of any Senior Loan ADSs pursuant to the Senior Lenders
RRA,
including the related Prospectus, all amendments and supplements to such
registration statement, including pre- and post-effective amendments, all
exhibits thereto and all material incorporated by reference or deemed to
be
incorporated by reference in such registration statement. The term
“Registration Statement” shall also include any registration statement filed
pursuant to Rule 462(b) to register additional securities in connection
with any offering.
“Repsol
Pledged
ADSs” shall have the meaning set forth in the introductory clauses
hereof.
“Restricted
ADRs”
shall have the meaning set forth in the introductory clauses
hereof.
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“SEC”
shall
have the
meaning set forth in the introductory clauses hereof.
“Securities
Act”
means the Securities Act of 1933, as amended, and the rules and
regulations of
the SEC promulgated thereunder.
“Seller” shall
have the meaning set forth in the introductory clauses hereof.
“Senior
Administrative Agent” means Credit Suisse, London Branch, as
Administrative Agent under the Senior Term Loan Facility.
“Senior
Collateral
Agent” mean HSBC Bank plc, as Collateral Agent under the Senior Term
Loan Facility.
“Senior
Collateral
Documents” shall have the meaning assigned to the term “Collateral
Documents” under the Senior Term Loan Facility.
“Senior
Holders” shall have the meaning assigned to the term “Holders”
under the Senior Lenders RRA.
“Senior
Lenders”
shall have the meaning set forth in the introductory clauses
hereof.
“Senior
Lenders RRA”
shall have the meaning set forth in the introductory clauses
hereof.
“Senior
Loan ADSs”
shall have the meaning set forth in the introductory clauses
hereof.
“Senior
Term Loan
Facility” shall have the meaning set forth in the
introductory clauses hereof.
“underwritten
registration” or “underwritten offering” means a
registration under the Securities Act in which securities of the Company
are
sold to an underwriter for reoffering to the public.
“Unrestricted
ADRs”
shall have the meaning set forth in the introductory clauses
hereof.
Section
2. Effectiveness of Registration Statement
and Sales under Registration
Statement. (a) The Company shall, and the
Seller shall, in its capacity as a shareholder of the Company, cause the
Company
to, use commercially reasonable efforts to cause the Registration Statement
to
be declared effective as promptly as practicable, and in any event no later
than
(i) 20 days after the date of this Agreement if the staff of the SEC
determines not to review the Registration Statement and grants a timely request
by the Company for acceleration of the effectiveness of the Registration
Statement and
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(ii)
150
days after the date of this Agreement if the staff of the SEC reviews the
Registration Statement or fails to timely approve such request.
(b) Subject
to
clauses (c) and (d) below and Section 4(a), the Company shall, and the
Seller shall, in its capacity as a shareholder of the Company, cause the
Company
to, use commercially reasonable efforts to keep the Registration Statement
continuously effective and usable for the resale of the Registrable Shares
covered thereby in accordance with the intended method or methods of disposition
described therein until such date as (i) all amounts due and owing under
the Option Financing Facility shall have been re-paid, (ii) there are no
Registrable Shares outstanding, or (iii) all of the Registrable Shares
covered by such Registration Statement (A) have been sold pursuant to such
Registration Statement or (B) may be sold under Rule 144 during any
90-day period (as determined by an opinion (addressed to the Option
Administrative Agent and the Depositary, with a copy delivered to the Option
Collateral Agent) of nationally recognized U.S. counsel to the Company, which
counsel must also be reasonably satisfactory to the Option Administrative
Agent)
(such period of continuous effectiveness is hereinafter referred to as the
“Effectiveness Period”).
(c) The
Company shall be
entitled to suspend the use of any effective Registration Statement under
this
Section 2, for a reasonable period of time, but not in excess of
30 days (a “Delay Period”), if the Board of Directors of
the Company determines that in the Board of Directors’ reasonable judgment and
good faith, the registration and distribution of the Registrable Shares covered
or to be covered by such Registration Statement would materially interfere
with
any pending material financing, acquisition or corporate reorganization or
other
material corporate development involving the Company or any of its material
subsidiaries or affiliates or would require or result in premature disclosure
thereof and promptly gives the Holders written notice of such determination,
provided, however, that (i) the aggregate number of days
included in all Delay Periods during any consecutive 12 months shall not
exceed 60 days and (ii) a period of at least 60 days shall elapse
between the termination of any Delay Period and the commencement of the
immediately succeeding Delay Period. The Company shall not be
entitled to initiate or continue a Delay Period unless it shall
(A) concurrently prohibit sales by all other security holders under
registration statements covering securities held by such other security holders;
and (B) in accordance with the Company’s policies from time to time in
effect, if any, forbid purchases and sales in the open market by senior
executives of the Company.
(d) Notwithstanding
anything contained in this Agreement, the Company shall be entitled to suspend
the use of any effective Registration Statement (i) during the period from
April 1 to June 1 of each calendar year for so long as it has not yet
filed a Form 20-F for the preceding fiscal year, provided that the
Company shall use commercially reasonable efforts to make such a Form 20-F
filing with the SEC as soon as practicable after April 1st of each
calendar
year, and (ii) in connection with any acquisition or similar transaction by
the Company or any of its Affiliates that requires the inclusion of separate
financial statements and/or pro forma financial statements in the Registration
Statement for so long as is reasonably necessary to prepare such
statements.
8
(e) The
Company shall not
include any securities that are not Registrable Shares or Senior Loan ADSs
in
any Registration Statement filed pursuant to this Section 2 without the
prior written consent of the Option Administrative Agent on behalf of the
Controlling Holders covered by such Registration Statement.
(f) Within
three Business
Days following the Option Administrative Agent obtaining knowledge of the
occurrence of an “event of default” (as such terms may be defined in the Option
Financing Facility), the Option Administrative Agent shall give written notice
thereof to the Company and Seller, with a copy delivered to the Option
Collateral Agent.
(g) Upon
the occurrence of
a Collateral Trigger Event, the Option Administrative Agent shall give written
notice to the Company, Borrower and Seller, with a copy delivered to the
Option
Collateral Agent, informing them of the Collateral Trigger Event and any
resale
of Registrable Shares under the Registration Statement shall not commence
until
at least three Business Days after receipt of such notice by the Company
and
Seller.
Section
3. Argentine
Registration. The Company shall, and the Seller shall,
in its capacity as a shareholder of the Company, cause the Company to, use
commercially reasonable efforts to keep the Company’s Class D shares
authorized for public offering with the Argentine Comisión Nacional de
Valores and listed with the Buenos Aires Stock
Exchange. The Company will be entitled to require the Holders or the
underwriter participating in any offering hereunder to suspend such public
offering of the Company’s Class D Shares during a Delay Period;
provided the conditions set forth in Section 2(c) are met during the
period set forth in Section 2(d).
