UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement under Section 14(d)(1) or 13(e)(1) of the Securities Exchange Act of 1934
EMPRESA
DISTRIBUIDORA Y COMERCIALIZADORA NORTE S.A.
(Name of Subject Company (Issuer))
EMPRESA DE ENERGÍA DEL CONO SUR S.A. (EDENOR)
And
SOUTH AMERICAN ENERGY LLP
(Names of Filing Persons (Offerors))
CLASS B
COMMON SHARES, par value 1 Peso per share (ISIN: ARENOR010020), including
Class B
Shares represented by American Depositary Shares
(Title of Class of Securities)
29244A102
(CUSIP Number of Class of Securities)
SCHEDULE 13E-3
RULE 13E-3 TRANSACTION STATEMENT UNDER SECTION 13(E) OF THE SECURITIES EXCHANGE ACT OF 1934
EMPRESA DE ENERGÍA DEL CONO SUR S.A. (EDENOR)
And
SOUTH AMERICAN ENERGY LLP
(Names of Filing Persons (Offerors))
CLASS B COMMON SHARES,
par value 1 Peso per share (ISIN: ARENOR010020), including
Class B Shares represented by American Depositary Shares
(Title of Class of Securities)
29244A102
(CUSIP Number of Class of Securities)
Nicolas Mallo Huergo
c/o Maipú 1252, 12th floor,
City of Buenos Aires, (CP1006),
Argentina
With a copy to:
Christopher C. Paci, Esq.
J.A. Glaccum, Esq.
Nicolas Teijeiro, Esq.
DLA Piper LLP (US)
1251 6th Ave.
New York, NY 10020
(212) 225-2000
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on behalf of the Filing Persons)
CALCULATION OF FILING FEE
Transaction Valuation(1) |
Amount of Filing Fee |
U.S.$114,593,327.92 |
U.S.$10,622.82 |
☐ | Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
(1) | Estimated for purposes of calculating the filing fee pursuant to Rule 0-11(d) only. The Transaction Valuation was calculated assuming the purchase of all outstanding Class B Shares (including Class B shares underlying the American Depositary Shares), other than Class B Shares and ADSs owned directly or indirectly by the Filing Person or its affiliates (including shares held as treasury shares) at a purchase price of 29.34 Argentine pesos (“Ps.”) per Class B Share and converted into U.S. dollars based on the official selling exchange rate of Ps. 105.25 per U.S.$1.00 as reported by Banco de la Nación Argentina on November 10, 2021. As of November 10, 2021, there were 411,075,965 issued and outstanding Class B Shares (including Class B Shares underlying the American Depositary Shares) but excluding shares owned by the Filing Person or its affiliates (including shares held as treasury shares). |
Amount Previously Paid: N.A Filing Party: Empresa de Energía del Cono Sur S.A. and South American Energy LLP
Form or Registration No.: N/A Date Filed: N/A
o Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the statement relates:
☒ | third party tender offer subject to Rule 14d-1. |
o | issuer tender offer subject to 13e-4. |
☒ | going-private transaction subject to Rule 13e-3. |
o | amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing is a final amendment reporting the results of the tender offer:
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
o | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
☒ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
This Tender Offer Statement on this combined Schedule TO and Schedule 13E-3 under cover of Schedule TO (this “Schedule TO”) is being filed by Empresa de Energía del Cono Sur S.A. (“Edelcos”) and South American Energy LLP (“SAE”, and together with Edelcos the “Bidders”) and relates to the offer by the Bidders to purchase any and all outstanding Class B shares, par value Ps. 1.00 per share (the “Class B Shares”), including Class B Shares represented by American Depositary Shares (“ADSs”), of Empresa Distribuidora y Comercializadora Norte S.A., a corporation organized under the laws of the Republic of Argentina (“EDENOR”).
