Registration Rights Agreement
Exhibit
99.11
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”),
HSBC
Bank plc, as collateral agent (the “Collateral
Agent”)
under
the Collateral Documents (as defined below), Credit Suisse, London Branch,
and
its assigns, as administrative agent (the “Administrative
Agent”)
under
the Loan Facility (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 “Lenders”)
have
entered into a Senior Secured Term Loan Facility, dated as of February 21,
2008
(the “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 Collateral Documents (the “Repsol
Pledged ADSs,”
and
the Acquired ADSs excluding the Repsol Pledged ADSs are the “Loan
ADSs”);
Whereas, each
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 Loan Facility will be secured by, among
other things, a perfected first priority pledge of all the Loan ADSs and
Restricted ADRs pursuant to the Collateral Documents;
Whereas,
the
Seller has granted to the Borrower and one or more affiliates of the Borrower
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 (as defined
below) may seek to finance all or a portion of the purchase price of the
Option
Securities (each such financing an “Option
Financing”);
Whereas,
on the
date hereof and concurrently herewith, the Seller and the Option Parties
are
entering into a separate Registration Rights Agreement in respect of the
Option
Securities (the “Option
RRA”)
in the
form attached as Exhibit B hereto.
Whereas,
pursuant to the terms of the Option RRA, 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 thereunder (which registration rights shall
be
substantially similar to the registration rights granted to the Holders under
this Agreement), upon which assignment the collateral agent and the
administrative agent for such Option Lenders shall become a party to the
Option
RRA 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 agree to enter into additional Registration
Rights Agreements, in substantially the same form as the Option RRA, 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 Registrable Shares and the Option Securities;
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
order to induce each of the Lenders to enter into the Loan Facility and to
facilitate the orderly transfer of the Company’s capital stock by one or more of
the Company’s shareholders, the Company and the Seller have agreed to provide
each 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:
2
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.
“Administrative
Agent”
shall
have the meaning set forth in the introductory clauses 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
Agent”
shall
have the meaning set forth in the introductory clauses hereof.
“Collateral
Documents”
means
the Security Agreement, the Deed of Charge, the Holdings Share Pledge Agreement,
the Pledge of Accounts and the Pledge of Contracts (as such terms are defined
in
the Loan Facility).
“Collateral
Trigger Event”
means
acceleration of the Loan Facility following the occurrence and continuation
of
an Event of Default (as such term is defined in the Loan
Facility).
3
“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.
“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 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.
“Lenders”
shall
have the meaning set forth in the introductory clauses 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 Loan 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.
“Loan
ADSs”
shall
have the meaning set forth in the introductory clauses hereof.
“Loan
Facility”
shall
have the meaning set forth in the introductory clauses hereof.
4
“Lock-Up
Notice”
means
a
written notice, provided by the Administrative Agent, with a copy delivered
to
the 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 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 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.
“Option”
shall
have the meaning set forth in the introductory clauses hereof.
“Option
Agreements”
shall
have the meaning set forth in the introductory clauses hereof.
“Option
Financing”
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
mean one or more affiliates of the Borrower that enters into an Option Agreement
with the Seller or to which all or part of the Option is assigned pursuant
to
the terms of any such Option Agreement.
“Option
RRA”
shall
have the meaning set forth in the introductory clauses hereof. Any references
herein to “Option RRA” shall also refer to any additional Registration Rights
Agreements entered into in connection with any Option Financing (in
substantially the same form as the Option RRA entered into on the date
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.
5
“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 Option Securities
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 Restricted ADRs or any related Loan ADSs, 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 Administrative Agent and the
Depositary, with a copy delivered to the Collateral Agent) of nationally
recognized U.S. counsel to the Company, which counsel must also be reasonably
satisfactory to the 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 Administrative Agent and the Depositary, with a
copy
delivered to the Collateral Agent) of nationally recognized U.S. counsel
to the
Company, which counsel must also be reasonably satisfactory to the
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 Option Securities pursuant to the Option 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.
6
“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.
“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 (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 Loan 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
Administrative Agent and the Depositary, with a copy delivered to the Collateral
Agent) of nationally recognized U.S. counsel to the Company, which counsel
must
also be reasonably satisfactory to the Administrative Agent) (such period
of
continuous effectiveness is hereinafter referred to as the “Effectiveness
Period”).
7
(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.