Section
4. Procedures and Further
Agreements. In connection with the registration
obligations of the Company pursuant to and in accordance with Section 2
hereof (and subject to Section 2) and for so long as there are any
Registrable Shares (except as provided for in Section 10(a)), the Company
shall
and the Seller shall, in its capacity as a shareholder of the Company, cause
the
Company to:
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(a)
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prepare
and file with the SEC such amendments (including post-effective
amendments) to the Registration Statement, and such supplements
to the
related Prospectus, as may be required by the rules, regulations
or
instructions applicable to the Securities Act during the applicable
period
in accordance with the intended methods of disposition specified
by the
Option Administrative Agent, make generally available earnings
statements
satisfying the provisions of Section 11(a) of the Securities Act
(provided that the Company shall be deemed to have complied with
this clause (a) if it has complied with Rule 158 under the Securities
Act), cause the related Prospectus as so supplemented to be filed
pursuant
to Rule 424 under the Securities Act, and, in the event that the
Company issues any shares of Capital Stock or consummates a capital
increase following the date hereof,
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9
promptly
prepare and file with the SEC all such supplements and/or amendments
(including
post-effective amendments) to the Registration Statement (any such filing,
an
“Option Anti-Dilution Filing”) in order to register additional
Class D shares and ADSs of the Company so that the number of Registrable
Shares
registered pursuant to the Registration Statement (excluding any Senior
Loan
ADSs) at all times represents at least 10.1% of the outstanding capital
stock of
the Company;
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(b)
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notify
the Option Administrative Agent promptly and (if requested in writing)
confirm such notice in writing, with a copy delivered to the Option
Collateral Agent, (i) when any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Registration Statement and any post-effective amendment, when the
same has
become effective, (ii) of any request by the SEC for amendments or
supplements to the Registration Statement or the related Prospectus
or for
additional information regarding such Holders, (iii) of the issuance
by the SEC of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for
that
purpose, (iv) of the receipt by the Company of any notification with
respect to the qualification or exemption from qualification of
any of the
Registrable Shares for sale in any jurisdiction or the initiation
of any
proceeding for such purpose of which the Company has received notice,
and
(v) of the happening of any event that requires the making of any
changes in the Registration Statement, Prospectus or documents
incorporated or deemed to be incorporated therein by reference
so that
they will not contain any untrue statement of a material fact or
omit to
state any material fact required to be stated therein or necessary
to make
the statements therein not
misleading;
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(c)
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use
commercially reasonable efforts to prevent the issuance of any
order
suspending the effectiveness of the Registration Statement or the
qualification or exemption from qualification of any Registrable
Shares
for sale in any jurisdiction in the United States, and to obtain
the
lifting or withdrawal of any such order at the earliest practicable
time;
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(d)
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if
requested in writing by the Option Administrative Agent, furnish
to the
Option Administrative Agent and any Holder of any Registrable Shares
covered by such Registration Statement, counsel for the Holders
and each
managing underwriter, if any, without charge, one conformed copy
of the
Registration Statement, as declared effective by the SEC, and of
each
post-effective amendment thereto, in each case including financial
statements and schedules and all exhibits and reports incorporated
or
deemed to be incorporated therein by reference; and deliver, without
charge, such number of copies of the preliminary prospectus, any
amended
preliminary prospectus, each final Prospectus and any post-effective
amendment or supplement thereto, as the Option Administrative Agent
may
reasonably request in order to facilitate the disposition of the
Registrable
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10
Shares
of
the Holders covered by such Registration Statement in conformity with
the
requirements of the Securities Act, provided that the Company shall
have no obligation to provide any document pursuant to this clause (d) that
is available on the SEC’s XXXXX system;
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(e)
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prior
to any public offering of Registrable Shares covered by the Registration
Statement, use commercially reasonable efforts to register or qualify
such
Registrable Shares for offer and sale under the securities or Blue
Sky
laws of such jurisdictions in the United States as the Administrative
Agent on behalf of the Controlling Holders shall reasonably request
in
writing; provided, however, that the Company shall in no
event be required to qualify generally to do business as a foreign
corporation or as a dealer in any jurisdiction where it is not
at the time
so qualified or to execute or file a general consent to service
of process
in any such jurisdiction or to take any action that would subject
it to
general service of process or taxation in any such jurisdiction
where it
is not then subject;
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(f)
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upon
the occurrence of any event contemplated by paragraph 4(b)(v) above,
prepare a supplement or post-effective amendment to, or an Exchange
Act
filing incorporated by reference into, the Registration Statement
or the
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference and file any other required document
so
that, as thereafter delivered to the purchasers of the Registrable
Shares
being sold thereunder (including upon the termination of any Delay
Period), such Prospectus will not contain an untrue statement of
a
material fact or omit to state any material fact required to be
stated
therein or necessary to make the statements therein, in light of
the
circumstances under which they were made, not
misleading;
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(g)
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use
commercially reasonable efforts to maintain the ADR Program until
all
amounts due under the Option Financing Facility are no longer
outstanding;
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(h)
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use
commercially reasonable efforts to cause (i) all Class D Shares
and Unrestricted ADRs to continue to be listed on The New York
Stock
Exchange (including seeking to cure in the Company’s listing or inclusion
application any deficiencies cited by the exchange or market),
and
(ii) all Class D Shares to continue to be listed on the
Buenos Aires Stock Exchange and any other stock exchange upon which
the Company has Class D Shares
listed;
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(i)
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following
the occurrence of a Collateral Trigger Event, make available for
inspection by any attorney retained by the underwriter participating
in
any offering pursuant to the Registration Statement or by the Option
Administrative Agent on behalf of the Controlling Holders (collectively,
the “Inspectors”), all financial and other records and
other information, pertinent corporate documents and properties
of any of
the Company and its
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11
subsidiaries
and Affiliates (collectively, the “Records”), as shall be
reasonably necessary to enable them to exercise their due diligence
responsibilities; provided, however, that the Records that the
Company determines, in good faith, to be confidential and which it notifies
the
Inspectors in writing are confidential shall not be disclosed to any
Inspector
unless such Inspector signs a confidentiality agreement satisfactory
to the
Company and that the foregoing inspection shall be coordinated on behalf
of all
Inspectors by counsel to such underwriters;
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(j)
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following
the occurrence of a Collateral Trigger Event and on no more than
once in
any twelve-month period, make its senior executive officers available
(i) to meet with the Holders or the Option Administrative Agent, the
Inspectors and the underwriters of any offering under the Registration
Statement to discuss the business, operations and financial condition
of
the Company and the industries in which it operates so that Holders,
the
underwriters and any other participants in a distribution of Registrable
Shares may establish a reasonable due diligence defense under the
Securities Act (in addition, at the request of the Option Administrative
Agent on behalf of the Controlling Holders, the Company shall make
available its senior executives for customary bring down due diligence
calls on the launch, pricing and closing date of any offering of
Registrable Shares); and (ii) to participate in one customary
offering “road show” per year with representatives of any underwriters in
Argentina, the United States and Canada, Europe and Asia to meet
with
potential investors identified by the underwriters to discuss the
business, operations and financial condition of the Company and
the
industries in which it operates in order to facilitate the offering
and
distribution of any Registrable Shares; provided,
however, that each such “road show” shall not be longer than five
Business Days and shall not materially disrupt the business of
the Company
and the Company shall only be obligated to participate in such
“road show”
if requested to do so by the Option Administrative Agent. In
connection with any “road show” the Company shall prepare customary
marketing materials in a manner consistent with other issuances
