SECOND SHARE PURCHASE AND SALE OPTION AGREEMENT Between Grupo Repsol and Mr. ENRIQUE ESKENAZI Mr. SEBASTIÁN ESKENAZI Mr. MATÍAS ESKENAZI STOREY Mr. EZEQUIEL ESKENAZI STOREY February 21, 2008
Exhibit
7.05
Between
Grupo
Repsol
and
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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."
In
Madrid,
on February 21, 2008
BY
AND BETWEEN
On
the first part,
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(1)
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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 Protocol, a company duly recorded
in the
Commercial Registry of Madrid at Volume 7063,6058 of the 3rd
Section of the Corporations Book, Sheet 119, Page
M-72.059-1. Repsol YPF has its principal executive offices at
▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and its tax identification
code
(CIF), ▇-▇▇▇▇▇▇▇▇, is current.
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Herein
represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Niubó, of age, married, a Spanish
citizen, with professional domicile at Madrid, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇,
and holder of Spanish National Identification Document number
40.824.513-L, valid, by virtue of the power of attorney granted
on October
29, 2004, before the notary public of Madrid, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
protocol number 2,889.
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Hereinafter
Repsol YPF shall be referred to as the “Vendor”.
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(2)
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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 Madrid, ▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ del Real on the same date under number 2,098 of those of his
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.
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Herein
represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇, of age, married,
a Spanish citizen, with professional domicile at Madrid, ▇▇▇▇▇
▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇, and holder of Spanish National Identification Document
number 29.747.844-E, valid, by virtue of the power of attorney
granted on
January 26, 2005, before the notary public of Madrid, ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, protocol number 150.
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(3)
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Caveant,
S.A., (hereinafter “Caveant”) established pursuant to Argentine law, with
Bylaws registered at the Superintendency of Corporations on July
2, 1980
under Corporations Book 95, Number 2,415, Volume A. Caveant has
its
principal executive offices at Buenos Aires, Avda. Presidente ▇▇▇▇▇
▇.
▇▇▇▇ 777 and its tax identification code (CIF) 30-62881362-7, is
current.
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Herein
represented by ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mazarredo, of age, married, a Spanish
citizen, with professional domicile at Madrid, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇,
and holder of Spanish National Identification Document number 1.485.502-R,
, valid, by virtue of the power of attorney granted on February
14, 2008,
before the notary public of Buenos Aires, Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇ del
Río, folio
110 of his protocol.
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(4)
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Repsol
YPF Capital, S.L., a wholly owned subsidiary of the Repsol group
(hereinafter, “Repsol YPF Capital”) established pursuant to Spanish law 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 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.
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Herein
represented by ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mazarredo, of age, married, a Spanish
citizen, with professional domicile at Madrid, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇,
and holder of Spanish National Identification Document number 1.485.502-R,
valid, by virtue of the power of attorney granted on February 19,
2008,
before the notary public of Madrid, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, protocol
number 590.
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On
the second part,
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(1)
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▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, of age, married, a Spanish citizen, with professional
domicile at Buenos Aires (Argentina), Avenida ▇▇▇▇▇▇▇ ▇▇▇▇ 2.748, 7º, and
holder or Argentine passport number ▇▇▇▇▇▇▇▇▇, valid and of Foreigner’s
Identity Number (N.I.E.) X-9298901-R,
valid.
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(2)
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▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, of age, married, a Spanish citizen, with professional
domicile at Buenos Aires (Argentina), Avenida ▇▇▇▇▇▇▇ ▇▇▇▇ 2.748, 7º and
holder or Argentine passport number ▇▇▇▇▇▇▇▇▇, valid and of Foreigner’s
Identity Number (N.I.E.) X-9298838-F, en
valid.
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(3)
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▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Storey, of age, married, a Spanish citizen, with
professional domicile at Acassuso, Buenos Aires (Argentina) and
holder or
Argentine passport number ▇▇▇▇▇▇▇▇▇, valid and of Foreigner’s Identity
Number (N.I.E.) X-9298890-J, valid.
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(4)
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▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, of age, married, a Spanish citizen, with
professional domicile at Acassuso, Buenos Aires (Argentina) and
holder or
Argentine passport number ▇▇▇▇▇▇▇▇▇,
valid.
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Herein
represented by ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Storey, by virtue of the power of
attorney granted in Argentina before the notary public of the City
of
Buenos Aires, Mr. ▇▇▇▇▇▇ ▇▇▇▇ Buasso, on February 11, 2008, duly
apostilled.
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Hereinafter
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Mr.. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Mr.. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
and ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall jointly be referred to as
the
“Purchaser”
or the
“Beneficiary.”
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Hereinafter,
Vendor, Repsol Exploración, Caveant y Repsol YPF Capital, shall jointly be
referred to as the “Grupo Repsol YPF” or the “Grantor.” Likewise,
Grupo Repsol YPF and the Purchaser shall jointly be referred to as the
“Parties,” and each one of them individually as a “Party.”
WHEREAS
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I.
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YPF,
S.A. (hereinafter, the “Company”) is an
international company, leader in the hydrocarbons sector in Argentina,
and
a member of Grupo Repsol YPF.