(e)
The
Company shall not include any securities that are not Registrable Shares
or
Option Securities in any Registration Statement filed pursuant to this
Section 2 without the prior written consent of the Administrative Agent on
behalf of the Controlling Holders covered by such Registration Statement.
(f)
Within three Business Days following the Administrative Agent obtaining
knowledge of the occurrence of an Event of Default (as such terms are defined
in
the Loan Facility), the Administrative Agent shall give written notice thereof
to the Company and Seller, with a copy delivered to the Collateral
Agent.
(g)
Upon
the occurrence of a Collateral Trigger Event, the Administrative Agent shall
give written notice to the Company, Borrower and Seller, with a copy delivered
to the 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).
8
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:
|
(a)
|
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
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), and cause
the related Prospectus as so supplemented to be filed pursuant
to
Rule 424 under the Securities
Act;
|
| (b) |
notify
the Administrative Agent promptly and (if requested in writing)
confirm
such notice in writing, with a copy delivered to the 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;
|
| (c) |
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;
|
9
| (d) |
if
requested in writing by the Administrative Agent, furnish to the
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 Administrative Agent may
reasonably request in order to facilitate the disposition of the
Registrable 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;
|
| (e) |
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;
|
| (f) |
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;
|
| (g) |
use
commercially reasonable efforts to maintain the ADR Program until
all
amounts due under the Loan Facility are no longer
outstanding;
|
10
| (h) |
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;
|
| (i) |
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
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 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;
|
| (j) |
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 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 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 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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11
| (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 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 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;
|
12
| (l) |
if
the 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 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
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 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 Collateral Agent. The Company shall
only be
required to be “locked-up” pursuant to this paragraph (l) two times;
provided,
however,
that the 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 Administrative Agent shall only deliver one Lock-Up Notice
in any
twelve-month period unless rescinded as described immediately
above;
|
| (m) |
cooperate
and assist in any filings required to be made with the Financial
Industry
Regulatory Authority (“FINRA”);
|
| (n) |
include
such information regarding the plan of distribution (substantially
in the
form of Exhibit A attached hereto) of the Registrable Shares in
any
Registration Statement and Prospectus as the Holders may reasonably
request; and
|
13
| (o) |
cause
to be maintained a registrar and transfer agent for all Registrable
Shares
covered by any Registration
Statement.
|
The
Company may require the Borrower 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 Borrower 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 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 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 Administrative Agent is
advised in writing (the “Advice”),
with
a copy delivered to the 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 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
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
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 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.
14
Section
5. Registration
Expenses.
(a) The
Borrower shall (i) reimburse the Company all costs, fees and expenses solely
incident to the Company’s performance of or compliance with this Agreement and
the Option RRAs (as described in Section 5(c) below) incurred by the Company
prior to January 1, 2009 and (ii) pay all reasonable and documented fees
and
disbursements of one local and special counsel to the Holders incurred prior
to
the initial effectiveness of the Registration Statement, 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 Option RRAs 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 Option RRAs (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.
15
(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 Borrower 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 Option RRA, costs, fees and expenses to
be paid
by the Holders of Registrable Shares and holders of Option Securities will
be
shared pro rata in proportion to the number of Option Securities 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
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
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 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 Administrative Agent shall give the administrative agent
under
the Option RRA 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 holders of Option Securities the option to participate
in
such offering subject to Section (6)(c) below to the extent the administrative
agent under the Option RRA provides a written request to have Option Securities
included in such offering at least five Business Days prior to the commencement
of such offering. The Administrative Agent shall have no obligation to include
such Option Securities in any offering conducted pursuant to this Agreement
unless the sellers of such Option Securities comply with Sections 5(e), 6(b),
6(c), 6(e) and 7(c) of the Option RRA.
(b)
The
Holders of Registrable Shares may participate in any underwritten public
offering directed by the administrative agent under the Option RRA. No Holder
of
Registrable Shares may participate in any underwritten public offering directed
by the administrative agent under the Option RRA 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 administrative agent under the Option RRA 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.
16
(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 holders of the Option Securities 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 holders of the Option Securities to be included
in such offering that the total number of Registrable Shares and, if applicable,
Option Securities 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 Option Securities to be sold), then the amount of Registrable
Shares
and Option Securities to be offered for the account of such Holders or such
holder of Option Securities shall be reduced pro rata on the basis of the
total
number of Registrable Shares and Option Securities to be offered by each
such
Holder and holder of Option Securities; 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 Option Securities to be included in such offering.