of
securities similar to the Registrable
Shares;
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(k)
|
following
the occurrence of a Collateral Trigger Event and no more than once
in any
twelve-month period, enter into an underwriting agreement (in form,
scope
and substance as is customary in underwritten offerings by the
Company,
including customary indemnification of the Underwriters) and take
such
other appropriate and reasonable actions requested by the Option
Administrative Agent in order to expedite or facilitate the disposition
of
such Registrable Shares, and in such connection, (i) if requested in
the underwriting agreement, use commercially reasonable efforts
to obtain
opinions and negative assurance letters of counsel to the Company
and
updates thereof (which counsel and opinions and letters (in form,
scope
and substance) shall be reasonably satisfactory to the managing
underwriters and
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12
its
counsel), addressed to each selling Holder of Registrable Shares covered
by such
Registration Statement and each of the underwriters as to the matters
customarily covered in opinions and negative assurance letters requested
in
underwritten offerings, and such other matters as may be reasonably requested
by
such counsel and underwriters, (ii) commercially reasonable efforts to
obtain “cold comfort” letters and updates thereof from the independent certified
public accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any
business
acquired by the Company for which financial statements and financial
data are,
or are required to be, included in the Registration Statement), addressed
to
each selling Holder of Registrable Shares covered by the Registration
Statement
(unless such accountants shall be prohibited from so addressing such
letters by
applicable standards of the accounting profession or the internal policies
of
such public accountants) and each of the underwriters, such letters to
be in
customary form and covering matters of the type customarily covered in
“cold
comfort” letters in connection with underwritten offerings, (iii) in the
underwriting agreement, provide indemnification provisions and procedures
customary for underwritten public offerings. The above shall be done
at each closing under such underwriting or similar agreement, or as and
to the
extent required thereunder;
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(l)
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if
the Option Administrative Agent on behalf of the Controlling Holders
delivers to the Company a Lock-Up Notice, for the period specified
below,
not, directly or indirectly, take any of the following actions
with
respect to its Capital Stock: (i) offer, sell, issue,
contract to sell, pledge or otherwise dispose of Capital Stock,
(ii) offer, sell, issue, contract to sell, contract to purchase or
grant any option, right or warrant to purchase Capital Stock,
(iii) enter into a transaction which would have the same effect, or
enter into any swap, hedge or any other agreement that transfers,
in whole
or in part, any of the economic consequences of ownership of Capital
Stock
whether any such aforementioned transaction is to be settled by
delivery
of the Capital Stock or such other securities in cash or otherwise
(iv) establish or increase a put equivalent position or liquidate or
decrease a call equivalent position in Capital Stock within the
meaning of
Section 16 of the Exchange Act, (v) file with the SEC a
registration statement under the Securities Act relating to Capital
Stock,
or (vi) publicly disclose the intention to make any such offer, sale,
issue, pledge, grant or to enter into any such transaction, swap,
hedge or
other arrangement, without the prior written consent of the Option
Administrative Agent except (a) for issuances of grants of employee
stock options or equity awards pursuant to the terms of a Company
plan in
effect on the date of this Agreement or issuances of Capital Stock
pursuant to the exercise of such options or the exercise of any
other
employee stock options outstanding on the date of this Agreement,
(b) in accordance with the terms of this Agreement, and (c) for
purchases of Capital Stock of officers or employees of the Company
selling
Capital Stock to the
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13
Company,
the proceeds of which will be used in respect of grants under the terms
of a
Company plan then in effect. The Lock-Up Period will commence on the
date that a Lock-Up Notice is delivered to the Company, provided that
such Lock-Up Notice may not be delivered earlier than the commencement
of the
“road show” for the firm underwritten offering to which the Lock-Up Notice
relates, and continue for 90 days after the earlier of the closing of such
offering or 110 days after the date such Lock-Up Notice is delivered (the
“Lock-Up Period”); provided, however, if
(1) during the last 17 days of the lock-up period, the Company
releases earnings results or material news or a material event relating
to the
Company occurs or (2) prior to the expiration of the Lock-Up Period, the
Company announces that it will release earnings results during the 16-day
period
beginning on the last day of the Lock-Up Period, then in each case the
Lock-Up Period will be extended until the expiration of the 18-day period
beginning on the date of release of the earnings results or the occurrence
of
the material news or material event, as applicable. The Company will
provide the Option Administrative Agent with notice of any announcement
described in clause (2) of the preceding sentence that gives rise to an
extension of the Lock-Up Period, with a copy delivered to the Option
Collateral
Agent. The Company shall only be required to be “locked-up” pursuant
to this paragraph (l) two times; provided, however, that the
Option Administrative Agent may rescind a Lock-Up Notice at any time
and if such
Lock-Up Notice is rescinded within 10 business days of delivery thereof,
such rescinded Lock-Up Notice shall not be counted toward the Lock-Up
Periods
described at the beginning of this sentence; and, provided that, the
Option Administrative Agent shall only deliver one Lock-Up Notice in
any
twelve-month period unless rescinded as described immediately
above;
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(m)
|
cooperate
and assist in any filings required to be made with the Financial
Industry
Regulatory Authority
(“FINRA”);
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(n)
|
include
such information regarding the plan of distribution of the Registrable
Shares in any Registration Statement and Prospectus as the Holders
may
reasonably request; and
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(o)
|
cause
to be maintained a registrar and transfer agent for all Registrable
Shares
covered by any Registration
Statement.
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The
Company may require the Option
Parties and each Holder of Registrable Shares covered by a Registration
Statement to furnish such information, within ten Business Days of any such
request, regarding the Option Parties or such Holder and the Holder’s intended
method of disposition of such Registrable Shares as it may from time to time
reasonably request in writing. If any Holder fails to furnish such
information within ten Business Days after receipt of such request,
notwithstanding anything to the
14
contrary
in this Agreement the Company may exclude such Holder’s Registrable Shares from
such Registration Statement.
Each
Holder of Registrable Shares
covered by a Registration Statement agrees that, upon receipt by the Option
Administrative Agent of any notice from the Company of the happening of any
event of the kind described in Section 4(b)(ii), 4(b)(iii), 4(b)(iv) or
4(b)(v) hereof, such Holder shall discontinue disposition of any Registrable
Shares covered by such Registration Statement or the related Prospectus until
receipt of the copies of the supplemented or amended Prospectus contemplated
by
Section 4(f) hereof, or until the Option Administrative Agent is advised in
writing (the “Advice”), with a copy delivered to the Option
Collateral Agent, by the Company that the use of the applicable Prospectus
may
be resumed, and has received copies of any amended or supplemented Prospectus
or
any additional or supplemental filings which are incorporated, or deemed
to be
incorporated, by reference in such Prospectus (such period during which
disposition is discontinued being an “Interruption Period”)
and, if requested by the Company, the Option Administrative Agent shall deliver
to the Company (at the expense of the Company) all copies then in its
possession, other than permanent file copies then in such Holder’s possession,
of the Prospectus covering such Registrable Shares at the time of receipt
of
such request.
The
Option Administrative Agent and
each Holder of Registrable Shares covered by a Registration Statement further
agrees not to utilize any material other than the applicable current preliminary
prospectus or Prospectus in connection with the offering of such Registrable
Shares.
If
the
Option Administrative Agent on behalf of the Controlling Holders delivers
to the
Company a Lock-Up Notice, for the Lock-Up Period, the Seller will not, directly
or indirectly, take any of the following actions with respect to the Company’s
Capital Stock: (i) offer, sell, issue, contract to sell, pledge
or otherwise dispose of the Company’s Capital Stock, (ii) offer, sell,
contract to sell, contract to purchase or grant any option, right or warrant
to
purchase the Company’s Capital Stock, (iii) enter into a transaction which
would have the same effect, or enter into any swap, hedge or any other agreement
that transfers, in whole or in part, any of the economic consequences of
ownership of the Company’s Capital Stock whether any such aforementioned
transaction is to be settled by delivery of the Company’s Capital Stock or such
other securities in cash or otherwise (iv) establish or increase a put
equivalent position or liquidate or decrease a call equivalent position in
the
Company’s Capital Stock within the meaning of Section 16 of the Exchange
Act, or (v) publicly disclose the intention to make any such offer, sale,
issue, pledge, grant or to enter into any such transaction, swap, hedge or
other
arrangement, without the prior written consent of the Option Administrative
Agent. The Seller shall only be obligated to be “locked-up” so long
as the Company shall be locked-up pursuant to Section 4(l)
hereof.