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II.
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That
on this date, and simultaneously with the signing of this Agreement,
Grupo
Repsol YPF and ▇▇▇▇▇▇▇▇ Energía, S.A., have entered into a share purchase
and sale agreement, in virtue of which Grupo Repsol YPF has transferred
to
▇▇▇▇▇▇▇▇ Energía, S.A. shares of the Company in the form of American Depositary
Shares (“ADSs”)
each representing
one Class D share and evidenced by
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American
Depositary
Receipts (“ADRs”)
issued by The
Bank of New York (hereinafter, the “Depositary”) in
accordance with the terms of the Deposit Agreement between the
Depositary
and the Company dated July 1, 1993 (the “Deposit Agreement”)
representing 14.9% of the capital stock of the Company (hereinafter,
the
“Purchase and
Sale
Agreement”). Likewise, in a single act with the signing
of the Purchase and Sale Agreement, the aforementioned parties
have signed
the Shareholders’
Agreement.
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III.
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That
on this date, and simultaneously with the signing of this Agreement,
Grupo
Repsol YPF and the Purchaser have entered into a purchase and sale
option
agreement for shares of the Company representing 0.1% of its capital
stock
(hereinafter, the “First
Option Agreement”).
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IV.
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That
on this date, and simultaneously with the signing of this Agreement,
Grupo
Repsol YPF and ▇▇▇▇▇▇▇▇ Energía, S.A., (a company which is wholly owned by
the ▇▇▇▇▇▇▇▇ Family) have entered into a registration rights
agreement with respect to the shares purchased on this date by
virtue of the Stock Purchase Agreement, in which the Parties have
undertaken to enter into a new registration rights agreement with
respect
to the shares (and ADSs) covered by this Agreement and by the Second
Option Agreement (“Registration
Rights
Agreement”)
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V.
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Grupo
Repsol YPF has the intention of transferring to ▇▇▇▇▇▇▇▇ Group,
which in
turn is interested in acquiring, shares in the company representing
up to
25% of its capital stock. 14.9% is subject to transfer in the
Purchase and Sale Agreement, 0.1% is subject to the First Option
Agreement
and the remaining 10% is subject to this Option Agreement. All
that under such terms and conditions as are agreed in the respective
agreements.
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VI.
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Grupo
Repsol YPF owns 330,933,384 class D shares of the Company’s capital
stock.
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VII.
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The
Purchaser is interested in obtaining and Grupo Repsol YPF is interested
in
granting, a purchase option on the Shares, for which they enter
into this
agreement (hereinafter, the “Agreement”) pursuant
to
the following
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CLAUSES
1. DEFINITIONS
For
the
effects of this Agreement, the following terms shall have the meanings which
are
cited therefor below. All the terms used in this Agreement which are
not defined in this stipulation, but which are so in any other place in this
Agreement, shall have the meaning assigned to them in that other place in
this
Agreement.
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•
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“Shares”: Class
D shares of the Company (including any “ADSs”, “ADRs” and/or any other
certificate of deposit or custody and/or representative of the
Shares)
representing 10% of the capital stock of the Company (counting
any option,
uncapitalized contribution, right to receive shares in the Company
and any
other security or debt convertible into shares as if such right
and/or
conversion had materialized, as well as all the rights and shares
derived
from capitalizations of reserves, revaluations, capital adjustments,
and
any contributions, irrevocable or not, that are pending capitalization
on
the Exercise Date), as well as all the political and capital rights
that
appertain thereto, including any preferred option or right of
subscription, the right to receive any dividend or distribution
corresponding thereto, either in stock, in kind, or in cash voted
and not
distribution by the Exercise Date and any other rights of any nature
that
the Vendor has in its capacity as owner of the
Shares.
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•
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“Shareholders’
Agreement”: The agreement signed today by ▇▇▇▇▇▇▇▇
Energía, S.A. and Grupo Repsol YPF that regulates a) its relationships
qua
shareholders of the Company and in particular, certain rights and
obligations derived from its status as shareholders of the Company;
and b)
certain aspects related to the functioning of the Company and its
organizational structure.
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•
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“Auditor”: shall
be an accounting firm designated in accordance with the provisions
of
Appendix
A.
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•
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“Beneficiary”
or
“Purchaser”:
jointly, ▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or the company to which this Agreement is assigned
to
pursuant to Clause 8.2.
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•
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“Company”: Means
the Argentine company YPF, S.A., registered at the Superintendency
of
Corporations under Corporations Book 108, Number 404, Volume A,
with
principal executive offices at Avda. Presidente ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and current tax identification
code (CIF), 30-54668997-9, current.
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•
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“Agreement”: This
purchase option agreement.
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•
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“Purchase
and Sale
Agreement”: The purchase and sale agreement signed today
by Grupo Repsol YPF and ▇▇▇▇▇▇▇▇ Energía, S.A., in virtue of which Grupo
Repsol YPF has transferred to ▇▇▇▇▇▇▇▇ Energía, S.A., shares in the
Company representing 14.9% of its capital
stock.
