STOCK PURCHASE AND SALE AGREEMENT REPSOL YPF, S.A. REPSOL EXPLORACIÓN, S.A. CAVEANT, S.A. REPSOL YPF CAPITAL S.L. PETERSEN ENERGÍA, S.A. February 21, 2008
Exhibit
7.01
REPSOL
YPF, S.A.
REPSOL
EXPLORACIÓN, S.A.
CAVEANT,
S.A.
REPSOL
YPF CAPITAL ▇.▇.
▇▇▇▇▇▇▇▇
ENERGÍA, S.A.
February
21, 2008
"This
is a
convenience translation into English of a Spanish-language original
document. This translation is without legal effect and, in the event
of any discrepancy with the Spanish-language original document, the
Spanish-language original shall prevail."
1
TABLE
OF CONTENTS
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1.
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DEFINITIONS
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8
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2.
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RULES
OF INTERPRETATION
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8
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3.
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PURCHASE
AND SALE
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9
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3.1
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OBJECTIVE
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9
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3.2
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PURCHASE
AND SALE
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9
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4.
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PRICE
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9
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||
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5.
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CONDITION
SUBSEQUENT
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9
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5.1
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CONDITION
SUBSEQUENT
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9
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5.2
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NOTIFICATION
OF THE PURCHASE AND SALE
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9
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||
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5.3
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TERMINATION
OF THE CONTRACT AND RESOLUTION OF THE PURCHASE AND SALE
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10
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6.
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ACTIONS
SIMULTANEOUS WITH THE PURCHASE AND SALE
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11
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6.1
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PAYMENT
OF THE PRICE
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11
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6.2
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DELIVERY
AND RECORDATION OF THE SHARES IN THE NAME OF THE PURCHASER AND
NOTIFICATION TO THE COMPANY
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12
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6.3
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SIGNING
OF THE VENDOR’S LOAN
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12
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6.4
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SIGNING AND NOTIFICATION OF THE SHAREHOLDERS' AGREEMENT | |||
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6.5
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WAIVER.
DELIVERY OF CERTIFICATES
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12
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||
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7.
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COMMITMENTS
OF THE PARTIES AFTER THE DATE OF THIS AGREEMENT
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12
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7.1
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REGISTRATION WITH
THE SEC
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12
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7.2
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DISTRIBUTION
OF 2006 DIVIDEND BY THE COMPANY
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12
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7.3
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MEETING
OF THE BOARD OF DIRECTORS OF FEBRUARY 6, 2008. HOLDING OF THE
MEETING
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13
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7.4
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PERFORMANCE
OF THE BOARD OF DIRECTORS UP TO THE INCORPORATION OF THE DIRECTORS
DESIGNATED AT THE PROPOSAL OF PESA
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13
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||
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8.
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REPRESENTATIONS
AND COMMITMENTS OF THE PARTIES
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13
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8.1
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REPRESENTATIONS
AND COMMITMENTS OF THE VENDOR
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13
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||
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8.1.1.
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Capacity
of the Vendor to Enter Into this Agreement
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13
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8.1.2.
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Ownership
of the Stock
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13
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8.1.3.
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Corporate
Status of the Company
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14
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8.1.4.
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Nonexistence
of Conflict
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14
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8.1.5.
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Form
20-F
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14
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||
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8.1.6.
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Private
Placement
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15
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8.1.7.
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Prohibition
Against Attempts at Directed Sales or Obtaining
Purchasers
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15
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8.1.8.
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Prohibition
Against Integration of the Offer
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15
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8.2
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REPRESENTATIONS
AND COMMITMENTS OF THE PURCHASER
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15
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8.2.1.
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Capacity
to Enter Into this Agreement
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16
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8.2.2.
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Independence
of the Purchaser
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16
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8.2.3.
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Nonexistence
of Conflict
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16
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8.2.4.
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Intent
to Invest
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16
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8.3
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INDEMNIFICATION
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17
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8.3.1.
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General
rule except in the case of Clause 8.1.5 (20-F)
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17
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8.3.2.
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In
the case of Clause 8.1.5 (20-F)
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17
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8.3.3.
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Rules
common to the preceding sections
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18
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||
2
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9.
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TRANSFER
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19
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10.
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EXPENSES
AND TAXES
|
19
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||
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11.
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NOTIFICATIONS
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19
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||
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12.
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MISCELLANEOUS
|
20
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||
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12.1
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CONFIDENTIALITY
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20
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||
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12.2
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ANNOUNCEMENTS
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21
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12.3
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INTERMEDIATION
EXPENSES OR FEES
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21
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12.4
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TITLES,
HEADINGS, AND APPENDICES
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21
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12.5
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SCOPE
OF THE AGREEMENT AND PARTIAL NULLITY
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21
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12.6
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MODIFICATION
AND FORBEARANCE
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21
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13.
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APPLICABLE
LAW AND JURISDICTION
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22
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13.1
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APPLICABLE
LAW
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22
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13.2
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JURISDICTION
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22
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LIST
OF APPENDICES
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1
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3
In
Madrid,
on February 21, 2008.
PARTIES:
|
(1)
|
Of
the first part Repsol YPF, S.A., the parent company of Grupo Repsol
YPF
(hereinafter, “Repsol YPF”), established pursuant to
Spanish law on November 12, 1986 in virtue of public articles of
incorporation granted before the notary public of Madrid, ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Fraguero on the same date under number 4,293 of those of
his /
her Protocol, a company duly recorded in the Commercial Registry
of Madrid
at Volume 7063, 6058 of Section 3rd
of the
Companies Book, Sheet 119, Page M-72.059-1. Repsol YPF has its
principal executive offices at ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇
and its tax identification code (CIF), ▇-▇▇▇▇▇▇▇▇, is
current.
|
|
Herein
represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Niubó, of age of majority, married, a
Spanish national, with professional domicile at Madrid, ▇▇▇▇▇ ▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇,, and holder of Spanish National Identification Document
number 40.824.513-L, current, in virtue of a power of attorney granted
on
October 29, 2004, before the Notary of Madrid ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
under
number 2,889 of his protocol.
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|
Hereinafter
Repsol YPF shall be referred to as the
“Vendor.”
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(2)
|
Repsol
Exploración, S.A., (hereinafter, “Repsol Exploración”)
established pursuant to Spanish law on May 5, 1965 in virtue of public
articles of incorporation granted before the notary public of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Real on the same date under number 2,098 of those of
his / her Protocol, a company duly recorded in the Commercial Registry
of
Madrid at Volume 3146, Sheet 1, Page M-53739. Repsol
Exploración has its principal executive offices at ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and its tax identification code (CIF), ▇-▇▇▇▇▇▇▇▇,
is
current.
|
|
Herein
represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇, of age of
majority, married, a Spanish national, with professional domicile
at
Madrid, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, and holder of Spanish National
Identification Document number 786.139-E, current, in virtue of a
power of
attorney granted on January 26, 2005, before the Notary of Madrid
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, under number 150 of his protocol.
|
|
|
(3)
|
Caveant,
S.A., (hereinafter “Caveant”) established pursuant to A
law, with Bylaws recorded with the Inspectorate General of Justice
on July
2, 1980 under number 2,415 of Book 95, Volume A of Business
Companies. Caveant has its principal executive offices at
Buenos Aires, Avda. Presidente ▇▇▇▇▇ ▇. ▇▇▇▇ 777, and its tax
identification code (CIF), 30-62881362-7, is current.
|
|
Herein
represented by ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mazarredo, of age of majority,
married, a Spanish national, with professional domicile at Madrid,
▇▇▇▇▇
▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, and holder of Spanish National Identification
Document number 485.502-R, current, in virtue of a power of attorney
granted on February 14, 2008, before the Notary of Buenos Aires ▇▇▇▇▇▇
▇▇▇▇▇▇ del Río, under folio 110 of his
protocol.