Section
5. Registration
Expenses. (a) The Borrower shall
reimburse the Company (i) all costs, fees and expenses solely incident to
the
Company’s performance of or compliance with this Agreement and the Senior
Lenders RRA (as described in
15
Section
5(c) below) incurred by the Company prior to January 1, 2009 and (ii) all
SEC
filing fees in connection with any Option Anti-Dilution Filing,
provided that the Borrower shall not be required to reimburse the Company
for any costs, fees and expenses set forth in the preceding clause (i) unless
the Company has documented, to the Borrower’s reasonable satisfaction, that such
costs, fees and expenses are solely attributable to the Company’s performance of
this Agreement and the Senior Lenders RRA and provided further that the
Borrower’s reimbursement obligation hereunder shall not exceed, in the
aggregate, US$700,000. For the avoidance of doubt, the Borrower shall
not be obligated hereunder to pay any amount in respect of (i) any Liquidated
Damages Amount or (ii) any indemnity or contribution under Section 7
hereof.
(b) The
Seller shall pay
all costs, fees and expenses incident to the Company’s performance of or
compliance with this Agreement and the Senior Lenders RRA (as described in
Section 5(c) below) incurred by the Company (i) in excess of the US$700,000
cap
provided for in clause (a) above and (ii) on or after January 1, 2009. For
the
avoidance of doubt, the Seller shall not be obligated hereunder to pay any
amount in respect of (i) any Liquidated Damages Amount or (ii) any indemnity
or
contribution under Section 7 hereof.
(c) The
costs, fees and
expenses incident to the Company’s performance of or compliance with this
Agreement include, without limitation (i) all registration and filing fees,
including FINRA filing fees, (ii) all fees and expenses of compliance with
securities or Blue Sky laws of the United States and states therein, including
reasonable and documented fees and disbursements of local and special counsel
in
connection therewith, (iii) printing expenses (including expenses of
printing certificates for Registrable Shares and of printing prospectuses
if the
printing of prospectuses is requested by the Holders or the managing
underwriter, if any), (iv) messenger, telephone and delivery expenses,
(v) fees and disbursements of local and special counsel for the Company,
(vi) fees and disbursements of all independent certified public accountants
of the Company (including expenses of any “cold comfort” letters required in
connection with this Agreement) and all other persons retained by the Company
in
connection with such Registration Statement, (vii) all fees and expenses
payable in connection with the Company maintaining the authorization for
public
offering in Argentina of the Class D Shares, and the listing of such shares
on the Buenos Aires Stock Exchange and any other stock exchange upon which
the Company has Class D Shares listed and (viii) all other reasonable
costs, fees and expenses incurred by the Company as a result of its performance
or compliance with this Agreement.
(d) The
fees and expenses
of any persons retained by any Holder, and any discounts, commissions or
brokers’ fees or fees of similar securities industry professionals and any
transfer taxes relating to the disposition of the Registrable Shares by a
Holder, will be payable by such Holder and none of the Company, the Option
Parties or the Seller will have any obligation to pay any such
amounts.
(e) To
the
extent that any Holder of Registrable Shares include their Registrable Shares
in
any offering under the Senior Lenders RRA, costs, fees and
16
expenses
to be paid by the Holders of Registrable Shares and Senior Holders will be
shared pro rata in proportion to the number of Senior Loan ADSs or Registrable
Shares offered by each of them.
Section
6. Underwriting
Requirements. (a) In the case of any
underwritten offering pursuant to a Registration Statement, the Option
Administrative Agent shall select the institution or institutions that shall
manage or lead such offering, subject to the reasonable approval of such
institution(s) by the Company. In selecting such institutions, the
Option Administrative Agent shall consult with the Seller. No Holder
may participate in any underwritten public offering unless such Holder
(i) agrees to sell such Holder’s Registrable Shares included in the
offering on the basis provided for in any underwriting arrangements agreed
to by
the Option Administrative Agent included in such underwritten public offering
and (ii) completes and executes all reasonable questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements. The Option
Administrative Agent shall give the Senior Administrative Agent a written
notice
of any underwritten offering pursuant to this section at least ten Business
Days
prior to the commencement of such offering and shall allow the Senior Holders
the option to participate in such offering subject to Section (6)(c) below
to
the extent the Senior Administrative Agent provides a written request to
have
Senior Loan ADSs included in such offering at least five Business Days prior
to
the commencement of such offering. The Option Administrative Agent
shall have no obligation to include such Senior Loan ADSs in any offering
conducted pursuant to this Agreement unless the sellers of such Senior Loan
ADSs
comply with Sections 5(e), 6(b), 6(c), 6(e) and 7(c) of the Senior Lenders
RRA.
(b) The
Holders of
Registrable Shares may participate in any underwritten public offering directed
by the Senior Administrative Agent. No Holder of Registrable Shares
may participate in any underwritten public offering directed by the Senior
Administrative Agent unless such Holder of Registrable Shares (i) agrees to
sell such Holder’s Registrable Shares included in such offering on the basis
provided for in any underwriting arrangements agreed to by the Senior
Administrative Agent included in such underwritten public offering,
(ii) completes and executes all reasonable questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements and (iii) has complied
with
Sections 5(e), 6(b), 6(c), 6(e) and 7(c) of this Agreement.
(c) In
connection with any
underwritten offering pursuant to a Registration Statement conducted pursuant
to
this Agreement in which more than one Holder participates or in which the
Senior
Holders participate along with such Holders, in the event that the managing
underwriter or underwriters participating in such offering advise in writing
the
Holders of Registrable Shares and, if applicable, the Senior Holders to be
included in such offering that the total number of Registrable Shares and,
if
applicable, Senior Loan ADSs to be included in such offering exceeds the
amount
that can be sold in (or during the time of) such offering without delaying
or
jeopardizing the success of such offering (including the price per share
of the
Registrable Shares and Senior Loan ADSs to
17
be
sold),
then the amount of Registrable Shares and Senior Loan ADSs to be offered
for the
account of such Holders or such Senior Holders shall be reduced pro rata
on the
basis of the total number of Registrable Shares and Senior Loan ADSs to be
offered by each such Holder and Senior Holder; it being understood and
agreed that, for the avoidance of doubt, such reduction shall be effected
on a pari passu and pro rata basis among all Registrable Shares
and Senior Loan ADSs to be included in such offering.
(d) If
the Option
Administrative Agent on behalf of the Controlling Holders delivers to the
Company and the other Holders a Lock-Up Notice pursuant to this Agreement,
each
of the Holders will not, directly or indirectly, take any of the following
actions with respect to the Capital Stock of the
Company: (i) offer, sell, issue, contract to sell, pledge or
otherwise dispose of Capital Stock, (ii) offer, sell, issue, contract to
sell, contract to purchase or grant any option, right or warrant to purchase
Capital Stock, (iii) enter into a transaction which would have the same
effect, or enter into any swap, hedge or any other agreement that transfers,
in
whole or in part, any of the economic consequences of ownership of Capital
Stock
whether any such aforementioned transaction is to be settled by delivery
of the
Capital Stock or such other securities in cash or otherwise (iv) establish
or increase a put equivalent position or liquidate or decrease a call equivalent
position in Capital Stock within the meaning of Section 16 of the Exchange
Act, or (v) publicly disclose the intention to make any such offer, sale,
issue, pledge, grant or to enter into any such transaction, swap, hedge or
other
arrangement, without the prior written consent of the Option Administrative
Agent. The Holders shall only be obligated to be “locked-up” so long
as the Company shall be locked up pursuant to Section 4(l)
hereof.