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•
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“First
Option
Agreement”: the agreement entered into on this date by
Grupo Repsol YPF and the Purchaser, by virtue of which, Grupo Repsol
YPF
has granted the Purchaser a purchase and sell option for certain
shares of
the Company representing 0.1% of its capital
stock.
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•
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“Business
Day”: Any day of the week excluding Saturdays, Sundays,
and holidays set by the official calendars for Madrid (Spain),
the City of
Buenos Aires (Argentina) and New York (United
States).
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•
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“▇▇▇▇▇▇▇▇
Family”:
Messrs. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and/or ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Storey and/or ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and/or their inheritors
and
individually and indistinctly, any of them, as well as
(a) the spouse
and/or any lineal descendant (including adopted children)
of ▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and/or ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Storey, (b) any trust solely for the
benefit of any one
or more persons referred to in clause (a), (c) any family
trust,
partnership or limited liability company established solely
for the
benefit of any one or more persons referred to in clause
(a), or for
estate planning purposes, of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and/or
(d)
the heirs, executors, administrators, guardian or conservator
of any of
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
and/or ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Storey, any of them, or of
a trust under any
of their ▇▇▇▇▇ and following their death or
disability.
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•
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“Exercise
Price
Date”: The date on which the Exercise Price is
determined under the terms stipulated in the Third Clause of the
Agreement. If the Exercise Price is determined by a lack of
response to any of the communications of the Parties within the
agreed
period, Exercise Price Date shall be construed as the calendar
day after
the end of the aforementioned
period.
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•
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“Exercise
Date”: The date on which the Beneficiary duly sends
written correspondence to Grupo Repsol YPF stating its desire in
the sense
of exercising the Option free and clear under the terms of this
Agreement.
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•
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“Execution
Date”: The date on which the purchase and sale of the
Shares is effectively formalized and executed by full or partial
exercise
of the Option.
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•
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“Index”: the
Consumer Price Index published monthly by the Bureau of Labor Statistics
for the period from the date of execution of this Agreement up
to each
Exercise Date.
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•
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“OPA”: Public
offering to buy shares of the Company under the terms and pursuant
to the
procedure stipulated in Article 7 of the corporate bylaws of the
Company,
as such article is amended from time to
time.
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•
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“Option” The
purchase option regulated by this Agreement over the
Shares.
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•
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“Grantor”: Grupo
Repsol YPF, acting jointly and
severally.
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•
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“Option
Exercise
Period”: the four (4) years after the date on which this
Agreement is signed.
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•
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“Exercise
Price”: the amount that the Beneficiary must pay to
Grupo Repsol YPF for the Shares of the Company on which it exercises
the
Option, which shall be calculated under the terms detailed
below:
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•
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“Share
price”: shall be that resulting from the following
formula
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(Total
Value of the
Company * Index) +/- Accumulated Results – Dividends +/- Changes in
Capital
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Total
number of shares (Shares issued in circulation (fully diluted,
as per
definition of Shares)
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where:
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Total
Value of the Company shall be: 15,000,000,000 United States
dollars;
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Dividends: shall
be the dividends distributed by the Company in cash, in kind, in
capital
stock, or any distribution made by the Company between the date
the
Agreement is signed and the Execution
Date.
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Changes
in Capital shall mean the contributions made in cash or in kind
by
partners or third parties and that result in an increase in the
Company’s
capital (which shall be added in the preceding formula) or disbursements
made by the Company to its shareholders by reason of capital reductions
(which shall be subtracted in the formula stipulated above) which
occur
between the date the Agreement is signed and the Execution
Date.
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•
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Total
Number of Shares means the number of shares on the Execution Date
(Fully
diluted).
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•
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“Registration
Rights
Agreement”: an registration rights agreement between
Repsol YPF, S.A. and the Purchaser and certain financial institutions
for
the execution of a “Registration Statement” according to the securities
laws in New York (USA), with respect to the shares (and ADSs) covered
by
this Agreement and by the First Option
Agreement.
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•
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“Accumulated
Results”: the accumulated results of the Company,
provided that they come from gains or losses, as applicable, obtained
by
the Company after the signing of this Agreement and deducting from
them
the amount that the Company must pay as gains tax. For purposes
of calculating accumulated results, the result of each fiscal year
ended
after the date of the present Agreement, as it arises from each
of the
financial statements corresponding to such fiscal year approved
by the
Company (deducting the incidence of taxes from the earnings) will
be taken
and, for each current exercise as of the Exercise Date the provisional
result for the current exercise as it is shown on the report prepared
by
the Company’s accounting and financial management and submitted to the
Boar of Directors (deducting the incidence of taxes from earnings),
will
be taken, all of this without duplication. For purposes of this
definition, the financial statements approved by the Company are
those
approved as such without considering the possible qualification
or
exceptions or limitations within reach of the opinion that could
be
contained in the auditor’s opinion about such financial statements, except
in the case that such qualification, exceptions or limitations
could have
an effect over the Results that was quantified by the auditor on
such
opinion, in which case such qualifications, exceptions or limitations
will
be considered up to the amount indicated therein by the
auditor.