The offer will be made on the terms and subject to the conditions set forth in the offer to purchase dated November 12, 2021 (the "U.S. Offer to Purchase") attached hereto as Exhibit (a)(1)(i) and incorporated herein by reference and in the related documents (which, together with any amendments or supplements thereto, collectively constitute the "U.S. Offer"). The U.S. Offer is being made in conjunction with an offer by Edelcos in Argentina for all outstanding Class B Shares (the "Argentine Offer," and together with the U.S. Offer, the "Offers"). The price offered in the Argentine Offer is the same on a per Class B Share basis as the Offer Price in the U.S. Offer. This Schedule TO is intended solely for (i) holders of Class B Shares that are U.S. residents (under the meaning of Rule 14d-1(d) under the U.S. Securities Exchange Act of 1934, as amended) and (ii) holders of Class B Shares represented by American Depositary Shares (each representing rights to 20 Class B Shares). The information set forth in the U.S. Offer to Purchase is incorporated herein by reference with respect to Items 1 through 11 of this Schedule TO. This Schedule TO is being filed on behalf of the Bidder.
Item 12. | Exhibits. |
(a)(1)(i) | Offer to Purchase, dated November 12, 2021. |
(a)(1)(ii) | U.S. Form of Acceptance Letter. |
(a)(1)(iii) | U.S. Form of Withdrawal for Shares. |
(a)(1)(iv) | Form of Letter to Broker for American Depositary Shares. |
(a)(1)(v) | Form of Letter to Clients for use by Broker for American Depositary Shares. |
(a)(1)(vi) | Notice of Offer to Purchase Shares of Class B Shares Issued by Edelcos, as made public on July 29, 2021. (English translation) (incorporated herein by reference to Exhibit 1 of Edelcos’s pre-commencement communication filing on Schedule TO on July 29, 2021). |
(a)(1)(vii) | Form of summary advertisement, dated November 12, 2021. |
(a)(1)(viii) | Text of Press Release issued by the Bidder on November 12, 2021. |
(b) | Not applicable. |
(c)(i) | Accounting Certification issued by PKF Audisur S.R.L., an independent accounting firm, dated July 27, 2021 (English translation). |
(c)(ii) | Valuation Report issued by Buenos Aires Advisors, S.C., an independent firm, dated August 9, 2021 (English translation). |
(d)(i) | Share Purchase Agreement entered into by and among Empresa de Energía del Cono Sur S.A., as buyer, and Pampa Energía S.A., as seller, dated December 28, 2020. |
(f) | Not Applicable. |
(g) | None. |
(h) | None. |
Item 13. Information Required by Schedule 13E-3.
The information set forth in the Offer to Purchase is incorporated by reference herein in answer to Items 1 through 16 of Schedule 13E-3, except to those items as to which information is specifically provided below.
Item 2 to Schedule 13E-3. Subject Company Information
(e) | Prior Public Offerings: None. |
Item 13 to Schedule 13E-3. Financial Information
(a)(1) | Edenor's audited consolidated financial statements included in pp. F-1 to F-65 of its annual report on Form 20-F for the fiscal year ended December 31, 2020, are incorporated herein by reference. |
(a)(2) | Financial Information: Not Applicable. |
(b) | Pro forma financial information: Not Applicable. |
The financial information incorporated herein by reference may be obtained in the manner described under "Where You Can Find More Information About EDENOR" in "THE TENDER OFFER—Section 8. Certain Information About EDENOR" of the Offer to Purchase.
Item 14 to Schedule 13E-3. Persons/Assets, Retained, Employed, Compensated or Used.
(b) | Employees and Corporate Assets: None. |
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: November 12, 2021
EMPRESA DE ENERGÍA DEL CONO SUR S.A. |
|
/s/ Nicolas Mallo Huergo | |
Name: Nicolas Mallo Huergo |
|
Title: Authorized Signatory |
|
/s/ Nicolas Mallo Huergo | |
Name: Nicolas Mallo Huergo |
|
Title: Authorized Signatory |
|
SOUTH AMERICAN ENERGY LLP |
|
/s/ Nicolas Mallo Huergo | |
Name: Nicolas Mallo Huergo |
|
Title: Authorized Signatory |
|
U.S. Offer to Purchase for Cash
Any and All Outstanding Class B Shares held by U.S. Persons, including Class B Shares represented by American Depositary Shares
(each American Depositary Share representing rights to 20 Class B Shares)
of
EMPRESA DISTRIBUIDORA Y COMERCIALIZADORA NORTE S.A. (EDENOR)
at
Ps.29.34
per Class B Share (ISIN: ARENOR010020), including Class B Shares represented by American Depositary Shares (CUSIP: 29244A102)
by
EMPRESA DE ENERGÍA DEL CONO SUR S.A.