(e) If
the Senior
Administrative Agent delivers to the Company and the other Senior Holders
a
Lock-Up Notice and a copy of such notice is delivered to the Option
Administrative Agent, upon receipt of a written request from the Senior
Administrative Agent at least 15 Business Days in advance, each of the Holders
of Registrable Shares will not, directly or indirectly, take any of the
following actions with respect to the Capital Stock of the
Company: (i) offer, sell, issue, contract to sell, pledge or
otherwise dispose of Capital Stock, (ii) offer, sell, issue, contract to
sell, contract to purchase or grant any option, right or warrant to purchase
Capital Stock, (iii) enter into a transaction which would have the same
effect, or enter into any swap, hedge or any other agreement that transfers,
in
whole or in part, any of the economic consequences of ownership of Capital
Stock
whether any such aforementioned transaction is to be settled by delivery
of the
Capital Stock or such other securities in cash or otherwise (iv) establish
or increase a put equivalent position or liquidate or decrease a call equivalent
position in Capital Stock within the meaning of Section 16 of the Exchange
Act, or (v) publicly disclose the intention to make any such offer, sale,
issue, pledge, grant or to enter into any such transaction, swap, hedge or
other
arrangement, without the prior written consent of the Option Administrative
Agent. The Holders of Registrable Shares shall only be obligated to
be “locked-up” so long as the Company shall be locked up pursuant to
Section 4(l) hereof.
18
Section
7. Indemnification. (a) Indemnification
by the Company. The Company shall, without limitation as to time,
indemnify and hold harmless, to the full extent permitted by law, each Holder
of
Registrable Shares whose Registrable Shares are covered by a Registration
Statement or Prospectus, the officers, directors and agents and employees
of
each of them, each Person who controls each such Holder (within the meaning
of
Section 15 of the Securities Act or Section 20 of the Exchange Act)
and the officers, directors, agents and employees of each such controlling
person, to the fullest extent lawful, from and against any and all losses,
claims, damages, liabilities, judgments, costs (including, without limitation,
reasonable costs of investigation or preparation and reasonable attorneys’ fees)
and expenses (collectively, “Losses”) incurred by or with
respect to such Holder in its capacity as a seller of Registrable Shares
pursuant to such Registration Statement or Prospectus, as incurred, arising
out
of or based upon any untrue or alleged untrue statement of a material fact
contained in the Registration Statement or Prospectus or in any amendment
or
supplement thereto or in any preliminary prospectus, or in the case of any
prospectus or form of prospectus or amendment or supplement thereto, arising
out
of or based upon any omission or alleged omission of a material fact required
to
be stated therein or necessary to make the statements therein in light of
the
circumstances in which they were made not misleading, except (i) insofar as
the same are based upon information furnished in writing to the Company by
or on
behalf of such Holder expressly for use therein, (ii) in the case of an
Interruption Period, the use by any Holder of an outdated or defective
Prospectus until receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 4(f) hereof, or until such Holder receives Advice
from the Company that the use of the applicable Prospectus may be resumed
or
(iii) to the extent that any such Losses arise out of or are based upon an
untrue statement or alleged untrue statement or omission or alleged omission
in
a Registration Statement or Prospectus, if such untrue statement or alleged
untrue statement, omission or alleged omission is corrected in an amendment
or
supplement to the Registration Statement or the Prospectus that is delivered
or
made available to the Holder and the Holder thereafter fails to deliver or
make
available such Registration Statement or Prospectus as so amended or
supplemented prior to or concurrently with the sale of the Registrable
Securities to the person asserting such Losses; provided,
however, that the indemnity agreement contained in this
Section 7(a) shall not apply to any amount paid in settlement of any Losses
if such settlement is effected without the prior written consent of the Company,
which consent shall not be unreasonably withheld.
(b) Indemnification
by
Holder of Registrable Shares pursuant to this Agreement. In
connection with any Registration Statement under which a Holder is offering
Registrable Shares pursuant to this Agreement, such Holder shall furnish
to the
Company in writing such information as the Company reasonably requests for
use
in connection with such Registration Statement or the related Prospectus
and
such Holder agrees to indemnify and hold harmless, to the full extent permitted
by law, the Company, its directors, officers, agents or employees, each Person
who controls the Company (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act) and the directors,
officers, agents or employees of such controlling Persons, from and against
all
Losses, as incurred, arising out of or based upon any untrue or alleged untrue
statement of a material fact contained in the Registration Statement or the
related
19
Prospectus
or any amendment or supplement thereto, or any preliminary prospectus, or
arising out of or based upon any omission or alleged omission of a material
fact
required to be stated therein or necessary to make the statements therein
not
misleading (in the case of any prospectus or form of prospectus or amendment
or
supplement thereto, in light of the circumstances in which there were made),
to
the extent, but only to the extent, that such untrue or alleged untrue statement
or omission or alleged omission is based upon information so furnished in
writing by or on behalf of such Holder to the Company expressly for use in
such
Registration Statement or Prospectus or in any amendment or supplement thereto
or in any preliminary prospectus. The Company shall be entitled to
receive customary indemnities from underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution of such Registrable Shares with respect to information furnished
in
writing by such persons expressly for use in such Registration Statement
or
Prospectus.
(c) Indemnification
by
Senior Holders. In connection with any Registration Statement
under which a Senior Holder is offering Senior Loan ADSs pursuant to the
Senior
Lenders RRA, such Senior Holder shall furnish to the Company in writing such
information as the Company reasonably requests for use in connection with
such
Registration Statement or the related Prospectus and such Holder agrees to
indemnify and hold harmless, to the full extent permitted by law, the Company,
its directors, officers, agents or employees, each Person who controls the
Company (within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act) and the directors, officers, agents or
employees of such controlling Persons, from and against all Losses, as incurred,
arising out of or based upon any untrue or alleged untrue statement of a
material fact contained in the Registration Statement or the related Prospectus
or any amendment or supplement thereto, or any preliminary prospectus, or
arising out of or based upon any omission or alleged omission of a material
fact
required to be stated therein or necessary to make the statements therein
not
misleading (in the case of any prospectus or form of prospectus or amendment
or
supplement thereto, in light of the circumstances in which there were made),
to
the extent, but only to the extent, that such untrue or alleged untrue statement
or omission or alleged omission is based upon information so furnished in
writing by or on behalf of such Holder to the Company expressly for use in
such
Registration Statement or Prospectus or in any amendment or supplement thereto
or in any preliminary prospectus.