|
4
|
(4)
|
Repsol
YPF Capital, S.L., a company wholly owned by grupo Repsol (hereinafter,
“Repsol YPF Capital”) Spanish on December 20, 2002 in
virtue of public articles of incorporation granted before the notary
public of Madrid ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ on the same date under number
4,166
of those of his / her Protocol, a company duly recorded in the Commercial
Registry of Madrid at Volume 18308, Sheet 171, Page
M-317473. Repsol YPF Capital has its principal executive
offices at ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and its tax
identification code (CIF), ▇-▇▇▇▇▇▇▇▇, is current.
|
|
Herein
represented by ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mazarredo, of age of majority,
married, a Spanish national, with professional domicile at Madrid,
▇▇▇▇▇
▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, and holder of Spanish National Identification
Document number 485,502-R, current, in virtue of a power of attorney
granted on February 19, 2008, before the Notary of Madrid ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, under number 590 of his protocol.
|
|
|
(5)
|
Of
the second part, ▇▇▇▇▇▇▇▇ Energía, S.A. (hereinafter,
“PESA”), a company established pursuant to Spanish law,
for the purposes of this transaction, on July 23, 2007 in virtue
of public
articles of incorporation granted before the notary public of Madrid,
Mr.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇ ▇▇▇▇ on the same date under number
2918 of those of his / her Protocol, a company duly recorded in
the Commercial Registry of Madrid at Volume 24588, Sheet 88, Page
M-442504. ▇▇▇▇▇▇▇▇ Energía, S.A. has its principal executive
offices at Plaza ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇ and its tax identification code (CIF), ▇-▇▇▇▇▇▇▇▇, is
current.
|
|
Herein
represented by ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Storey, of age of majority, married, an
Argentine national, with domicile at ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, and holder of Alien National Identification Document
number no. X-9298890-J, current, in virtue of a designation as Managing
Director pursuant to certified document no. 16 of the protocol of
▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇-Valdecasas dated January 9,
2008.
|
|
|
Hereinafter
PESA. shall be referred to as the
“Purchaser.”
|
Repsol
Exploración, Caveant, and Repsol YPF Capital appear in this agreement for the
mere effects of Clause 6.4, Clause 6.5.1 and Clause 7,
being also applicable what is foreseen in Clause 11, Clause 12 and
Clause 13.
Hereinafter,
the Vendor, Repsol Exploración, Caveant, and Repsol YPF Capital shall jointly be
called “Grupo Repsol YPF.”
Hereinafter
the Vendor and Purchaser shall jointly be called the “Parties,”
and any of them individually as a “Party.”
5
PREAMBLE:
|
I.
|
The
Vendor performs its main activity in the hydrocarbons sector and,
specifically, in the activities of exploration, exploitation, and
production of crude and natural gas, the transportation of petroleum
products, liquid petroleum gases (LPG’s), and natural gas, refining,
production of a broad range of petroleum products and the sale of
petroleum products, derived from petroleum, petrochemical products,
LPG
and natural gas.
|
|
Repsol
Exploración, Caveant, and Repsol YPF Capital are companies in which Repsol
YPF has an interest, whose principal activity focuses on the hydrocarbons
sector and, specifically, in the case of Repsol Exploración, on the
activities of exploration, exploitation, and production of crude
and
natural gas, the transportation of petroleum products, liquid petroleum
gases (LPG’s) and natural gas, refining, production of a broad range of
petroleum products and the sale of petroleum products, derived from
petroleum, petrochemical products, LPG and natural gas. In the
case of Caveant and Repsol YPF Capital, their principal activities
are
focused on holding shares of and interests in other
companies.
|
|
|
II.
|
The
Purchaser is a Spanish company whose principal activity is the investment,
management, and administration of securities, bonds and/or
stock. The Purchaser is wholly owned by ▇▇▇▇▇▇▇▇ Energía PTY
Ltd., a company established pursuant to the laws of Australia, duly
registered in the Securities and Investments Commission (Comisión
de Valores e
Inversiones) under company number 128.147.419 and with tax
identification number N-8001058 J, which, in turn, is wholly owned
by ▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ y ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
|
|
III.
|
YPF
S.A. is a corporation established by Decree No. 2778 dated December
31,
1990, its corporate bylaws were publicly registered before the appointed
notary of the National Notary Registry on January 18, 1991 under
No.
12.
|
|
Registered
at the Superintendency of Corporations on February 5, 1991 under
Corporations Book 108, Number 404, Volume A. Tax identification code
(CUIT), 30-54668997-9 (hereinafter, the
“Company”).
|
|
|
IV.
|
The
Company is a leading international company in the hydrocarbons sector
in
Argentina and it forms part of Grupo Repsol YPF.
|
|
V.
|
The
capital stock of the Company is fully subscribed to and paid in,
divided
into 393,312,793 uncertificated shares with a par value of $ 10
each. The capital stock is divided into four classes of
shares.
|
|
VI.
|
Class
D shares, representing 99.62% of the capital stock of the Company,
are
listed on the Buenos Aires Stock Exchange (BCBA) and the New York
Stock
Exchange (NYSE) as American Depositary Shares (ADS’s”)
representing on Class D share each and represented by American Depositary
Receipts (“ADR’s”) issued by The Bank of New York (hereinafter, the
“Depositary”) pursuant to the terms of the Deposit Agreement by and
between the Depository and the Company dated July 1, 1993 (the “Deposit
Agreement”).
|
6
|
VII.
|
Grupo
Repsol YPF is the owner of 389,536,990 Class D
shares representing [99.04]% of the capital stock of the Company,
identified in Appendix E-VII.
|
|
VIII.
|
The
Parties signed a confidentiality agreement on February 19, 2007,
supplemented on June 26, 2007 through an addendum (hereinafter, the
“Confidentiality Agreement”).
|
|
IX.
|
Vendor
has supplied PESA with information on the Company, through reports
and
presentations made by Vendor’s staff and outside advisors thereof, for
PESA and its team of advisors (under confidentiality commitments)
to
undertake limited due diligence on the Company in which the advisors
of
the Administrative Agent (as designated in the Term
Loan) participated, from whose limited information no facts or
circumstances whatsoever arose that contradicted the contents of
the
Company’s 20-F, the Parties likewise agreeing that such limited due
diligence in no way modifies the representations and commitments
of the
Vendor and other responsibilities assumed by the Vendor in this
Agreement.
|
|
X.
|
Given
the nature and limitations on the information that Vendor agreed
to
provide and the fact that the indirect access to it by the Purchaser
did
not allow Purchaser or its advisors to confirm the correctness thereof
against original documentation, the Parties trust to enter the next
operation in the correctness of the representations and commitments
made
by the Vendor in this Agreement.
|
|
XI.
|
Grupo
Repsol YPF and the Purchaser enter into this Agreement under the
scope of
an exception to the obligation to register the Shares (as defined
below)
stipulated in Regulation S under the United States Securities Act
of 1933
(hereinafter, the “1933 Act”).
|
|
XII.
|
Prior
to signing this Agreement, the Purchaser signed a finance agreement
(hereinafter, the “Term Loan”) with certain credit
institutions (hereinafter, the “Credit Institutions”), a
copy of which is attached as Appendix E-IX.
|
|
XIII.
|
Simultaneously
with the signing of this Agreement, Grupo Repsol YPF and the Purchaser
sign a finance agreement (hereinafter, the “Vendor’s
Loan”), a copy of which is attached as Appendix
E-X.
|
|
XIV.
|
Simultaneously
with the signing of this Agreement, Grupo Repsol YPF and the Purchaser
sign a shareholders’ agreement (hereinafter, the “Shareholders’
Agreement”), a copy of which is attached as Appendix
E-XI.
|
|
XV.
|
Now,
therefore, the Vendor states its intention to sell to the Purchaser,
and
the Puchaser states its intention to purchase from the Vendor, 58,603,606
Class D shares of the Company, as ADS’s whose circulation has been limited
with the agreement of the Depository with the inclusion of the legend
that
is specified in Appendix 6.2 to that end, represented by ADR’s and
representing 14.90% of the capital stock of the Company (hereinafter,
the
“Shares”), to which end the Parties agree to enter into
this purchase and sale agreement (hereinafter the
“Agreement”), which shall be governed by the
following
|
7
STIPULATIONS:
1. DEFINITIONS
For
the
effect of this Agreement, the terms that appear in Appendix 1, shall be
construed pursuant to their correlative definitions.