SOUTH AMERICAN ENERGY LLP
THE OFFER PERIOD WILL COMMENCE AT 9:00 A.M., NEW YORK CITY TIME ON NOVEMBER 12, 2021 (THE “COMMENCEMENT DATE”) AND WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME (THE “EXPIRATION TIME”) ON DECEMBER 13, 2021 (THE “EXPIRATION DATE” AND “OFFER PERIOD”, RESPECTIVELY), UNLESS THE TENDER OFFER IS EXTENDED.
Empresa de Energía del Cono Sur S.A. (“Edelcos” or the “Bidder”), a corporation (sociedad anónima) organized under the laws of Argentina and South American Energy LLP, a limited liability partnership organized under the laws of England and Wales (“SAE” and, together with Edelcos, the “Bidders”), hereby offer to purchase any and all outstanding Class B common shares, par value Ps. 1.00 per share (the “Class B Shares”), held by U.S. Persons (as defined below), including outstanding Class B Shares represented by American Depositary Shares (each representing rights to 20 Class B Shares) (the “ADSs” and, together with the Class B Shares, the “Securities”), of Empresa Distribuidora y Comercializadora Norte S.A. (“Edenor”), a corporation (sociedad anónima) organized under the laws of Argentina, other than those held by the Bidders or their affiliates, in cash at a price of Ps.29.34 per Class B Share (the “Offer Price”), less (i) the stock exchange and settlement fees described herein, (ii) any applicable brokerage fees or commissions, (iii) any applicable Distributions (as defined below), and (iv) any applicable withholding taxes, upon the terms and subject to the conditions set forth in this U.S. Offer to Purchase (the “U.S. Offer to Purchase”) and the related documents (which, together with any amendments or supplements thereto, collectively constitute the “U.S. Offer” or the “Rule 13e-3 transaction”). Non-U.S. Persons will not be permitted to tender their Class B Shares in the U.S. Offer. All holders of Class B Shares who participate in the U.S. Offer will be paid in Argentina in pesos. Holders of ADSs who wish to participate in the U.S. Offer will be required to surrender their ADS, withdraw the Class B Shares underlying their ADSs and follow the procedures described herein for holders of Class B Shares to participate in the U.S. Offer to Purchase in order to receive the Offer Price. See “THE TENDER OFFER – Section 2. Acceptance for Payment and Payment for Class B Shares”.
The U.S. Offer is being made in conjunction with an offer by Edelcos in Argentina for all outstanding Class B Shares and Class C common shares, par value Ps. 1.00 per share (the “Class C Shares,” and together with the Class B Shares, the “Shares”) of Edenor, which represent 0.2% of Edenor’s outstanding capital stock and are held in Argentina pursuant to Edenor’s Employee Stock Participation Program (the “Argentine Offer” and, together with the U.S. Offer, the “Offers”). The Class A Shares (as defined below) are not publicly traded and are not the subject of the Offers and the Class C Shares are not publicly traded and are not the subject of the U.S. Offer.
The procedures for tendering your Class B Shares differ depending on whether you hold ADSs representing rights to Class B Shares or hold Class B Shares directly. You should follow the instructions for your particular circumstances set forth under “THE TENDER OFFER — Section 3 — “Procedures for Participating in the U.S. Offer.”
Holders of ADSs who wish to participate in the U.S. Offer will be required to surrender their ADSs to The Bank of New York Mellon, as depositary (the “Depositary”), withdraw the Class B Shares underlying their ADSs and follow the procedures described herein for U.S. holders of Class B Shares to participate in the U.S. Offer to Purchase in order to receive the Offer Price. The price offered in the Argentine Offer is the same on a per Class B Share basis as the Offer Price in the U.S. Offer, which is payable in Argentine pesos under the terms described in the offer materials for the Argentine Offer, but the net amount of Offer Price payable by us to each holder may differ because of the deduction of taxes. We do not intend to change the Offer Price and, while the Offers are open, will not purchase or make any arrangements to purchase Class B Shares, other than pursuant to the Offers. U.S. holders of Class B Shares may not be able to freely convert into U.S. dollars and transfer abroad the Argentine pesos they receive as the Offer Price. See “SPECIAL FACTORS—Exchange Controls”.