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•
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“Vendors
Loan”: the financing agreement entered into by the
Parties dated February 21, 2008 and which is included as Appendix
E-X to
the Purchase and Sale Agreement.
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The
terms
that are used in singular shall have an equivalent meaning when used in the
plural, and vice-versa. Any reference in this Agreement to shares or interest
held in a specific corporate entity will include shares, interest held and
any
other form of participation in the capital of such corporate entity, as well
as
any certificates issued by such corporate entity or by any third party
representative of shares, interest held or participation in such corporate
entity, including without limitation, “ADSs”, “ADRs” and any other certificate
of deposit or custody of the shares, interest held or participation in such
corporate entity.
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2.
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PURCHASE
OPTION
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2.1
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Grupo
Repsol YPF hereby grants jointly and severally to the Beneficiary,
which
accepts, the Purchase Option, whereby the Beneficiary shall have
a right
to purchase from Grupo Repsol YPF, which assumes the obligation
to sell
the Shares, free of charges, liens, and third-party rights, pursuant
to
the terms and conditions established in this
Agreement.
|
|
2.2
|
This
Purchase Option includes any other shares in the Company, including
any
shares that Grupo Repsol YPF might subscribe to or acquire during
the
Option Exercise Period, that is necessary for the Beneficiary to
acquire a
percentage interest in the Company of 10% in addition to the 14.9%
acquired in virtue of the Purchase and Sale
Agreement.
|
|
3.
|
EXERCISE
PRICE
|
|
3.1
|
The
purchase and sale price of the Shares resulting from exercising
the Option
shall be equal to the Exercise
Price.
|
|
3.2
|
The
Exercise Price shall be calculated by the Purchaser and reported
to Grupo
Repsol YPF on the Exercise Date. In such correspondence, the
Purchaser shall indicate the Exercise Price it deems is applicable
and it
shall provide (i) the documentation and financial information used
to
calculate the Exercise Price; and (ii) an explanation of the procedure
followed to calculate it.
|
|
3.3
|
If
Grupo Repsol YPF agrees with the Exercise price calculated by the
Purchaser or does not respond within the five (5) calendar days
following
the Exercise Date, the Exercise Price will be the one indicated
by the
Purchaser, we will proceed with the provisions foreseen in Clause
6. If
Grupo Repsol YPF were not in agreement with the calculation made
by the
Purchaser of the Exercise Price of the Shares over which the Option
is
exercised, it shall report such to the Purchaser within five (5)
calendar
days after the Exercise Date on which the Beneficiary has effected
the
corresponding written notification to Grupo Repsol YPF. In such
notification (the “Grupo
Repsol YPF Notification”), Grupo Repsol YPF shall indicate the
Exercise Price it deems applicable and it shall provide (i) the
documentation and financial information used to calculate the Exercise
Price; and (ii) an explanation of the procedure followed to calculate
such
price.
|
|
3.4
|
Once
the Grupo Repsol YPF Notification is received by the Purchaser,
it shall
have a period of five calendar days to state to Grupo Repsol YPF
whether
(i) it accepts the Option Exercise Price included in the Grupo
Repsol YPF
Notification; or whether (ii) it disagrees with the calculation
of the
Exercise Price made by Grupo Repsol
YPF.
|
|
|
a)
|
In
the case contemplated in section 3.4.(i), the Exercise Price shall
be that
included in the Grupo Repsol YPF Notification and we will proceed
with the
provisions foreseen in Clause 6.
|
|
|
b)
|
In
the case contemplated in section 3.4 (ii) and if the difference
between
the Exercise Price of the Option included on the Grupo Repsol YPF
Notification, does not differ by more than 10% with the Exercise
Price
calculated by the Purchaser, the Parties agree that the Exercise
Price
will be that included in the Grupo Repsol YPF Notification and
will
proceed according to the provisions established in Clause 6. On
the
Execution Date, the Parties will provide the Auditor with a copy
of the
calculations made by the Purchaser and by Grupo Repsol YPF to determine
the Exercise Price together with the corresponding precedents.
On the 10
days following the Execution Date, the Auditor
|
|
|
|
must
prepare a written report determining, definitively and without
appeal by
the Parties, the Exercise Price, which cannot be exceed the Exercise
Price
calculated by Grupo Repsol YPF nor can it be lower than the Exercise
Price
calculated by the Purchaser (hereinafter, the “Adjusted Exercise Price”).
The difference between the Adjusted Exercise Price and the Exercise
Price
executed by the Purchaser to Grupo Repsol YPF on the Execution
Date must
be refunded or paid, as applicable, to the Party that had paid
in excess
or received a lower amount on the five (5) days following the
decision by
the Auditor of the Adjusted Exercise Price. The Auditor’s fees and
expenses will be borne by the Party whose calculation most differed
from
the Adjusted Exercise Price.
|
|
|
c)
|
In
the case contemplated in section 3.4 (ii) and provided that the
difference
between the Exercise Price of the Option included in the Grupo
Repsol YPF
Notification, differs by more than a 10% from the Exercise Price
calculated by the Purchaser, the Parties agree that the Exercise
Price
will be determined, definitively and irreversibly, by the Auditor,
such
price cannot be higher than the Exercise Price calculated by Grupo
Repsol
YPF nor lower than the Exercise Price calculated by the Purchaser.