2. RULES
OF INTERPRETATION
This
Agreement shall be interpreted pursuant to the special precepts established
below and the general rules of contract interpretation pursuant to the
Applicable Law.
|
(i)
|
All
the appendices form an integral part of the Agreement, and they have
the
same validity and effectiveness as if they were incorporated into
its main
body.
|
|
|
(ii)
|
References
made to clauses are deemed made to clauses of this
Agreement.
|
|
|
(iii)
|
The
terms “including,” “included,” “inclusive,” and other similar acceptations
should be interpreted as if they were followed by the phrase, “without
limitation and merely by way of example.”
|
|
|
(iv)
|
The
terms of “to the best of [our / its / his / her / their] knowledge” or “to
the best of [our / its / his / her / their] knowledge and belief” mean
with respect to the Vendor the specific degree of knowledge and/or
the
degree of knowledge legally required of a member of the board of
directors, an officer or direct of the Company designated by or at
the
request of Grupo Repsol YPF.
|
|
|
(v)
|
Provisions
introduced with the phrase “for greater clarity” have in and of themselves
full normative and binding effects, and they constitute clarifications
or
[particularities] that do not prejudice the generality of the preceding
precepts with respect to such as are indicated.
|
|
|
(vi)
|
Definitions
used in singular shall be construed “mutatis mutandis” when used
in the plural.
|
|
|
(vii)
|
Except
if otherwise indicated, any reference to “days” shall be construed as
“calendar days” or “consecutive days.” When the phrase
“business days” appears it shall be construed as referring to the days
that are also working days, from Monday to Friday, in the cities
of Buenos
Aires (Argentina) and Madrid (Spain) and New York (United
States).
|
|
|
(viii)
|
Any
reference in this Agreement to shares or participations in a specific
legal person shall include both the shares, the parts of interest,
and any
other form of participation in the capital of such legal person,
as well
as any certifies issued by such legal person or any third party
representing shares, parts of interest or participation in such legal
person, including without implying limitation, “ADS’s,” “ADR’s” and any
other certificate of deposit or custody of shares, parts of interest
or
participation in such legal person.
|
8
|
3.
|
PURCHASE
AND SALE
|
|
3.1
|
Objective
|
|
The
objective of this Agreement is the purchase and sale by the Vendor
from
the Purchaser of the Shares, with all their inherent rights and
obligations. The Shares are sold to the Purchaser forming a
single and indivisible whole given that the purchase and sale are
agreed
as a joint sale.
|
|
|
3.2
|
Purchase
and Sale
|
|
The
Vendor sells, cedes, and transfers the Shares, free of charges
or Liens of
any nature, to the Purchaser, who acquires them under those conditions,
all pursuant to the terms and conditions of this Agreement (hereinafter,
the “Purchase and Sale”).
|
|
|
4.
|
PRICE
|
|
The
Price agreed by the Parties is US$ 38.13758 per Share; that is
US$
2,235,000,000 in total for all of the Shares (hereinafter, the
“Price”).
|
|
|
5.
|
CONDITION
SUBSEQUENT
|
|
5.1
|
Condition
Subsequent
|
The
Purchase and Sale is subject to the following Condition Subsequent: (i) failure
to obtain within a period of 12 months from the date of this Agreement, the
authorization for the purchase and sale from CNDC (either expressly or in the
form of a written recognition, issued by the Department of Foreign Trade of
Argentina or the entity that replaces it in the future as the supreme Argentine
antitrust
authority,
stating that tacit authorization has been given); or (ii) the denial of such
authorization; or (iii) the imposition by the CNDC of conditions or obligations
that could have a material adverse impact on any of the Parties or on the
Company (hereinafter, the “Condition Subsequent”).
5.2 Notification
of the Purchase and Sale
As
soon as
possible, and in any case within a period of seven (7) calendar days from the
date of this Agreement, the Parties shall notify the CNDC of the Purchase and
Sale in order to obtain the express or implied authorization or authorizations
for the Purchase and Sale or the non-opposition to the transaction on the part
of the antitrust authorities.
The
Parties shall agree on any type of communication that must be made to the
CNDC.
The
Parties undertake to do whatever is within their reach to execute the Necessary
Acts and to put in order all documents that are necessary to obtain the
authorization or authorizations or the non-opposition to the Purchase and Sale
on the part of the CNDC within the period of 12 months from the date of this
Agreement.
9
The
Parties shall keep each other informed of the administrative procedure
instituted pursuant to Clause 5.1.
The
Parties shall agree on any information or data that must be provided to the
pertinent antimonopoly authorities in relation to this purchase and sale and,
in
particular, the application documents. Likewise, the Parties
undertake to notify the other Party promptly of any verbal or written
communication they receive in relation to the administrative procedure in
question, as well as to deliver a copy of the final decision.
5.3 Termination
of the Contract And Resolution of the Purchase and
Sale
If
the
Condition Subsequent foreseen in Clause 5.1 (i) or Clause 5.1 (ii)
occurs, this Agreement shall be terminated automatically, and
the Parties
shall return in full the consideration received. To that end, at up
certifiable request of any of the Parties which establishes and proves that
the
cause for contractual dissolution has occurred, the Parties shall appear within
a period of ten (10) days from receipt of this notification (hereinafter, the
“Date of Notification”) before the Notary of Madrid, ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, to formalize a statement and Contract dissolution
document, in which simultaneously:
(i)
the
Purchaser will return the Shares to the Vendor, free of charges and liens;
and
(ii)
the
Vendor will satisfy the Purchaser in accordance with the following irrevocable
payment conditions in an amount equal to: (a) the amounts owed by the Purchaser
under the Term Loan in accordance with the established in Clause
2.04(b)(v) of Term Loan, plus (b) the amounts that the Adjusted Cash Price
exceeds the amount foreseen in letter (a) of this paragraph, minus (c) any
Cash
Dividend, provided that if the quantity foreseen in letter (a) of this paragraph
exceeds that resulting from subtracting the Cash Dividends from the Adjusted
Cash Price, the Purchaser shall simultaneously refund to the Vendor such
difference in cash or through the total or partial assignment of its rights
under the Interest Cap Rate.
The
Vendor
will refund such amount as follows: (a) the necessary amount to cancel the
outstanding balance on the Term Loan transferring the same to the account held
by the Global Coordinator under the Term Loan, and (b) the remainder, if any,
to
be transferred to the account at Credit Suisse Nº
1460-0001-15000036561.
For
the
purpose of the foreseen in this Clause 5.3:
“Adjusted
Cash Price” means US$ 1.018.850.000,00 plus an amount representing
interest owed at a 5% annual rate based on a 365-day year calculated by the
number of days elapsed from the date this Agreement is signed up to the Date
of
Notification.
“Cash
Dividends” means any dividends paid in cash by the Company on the
Shares from the signing of this Agreement to the Date of Notification, excluding
the 2006 Dividend.