(d)
If
the 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 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 administrative agent under the Option RRA delivers to the Company and
the
other holders of Option Securities a Lock-Up Notice and a copy of such notice
is
delivered to the Administrative Agent, upon receipt of a written request
from
the administrative agent under the Option RRA 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 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.
17
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.
18
(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 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 Holders of Registrable Shares pursuant to the Option RRA.
In
connection with any Registration Statement under which a Holder is offering
Registrable Shares pursuant to the Option RRA, 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 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.
19
(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 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.
20
(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 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 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.
21
(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 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 and the Borrower
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 the Loan Facility have been repaid. Notwithstanding any
contrary provision in this Agreement (including the foregoing sentence),
so long
as the Collateral Agent shall hold, control or have a pledge over at least
36,578,090 Restricted ADRs or Loan ADSs (adjusted for any share split or
combination) regardless of whether any Restricted ADRs or Loan ADSs 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 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 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 Restricted ADRs
and/or
Loan ADSs; 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
Restricted ADRs and Loan ADSs 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
Restricted ADRs and Loan ADSs under any U.S. securities laws.
22
(b)
Option
RRA.
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 the Option RRA by no later than March 10, 2008. The Company
and the
Seller further agree not to amend the Option RRA without the previous written
consent of the Administrative Agent, with a copy of such consent delivered
to
the Collateral Agent.
(c)
Notices.
All
notices or communications hereunder shall be in writing (including telecopy
or
similar writing), addressed as follows:
To
the
Company:
|
(i)
|
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
|
23
|
(iii)
|
To
the Borrower:
|
|
Xxxxxxxx
Energía S.A.,
|
|
|
x/x
Xxxxx 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
|
|
|
(iv)
|
To
the Holders:
|
|
Credit
Suisse, London Branch, as Administrative Agent
|
|
|
Xxx
Xxxxx Xxxxxx
|
|
|
Xxxxxx
X00 0XX,
|
|
|
Xxxxxxxxx:
Xxx Xxxxx / Xxxxx Xxx,
|
|
|
Facsimile
Number: x00-00-0000-0000;
|
|
|
With
a copy (which shall not constitute notice) to:
|
|
|
Milbank,
Tweed, Xxxxxx & XxXxxx LLP
|
|
|
0
Xxxxx Xxxxxxxxx Xxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Telecopier:
000-000-0000
|
|
|
Attention:
Xxxxxxx Xxxxxxx
|
|
|
With
a copy (which shall not constitute notice) to the Collateral
Agent.
|
24
|
(v)
|
To
the Collateral Agent:
|
|
HSBC
Bank plc
|
|
|
0
Xxxxxx Xxxxxx
|
|
|
Xxxxxx
|
|
|
X00
0XX
|
|
|
Telecopier:
x00 00 0000 0000
|
|
|
Attention
: CTLA Trustee Administration - Xxxx Danhaive
|
|
|
With
a copy (which shall not constitute notice) to:
|
|
|
Milbank,
Tweed, Xxxxxx & XxXxxx LLP
|
|
|
0
Xxxxx Xxxxxxxxx Xxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Telecopier:
Xxxxxxx Xxxxxxx
|
|
|
Attention:
000-000-0000
|
|
|
With
a copy (which shall not constitute notice) to the Administrative
Agent.
|
|
|
(vi)
|
To
the Administrative Agent:
|
|
Credit
Suisse, London Branch, as Administrative Agent
|
|
|
Xxx
Xxxxx Xxxxxx
|
|
|
Xxxxxx
X00 0XX,
|
|
|
Xxxxxxxxx:
Xxx Xxxxx / Xxxxx Xxx,
|
|
|
Facsimile
Number: x00-00-0000-0000;
|
|
|
With
a copy (which shall not constitute notice) to:
|
|
|
Milbank,
Tweed, Xxxxxx & XxXxxx LLP
|
|
|
0
Xxxxx Xxxxxxxxx Xxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Telecopier:
000-000-0000
|
|
|
Attention:
Xxxxxxx Xxxxxxxx
|
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.
25
(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.
(f)
Additional
Registration Rights.
The
Seller agrees that it will not grant any additional registration rights to
the
Borrower or any Person financing any purchase of YPF ADSs or Class D Shares
by
the Borrower or any of its Affiliates, other than with respect to the Option
Securities, without the prior written consent of the Administrative
Agent.
