REGISTRATION RIGHTS AGREEMENT
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:
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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.
“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).
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“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.
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“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.
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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 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.
“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 (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”).
(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
7
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:
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(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;
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(b)
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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;
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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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9
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(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;
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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 Loan 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
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10
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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
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;
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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 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
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(k)
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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;
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(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
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12
|
|
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;
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(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
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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
14
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.
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
15
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 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
16
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
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
17
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.
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.
(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,
20
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
21
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 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.
(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
22
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
23
Facsimile
No.: (000) 000-0000
Email:
xxxxxxxx.xxxxxxxx@xxx.xxx
(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.
(v) To
the Collateral Agent:
24
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
26
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.
(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,
27
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
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.
|
YPF
SOCIEDAD ANÓNIMA
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title
|
||||
|
Repsol
YPF, S.A.
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title
|
||||
|
XXXXXXXX
ENERGIA, S.A.
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title
|
||||
|
HSBC
BANK PLC, AS COLLATERAL AGENT
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title
|
||||
|
CREDIT
SUISSE, LONDON BRANCH,
AS
ADMINISTRATIVE AGENT
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title
|
||||
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
32
may
be subject to statutory liabilities,
including, but not limited to, Sections 11, 12 and 17 of the Securities
Act.
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.
|
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
33
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 7.13]
35