“Interest
Cap Rate” means the interest rate limit agreement or agreements that
PESA signs in virtue of Article 5.09 of the Term Loan and the interest rate
limit agreement or agreements that PESA signs to reach 100% of the interest
payment obligations under such Term Loan.
10
Insofar
as
the expenses inherent to the dissolution of the Purchase and Sale, each Party
shall assume its own at its expense and the common ones shall be borne in
halves.
The
Parties acknowledge and accept that the occurrence of the Condition Subsequent
shall not give rise to a claim by any of the Parties against the other Party
for
any damages or injuries, except if the breach or occurrence of the Condition
Subsequent is attributable to a breach by any of the Parties of a specific
obligation to do or not to do in Clause 5.2.
In
no case
shall the Parties be obligated, in order to obtain the authorizations (and/or
comply with them), to perform (or assume obligations not to do) or to comply
with any conditions imposed by the antitrust authorities, except those
obligations that cannot have a material adverse effect on the financial position
of the party affected by such obligation.
If
the
Condition Subsequent stipulated in Clause 5.1 (iii) occurs, the affected Party,
or any of the Parties (in the case of conditions or obligations that affect
the
condition of the Company), may terminate this Agreement automatically, and
the
Parties shall proceed pursuant to the provisions for the case of termination
by
express or implied denial of the authorization in sections 5.3. (i) and
(ii). To that end, upon certifiable request by a Party which
establishes and proves that the cause of contractual termination has occurred,
the Parties shall appear within a period of ten (10) days from receipt of this
notification to the aforementioned Notary of Madrid for the aforementioned
effects.
6. ACTIONS
SIMULTANEOUS WITH THE PURCHASE AND SALE
The
Parties agree that each and every one of the actions stipulated in this
Clause 6 shall occur simultaneously and in a single act upon the signing
this Agreement. The Purchase and Sale shall not be completed until
each and every one of the actions stipulated in this Clause 6
occurs.
|
6.1
|
Payment
of the Price
|
|
The
Purchaser shall pay the Vendor the Price as follows: (i) US$
1,018,850,000 through a funds transfer to bank account [•] with the bank
voucher that proves the deposit of funds in the Vendor’s account owned by
Vendor Swift Code [redacted] number [redacted] as serving as
sufficient receipt ; (ii) US$ 201,150,000 through a certifiable and
irrevocable assignment in payment to the Vendor by PESA of its right
to
collect the dividends for fiscal year 2006 in an amount up to which
belong
to it as a shareholder in the Company on the Shares, to be made through
the grant of the assignment included in this Agreement as Appendix
6.1,
with such serving as sufficient receipt and payment letter for such
amount, and (iii) US$ 1,015,000,000 corresponding to the amount financed
through the Vendor’s Loan signed by the Parties in this document, with
such serving as sufficient receipt and payment letter for such
amount.
|
11
|
6.2
|
Delivery
and Recordation of the Shares in the Name of the Purchaser and
Notification to the Company
|
|
|
The
Vendor shall deliver to the Purchaser “ADR” certificates representing the
Shares, which shall bear a legend in the English language indicating
that
their circulation has been limited pursuant to the Depository
agreement as
per the Spanish text that is detailed in Appendix 6.2,
|
||
|
and
it shall undertake all other acts that are necessary to perfect
the
registration of the Shares in the name of the Purchaser at the
time this
Agreement is signed.
|
||
|
6.3
|
Signing
of the Vendor’s Loan
|
|
|
The
Parties shall sign the Vendor’s Loan which is attached as Appendix
E-X.
|
||
|
6.4
|
Signing
and Notification of the Shareholders’
Agreement
|
|
|
The
Parties shall sign the Shareholders’ Agreement which is attached as
Appendix E-XI.
|
||
|
6.5
|
Waiver.
Delivery of Certificates
|
|
|
6.5.1
|
Grupo
Repsol YPF hereby irrevocably waives making any claim, directly
or
indirectly, against the Company for any act, event, or omission
caused or
occurring prior to the signing hereof. Consequently, Repsol YPF,
undertakes to perform the Necessary Acts so its subsidiary companies
do
not make any claim against the Company for any act, event, or
omission
caused or occurring prior to the signing hereof. Nevertheless
the waiver
hereby made by Grupo Repsol YPF will not in any case include
any financial
claims, commercial claims or claims from services derived from
the
activities or business performed by any of the companies of the
Repsol YPF
group to the Company and its subsidiaries during the ordinary
course of
business.
|
|
|
6.5.2
|
The
Purchaser hereby irrevocably waives making any claim against
the Company
for any act, event, or omission caused or occurring prior to
the signing
hereof.
|
|
|
7.
|
Commitments
of the Parties after The Date of this
Agreement
|
|
|
7.1
|
Registration
with the SEC
|
|
|
Repsol
YPF Group undertakes to comply with and cause the Company to
timely comply
with the terms of the Registration Rights
Agreement. The Parties undertake to perform the Necessary
Acts to that end.
|
||
|
7.2
|
Distribution
of 2006 Dividend by the Company
|
|
|
The
Parties undertake to perform the Necessary Acts for the Company
to
distribute the 2006 Dividend in cash, before May 15,
2008.
|
||
|
The
Vendor undertakes to, immediately after the payment in cash of
the
dividend mentioned in the previous paragraph is made, transfer
to the
Company’s account the amount necessary to cancel the total principal
plus
interest, earned and unpaid up to the date of that cancellation
of the
debt it has contracted with Company (hereinafter, the “Intercompany
Note”).
|
||
12
|
7.3
|
Meeting
of the Board of Directors of February 6, 2008. Holding of the
meeting
|
|
|
At
the meeting of the Board of Directors held on February 6, 2008, the
Board
of Directors of the Company resolved to call for the Ordinary and
Extraordinary Shareholders’ Meeting of the Company to be held on March 8,
2008 with the agenda indicated in Appendix 7.3 of this
Agreement.
|
||
|
The
Parties undertake to perform the Necessary Acts so that on such date
(i)
the persons proposed by each Party be designated as full Directors,
alternate Directors, full Trustees and alternate Trustees, respectively,
of the Company, and (ii) the Company’s Shareholders’ Meeting approve the
amendment of the Company’s Corporate Bylaws so that the Clauses detailed
in Appendix 7.3-2nd
remain
written according to the text indicated in such Annex.
|
||
|
7.4
|
Performance
of the Board of Directors up to the incorporation of the Directors
designated at the proposal of PESA
|
|
|
Unless
by joint agreement to the contrary by both Parties, Group Repsol
YPF
undertakes to perform the Necessary Acts so that the Company’s Board of
Directors does not adopt any decision with regard to any Special
Matters
(as these are defined in the Shareholders’ Agreement), nor any of such
Special Matters in the Directory are considered, approved or resolved
by
the Board of Directors of the Company or any body of the Company,
up until
the Board of Directors of the Company is made up of the Directors
proposed
by each Party pursuant to their rights under the Shareholders’
Agreement.
|
||
|
8.
|
REPRESENTATIONS
AND COMMITMENTS OF THE PARTIES
|
|
|
8.1
|
Representations
and Commitments of the Vendor
|
|
|
The
Vendor represents to the Purchaser that the representations and
commitments stated in this Clause 8.1 are true and exact on the
date of this Agreement.
|
||
|
The
Vendor shall not be liable in any manner whatsoever, express or implied,
for any matter related to the Company or the Shares that is not expressly
and directly included in the representations and commitments included
in
this Clause 8.1.
|
||
|
8.1.1.