(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 Collateral Agent, the Administrative Agent and the Holders of
at
least a majority in number of the Registrable Shares then
outstanding.
(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.
26
(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.
(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.
27
(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 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 Collateral Agent.
Notwithstanding any contrary provision in this Agreement, the Collateral
Agent
shall have no obligation to act under this Agreement unless instructed to so act
by the Administrative Agent. Neither the 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 willlful
misconduct.
28
(t)
Responsibilities
of the Administrative Agent.
The
Administrative Agent shall have no obligation to act under this Agreement
on
behalf of any Holder (other than the Collateral Agent) unless such Holders
shall
have provided the Administrative Agent with an indemnity satisfactory to
it and
shall have made arrangements satisfactory to the Administrative Agent to
pay the
Administrative Agent’s costs and expenses. In connection with any unregistered
sale of Restricted ADRs and/or Loan ADSs, the 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 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 willlful misconduct.
29
In
Witness Whereof,
the
parties hereto have executed this Agreement as
of the
date and year first written above.
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Repsol
YPF, S.A.
|
|
|
By:
|
/s/ Mauro Dacomo |
|
Name: Mauro Dacomo
|
|
|
Title:
|
|
|
Xxxxxxxx
Energia, S.A.
|
|
|
By:
|
/s/ Mauro Dacomo |
|
Name: Mauro Dacomo |
|
|
Title: Attorney |
|
|
HSBC
Bank PLC, as Collateral Agent
|
|
|
By:
|
/s/ Xxxx Danhaive |
|
Name: Xxxx Danhaive |
|
|
Title: Authorized Signatory |
|
|
Credit
Suisse, London Branch,
as
Administrative Agent
|
|
|
By:
|
/s/ Xxxxxx Xxxxxxx |
|
Name: Xxxxxx Xxxxxxx |
|
|
Title: Managing Director |
|
|
By: |
/s/ Xxxxx Xxxxxx |
|
Name: Xxxxx Xxxxxx |
|
|
Title: Managing Director |
|
30
Exhibit
A
Plan
of Distribution
The
selling security holders and their successors, which term includes their
transferees, pledgees or donees or their successors may sell the YPF ADSs
directly to purchasers or through underwriters, broker-dealers or agents,
who
may receive compensation in the form of discounts, concessions or commissions
from the selling security holders or the purchasers. These discounts,
concessions or commissions as to any particular underwriter, broker-dealer
or
agent may be in excess of those customary in the types of transactions
involved.
The
YPF
ADSs may be sold in one or more transactions at:
| • |
fixed
prices;
|
| • |
prevailing
market prices at the time of sale;
|
| • |
prices
related to the prevailing market
prices;
|
| • |
varying
prices determined at the time of sale;
or
|
| • |
negotiated
prices.
|
These
sales may be effected in transactions:
|
•
|
on
any national securities exchange or quotation service on which
the YPF
ADSs may be listed or quoted at the time of sale, including the
NYSE;
|
| • |
in
the over-the-counter market;
|
|
•
|
otherwise
than on such exchanges or services or in the over-the-counter
market;
|
|
•
|
through
the writing of options, whether the options are listed on an options
exchange or otherwise;
|
|
•
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
•
|
block
trades in which the broker-dealer will attempt to sell the YPF
ADSs as
agent but may position and resell a portion of the block as principal
to
facilitate the transaction;
|
|
•
|
purchases
by a broker-dealer as principal and resale by the broker-dealer
for its
account;
|
31
|
•
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
|
•
|
privately
negotiated transactions;
|
|
•
|
through
the settlement of short sales;
|
|
•
|
sales
pursuant to Rule 144;
|
|
•
|
a
combination of any such methods of sale;
and
|
|
•
|
any
other method permitted pursuant to applicable
law.
|
As
set
out above, these transactions may include block transactions or crosses.
Crosses
are transactions in which the same broker acts as agent on both sides of
the
trade.
Brokers
or dealers engaged by the selling security holders may arrange for other
broker-dealers to participate in selling ADRs. Broker-dealers may receive
commissions or discounts from the selling security holders (or, if any
broker-dealer acts as agent for the purchases of ADRs, from the purchaser)
in
amounts to be negotiated.
In
connection with the sale of the YPF ADSs or otherwise, the selling security
holders may enter into hedging transactions with broker-dealers or other
financial institutions. These broker-dealers or financial institutions may
in
turn engage in short sales of YPF ADSs in the course of hedging the positions
they assume with selling security holders. The selling security holders may
also
sell the YPF ADSs short and deliver these securities to close out such short
positions, or loan or pledge the YPF ADSs to broker-dealers that in turn
may
sell these securities.