(d) Conduct
of
Indemnification Proceedings. If any Person shall be entitled to
indemnity hereunder (an “indemnified party”), such indemnified
party shall give prompt written notice to the party from which such indemnity
is
sought (the “indemnifying party”) of any claim or of the
commencement of any proceeding (including any investigation by any governmental
authority) with respect to which such indemnified party seeks indemnification
or
contribution pursuant hereto; provided, however, that the
delay or failure to so notify the indemnifying party shall not relieve the
indemnifying party from any obligation or liability except to the extent
that
the indemnifying party has been prejudiced by such delay or
failure. The indemnifying party shall have the right, exercisable by
giving written notice to an indemnified party promptly after the receipt
of
written notice from such indemnified party of such claim or proceeding, to
assume, at the
20
indemnifying
party’s expense, the defense of any such claim or proceeding, with counsel
reasonably satisfactory to such indemnified party; provided,
however, that (i) an indemnified party shall have the right to
employ separate counsel in any such claim or proceeding and to participate
in
the defense thereof, but the fees and expenses of such counsel shall be at
the
expense of such indemnified party unless: (1) the indemnifying
party agrees to pay such fees and expenses; (2) the indemnifying party
fails promptly to assume the defense of such claim or proceeding or fails
to
employ counsel reasonably satisfactory to such indemnified party; or
(3) the named parties to any proceeding (including impleaded parties)
include both such indemnified party and the indemnifying party, and such
indemnified party shall have been advised by counsel that there may be one
or
more legal defenses available to it that are in addition to or are inconsistent
with those available to the indemnifying party or that a conflict of interest
is
likely to exist among such indemnified party and any other indemnified parties
(in which case the indemnifying party shall not have the right to assume
the
defense of such action on behalf of such indemnified party); and
(ii) subject to clause (3) above, the indemnifying party shall not, in
connection with any claim or proceeding or separate but substantially similar
or
related claim or proceedings in the same jurisdiction, arising out of the
same
general allegations of circumstances, be liable for the fees and expenses
of
more than one firm of attorneys (together with appropriate local counsel)
at any
time for all of the indemnified parties. Whether or not such defense
is assumed by the indemnifying party, such indemnifying party shall not be
subject to any liability for any settlement made without its written
consent. The indemnifying party shall not consent to entry of any
judgment or enter into any settlement that (A) does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release, in form and substance reasonably satisfactory
to
the indemnified party, from all liability in respect of such claim or litigation
for which such indemnified party would be entitled to indemnification
hereunder and
(B) includes a statement as to, or an admission of, fault, culpability or a
failure to act, by or on behalf of any indemnified party.
(e) Contribution. If
the indemnification provided for in this Section 7 is applicable in
accordance with its terms but is legally unavailable to an indemnified party
in
respect of any Losses, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid
or
payable by such indemnified party as a result of such Losses, in such proportion
as is appropriate to reflect the relative fault of the indemnifying party,
on
the one hand, and such indemnified party, on the other hand, in connection
with
the actions, statements or omissions that resulted in such Losses as well
as any
other relevant equitable considerations. The relative fault of such
indemnifying party, on the one hand, and indemnified party, on the other
hand,
shall be determined by reference to, among other things, whether any action
in
question, including any untrue statement of a material fact or omission or
alleged omission to state a material fact, has been taken by, or relates
to
information supplied by, such indemnifying party or indemnified party, and
the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent any such action, statement or omission. The amount
paid or payable by a party as a result of any Losses shall be deemed to include,
subject to the limitations set forth in Section 7(c), any legal or other
fees or expenses incurred by such party in connection with any investigation
or
21
proceeding. The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 7(d) were determined by pro rata allocation or by
any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provision of this Section 7(d),
an indemnifying party that is a Holder shall not be required to contribute
any
amount which is in excess of the amount by which the total proceeds received
by
such Holder from the sale of the Registrable Shares sold by such Holder (net
of
all underwriting discounts and commissions) exceeds the amount of any damages
that such indemnifying party has otherwise been required to pay by reason
of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
Section
8. Damages. If
the Company fails to keep continuously effective, supplemented and amended
a
Registration Statement pursuant to Section 2(b) hereof (except as provided
for
in Section 2(c) and 2(d) of this Agreement)(each such event a
“Registration Default”) after a Collateral Trigger Event has
occurred and is continuing, then the Company agrees it shall pay to the Option
Collateral Agent for the benefit of the Holders a penalty in cash in an amount
equal to the Liquidated Damages Amount. Accrued liquidated damages,
if any, shall be payable within 45 days of the first Registration Default
and every 90 days thereafter if such Registration Default is
continuing. This obligation to pay liquidated damages will cease on
the date that all Registration Defaults have been cured and shall be the
Company’s sole liability for breach of Section 2(b) of this
Agreement.
Section
9. Rule 144 Information. With
a view to making available the benefits of certain rules and regulations
of the
SEC which may at any time permit the sale of the Registrable Shares to the
public without registration, the Company agrees to use commercially reasonable
efforts to and the Seller shall, in its capacity as a shareholder of the
Company, cause the Company to:
(a)
Make
and keep public information available, as those terms are understood and
defined
in Rule 144 under the Securities Act, at all times that the Company is subject
to the reporting requirements of the Securities Act or the Exchange Act,
and for
so long as the Company remains subject to the periodic reporting requirements
under Section 13 or 15(d) of the Exchange Act.
(b) Use
commercially reasonable efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the Securities
Act and
the Exchange Act (at any time after it has become subject to such reporting
requirements).
(c) Furnish
to any Holder forthwith upon request, after the occurrence of a Collateral
Trigger Event, a written statement by the Company as to its compliance with
the
reporting requirements of Rule 144 under the Securities Act, and of the
Securities Act
22
and
the
Securities Exchange Act of 1934, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of the Company
and
other information in as such Holder may reasonably request in availing itself
of
any rule or regulation of the SEC allowing such Holder to sell any such
securities without registration, provided that the Company shall have
no obligation to provide any document that is available on the SEC’s XXXXX
system.
Section
10. Miscellaneous. (a) Termination. This
Agreement and the obligations of the Company, the Seller, the Option Parties
and
the Holders hereunder (other than Section 7 hereof and other than pursuant
to the following sentence) shall terminate on the earlier of the first date
on
which (i) no Registrable Shares remain outstanding, and (ii) all
amounts due under all Option Financing Facilities have been
repaid. Notwithstanding any contrary provision in this Agreement
(including the foregoing sentence), so long as the Option Collateral Agent
(together with any other collateral agent under any other Option Financing)
shall hold, control or have a pledge over at least 7,374,614 Option Securities
(adjusted for any share split or combination) regardless of whether any Option
Securities may be freely transferred without registration pursuant to Rule
144
of the Securities Act (x) the obligations of the Company under Section 4(g)
and
(h) shall continue and (y) at the request of the Option Administrative Agent,
the Company shall make its senior executive officers available to participate
in
one customary offering “road show” (at the Holders’ expense) in Argentina, the
United States and Canada, Europe and Asia to meet with potential investors
identified by underwriters or the Option Administrative Agent to discuss
the
business, operations and financial condition of the Company and the industries
in which it operates in order to facilitate the offering and distribution
of any
Option Securities; provided, however, that such “road show” shall not be longer
than five Business Days and shall not materially disrupt the business of
the
Company, in each case; provided that such Option Securities shall not have
previously been sold pursuant to an effective Registration Statement or in
an
underwritten public offering pursuant to this Agreement. For the
avoidance of doubt, the obligation of the Company to participate in the roadshow
described in this Section 10(a) shall not create any obligation on behalf
of the
Company to register any sale or other transfer of Option Securities under
any
U.S. securities laws.
(b) Execution
by the
Company; Additional RRAs. In accordance with the terms of the
Option Agreements, the Seller agrees to take all necessary action to cause
the
Company to execute and deliver its counterpart signature to this Agreement
by no
later than March 10, 2008. The Seller and the Company further agree
to promptly enter into additional Registration Rights Agreements, in
substantially the same form as this Agreement, in connection with any separate
Option Financing obtained by the Option Parties (in the event that the Option
Parties exercise the Option on more than one occasion in accordance with
the
terms of the Option Agreements).
