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
99.1
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."
TABLE
OF CONTENTS
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1.
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DEFINITIONS
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8
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||
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2.
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RULES
OF INTERPRETATION
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8
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||
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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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||
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5.1
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CONDITION
SUBSEQUENT
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9
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||
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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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||
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6.2
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DELIVERY
AND RECORDATION OF THE SHARES IN THE NAME OF THE
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|||
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PURCHASER
AND NOTIFICATION TO THE COMPANY
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12
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|||
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6.3
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SIGNING
OF THE VENDOR’S LOAN
|
12
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||
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6.4
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SIGNING
AND NOTIFICATION OF THE SHAREHOLDERS’ AGREEMENT
|
12
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||
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6.5
|
WAIVER.
DELIVERY OF CERTIFICATES
|
12
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||
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7.
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COMMITMENTS
OF THE PARTIES AFTER THE DATE OF THIS AGREEMENT
|
12
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||
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7.1
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REGISTRATION
WITH THE SEC
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12
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||
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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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||
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7.3
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MEETING
OF THE BOARD OF DIRECTORS OF FEBRUARY 6, 2008. HOLDING OF
|
|||
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THE
MEETING
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13
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|||
|
7.4
|
PERFORMANCE
OF THE BOARD OF DIRECTORS UP TO THE INCORPORATION
|
|||
|
OF
THE DIRECTORS DESIGNATED AT THE PROPOSAL OF PESA
|
13
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|||
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8.
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REPRESENTATIONS
AND COMMITMENTS OF THE PARTIES
|
13
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||
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8.1
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REPRESENTATIONS
AND COMMITMENTS OF THE VENDOR
|
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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||
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8.1.2.
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Ownership
of the Stock
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13
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||
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8.1.3.
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Corporate
Status of the Company
|
14
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||
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8.1.4.
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Nonexistence
of Conflict
|
14
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||
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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
|
15
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||
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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
|
15
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||
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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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||
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8.2.2.
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Independence
of the Purchaser
|
16
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||
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8.2.3.
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Nonexistence
of Conflict
|
16
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||
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8.2.4.
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Intent
to Invest
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16
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||
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8.3
|
INDEMNIFICATION
|
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)
|
17
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||
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8.3.2.
|
In
the case of Clause 8.1.5 (20-F)
|
17
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8.3.3.
|
Rules
common to the preceding sections
|
18
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||
2
|
9.
|
TRANSFER
|
19
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||
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10.
|
EXPENSES
AND TAXES
|
19
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||
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11.
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NOTIFICATIONS
|
19
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||
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12.
|
MISCELLANEOUS
|
20
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||
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12.1
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CONFIDENTIALITY
|
20
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12.2
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ANNOUNCEMENTS
|
21
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||
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12.3
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INTERMEDIATION
EXPENSES OR FEES
|
21
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12.4
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TITLES,
HEADINGS, AND APPENDICES
|
21
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||
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12.5
|
SCOPE
OF THE AGREEMENT AND PARTIAL NULLITY
|
21
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||
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12.6
|
MODIFICATION
AND FORBEARANCE
|
21
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||
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13.
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APPLICABLE
LAW AND JURISDICTION
|
22
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13.1
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APPLICABLE
LAW
|
22
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13.2
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JURISDICTION
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22
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|
LIST
OF APPENDICES
|
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.
|
|
Hereinafter
Repsol YPF shall be referred to as the “Vendor.”
|
|
(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.
|
|
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Niubó | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ | |
|
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Niubó
|
▇▇.
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇
|
|
|
CAVEANT,
S.A.
|
REPSOL
YPF CAPITAL, S.L.
|
|
| /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mazarredo | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mazarredo | |
|
▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mazarredo
|
▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mazarredo
|
|
|
▇▇▇▇▇▇▇▇
ENERGÍA, S.A.
|
||
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Storey | ||
|
D.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
23
LIST
OF APPENDICES
|
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
[
FILED AS EXHIBIT 99.6]
1
Appendix
E-X
Vendor’s
Loan
[FILED
AS EXHIBIT 99.5]
1
Appendix
E-XI
Shareholders’
Agreement
[FILED
AS EXHIBIT 99.4]
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 99.10]
1
Appendix
6.2
ADR
Legend
[NOT
FILED]
2
Appendix
7.3
Shareholders
Meeting Agenda
[NOT
FILED]
1
Appendix
7.3-2nd
Corporate
Bylaws Clauses to be Amended
[NOT
FILED]
1