Pursuant to Argentine law, unless a tendering holder not resident in Argentina for Argentine tax purposes delivers a valid Tax Cost Certificate (as defined below) to us prior to the Expiration Time on the Expiration Date, as may be extended, in accordance with “THE TENDER OFFER—Section 2. Acceptance for Payment and Payment for Class B Shares—Procedures for Delivering Tax Cost Certificate,” we are required to withhold thirteen and one-half percent (13.5%) of the Offer Price payable to any such tendering holder in respect of Argentine income tax on the capital gains derived from the disposition of the Class B Shares. If a holder does not provide a valid Tax Cost Certificate within such time period, thirteen and one-half percent (13.5%) of the Offer Price will be withheld from the Offer Price payable to such holder. If a holder provides a valid Tax Cost Certificate within such time period, fifteen percent (15%) of the Net Gain (as described below) will be withheld from the Offer Price payable to such holder. The Offer Price will be paid net of the applicable withholding tax for such tendering holders not resident in Argentina. See “THE TENDER OFFER—Section 2. Acceptance for Payment and Payment for Class B Shares—Procedures for Delivering Tax Cost Certificate.” In addition, pursuant to General Resolution (AFIP) No. 1107/2001, Argentine resident individuals that validly tender their Class B Shares in the U.S. Offer will be subject to Argentine withholding at one and one-half percent (1.5%) over the Offer Price on account of their final tax liability.
Subject to the terms described herein, unless the U.S. Offer is extended, to tender Class B Shares in the U.S. Offer a holder must tender its Class B Shares prior to the Expiration Time on the Expiration Date. We will announce any decision to extend the U.S. Offer in a press release stating the extension no later than 9:00 a.m., New York City time, on the first business day after the scheduled Expiration Date.
The U.S. Offer is not conditioned on any minimum number of Class B Shares being tendered. However, the U.S. Offer is subject to certain Conditions (as defined below).
Holders tendering in the U.S. Offer will have withdrawal rights until the Expiration Date. See “THE TENDER OFFER—Section 2. Acceptance for Payment and Payment for Class B Shares”, “THE TENDER OFFER—Section 4. Withdrawal Rights”, and “THE TENDER OFFER—Section 13. Conditions of the U.S. Offer.”
On August 9, 2021, the board of directors of Edenor (the “Board of Directors”) issued a favorable opinion on the reasonableness of the price offered by the Bidder under the Argentine Offer, consisting of Ps.29.34 per Class B Share (or U.S.$0.28 per Class B Share, using the selling exchange rate of Ps.105.25 per U.S.$1.00 reported by Banco de la Nación Argentina on November 11, 2021), under the Argentine Offer, based on the BA Advisors Valuation Report (as defined below). In such Board of Directors’ meeting the executive officers of Edenor holding Class B Shares expressed their intention not to participate in the Argentine Offer. Under U.S. law, within 10 (ten) business days after the day the U.S. Offer is commenced, Edenor is required by the Securities Exchange Act of 1934 (the “Exchange Act”) to file with the U.S. Securities and Exchange Commission (“SEC”) and distribute to holders of Class B Shares that are U.S. residents a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 and a Transaction Statement on Schedule 13E-3 containing a statement of the position of the Board of Directors of Edenor with respect to the U.S. Offer.
Questions or requests for assistance may be directed to D.F. King & Co. Inc., the U.S. information agent (the “U.S. Information Agent”), at the address and phone number set forth on the back cover of this U.S. Offer to Purchase. Additional copies of this U.S. Offer to Purchase, and other tender offer materials, may also be obtained from the U.S. Information Agent.
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You must make your own decision as to whether to tender your Class B Shares and, if so, how many to tender. None of us, the members of our boards of directors or our executive officers makes any recommendation as to whether you should tender your Class B Shares. If you are in any doubt as to the action you should take, contact your broker, lawyer, accountant or other professional advisor without delay.