(c) Notices. All
notices or communications hereunder shall be in writing (including telecopy
or
similar writing), addressed as follows:
23
(i) To
the Company:
YPF
Sociedad Anónima
At.
Xxxxxxxxx Xxxxxxx
Dirección
de Servicios Jurídicos
Xx.
X.X.
Xxxx 000
Xxxxxx
xx
Xxxxxx Xxxxx, Xxxxxxxx, C1035AAC
Facsimile:
x00 00 0000 0000.
With
a
copy (which shall not constitute notice) to:
Xxxxx
Xxxx
& Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxxxx
Facsimile
No.: (000) 000-0000
Email:
xxxxxxxx.xxxxxxxx@xxx.xxx
(ii) To
the Seller:
REPSOL
YPF, S.A.
Xxxxx
xx
xx Xxxxxxxxxx 000
00000
Xxxxxx
Xxxxx
Attn: Chief
Financial Officer
Facsimile: x00
00 000 0000
Corporate
Director of Legal Services
Facsimile: x00
00 000 0000
Corporate
Director of Tax and Finance
Facsimile: x00
00 000 0000
With
a
copy (which shall not constitute notice) to:
Xxxxx
Xxxx
& Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxxxx
Facsimile
No.: (000) 000-0000
Email:
xxxxxxxx.xxxxxxxx@xxx.xxx
24
(iii) To
the Option Parties:
Grupo
Xxxxxxxx
Xxxxxxx
000, Xxxx 0,
(X0000XXX)
Xxxxxx
Xxxxx, Xxxxxxxxx,
Telecopier: x00-00-00-000-0000
Attention: Mauro
Dacomo,
With
a copy (which shall not
constitute notice) to:
Xxxxxx
Xxxxxxxx Xxxxx & Xxxxxxxx
LLP
Neue
Xxxxxxx Xxxxxxx 00
00000
Xxxxxxxxx xx Xxxx
Attn:
Xxxxxx de la Xxxx
Tel
x00 00 00000-0
Fax
x00 00 00000-000
Any
such notice or communication
shall be deemed given (i) when made, if made by hand delivery,
(ii) upon transmission, if sent by confirmed telecopier,
(iii) one Business Day after being deposited with a next-day courier,
postage prepaid, or (iv) three Business Days after being sent
certified or registered mail, return receipt requested, postage prepaid,
in each
case addressed as above (or to such other address or to such other telecopier
number as such party may designate in writing from time to time).
(d) Separability. If
any provision of this Agreement shall be declared to be invalid or
unenforceable, in whole or in part, such invalidity or unenforceability shall
not affect the remaining provisions hereof which shall remain in full force
and
effect.
(e) Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, devisees, legatees, legal representatives,
successors and assigns. The rights to cause the Company to register
Registrable Shares pursuant to Sections 2 and 3 may be assigned in
connection with any transfer or assignment by a Holder of Registrable Shares,
provided that such transfer may otherwise be effected in accordance
with applicable securities laws. No transfer or assignment will
divest a Holder or any subsequent owner of such rights and powers unless
all
Registrable Securities are transferred or assigned. Each of the
parties hereto acknowledge and agree that, in accordance with the terms of
the
Option Agreements, each of the Borrower and Xxxxxxxx (in the case of Xxxxxxxx,
collectively) may assign and transfer to one or more Affiliates of the Borrower
all or part of the Option and that, in such case, each of the Option Parties
agree to require such assignee to undertake to accept all of such assigning
Option Party’s rights and obligations under this Agreement in respect of the
Option Securities corresponding to the portion of the Option assigned to
such
Affiliate.
(f) [Reserved]
25
(g) Entire
Agreement. This Agreement represents the entire agreement of the
parties and shall supersede any and all previous contracts, arrangements
or
understandings between the parties hereto with respect to the subject matter
hereof.
(h) Amendments
and
Waivers. Except as otherwise provided herein, the provisions of
this Agreement may not be amended, modified or supplemented, and waivers
or
consents to departures from the provisions hereof may not be given, without
the
written consent of the Company, the Option Collateral Agent, the Option
Administrative Agent and the Holders of at least a majority in number of
the
Registrable Shares then outstanding. The Company and the Seller agree
not to amend the Senior Lenders RRA without the previous written consent
of the
Option Administrative Agent, with a copy of such consent delivered to the
Option
Collateral Agent.
(i) Publicity. No
public release or announcement concerning the transactions contemplated hereby
shall be issued by any party without the prior consent of the other parties,
except to the extent that such party is advised by counsel that such release
or
announcement is necessary or advisable under applicable law or the rules
or
regulations of any securities exchange, in which case the party required
to make
the release or announcement shall to the extent practicable provide the other
parties with an opportunity to review and comment on such release or
announcement in advance of its issuance.
(j) Expenses. Whether
or not the transactions contemplated hereby are consummated, except as otherwise
provided herein, all costs and expenses incurred in connection with the
execution of this Agreement shall be paid by the party incurring such costs
or
expenses.
(k) Interpretation. The
headings contained in this Agreement are for reference purposes only and
shall
not affect in any way the meaning or interpretation of this
Agreement.
(l) Counterparts. This
Agreement may be executed in two or more counterparts, all of which shall
be one
and the same agreement, and shall become effective when counterparts have
been
signed by each of the parties and delivered to each other party.
(m) Governing
Law. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT, AND ANY CLAIM OR CONTROVERSY DIRECTLY OR
INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER
THEORY), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
SHALL
IN ALL RESPECTS BE GOVERNED BY AND INTERPRETED, CONSTRUED, AND DETERMINED
IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
26
(n) Authorized
Agent. The Company, the Seller and the Borrower agree that any
suit, action or proceeding against them brought by any Holder, the directors,
officers, employees and agents of any Holder, or by any person who controls
any
Holder, arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in any State or U.S. federal court
in The
City of New York and County of New York, and waives any objection
which it may now or hereafter have to the laying of venue of any such
proceeding, and irrevocably submits to the non-exclusive jurisdiction of
such
courts in any suit, action or proceeding. Each of the Company, the
Seller and the Borrower hereby appoints CT Corporation System, 000 0xx Xxxxxx,
Xxx Xxxx,
XX 00000, as its authorized agent (the “Authorized Agent”) upon
whom process may be served in any suit, action or proceeding arising out
of or
based upon this Agreement or the transactions contemplated herein that may
be
instituted in any State or U.S. federal court in The City of New York and
County of New York, by any Holder, the directors, officers, employees,
Affiliates and agents of any Holder, or by any person who controls any Holder,
and expressly accepts the non-exclusive jurisdiction of any such court in
respect of any such suit, action or proceeding. Each of the Company,
the Seller and the Borrower severally and not jointly hereby represents and
warrants that the Authorized Agent has accepted such appointment and has
agreed
to act as said agent for service of process, and each of the Company, the
Seller
and the Borrower severally and not jointly agrees to take any and all action,
including the filing of any and all documents that may be necessary to continue
such appointment in full force and effect as aforesaid. Service of
process upon the Authorized Agent shall be deemed, in every respect, effective
service of process upon the Company and the Borrower.