|
Capacity
of the Vendor to Enter Into this Agreement
|
|
|
Grupo
Repsol YPF has the capacity necessary to enter into this Agreement
and to
perform each one of the obligations that it assumes in virtue hereof,
such
that the obligations derived from this Agreement constitute valid
and
binding obligations for Grupo Repsol YPF, enforceable under their
terms.
|
||
|
8.1.2.
|
Ownership
of the Stock
|
|
|
The
Vendor is owner of the Shares, with all the rights that are inherent
thereto as Class D shares of the Company. The Shares represent fourteen
point ninety percent (14.90%) of the capital stock of the Company
(counting any option, uncapitalized contribution, right to receive
shares
in the Company or any security or debt convertible into shares as
if that
right or conversion had materialized), are duly issued, fully paid
in and
are sold and transferred, free of charges and Liens or any other
right-party rights, except for the restrictions established in Article
7
of the Corporate Bylaws and pursuant to the ▇▇▇▇ ▇▇▇.
|
||
|
The
Company has not issued or granted options, securities of any nature
convertible into shares, rights to receive or subscribe to shares,
nor are
there uncapitalized contributions of any
nature.
|
||
13
|
8.1.3.
|
Corporate
Status of the Company
|
||
|
The
Company was duly established, it exists validly and has full legal
capacity pursuant to its Corporate Bylaws and the legislation that
is
applicable to it to perform the activities inherent to its
objective.
|
|||
|
8.1.4.
|
Nonexistence
of Conflict
|
||
|
The
entering into and execution of this Agreement and such other documents
as
must be granted or executed by Grupo Repsol YPF pursuant to that
herein
stipulated:
|
|||
|
(a)
|
do
not constitute a breach of Regulations, laws, regulations, legal
provisions or court orders applicable to Grupo Repsol YPF or the
Company;
|
||
|
(b)
|
do
not require the consent, approval, or authorization of any public
authority, except such as may be necessary pursuant to the provisions
of
Clause 5.1;
|
||
|
(c)
|
do
not breach any article of the bylaws or the articles of incorporation
of
Grupo Repsol YPF or the Corporate Bylaws of the Company;
and
|
||
|
(d)
|
do
not contravene any contract, agreement, or material instrument
to which
Grupo Repsol YPF or the Company are parties.
|
||
|
8.1.5.
|
Form
20-F
|
||
|
The
Vendor represents that the Company’s Form 20-F corresponding to the fiscal
year ended December 31, 2006 (hereinafter, the “20-F”)
has been submitted to the SEC by the deadline and pursuant to all
the
formalities required by the applicable law.
|
|||
|
To
the best of the Vendor’s knowledge and belief, the information contained
in the 20F is correct and the Company has included in the 20-F
all the
information and it has reflected all the material events which,
pursuant
to the regulatory precepts thereof, must be reflected in the 20-F,
and it
has done so completely and without omitting information with respect
to
those events which pursuant to those precepts should have been
included
therein, at the date it was submitted to the SEC.
|
|||
|
The
Vendor is not aware of any information which should have been included
in
the 20-F but was not included in the 20-F or was included
incompletely. Likewise, it is not aware of (i) information
which, subsequent to the submission of the 20-F, should have been
reported
to the SEC and was not reported or was incompletely or incorrectly
included; or (ii) materially relevant information which, subsequent
to the
submission of the 20-F, should have been reported to the regulatory
authorities of the stock exchanges on which the Company is listed
that was
not reported or that was reported incompletely or
incorrectly.
|
|||
14
|
8.1.6.
|
Private
Placement
|
||
|
Assuming
the truth of the representations and commitments of the Purchaser
established in Clause 8.2, registration is not required in virtue
of the
1933 Act for the offering and sale of the Shares by the Vendor
to the
Purchaser pursuant to the terms of this Agreement. Except in
virtue of the two Registration Rights Agreements signed today
(Registration Rights Agreements), neither the Vendor nor the
Company have granted or entered into any agreement to grant any
right to
any person (including the piggyback share registration rights of
an offer
(“piggyback” registration rights)) in order to obtain
registration of any security of the Company with the Securities
and
Exchange Commission of the United States (U.S. Securities and Exchange
Commission) (“SEC”) or any other governmental authority which was not
performed or waived.
|
|||
|
8.1.7.
|
Prohibition
Against Attempts at Directed Sales or Obtaining
Purchasers.
|
||
|
Neither
the Vendor nor the Company nor any of their respective affiliates,
nor any
person acting in their behalf have engaged in any “general attempt to
obtain purchasers” (general solicitation) or “general
advertising” (general advertising) (as such terms are used in
Regulation D under the ▇▇▇▇ ▇▇▇) or any “directed sales attempt”)
(directed selling efforts) (as such term is used in Rule 902(c)
of Regulation S under the ▇▇▇▇ ▇▇▇) in relation to the offering
or sale of
any of the Shares. The Vendor, the Company, and their
respective Affiliates and any person acting in their behalf have
complied
with and shall comply with all the requirements related to offering
restrictions established in Regulation S under the 1933
Act.
|
|||
|
8.1.8.
|
Prohibition
Against Integration of the Offer.
|
||
|
Neither
the Vendor, the Company, their subsidiaries or any of their respective
Affiliates, nor any other person acting in their behalf, have engaged,
directly or indirectly, at any time during the past six months,
in any
offering or sale of any of the Company’s securities nor has it [sic] tried
to obtain any offer to purchase any security under circumstances
which (i)
would eliminate the availability of the exemption from registration
in
virtue of Regulation S under the 1933 Act in relation to the offer
and
sale by the Vendor of the Shares as contemplated in this Agreement
or (ii)
would cause the integration of the offer of Shares in virtue of
this
Agreement with prior offers by the Vendor or the Company for the
effects
of any applicable law, regulation, or shareholder approval provisions,
including, without restriction, in virtue of the rules and regulations
of
any Securities Exchange.
|
|||
|
8.2
|
REPRESENTATIONS
AND COMMITMENTS OF THE PURCHASER
|
||
|
The
Purchaser states to the Vendor that the representations and commitments
expressed in this Clause 8.2 are true and correct at the date of
this Agreement.
|
|||
15
|
8.2.1.
|
Capacity
to Enter Into this Agreement
|
||
|
The
Purchaser has the capacity necessary to enter into this Agreement
and to
perform each one of the obligations that it assumes in virtue hereof,
such
that the obligations derived from this Agreement constitute valid
and
binding obligations for the Purchaser, enforceable under their
terms.
|
|||
|
8.2.2.
|
Independence
of the Purchaser
|
||
|
The
Purchaser represents that it acts in its own behalf and for its
sole
benefit and interest.
|
|||
|
8.2.3.
|
Nonexistence
of Conflict
|
||
|
The
entering into and execution of this Agreement and such other documents
as
must be granted or executed by the Purchaser pursuant to that herein
stipulated:
|
|||
|
(a)
|
do
not constitute a breach of Regulations, laws, regulations, legal
provisions or court orders applicable to the Purchaser;
|
||
|
(b)
|
do
not require the consent, approval, or authorization of any public
authority, except those established in this Agreement, if
applicable;
|
||
|
(c)
|
do
not breach any article of the bylaws or the articles of incorporation
of
the Purchaser or the Corporate Bylaws of the Company;
and
|
||
|
(d)
|
do
not contravene any contract, agreement, or material instrument
to which
the Purchaser are parties.
|
||
|
8.2.4.