For
this, any of the Parties may ask the Auditor to calculate the Exercise
Price, providing him a copy of the calculations made by the Purchaser
and
by Grupo Repsol YPF, with its corresponding precedents. The auditor
must
provide an answer within 10 days following the receipt of the request
by
the corresponding Party. The Auditor’s fees and expenses will be borne by
the Party whose calculation most differed from the Fixed Exercise
Price.
If the Auditor provides a response within the indicated term, the
Exercise
Price will be that determined by the Auditor who will communicate
it in
writing to the Parties with a justification of his calculations.
In such
case, the Purchaser will have the right to (i) accept the Exercise
Price
calculated by the Auditor, in which case they will proceed in accordance
with the provisions under Clause 6, or (ii) waive the exercise
of the
Option, if the Exercise Price calculated by the Auditor differed
from that
calculated by the Purchaser, without generating any responsibility
for any
of the parties except for the payment of the Auditor’s fees and expenses
according to what has been established previously, in which case
the
Beneficiary’s right of Option to acquire the shares over which it waived
to exercise the Option at that opportunity, will remain in effect
and the
Beneficiary may exercise such option at any moment within the enforcement
of this agreement.
|
|
3.5
|
If
within the timeframes stipulated in sections 3.3 and 3.4, above,
Grupo
Repsol YPF or the Purchaser, as the case may be, have not notified
the
other Party of its response, or the correspondences stipulated
in sections
3.2, 3.3, and 3.4, above, were not made under the agreed terms,
it shall
be construed that they accept the Exercise Price calculated by
the other
Party, and they undertake to formalize the purchase and sale of
the Shares
at such price.
|
|
4.
|
OPTION
EXERCISE PERIOD
|
|
4.1
|
The
Purchaser shall be authorized to exercise the Option at any time
during
the Option Exercise Period which shall start on the date this Agreement
is
signed and which will end within a period of four (4) years calculated
from the aforementioned date.
|
|
5.
|
METHOD
OF EXERCISING THE PURCHASE OPTION
|
|
5.1
|
The
Beneficiary shall exercise the Option with respect to Grantor
through
written correspondence made in the manner stipulated in this
Agreement and
within the term stipulated in the foregoing clause, stating its
desire in
the sense of exercising the Option under the terms of this
Agreement.
|
|
5.2
|
The
Beneficiary may exercise the Option with respect to all or part
of the
Shares, and at once or at different times, and the Option may be
exercised
in part.
|
|
5.3
|
In
the Option exercise notification, Beneficiary shall notify Grantor
of (i)
the number of Shares over which it exercises the Option; (ii) the
Exercise
Price under the terms stipulated in Clause 3 of the Agreement;
and (iii)
if it does or does not require financing from Grupo Repsol YPF
to acquire
the Shares with respect to which it exercises the
option.
|
|
6.
|
EXECUTION
OF THE OPTION
|
|
6.1
|
The
purchase and sale resulting from exercising the Option shall be
formalized
and executed by transfer of ownership of the Shares over which
the Option
is exercised, including registration of ownership of the Shares
in the
respective records in favor of the Beneficiary and, simultaneously,
payment of the Exercise Price, within a period of ten (10) Days
after the
Exercise Price Date.
|
|
6.2
|
To
this end, the Parties undertake to take, within the aforementioned
period,
all actions needed for the valid transfer of ownership of the Company’s
Shares on which the Option is exercised and payment of the Exercise
Price
pursuant to applicable Argentine law. The date on which the
aforementioned purchase and sale is formalized and effectively
executed
shall hereinafter be called the “Execution
Date.” The ADS certificates representing the Shares to
be delivered by the Vendor to the Purchaser will include an English
language legend indicating that their circulation has been limited
by the
agreement with the Depositary according to the Spanish language
text as
detailed in Appendix 6.2.
|
|
6.3
|
If
Grantor breaches its obligation to formalize and execute the purchase
and
sale of the Shares resulting from exercising the Option in the
manner
stipulated above, Grantor shall pay the Beneficiary an amount equal
to the
Exercise Price as a penalty, not replacing such indemnification
for
damages and injuries as, if applicable, correspond, and that without
prejudice to Grantor’s obligation to perform its obligation to formalize
and execute the purchase and sale of the
Shares.
|
|
6.4
|
Notwithstanding
the foregoing, taking into account that Article 7 of the corporate
bylaws
of the Company establishes the obligation to make a Public Offer
to
Acquire (“OPA”)
all of the shares of the Company in certain cases, the Parties
agree that
if the Purchaser is obligated to make an OPA as a result of exercising
the
Option, the Execution of the Option shall not take place within
the period
of ten (10) Days after the Exercise Price Date, but rather within
the
period of Ten (10) Days after the date on which the statutory OPA
process
would have completed, and therefore the Purchaser is authorized
to acquire
the Shares covered by the Option, if the Company’s bylaws were to require
the OPA to be completed to perfect the transfer of the Shares over
which
the Option would have been
exercised.