(o) Additional
Amounts. All fees, payments, expense reimbursements and other
amounts of any kind whatsoever required to be paid by the Company, the Seller
and the Borrower pursuant to this Agreement shall be made free and clear
of and
without withholding or deduction for, or on account of, any taxes, duties,
assessments, or governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by or on behalf of Argentina in the case
of the
Company and Spain in the case of the Seller and the Borrower or any other
political subdivision thereof, or any authority or agency thereof or therein
having power to levy the same in the relevant jurisdiction, unless such
withholding or deduction is required by law or by the official, judicial
or
administrative interpretation thereof. In such event, the Company,
the Seller or the Borrower, as applicable, will pay such additional amounts
(the
“Additional Amounts”) as will result in the receipt by the
Holders or such other party of such amounts as would have been received in
respect of any such fees, payments, expense reimbursements and other amounts
had
no such taxes, duties, assessments or governmental charges been required
to be
withheld or deducted.
(p) Currency. Each
reference in this Agreement to U.S. dollars (the “relevant
currency”), including by use of the symbol “$”, is of the
essence. To the fullest extent permitted by law, the obligation of
the Company, the Seller and the Borrower in respect of any amount due under
this
Agreement will, notwithstanding any payment in any other currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of
the
amount in the relevant currency that the party entitled to receive such
payment
27
may,
in
accordance with its normal procedures, purchase with the sum paid in such
other
currency (after any premium and costs of exchange) on the Business Day
immediately following the day on which such party receives such
payment. If the amount in the relevant currency that may be so
purchased for any reason falls short of the amount originally due, the Company,
the Seller or the Borrower, as applicable, will pay such additional amounts,
in
the relevant currency, as may be necessary to compensate for the
shortfall. Any obligation of the Company, the Seller or the Borrower
not discharged by such payment will, to the fullest extent permitted by
applicable law, be due as a separate and independent obligation and, until
discharged as provided herein, will continue in full force and
effect.
(q) Waiver
of
Immunity. To the extent that the Company, the Seller or the
Borrower has or hereafter may acquire any immunity (sovereign or otherwise)
from
any legal action, suit or proceeding, from jurisdiction of any court or from
set-off or any legal process (whether service or notice, attachment in aid
or
otherwise) with respect to itself or any of its property, the Company, the
Seller or the Borrower, as applicable, hereby irrevocably waives and agrees
not
to plead or claim such immunity in respect of its obligations under this
Agreement.
(r) Calculation
of Time
Periods. Except as otherwise indicated, all periods of time
referred to herein shall include all Saturdays, Sundays and holidays;
provided, however, that if the date to perform the act or give
any notice with respect to this Agreement shall fall on a day other than
a
Business Day, such act or notice may be timely performed or given if
performed or given on the next succeeding Business Day.
(s) Responsibilities
of
the Option Collateral Agent. Notwithstanding any contrary
provision in this Agreement, the Option Collateral Agent shall have no
obligation to act under this Agreement unless instructed to so act by the
Option
Administrative Agent. Neither the Option Collateral Agent, its agents
nor its affiliates shall be liable for any act or omission made in connection
with this Agreement except in the case of their own gross negligence or willful
misconduct.
(t) Responsibilities
of
the Option Administrative Agent. The Option Administrative Agent
shall have no obligation to act under this Agreement on behalf of any Holder
(other than the Option Collateral Agent) unless such Holders shall have provided
the Option Administrative Agent with an indemnity satisfactory to it and
shall
have made arrangements satisfactory to the Option Administrative Agent to
pay
the Option Administrative Agent’s costs and expenses. In connection with any
unregistered sale of Option Securities, the Option Administrative Agent shall
be
entitled to require the purchasers thereof to enter into a separate agreement
evidencing such indemnity, expense provisions and other reasonable provisions
regarding it role under this Agreement. Neither the Option
Administrative Agent, its agents nor its affiliates shall be liable to any
Holder for any act or omission made in connection with this Agreement except
in
the case of their own gross negligence or willful misconduct.
28
(u) Joinder
by Option
Collateral Agent and Option Administrative Agent. The
Seller and the Company hereby acknowledge and agree that in connection with
any
Option Financing, the Option Collateral Agent and Option Administrative Agent
under the Option Financing Facility shall have the right to become parties
to
this Agreement (in their respective capacities) upon execution and delivery
by
such Option Collateral Agent and Option Administrative Agent to each of the
Company, Seller and the Option Parties of the Joinder Agreement attached
hereto
in the form of Exhibit B. Upon execution and delivery of such Joinder
Agreement by the Option Collateral Agent and the Option Administrative Agent,
such Option Collateral Agent and Option Administrative Agent (and, upon the
occurrence of a Collateral Trigger Event, each Holder) shall immediately
become
a party to this Agreement, entitled to all rights, benefits and privileges
hereof and bound by all obligations applicable to a Holder under this Agreement,
without the need of any further action, acknowledgement or consent by any
other
party hereto.
29
In
Witness Whereof, the parties
hereto have executed this Agreement as
of the
date and year first written above.
|
YPF
SOCIEDAD ANÓNIMA
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title
|
||||
|
Repsol
YPF, S.A.
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title
|
||||
|
XXXXXXXX
ENERGIA, S.A.
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title
|
||||
|
Xxxxxxx
Xxxxxxxx
|
||
|
Xxxxxxxxx
Xxxxxxxx
|
||
|
Xxxxxx
Xxxxxxxx Storey
|
||
|
Xxxxxxxx
Xxxxxxxx Xxxxxx
|
Signature
page to Registration Rights Agreement
Exhibit
A
[FILED
AS
EXHIBIT 7.03]
Exhibit
B
[Joinder
Agreement]
JOINDER
AGREEMENT
This
Joinder Agreement, is made as of the ___th day of
[______],
20[__] (this “Joinder Agreement”), by [____________] (the
“[Collateral Agent] / [Administrative Agent]”), pursuant to
Section 10(u) of the Registration Rights Agreement (the
“Registration Rights Agreement”), dated as of February 21,
2008, by and among YPF Sociedad Anónima, an Argentine company (the
“Company”), Repsol YPF, S.A., a Spanish company (the
“Seller”), Xxxxxxxx Energía, S.A., a Spanish special purpose
company (the “Borrower”), Xxxxxxx Xxxxxxxx, Xxxxxxxxx Xxxxxxxx,
Xxxxxx Xxxxxxxx Xxxxxx and Xxxxxxxx Xxxxxxxx Xxxxxx (collectively,
“Xxxxxxxx” and, together with Borrower, the “Option
Parties”), the Option Collateral Agent, the Option Administrative Agent
and the Holders (each as defined therein). Capitalized terms used but
not defined herein shall have the meanings assigned to them in the Registration
Rights Agreement.
In
connection with the Option Financing Facility under which the undersigned
has
been appointed as [Administrative Agent] [Collateral Agent] and in consideration
of good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the undersigned hereby agrees as follows:
The
undersigned hereby joins in and agrees to be bound by each and all of the
provisions of the Registration Rights Agreement as the [Option Collateral
Agent]
[Option Administrative Agent] thereunder. The undersigned further
agrees to execute and deliver all other documents and instruments and take
all
other actions as may be required under or pursuant to the Registration Rights
Agreement or as reasonably required by the Company in connection
herewith.
IN
WITNESS WHEREOF, the undersigned [Option Collateral Agent][Option
Administrative Agent] has caused this Joinder Agreement to be executed and
delivered to each of the Company, Seller and the Option Parties as of the
date
first above written.
|
[OPTION
COLLATERAL AGENT /
OPTION
ADMINISTRATIVE AGENT]
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