|
Intent
to Invest
|
||
|
Purchaser
understands that the Shares (as ADR’s) are “restricted securities”
(restricted securities) and have not been registered pursuant to
the 1933
Act or any securities law of any state of the United States and
it
acquires the Shares in its own behalf and without a view toward
their
public sale or distribution, or resale in relation to such public
sale or
distribution, without prejudice to the right of the Purchaser,
subject to
the provisions of this Agreement and the Shareholders’ Agreement, to sell
or otherwise dispose of, at any time, all or part of such Shares,
as the
case may be, pursuant to a valid registration statement in virtue
of the
1933 Act or in virtue to an exemption to such registration and
pursuant to
current federal and state securities laws in the United
States. The Purchaser does not currently have any contract,
plan, or agreement, directly or indirectly, with any person for
the
distribution of any of the Shares to any person or entity nor through
any
person or entity; it being established, however, that through the
statements made herein, the Purchaser does not agreed to keep any
of the
Shares for a minimum period of time.
|
|||
16
|
8.3
|
Indemnification
|
||
|
8.3.1.
|
General
rule except in the case of Clause 8.1.5
(20-F)
|
||
|
Each
one of the Parties, under the terms indicated in this Clause, expressly
and irrevocably undertakes to indemnify and hold the other Party
harmless
of any foreseeable damages or losses that it may incur as a result
of any
default hereunder and/or any imprecision, omission, or lack of
truth of
the Representations and Commitments established in the aforementioned
clauses.
|
|||
|
The
maximum total liability of the Parties for default on the provisions
of
these clauses shall in all cases by the Price of the Purchase and
Sale.
|
|||
|
In
these cases the Parties shall not exercise any of these actions
or claims
once the statute of limitations has lapsed.
|
|||
|
8.3.2.
|
In
the case of Clause 8.1.5 (20-F)
|
||
|
With
respect to Clause 8.1.5, the Purchaser may institute actions or
claims
against the Vendor for any monetary damage or loss it suffers as
a result
of any imprecision, omission or lack of truth with respect to facts
that
were known by the Company or should have been known because documentation
existed in it, which because of their material importance should
have been
reflected in the 20-F, related to the materially relevant information
provided or which should have been provided in the Company’s 20-F pursuant
to the regulatory precepts thereof, as well as the aforementioned
information reported or that should have been reported to the SEC
after
the 20-F.
|
|||
|
The
Parties shall appoint by common accord, within a period of ten
(10)
business days from when the Purchaser has notified the Vendor of
the
existence of actions or claims under this clause, an independent
expert
from among the five (5) largest international audit firms in order
for it
to determine by a report the possible existence and amount of the
imprecision, omission, or lack of truth and, if applicable, the
monetary
damage caused. Once that period from the receipt of the notice
by the other Party has lapsed without agreement having been reached,
the
expert shall be appointed by lottery before a notary public among
the four
firms proposed (two (2) by each one of the Parties) from among
the five
(5) largest international audit firms. Such report shall be
binding and final for the Parties, who expressly waive appeal of
the
conflict resolution proceeding established in Clause 13.2 to settle
any
matter covered by the aforementioned report or any other jurisdiction
that
might be applicable to them. The Parties may only appeal the
proceeding established in Clause 13.2 for matters related to the
execution
and/or implementation of the conclusions and decisions of the
aforementioned report.
|
|||
|
In
the cases cited in this Clause 8.3.2, the Purchaser shall not exercise
any
action or claim after two (2) years have elapsed from the Date
of this
Agreement, except for cases of fraud on the part of the Vendor,
in which
case the period of the statute of limitations shall be followed
if it is
greater than the two (2) year period.
|
|||
|
Additionally,
in no case may the total accrued amount of the indemnification
to be paid
by the Vendor to the Purchaser for indemnifiable losses which the
Purchaser might suffer as a result of any imprecision, omission
or lack of
truth under Clause 8.1.5 exceed ten (10) percent (10%) of the Price,
except for cases of fraud by the Vendor, in which case the total
amount of
the indemnification shall have as a maximum limit the total Price
of the
Purchase and Sale.
|
|||
17
|
8.3.3.
|
Rules
common to the preceding sections
|
||
|
If
with respect to an event that gives rise to damage, the Purchaser or the
Company had a right to recover from a third party (including any
indemnification under an insurance policy in effect on the date
of this
Agreement) any amount, Purchaser and Vendor shall cooperate for
the
Company to take such acts as are necessary to execute against the
third
party recovery of such amount. The amount of the
indemnification if applicable effectively recovered from the third
party,
less the expenses incurred in relation to the claim, shall (i)
if it was
received by the Purchaser, be returned immediately to the Vendor
(or, if
the indemnification for the damages has not yet been paid to the
Purchaser, the amount received by the Purchaser shall be deducted
from the
indemnification for which the Vendor is liable) in the same proportion
as
if such indemnification was paid or should have been paid; or (ii)
if it
was received by the Company, the proportional amount (with respect
to the
Purchaser’s interest in the Company’s capital) of the amount received by
the Company shall be, if the indemnification was paid by the Purchaser,
returned by it to the Vendor or, if it has not yet been paid by
the
Purchaser, deducted from the indemnification for which the Vendor
is
liable, in the same proportion as this amount had paid such
indemnification [sic].
|
|||
|
If
one Party knows of the existence of an event or circumstance that
gives
rise to the obligation to indemnify, such Party shall claim the
indemnification from the other Party, providing, if it exists,
the
information that documents the event or circumstance that gives
rise to
the obligation to identify, as well as a brief summary
thereof.
|
|||
|
Once
the corresponding claim for indemnification is received, the Party
that
has received it shall notify the Party that has sent it in writing,
within
a period of 15 business days, of its full or partial rejection
or
acceptance of the claim. The lack of such notification within
such period shall be deemed a total rejection of the
claim.
|
|||
|
In
case of (full or partial) acceptance of the claim, the amounts
claimed
(and fully or partially accepted) shall be paid, without need of
an
additional request, within a 30-day period from such
acceptance.
|
|||
|
In
case of (full or partial) rejection of the claim, as the case may
be, the
claim in dispute shall be resolved pursuant to the provisions of
Clause
13.
|
|||
18
9. TRANSFER
Neither
the Vendor nor the Purchaser may assign in whole or in part the rights and
obligations derived from this Agreement to any third party unless it is
expressly agreed in advance and in writing by the other Party. Such
written consent shall be obtained even if the assignment were made in favor
of
companies of the same group or takes place through the complete transfer of
the
company (for example, a merger).
If
the
Purchaser were to transfer its rights or obligations derived from this Agreement
in any manner or under any legal recourse, without obtaining written consent
from the Vendor, the Vendor may choose, at its sole discretion, to rescind
this
Agreement automatically or to file a claim against the Purchaser for such
damages and injuries as derive from the nonperformance of this
obligation.
Notwithstanding
the foregoing, the Vendor gives its express consent for the Purchaser to
transfer, totally or partially, the rights of economic content, but not the
obligations, arising for the Purchaser of this Agreement in favor of the
financial entities that have partially financed the payment of the
Price.
10. EXPENSES
AND TAXES
The
expenses and taxes derived from the negotiation, formalization, and execution
of
this Agreement shall be borne by the Parties indicated below:
|
(i)
|
The
expenses for formalization of this Agreement before a Notary Public
shall
be borne by the Purchaser and Vendor in equal parts;
|
|
|
(ii)
|
The
fees and expenses of legal, accounting, tax advisors, investment
banks,
consultants, auditors, specialists in the hydrocarbon industry or
any
other professionals shall be borne by the Party which in each case
hired
them.
|
|
|
(iii)
|
The
taxes resulting from the formalization and execution of this Agreement
shall be borne by such Party as the Applicable Law in each case
determines.
|
11. NOTIFICATIONS
All
communications and notifications that the Parties exchange in relation to this
Agreement to be effective between them shall be made in writing, in the Spanish
language, by (i) personal delivery with written confirmation of receipt by
the
other party; (ii) through a notary made by a Notary Public; (iii) by bureau
fax;
or (iv) by any other means that leaves certifiable evidence of its due receipt
by the address or addressees. The Parties establish the following
addresses or fax numbers for the effects of notifications:
Grupo
Repsol YPF:
▇▇▇▇▇
▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇-▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ (▇▇▇▇▇)
Fax: (▇▇)
▇▇ ▇▇▇ ▇▇ ▇▇
Attention: Corporate
Director of Strategy and Development
With
a
copy to
Fax: (▇▇)
▇▇ ▇▇▇ ▇▇ ▇▇
Attention: Corporate
Director for Legal Matters
19
Purchaser:
Cerrito
▇▇▇, ▇▇▇
▇▇▇▇▇
▇
▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇)
Fax: (▇▇)
▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Attention: ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇
With
a
copy
Fax;
(▇▇)
▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Attention: ▇▇.