|
|
6.5
|
In
this case, the Purchaser shall send notification to Grupo Repsol
YPF as
soon as the aforementioned procedure has ended, indicating to it
the date,
place, time, and Notary before whom the transfer of the Shares
shall be
formalized.
|
|
6.6
|
The
Shares with respect to which the Option were exercised shall be
sold and
transferred by Grupo Repsol YPF to the Purchaser free of charges,
liens,
guaranties, and privileges of any type
|
|
|
of
any type and shall be freely transferrable, all of which shall
be
certified in writing by the Grantor at the time of
transfer.
|
|
7.
|
OTHER
COMMITMENTS OF THE PARTIES
|
|
7.1
|
Representations
and Warranties of Grupo Repsol YPF
|
|
|
Grupo
Repsol YPF makes through this Agreement, with effect on each Option
Exercise Date, in favor of the Beneficiary and with respect to
the Shares
which would have been covered by the Option, the same representations
and
warranties related to the capacity of Grupo Repsol YPF, the ownership
of
such shares, position of the Company and nonexistence of conflict
that are
included in the Stock Purchase and Sale Agreement (Clauses 8.1.1
to
8.1.4). Likewise, the representations and warranties
established in Clauses 8.1.6, 8.1.7, 8.1.8 and 8.2.4 of the Stock
Purchase
and Sale Agreement are deemed to be
reproduced.
|
|
7.2
|
Liability
of Grupo Repsol YPF for Representations and
Warranties
|
|
|
Grupo
Repsol YPF shall be liable to the Beneficiary, under the same terms
as
those stipulated in the Purchase and Sale Agreement, for any damage
or
loss that it might case to the Beneficiary as a result of default,
inaccuracy, omission, or lack of truth of the Representations and
Guarantees formulated under the scope of Clause 7.1 of this
Agreement.
|
|
|
Notwithstanding,
if at the time ▇▇▇▇▇▇▇▇ Energía, S.A. exercises a claim against the Vendor
under the scope of Clause 8.3.2 of the Purchase and Sale Agreement
for
damages and injuries derived from any inexactitude, omission, or
lack of
veracity of that established in Clause 8.1.5 of the Purchase and
Sale
Agreement, whether this Option was exercised in whole or in part,
the
number of Shares purchased as a result of the exercise of the Option
shall
be calculated together with the 14.9% initially acquired to determine
the
amount of the monetary damages caused to the Purchaser and its
possible
indemnification and the price of such Shares will be added at the
price
paid in the Purchase and Sale Agreement for purposes of calculating
the
limit foreseen in the Clause 8.3.2 of the Purchase and Sale
Agreement.
|
|
7.3
|
Financing
of the Purchase Price by Grupo Repsol
YPF
|
|
7.3.1
|
For
the purposes of facilitating the exercise of the Option by the
Purchaser
and acquisition by it of the greatest percentage possible of the
capital
stock of the Company, Grupo Repsol YPF undertakes with respect
to the
Purchaser to finance, if the latter so requests of it, up to a
maximum of
48% of the Exercise Price that the Purchaser must pay Grupo Repsol
YPF as
a result of the total or partial exercise of the
Option.
|
|
7.3.2
|
If
the Beneficiary requires the Grupo Repsol YPF financing to pay
the
Exercise Price, it shall notify Grupo Repsol YPF in the correspondence
that it sends it on the Exercise Date, including an express mention
of the
financing that it requests to pay the Exercise
Price.
|
|
7.3.3
|
The
Parties agree that the terms of the financing by Grupo Repsol YPF
of the
Shares covered by the Option shall be identical to those stipulated
in the
Vendors Loan.
|
|
7.4
|
Adhesion
of the Beneficiary to the Shareholders’ Agreement and execution of the
Registration Rights Agreement by the
Company
|
|
7.4.1
|
If
the Option is exercised, the Beneficiary or the entity to which
the Option
is assigned to in the terms of Clause 8.2 below, shall have the
right and
obligation, on the Execution Date, and with respect to the shares
it
acquires of the Company, to sign an adhesion document to the Shareholders
Agreement, with the Parties providing their express agreement to
such
adhesion. In that case the Beneficiary, or its legitimate
assignee, shall form an integral part of the Party referred to
as PESA in
such Shareholders Agreement.
|
|
|
The
Grantor undertakes to perform all the necessary acts for the Company
to
execute the Registration Rights Agreement before March 10,
2008.
|
|
7.4.2
|
In
the case of several partial exercises of the Option, the Beneficiary
will
have the right to and obligation to subscribe the assignment documents
to
the Shareholders’ Agreement and to the Registration Rights Agreement as
applicable for the total of the Shares it
acquires.
|
|
7.5
|
Commitment
with respect to Grupo Repsol YPF Not To Sell in the
OPA
|
|
|
In
the case that the Beneficiary had to launch an OPA in accordance
with the
current article 7 of the Corporate Bylaws of the Company, Grupo
Repsol YPF
hereby irrevocably undertakes, directly or indirectly, not to participate
with any of its shares or securities of the Company in such
OPA. To these ends, Grupo Repsol YPF shall present to the CNV,
SEC, and the National Securities Exchange Commission, a formal
statements
to prove such commitment not to appear in the OPA under the terms
of the
pro-forma document which is attached as Appendix 7.5 and any other
document that is reasonably required by these authorities to that
end.