NONE OF THE U.S. SECURITIES AND EXCHANGE COMMISSION, OR ANY STATE SECURITIES COMMISSION, HAS: (A) APPROVED OR DISAPPROVED THE U.S. OFFER; (B) PASSED UPON THE MERITS OR FAIRNESS OF THE U.S. OFFER; OR (C) PASSED UPON THE ADEQUACY OR ACCURACY OF THE INFORMATION CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The formal terms of the Argentine Offer have been approved by the CNV. Authorization to effect the Argentine Offer was requested from the CNV on July 30, 2021 and which approval the CNV issued on November 4, 2021. This U.S. Offer to Purchase and the related documents contain important information. You should carefully read these documents in their entirety before making a decision with respect to this U.S. Offer.
November 12, 2021
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IMPORTANT INFORMATION
In this document, references to “United States dollars”, “U.S. dollars”, “U.S. $”, “$” or “dollars” are to U.S. currency and references to “Argentine pesos” “pesos” or “Ps.” are to Argentine currency. Solely for the convenience of the reader, certain peso amounts have been translated into dollars at specified rates. These translations should not be construed as representations that the Argentine peso amounts actually represent such U.S. dollar amounts or could be converted into U.S. dollars at the rate indicated or at any other rate. On November 11, 2021, the last practicable trading day prior to printing this U.S. Offer to Purchase, the selling exchange rate between Argentine pesos and U.S. dollars reported by Banco de la Nación Argentina for the exchange of Argentine pesos and U.S. dollars was Ps.105.25 to U.S. $1.00.
U.S. Holders of Class B Shares. If (i) you are a U.S. Person, (ii) you hold Class B Shares and (iii) your Class B Shares are deposited directly with Caja de Valores S.A. (“Caja de Valores”) or in the collective deposit system of Caja de Valores, and (iv) you desire to tender all or any portion of your Class B Shares in the U.S. Offer, you should follow the instructions set forth in this U.S. Offer to Purchase. Any U.S. holder whose Class B Shares are registered in the name of a broker, dealer, commercial bank, trust company or other nominee must contact such broker, dealer, commercial bank, trust company or other nominee if such holder desires to tender such Class B Shares in the U.S. Offer. There will be no guaranteed delivery process available to tender Class B Shares in the U.S. Offer. For more information see “THE TENDER OFFER—Section 3. Procedures for Participating in the U.S. Offer—Holders of Class B Shares.”
Holders of ADSs. Holders of ADSs who wish to participate in the Offers must first become direct holders of Class B Shares by surrendering their ADSs to the Depositary for cancellation and taking delivery of the Class B Shares represented thereby into an account in Argentina. Once a holder of Class B Shares, such holder, in the case of the U.S. holders, must follow the procedures described herein for U.S. holders of Class B Shares participating in the U.S. Offer in order to receive the Offer Price, and, in the case of non-U.S. holders, must tender their Class B Shares in the Argentine Offer in order to receive the Offer Price. As tendering holders who participate in the U.S. Offer will be paid in Argentina in pesos, ADSs cannot be directly tendered in the Offers. See “THE TENDER OFFER—Section 3. Procedures for Participating in the U.S. Offer—Holders of Class B Shares” and “THE TENDER OFFER—Section 3. Procedures for Participating in the U.S. Offer—Holders of ADSs.”
FORWARD LOOKING STATEMENTS
This U.S. Offer to Purchase contains “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Exchange Act. Forward-looking statements made in this U.S. Offer to Purchase are subject to risks and uncertainties. Forward-looking statements include statements that are predictive in nature, which depend upon or refer to future events or conditions, which include words such as “believes”, “plans”, “anticipates”, “estimates”, “expects”, “intends”, “seeks” or similar expressions. In addition, any statements we may provide concerning future financial performance, ongoing business strategies or prospects, and possible future actions, including with respect to our strategy following completion of the Offers and our plans with respect to Edenor, are also forward-looking statements. Forward-looking statements are based on current expectations and projections about future events and are subject to risks, uncertainties and assumptions about Edenor, economic and market factors and the industry in which Edenor does business, among other things. You should not place undue reliance on forward-looking statements, which are based on current expectations, since, while we believe the assumptions on which the forward-looking statements are based are reasonable, there can be no assurance that these forward-looking statements will prove accurate. This cautionary statement is applicable to all forward-looking statements contained in this U.S. Offer to Purchase and the material accompanying this U.S. Offer to Purchase. These statements are not guarantees of future performance. All forward-looking statements included in this U.S. Offer to Purchase are made as of the date on the front cover of this U.S. Offer to Purchase and, unless otherwise required by applicable law, we undertake no obligation to publicly update any forward-looking statements, whether as a result of new information, future events or otherwise. Actual events and results may differ materially from those expressed or forecasted in forward-looking statements due to a number of factors.