▇▇▇▇▇ Dacomo
Any
correspondence sent to the preceding addresses or fax numbers shall be deemed
receive by the addressee except if the addressee had previously informed the
sender of any change thereto through any of the aforementioned
means.
12. MISCELLANEOUS
12.1 Confidentiality
The
content of this Agreement shall be entirely confidential, the Parties being
obligated not to disclose the content hereof to any third party,
except:
|
(a)
|
Pursuant
to a court or administrative order or another legal
obligation;
|
|
|
(b)
|
In
order to demand or facilitate compliance with the rights and obligations
derived from the Agreement;
|
|
|
(c)
|
If
applicable, in order to meet the requirements related to notification
to
the authorities cited in Clause 5.2;
|
|
|
(d)
|
Insofar
as necessary, to meet or comply with the reporting obligations that
are
required with respect to regulatory and supervisory bodies in the
capital
markets where the Company, the Vendor or, if applicable, the Purchaser
are
listed.
|
|
|
(e)
|
In
order to provide information to their advisors and auditors, and
when
financial institutions reasonably need to know it, provided that
they are
obligated by law or contract to maintain the confidentiality of the
information obtained.
|
Exceptionally,
the Parties shall be authorized to make the mandatory communications required
by
an official body. The Parties to this Agreement shall agree, insofar
as possible, on any mandatory communications.
20
|
12.2
|
Announcements
|
|
The
Purchaser and Vendor shall agree, acting mutually, on the time
and content
of any press release or public announcement (including material
facts), in
strict observance of the duties and obligations required by the
applicable
regulations.
|
|
|
The
Parties may not communicate any information except if their written
consents have been mutually stated in advance. This provision
is not applicable to the cases described in the foregoing Clause
12.1.
|
|
|
12.3
|
Intermediation
Expenses or Fees
|
|
Without
prejudice to the generalness of the provisions of Clause 10, the
Parties state that neither the signing of this Agreement nor the
formalization of the purchase and sale shall accrue any type of
fee (i.e.
finder’s fee or broker’s fee) either for the Company or
a Party other than the one that has contracted those
services.
|
|
|
12.4
|
Titles,
Headings, and Appendices
|
|
The
titles and headings of the sections and the clauses and subclauses
of this
Agreement are inserted to facilitate its reading but they do not
form part
nor should they be taken into account at the time of interpreting
it.
|
|
|
The
appendices form an integral part of the Agreement for all
effects.
|
|
|
12.5
|
Scope
of the Agreement and Partial Nullity
|
|
This
Agreement contains the agreements reached by the Parties with respect
to
the matter that constitutes its objective, and it replaces all
prior
agreements or principles of agreement, verbal or written, that
might bind
the Parties in relation to this matter.
|
|
|
If
a
competent Court or Authority declares all or part of any of the
nonessential clauses or subclauses of this Agreement null and void
or
unenforceable, it shall remain in effect except for the part declared
null
and void or unenforceable. The Parties shall hold mutual
consultations and shall make their best efforts to agree to a valid
and
enforceable stipulation that constitutes a reasonable replacement
of the
null and void and unenforceable stipulation pursuant to the spirit
of this
Agreement.
|
|
|
12.6
|
Modification
and Waiver
|
|
This
Agreement may not be modified except if done so in writing signed
by the
Parties and with express and unequivocal mention of the modification
agreed.
|
|
|
If
any of the Parties does not exercise any right that appertains
to it with
respect to a specific act or event in virtue of this Agreement,
such shall
not imply a waiver of such right and shall not in any manner prevent
the
subsequent exercise of such right with respect to other acts or
events
during its effective
period.
|
21
13. APPLICABLE
LAW AND JURISDICTION
13.1 Applicable
Law
All
matters related to the formalization, validity, effectiveness, interpretation,
and performance of this Agreement and the rights and obligations of the Parties
shall be governed by the laws of the Kingdom of Spain.
13.2 Jurisdiction
The
Parties expressly subject any disagreement or controversy that might arise
on
this Agreement or its execution, or which is related to it, to legal
arbitration, pursuant to the regulation established by the rules and regulations
of the International Chamber of Commerce (hereinafter, “CCI”),
before (3) arbitrators appointed pursuant to the provisions of this Agreement,
the Parties expressly waiving any other forum that might appertain to
them.
The
Parties state that they know and accept the rules and regulations of the CCI,
pursuant to whose rules, if applicable, the arbitration proceeding shall take
place.
The
arbitration proceeding shall take place in the Spanish language in the city
of
New York (United States of America), in the place designated by the
CCI.
The
legal
arbitration shall be subject to Spanish law and three (3) arbitrators shall
hear
it. Vendor and Purchaser shall appoint one (1) arbitrator each, the
third of them appointed jointly by the arbitrators so appointed. If
the first two (2) arbitrators cannot agree on the selection of the third
arbitrator, he shall be appointed pursuant to the current rules of the
CCI.
Likewise,
the prosecution of the arbitration proceeding shall be subject to the rules
and
regulations of the CCI.
The
Parties shall request that the arbitrators include in the arbitration decision
an express decision on the costs. The decision on costs shall be
proportional to the estimate of the claims of the Parties contained in the
arbitration decision.
The
arbitration shall in all cases be final and the Parties are bound to perform
and
to voluntarily go through the provisions of the arbitration decision, within
the
timeframes set by common accord at the start of the arbitration
proceeding. On lack of agreement, the provisions of the CCI
Regulation shall be applicable.
Subsidiarily,
and if necessary, especially in relation to the forced execution of the
arbitration, the holding of the preparatory proceedings as well as the request
for injunctions or measures of any other type, the Parties subject themselves,
with express waiver of any other forum that might appertain to them, to the
Courts and Tribunals of the city of Madrid.
22
AND
IN
WITNESS WHEREOF, the Parties sign this Agreement in a single copy in the place
and on the date indicated in the heading which is delivered to the Notary for
recording.
|
REPSOL
YPF,
S.A.
|
REPSOL
EXPLORACIÓN, S.A.
|
||
|
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Niubó
|
▇▇.