|
|
7.6
|
Temporary
commitment by the Beneficiary not to transfer the
Shares
|
|
|
The
Beneficiary undertakes if the Option is exercised, not to transfer
the
Shares during the five (5) year period beginning from the execution
date
of this Agreement.
|
|
8.
|
MISCELLANEOUS
STIPULATIONS
|
|
8.1
|
Notifications
|
|
8.1.1
|
Any
notifications and correspondence that might or must be made by
and between
the Parties in relation to this Agreement, shall always be made
in writing
through notarized correspondence or other procedure that proves
the
delivery thereof and receipt by the
addressee.
|
|
|
For
the effects of notification, the Parties indicate the following
addresses:
|
|
(i)
|
If
addressed to the
Beneficiary:
|
|
|
To
the attention of: ▇▇. ▇▇▇▇▇ Dacomo and/or ▇▇▇▇▇▇▇
▇▇▇▇▇
|
|
|
Address: ▇▇▇▇▇▇▇
▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Fax
number: ▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇
|
|
(ii)
|
If
addressed to Grupo Repsol
YPF:
|
|
|
▇▇▇▇▇
▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇-▇▇▇
|
|
|
▇▇▇▇▇ ▇▇▇▇▇▇
(▇▇▇▇▇▇)
|
|
|
Fax:
(▇▇) ▇▇ ▇▇▇ ▇▇ ▇▇
|
|
|
Attention:
Corporate Director for Strategy and
Development
|
|
|
With
a copy to:
|
|
|
Fax:
(▇▇) ▇▇ ▇▇▇ ▇▇ ▇▇
|
|
|
Attention:
Corporate Director for Legal
Matters
|
|
8.1.2
|
Only
notifications sent to the addresses and in the manner indicated
above
shall be deemed received. Notifications sent to a new address
of any of the Parties shall only take effect if the addressee Party
has
notified the other Party in advance of a change of address notifying
it
pursuant to this stipulation.
|
|
8.2
|
Assignment
|
|
8.2.1
|
Neither
the Beneficiary nor Grupo Repsol YPF may assign in whole or in
part the
obligations derived from this Agreement to any third party except
as
expressly agreed in advance in writing by the other
Party.
|
|
8.2.2
|
Notwithstanding
the foregoing, Grupo Repsol YPF shall not deny its consent if the
Beneficiary assigns the Option (i) to companies which are ultimately
wholly-owned, by 100% of their capital stock, by the Eskenazi Family
and/or any member of the Eskenazi Family, nor (ii) for the Beneficiary
to
assign, totally or partially, the rights to economic content but
not the
obligations, arising for the Beneficiary from this Agreement in
favor of
any person or entity, to guarantee performance of the financial
obligations assumed at the time the Option is exercise with respect
to
such Shares.
|
|
8.3
|
Confidentiality
|
|
8.3.1
|
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 judicial or administrative resolution or other legal
obligation;
|
|
|
(b)
|
In
order to demand or facilitate performance of the rights and obligations
derived from the Agreement;
|
|
|
(c)
|
If
applicable, in order to meet legal or statutory requirements derived
from
the exercise of the Option and Acquisition of the
Shares;
|
|
|
(d)
|
Insofar
as required, to meet or comply with such reporting obligations
as are
required with respect to regulatory and supervisory bodies of the
capital
markets on which Company, Vendor, or if applicable, the Purchaser,
are
listed.
|
|
|
(e)
|
In
order to provide information to their advisors and auditors, and
when
financial entities reasonably need knowledge thereof, provided
that they
are bound by law or by contract to maintain the confidentiality
of the
information obtained.
|
|
8.3.2
|
Exceptionally,
Parties shall be authorized to make the mandatory communications
required
by an official body. The Parties to this Agreement shall agree,
insofar as possible, to any mandatory
communications.
|
|
8.4
|
Taxes
and Expenses
|
|
8.4.1
|
All
taxes and expenses of any type payable for the granting and execution
of
this Agreement, as well as for the formalization and execution
of the
purchase and sale of the Shares resulting from exercising the
Option, shall be borne by the Parties pursuant to the
law.
|
|
8.5
|
Full
Agreement
|
|
8.5.1
|
This
Agreement contains the full agreement of the Parties with respect
to the
objective thereof and it voids all other prior contracts and agreements
related thereto, except the sale option agreement signed on the
same date
as this Agreement.
|
|
8.6
|
Amendments
|
|
8.6.1
|
This
Agreement may only be amended by written document signed by the
Parties
that expressly refers to this
Agreement.