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TABLE OF CONTENTS
SUMMARY TERM SHEET SUMMARY TERM SHEET |
1 |
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INTRODUCTION |
1 |
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SPECIAL FACTORS |
1 |
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Background of the Offers |
1 |
|
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Recent Changes in the Market Price of Edenor Class B Shares |
2 |
|
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Exchange Controls |
2 |
|
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Purpose of and Reasons for the U.S. Offer; Plans for Edenor Following the U.S. Offer |
6 |
|
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Certain Effects of the Offers |
7 |
|
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Certain Rights of Shareholders Following the U.S. Offer |
8 |
|
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Position of the Bidders Regarding Fairness of the U.S. Offer |
8 |
|
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Accounting Certification of PKF |
10 |
|
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Valuation Report of BA Advisors |
12 |
|
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Position of Edenor’s Board of Directors Regarding Fairness of the U.S. Offer |
15 |
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Interests of Certain Persons in the Offers; Security Ownership; Transactions and Arrangements Concerning the Class B Shares and ADSs |
15 |
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Past Contacts, Transactions, Negotiations and Agreements with Edenor. |
15 |
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THE TENDER OFFER |
1 |
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|
1. |
Terms of the U.S. Offer and Expiration Date. |
1 |
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2. |
Acceptance for Payment and Payment for Class B Shares. |
2 |
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3. |
Procedures for Participating in the U.S. Offer. |
4 |
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4. |
Withdrawal Rights. |
12 |
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5. |
Source and Amount of Funds; Certain Requirements Regarding Offer Price. |
13 |
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6. |
Certain U.S. Federal Income and Argentine Tax Consequences. |
13 |
|
7. |
Certain Information about the Class B Shares and ADSs. |
18 |
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8. |
Certain Information about Edenor. |
19 |
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9. |
Certain Information about the Bidders. |
23 |
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10. |
Certain Legal and Regulatory Matters. |
25 |
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11. |
Fees and Expenses. |
28 |
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12. |
Miscellaneous. |
28 |
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13. |
Conditions of the U.S. Offer. |
29 |
SCHEDULE 1 INFORMATION ABOUT THE DIRECTORS AND EXECUTIVE OFFICERS OF THE BIDDERS |
1 |
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SCHEDULE 2 RECENT ACQUISITIONS OF Edenor’S SECURITIES BY THE Bidders |
15 |
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i |
SUMMARY TERM SHEET
This summary term sheet summarizes the material terms of the U.S. Offer. You should read carefully the remainder of this U.S. Offer to Purchase and the related documents because important additional information is contained therein. In this U.S. Offer to Purchase, “we,” “us” and “our” refers to the Bidders. Questions or requests for assistance may be directed to the U.S. Information Agent set forth on the back cover of this U.S. Offer to Purchase.