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
▇▇▇▇ ▇▇
▇▇▇▇
|
||
|
CAVEANT,
S.A.
|
REPSOL
YPF CAPITAL,
S.L.
|
||
|
▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mazarredo
|
▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mazarredo
|
||
|
▇▇▇▇▇▇▇▇
ENERGÍA, S.A.
|
|||
|
D.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
23
LIST
OF APPENDICES
|
Appendix
E-IX
|
Term
Loan
|
|
|
Appendix
E-X
|
Vendor’s
Loan
|
|
|
Appendix
E-XI
|
Shareholders’
Agreement
|
|
|
Appendix
1
|
Definitions
|
|
|
Appendix
6.1
|
Assignment
of 2006 Dividend
|
|
|
Appendix
6.2
|
Legend
on “ADR” certificates
|
|
|
Appendix
7.3
|
Shareholders’
Meeting Agenda
|
|
|
Appendix
7.3-2nd
|
Corporate
Bylaws Clauses to be
Amended
|
1
Appendix
E-IX
Term
Loan
[NOT
FILED
- REPSOL YPF, S.A. IS NOT A PARTY TO THIS AGREEMENT]
1
Appendix
E-X
Vendor’s
Loan
[FILED
AS EXHIBIT 7.06]
1
Appendix
E-XI
Shareholders’
Agreement
[FILED
AS EXHIBIT 7.02]
1
Appendix
1
Definitions
|
“Shares”
|
Means
together 58,603,606 common registered Class D shares of the Company
with a
par value of $ 10 each and 1 vote per share, as American Depositary
Shares (“ADS’s”) representing one Class D share each and represented
by American Depositary Receipts (“ADR’s”) issued by The Bank of New York
(hereinafter, the “Depository”) pursuant to the terms of the Deposit
Agreement between the Depository and the Company dated July 1,
1993 (the
“Deposit Agreement”), representing fourteen point ninety percent (14.90%)
of the capital stock of the Company (counting any uncapitalized
contribution, right to receive shares in the Company or any security
or
debt convertible into shares as if that right or conversion had
materialized), as well as all the political and capital rights
that
appertain thereto, including any option or preferred right of
subscription, the right to receive any dividend or distribution
corresponding thereto, either in shares, in kind, or in cash voted
and not
distributed to date (including the right to receive $10.76 pesos
per Share
corresponding to 14.9% of the amount designated by the meeting
held on
April 13, 2007 to constitute a reserve for the payment of future
dividends, once the distribution of such amount as a dividend has
been
approved by the Company’s Board of Directors on February 6, 2008 according
to the delegation made to the Board of Directors at the above mentioned
meeting) and, in addition, any other rights of any nature that
the Vendor
has as holder of the shares.
|
|
|
“Necessary
Acts”
|
Means,
in relation to the results whose obtainment is required, all measures
that
are reasonable in business terms and which, within the legal authority
of
the Party in charge of performing those “Necessary Acts” is pertinent for
the purposes of obtaining such result. Such measures include,
without limitation, (a) attending the corresponding meetings and
casting
votes with respect to all of the shares of which the Party obligated
to
perform the “Necessary Acts” owns; (b) instructing the directors appointed
by or at the proposal of such Party to convene meetings of the
board of
directors and/or meetings and to vote favorably in meetings of
the board
of directors and/or make entries into the corporate books and pertinent
registries, and to make presentations and/or notifications to Caja
de
Valores S.A., the CNV, the Buenos Aires Stock Exchange, the SEC,
the
Inspectorate General of Justice and any other authority or body
which is
necessary in order to obtain the result sought, and which are performed
pursuant hereto or to order that they be removed from their positions
if
they do not perform such acts or do not act pursuant hereto; (c)
preparing, executing, and/or signing documents, presentations and
notifications and/or registrations or similar acts that are required
in
order to reach the aforementioned result.
|
|
1
|
“Shareholders’
Agreement”
|
Means
the shareholders’ agreement signed by the Parties in a single act and
simultaneously with the signing of this Agreement, a copy of which
is
attached as Appendix E-XI.
|
|
|
“Confidentiality
Agreement”
|
Means
the confidentiality agreement signed by the Vendor and Purchaser
on
February 19, 2007, together with the addendum thereto signed on
June [26],
2007.
|
|
|
“CNDC”
|
Means
(i) the Argentine National Antitrust Commission and the Argentina
Department of Foreign Trade or the Department of Industry, Trade,
and
Mining, or (ii) the National Antitrust Tribunal, if such Tribunal
is
formed, or (ii) the public body or entity which, if applicable,
replaces
them in competence with respect to the matter pursuant to Argentina
laws.
|
|
|
“Company”
|
Means
the Argentine company YPF, S.A., registered in the Superintendency
of
Corporations under Corporations Book 108, Number 404, Volume A,
with
principal executive offices at Avda. Presidente ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, and valid tax identification
code (CIF) 30-54668997-9.
|
|
|
“Purchaser”
|
Means
the Spanish company, registered in the Commercial Registry of Madrid,
at
Volume 24588, Sheet 88, Page M-442504. ▇▇▇▇▇▇▇▇ Energía, S.A.
has its principal executive offices at Plaza ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇, ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ and its tax identification code (CIF), ▇-▇▇▇▇▇▇▇▇,
is
current.
|
|
|
“Condition
Subsequent”
|
Means
the condition subsequent established in Clause 5 of this
Agreement.
|
|
|
“Agreement”
|
Means
this stock purchase and sale agreement signed by the Parties on
the date
that appears in the heading.
|
|
|
“2006
Dividend”
|
The
amount resulting from the amount of $10.76 Argentine pesos per
share of
the Company, which distribution has been approved by the Company’s
Directory on February 6, 2008, according to the delegation made
to the
Directory at the meeting of April 13, 2007.
|
|
2
|
“Credit
Institutions”
|
Means
the credit institutions that sign the Term Loan with the Purchaser
and any
successor or assign thereof.
|
|
|
“Corporate
Bylaws”
|
Means
the corporate bylaws of the Company in effect on the date of this
Agreement.
|
|
|
“Liens”
|
Means
any attachment, pledge, tax, charge, usufruct, assessment, fiduciary
cession, guaranty or custody deposit, limitation or restriction
of free
transfer or of any nature, eviction claims, third party rights,
preferred
rights or options or any other third party right that affects free
ownership or free transfer.
|
|
|
“Grupo
Repsol YPF”
|
Means,
collectively, Repsol YPF, Repsol Exploración, Caveant y Repsol YPF Capital
and any of them individually and without distinction.
|
|
|
“Intercompany
Note”
|
Means
the debt the Seller has incurred with the Company in the amount
of US$
675.000.000,00 plus interest accrued and unpaid to the date of
the
cancellation.
|
|
|
“Regulation”
|
Means
any law, regulation, resolution, administrative act, case law or
legislation
|
|
|
“Party”
|
Means
either the Vendor or the Purchaser as the case may be.
|
|
|
“Price”
|
Means
the price for the purchase and sale of the Shares determined as
stipulated
in Clause 4.
|
|
|
“Subsidiaries”
|
Means
(a) those companies or legal entities whose capital stock and votes
are
more than 50%, under any title and for any reason, directly or
indirectly,
owned by or controlled by a legal person or (b) owned or controlled,
in
turn, by any company or entity owned or controlled by such legal
person.
|
|
|
“Term
Loan”
|
Means
the finance agreement signed by the Purchaser with certain credit
institutions prior to the signing of this Agreement, a copy of
which is
attached as Appendix E-X.
|
|
|
“Vendor”
|
Means
the Spanish company Repsol YPF, S.A., a company duly registered
in the
Commercial Registry of Madrid at Volume 3893, Sheet 175, Page
M-65289. Repsol YPF has its principal executive offices at
▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and with tax identification
code
(CIF), ▇-▇▇▇▇▇▇▇▇, which is current.
|
|
|
“20-F”
|
Means
the Form 20-F submitted by the Company to the SEC and corresponding
to the
fiscal year ended at December 31, 2006, or any other document sent
to the
SEC to clarify or supplement the aforementioned
20-F.
|
3
Appendix
6.1
Assignment
of 2006 Dividend
[FILED
AS EXHIBIT 7.08]
8
Appendix
6.2
ADR
Legend
[NOT
FILED]
1
Appendix
7.3
Shareholders
Meeting Agenda
[NOT
FILED]
1
Appendix
7.3-2nd
Corporate
Bylaws Clauses to be Amended
[NOT
FILED]