The
aggregate proceeds to the selling security holders from the sale of the YPF
ADSs
offered by them hereby will be the purchase price of the YPF ADSs less discounts
and commissions, if any. Each of the selling security holders reserves the
right
to accept and, together with their agents from time to time, to reject, in
whole
or in part, any proposed purchase of YPF ADSs to be made directly or through
agents. We will not receive any of the proceeds from the sale of the YPF
ADSs.
In
order
to comply with the securities laws of some states, if applicable, the YPF
ADSs
may be sold in these jurisdictions only through registered or licensed brokers
or dealers.
Profits
on the sale of the YPF ADSs by selling security holders and any discounts,
commissions or concessions received by any broker-dealers or agents might
be
deemed to be underwriting discounts and commissions under the Securities
Act.
Selling security holders who are deemed to be “underwriters” within the meaning
of Section 2(11) of the Securities Act will be subject to the prospectus
delivery requirements of the Securities Act. To the extent the selling security
holders may be deemed to be “underwriters,” they may be subject to statutory
liabilities, including, but not limited to, Sections 11, 12 and 17 of the
Securities Act.
32
The
selling security holders and any other person participating in a distribution
will be subject to applicable provisions of the Exchange Act and the rules
and
regulations thereunder. Regulation M of the Exchange Act may limit the timing
of
purchases and sales of any of the securities by the selling security holders
and
any other person. In addition, Regulation M may restrict the ability of any
person engaged in the distribution of the securities to engage in market-making
activities with respect to the particular securities being distributed for
a
period of up to five business days before the distribution. The selling security
holders have acknowledged that they understand their obligations to comply
with
the provisions of the Exchange Act and the rules thereunder relating to stock
manipulation, particularly Regulation M, and have agreed that they will not
engage in any transaction in violation of such provisions.
To
our
knowledge, there are currently no plans, arrangements or understandings between
any selling security holder and any underwriter, broker-dealer or agent
regarding the sale of the YPF ADSs by the selling security holders.
A
selling
security holder may decide not to sell any YPF ADSs described in this
prospectus. Any securities covered by this prospectus which qualify for sale
pursuant to Rule 144 or Rule 144A of the Securities Act may be sold under
Rule
144 or Rule 144A rather than pursuant to this prospectus. In addition, a
selling
security holder may transfer, devise or gift the YPF ADSs by other means
not
described in this prospectus.
With
respect to a particular offering of the YPF ADSs, to the extent required,
an
accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement of which this prospectus is a part
will
be prepared and will set forth the following information:
| • |
the
specific YPF ADSs to be offered and
sold;
|
| • |
the
names of the selling security
holders;
|
|
•
|
the
respective purchase prices and public offering prices and other
material
terms of the offering;
|
| • |
the
names of any participating agents, broker-dealers or underwriters;
and
|
|
•
|
any
applicable commissions, discounts, concessions and other items
constituting, compensation from the selling security
holders.
|
33
We
entered into the registration rights agreement to facilitate the sale by
Repsol
YPF of our securities pursuant to the Xxxxxxxx Transaction and the Option
described under “Selling Shareholders” and for the benefit of the pledgees of
such securities to register such securities under applicable federal laws
under
certain circumstances and at certain times. See “Selling Shareholders”. The
registration rights agreement provides that the selling shareholders and
we will
indemnify each other and our and their respective directors, officers and
controlling persons against specific liabilities in connection with the offer
and sale of the ADSs, including liabilities under the Securities Act, or
will be
entitled to contribution in connection with those liabilities. In addition,
Repsol YPF and Xxxxxxxx Energía PTY Ltd., an affiliate of Xxxxxxxx Energía,
S.A., have agreed to indemnify us against certain specific losses resulting
from
our agreement to indemnify the selling shareholders and their directors,
officers and controlling persons pursuant to the registration rights agreement.
Repsol YPF or Xxxxxxxx Energía S.A. will pay all of our expenses incidental to
the registration, offering and sale of the ADSs to the public, and each selling
shareholder will be responsible for payment of commissions, concessions,
fees
and discounts of underwriters, broker-dealers and agents.
34
Exhibit
B
[FILED
AS EXHIBIT 99.14]
35