|
|
8.7
|
Severability
|
|
8.7.1
|
If
any of the Stipulations of this Agreement, or any stipulation included
in
it in the future, were or were to become void or impossible to
perform,
the validity or enforceability of the other Stipulations of this
Agreement
shall not be affected by such circumstance, except if the efficacy
of the
latter were to depend on the former. It shall be construed that
the stipulation voided or that cannot be executed shall be replaced
by an
adequate and equitable stipulation that, insofar as legally possible,
approximates insofar as possible the intention and objective of
the
aforementioned stipulation voided or impossible to
execute.
|
|
8.8
|
Timeframes
|
|
8.8.1
|
Timeframes
established in number of days stipulated in this Agreement shall
begin to
run on the day after the day indicated as a reference
date.
|
|
8.8.2
|
Timeframes
indicated in weeks shall be calculated from weekday to weekday
and those
indicated in months or years shall be calculated from date to
date.
|
|
8.8.3
|
The
expiration date, which shall expire at twenty-four hundred hours,
shall be
deemed included in all timeframes.
|
|
8.8.4
|
Timeframes
ending on a day other than a Business Day or a business day in
the City of
Buenos Aires, Argentina, shall be deemed extended through the next
Business Day.
|
|
8.9
|
Termination
|
|
|
This
agreement shall be automatically extinguished and nullified if
the
Purchase and Sale Agreement is terminated as a result of the Argentine
antitrust officials not authorizing the purchase stipulated in
that
agreement.
|
|
9.
|
APPLICABLE
LAW AND JURISDICTION
|
|
9.1
|
Applicable
Law
|
|
9.1.1
|
This
Agreement shall be governed and interpreted pursuant to the provisions
of
Spanish law. Notwithstanding the foregoing, the transfer of the
Shares in case of exercise of the Option, shall be governed by
Argentine
law.
|
|
9.2
|
Jurisdiction
|
|
9.2.1
|
The
Parties expressly submit any disagreement or controversy that might
arise
on this Agreement or the execution hereof, 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 (three)
arbitrators designated pursuant to the provisions of this Agreement,
the
Parties expressly waiving any other forum that might appertain
to
them.
|
|
9.2.2
|
The
Parties state that they know and accept the rules and regulations
of the
CCI, pursuant to whose rules the arbitration procedure, if applicable,
shall be undertaken.
|
|
9.2.3
|
The
arbitration procedure shall be undertaken in the Spanish language
in the
city of New York (United States of America), at such place designated
by
the CCI.
|
|
9.2.4
|
The
legal arbitration shall be subject to Spanish law and three (3)
arbitrators shall take cognizance of it. Grupo Repsol YPF and
the Beneficiary shall appoint one (1) arbitrator each, and the
third of
them shall be designated jointly by the arbitrators so
designated. If the first two (2) arbitrator cannot agree on the
selection of the third arbitrator, he shall be appointed pursuant
to the
current regulations of the CCI.
|
|
9.2.5
|
Likewise,
the arbitration proceeding shall be subject to the rules and regulations
of the CCI.
|
|
9.2.6
|
The
Parties shall request that the arbitrators include in the arbitration
decision, an express decision on the costs. The resolution on
the costs shall be proportional to the estimation of the claims
of the
Parties contained in the arbitration
decision.
|
|
9.2.7
|
The
arbitration shall in all cases be final and the Parties are obligated
to
execute and perform voluntarily the provisions of the arbitration
decision, within such terms as are established by common accord
at the
beginning of the arbitration decision. In the absence of an
agreement, the provisions of the CCI’s Regulation shall
apply.
|
|
9.2.8
|
Subsidiarily,
and if necessary, especially in relation to forced execution of
the
arbitration, the holding of preliminary proceedings and 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 or of the city of
Buenos
Aires, at the option of the defendant or plaintiff
Party
|
In
witness
whereof, the Parties sign this Purchase Option Agreement in one copy, in
the
place and on the date indicated in the heading, to be delivered to a Notary
and
recorded in the public registry..
|
REPSOL
YPF, S.A.
|
REPSOL
EXPLORACIÓN, S.A.
|
|
|
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Niubó
|
▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇
|
|
|
CAVEANT,
S.A.
|
REPSOL
YPF CAPITAL, S.L.
|
|
|
▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mazarredo
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▇▇.
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Appendix
A
Procedures
for Auditor Appointment
The
Parties will select, within the ten (10) day period following the signing
of
this Agreement, a list of three auditor firms, with international experience,
recognized prestige and independence and without professional conflict with
respect to the Parties. By drawing before a Notary, one of them will be selected
as Auditor.
Provided
that the Parties are not able to reach an agreement regarding the list of
Auditors, as well as if within the ten (10) day period from the signing of
this
agreement, the Parties are not able to reach such agreement, the firm designated
by the President of the Spanish Institute of Accounting and Auditing (Instituto de Contabilidad
y
Auditoría de Cuentas ICAC) will be appointed as Auditor. The appointment
must be effected in the maximum period of 5 days from the request to the
ICAC.
At
the
start of its appointment, the Auditor must accept in writing the appointment
and
the obligations inherent to the same, will be compensated as set by the parties
at the time of its acceptance and will prepare in writing a declaration of
no
conflicts of interest with any of the Parties.
Appendix
6.2
ADR
Legend
[NOT
FILED]