· | The U.S. Offer: We are offering to purchase any and all outstanding Class B Shares held by U.S. Persons, including Class B Shares represented by ADSs other than those held by us or our affiliates, in cash at a price of Ps.29.34 per Class B Share, net of the stock exchange and settlement fees described herein, any applicable brokerage fees or commissions, any applicable Distributions, and any applicable withholding taxes, upon the terms and subject to the conditions set forth in the U.S. Offer to Purchase. |
· | Reasons for the U.S. Offer: The Offers are comprised of a U.S. Offer and an Argentine Offer. The U.S. Offer is being made by us in connection with the Edelcos’s recent acquisition of all Class A common shares, par value Ps.1.00 per share of Edenor, representing 51% of the capital stock and votes of Edenor (the “Class A Shares”). Upon consummation of the Transaction (as defined below), Edelcos acquired a controlling interest in Edenor (“Change in Control of Edenor”). The Argentine Offer is required in Argentina as a mandatory offer in connection with the Change in Control of Edenor. As a result of the Argentine Offer, the U.S. Offer is required pursuant to Regulation 14D of the Exchange Act. |
· | Relationship between the Bidders and Edenor: As a result of the Transaction, Edelcos directly owns a total of 462,292,111 Class A Shares of Edenor, or 100% of the total outstanding number of Class A Shares, representing 51% of the capital stock and votes of Edenor. SAE owns approximately 100% of the capital stock of Edelcos. |
· | Price: The Offer Price is Ps. 29.34 per Class B Share, in each case validly tendered and not validly withdrawn, less (i) the stock exchange and settlement fee described herein, (ii) any applicable brokerage fees or commissions, (iii) any applicable Distributions, and (iv) any applicable withholding taxes. The Offer Price for the Class B Shares accepted for purchase pursuant to the U.S. Offer will be settled and paid in Argentine pesos in Argentina. Non-U.S. Persons will not be permitted to tender their Class B Shares in the U.S. Offer. All holders of Class B Shares who participate in the U.S. Offer will be paid in Argentina in pesos. See “THE TENDER OFFER – Section 2. Acceptance for Payment and Payment for Class B Shares”. Holders of ADSs who wish to participate in the U.S. Offer will be required to surrender their ADSs to the Depositary, withdraw the Class B Shares underlying their ADSs and follow the procedures described herein for holders of Class B Shares to participate in the U.S. Offer to Purchase in order to receive the Offer Price. As tendering holders who participate in the U.S. Offer will be paid in Argentina in pesos, ADSs cannot be directly tendered in the Offers. |
· | Payment. In accordance with the terms of the U.S. Offer, payment for the Class B Shares, including Class B Shares represented by ADS, tendered on or prior to the Expiration Time on the Expiration Date or any extension thereof and not previously withdrawn will be made promptly, but no earlier than 5 (five) business days after the Expiration Date. The Offer Price for the Class B Shares accepted for purchase pursuant to the U.S. Offer will be settled and paid in Argentine pesos in Argentina. See “THE TENDER OFFER—Section 2. Acceptance for Payment and Payment for Class B Shares”, “THE TENDER OFFER—Section 13. Conditions of the U.S. Offer” and “THE TENDER OFFER—Section 10. Certain Legal and Regulatory Matters.” |
· | Settlement of the Offer Price. The Offer Price for the Class B Shares accepted for purchase pursuant to the U.S. Offer will be settled in Argentine pesos in Argentina. Non-U.S. Persons will not be permitted to tender their Class B Shares in the U.S. Offer. All holders of Class B Shares who participate in the U.S. Offer will be paid in Argentina in pesos. See “THE TENDER OFFER – Section 2. Acceptance for Payment and Payment for Class B Shares”. Holders of ADSs who wish to participate in the U.S. Offer will be required to surrender their ADSs, withdraw the underlying Class B Shares, which requires a holder to surrender its ADSs to the Depositary, as depositary, and follow the procedures described herein for holders of Class B Shares to participate in the U.S. Offer in order to receive the Offer Price. U.S. holders of Class B Shares may not be able to freely convert into U.S. dollars and transfer abroad the Argentine pesos they receive as the Offer Price. See “SPECIAL FACTORS—Exchange Controls” and “THE TENDER OFFER—Section 2. Acceptance for Payment and Payment for Class B Shares.” |
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· | Conditions: The U.S. Offer is subject to the following conditions: |
(a) | the making of the Offers, or the development of the process or procedures thereof, shall have not been partially or wholly prevented or obstructed by any action, order, decision or other measure issued by any government or governmental, regulatory or administrative agency or authority or tribunal or other judicial authority of competent jurisdiction; and |
(b) | the Argentine Offer shall have been authorized by the CNV and shall have been completed. |
· | Expiration Date: Subject to the exceptions described in this U.S. Offer to Purchase, the U.S. Offer will expire on the Expiration Date. Holders of ADSs that wish to tender the Class B Shares represented by ADSs should take action as soon as possible in order to receive delivery of Class B Shares before the Expiration Date. Those holders must have an account with a broker or other intermediary that is able to receive delivery of Class B Shares in Argentina. See “THE TENDER OFFER—Section 3. Procedures for Participating in the U.S. Offer—Holders of ADSs.” |
There will be no guaranteed delivery process available to tender Class B Shares in the U.S. Offer.
· | Procedures for Participating in the U.S. Offer: The procedures for tendering your Class B Shares differ depending on whether you hold ADSs representing rights to Class B Shares or hold Class B Shares directly. Any ADS holder (whether a U.S. holder or a non-U.S. holder) that wishes to participate in the U.S. Offer or the Argentine Offer must withdraw the Class B Shares it wishes to tender from Edenor’s ADS program and validly tender such shares prior to the Expiration Time on the Expiration Date. You should follow the instructions for tendering Class B Shares, depending on your particular circumstances, set forth under “THE TENDER OFFER—Section 3. Procedures for Participating in the U.S. Offer.” |
· | Withdrawal: Tenders of Class B Shares in the U.S. Offer may be withdrawn at any time prior to the Expiration Time on the Expiration Date, unless withdrawal rights are required to be reinstated in accordance with applicable law. See “THE TENDER OFFER—Section 4. Withdrawal Rights.” |
For your convenience, below is additional detail on the U.S. Offer in a question-and-answer format, including additional detail on the procedures for tendering your Class B Shares.
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Who is making the U.S. Offer? | The Bidders are Empresa de Energía del Cono Sur S.A. (“Edelcos” or the “Bidder”) and South American Energy LLP (“SAE,” and together with Edelcos, the “Bidders”). As a result of the Transaction, Edelcos directly owns a total of 462,292,111 Class A Shares of Edenor, or 100% of the total outstanding number of Class A Shares, representing 51% of the capital stock and votes of Edenor. SAE owns approximately 100% of the capital stock of Edelcos. See “SPECIAL FACTORS—Background of the Offers” and “—Interests of Certain Persons in the U.S. Offer; Security Ownership; Transactions and Arrangements Concerning the Class B Shares and ADSs” and “THE TENDER OFFER—Section 9. Certain Information about the Bidders.” | |
What securities are being sought in the U.S. Offer? |
In the U.S. Offer, we are offering to purchase all of the outstanding Class B Shares held by U.S. Persons including all Class B Shares represented by outstanding ADSs. Simultaneously with the commencement of the U.S. Offer, we are offering to purchase all of the outstanding Shares under the Argentine Offer. ADSs may not be tendered directly in the Offers. All holders of Class B Shares who participate in the U.S. Offer will be paid in Argentina in pesos. See “THE TENDER OFFER – Section 2. Acceptance for Payment and Payment for Class B Shares”. As a result, holders of ADSs who wish to participate in the U.S. Offer will be required to surrender their ADSs to the Depositary, withdraw the Class B Shares underlying their ADSs from the Edenor ADS program and follow the procedures described herein as holders of Class B Shares in order to receive the Offer Price. For more information, please see “INTRODUCTION.” The Class A Shares are not publicly traded and are not the subject of the Offers and the Class C Shares are not publicly traded and are not the subject of the U.S. Offer. |
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What is the purpose of the U.S. Offer? | The U.S. Offer is being made by us in connection with the Transaction, upon the consummation of which Edelcos acquired a controlling interest in Edenor. Pursuant to Argentine law, Edelcos is required to make an offer to purchase all outstanding Shares in connection with the Change in Control of Edenor. | |
Who can participate in the U.S. Offer? Who may use this U.S. Offer to Purchase? | The U.S. Offer is open to all holders of Class B Shares that are U.S. Persons. Holders of ADSs (whether or not held by U.S. Persons) who wish to participate in the U.S. Offer must surrender their ADSs to the Depositary and withdraw the Class B Shares underlying their ADSs from the Edenor ADS program. |
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Who can participate in the Argentine Offer? | All holders of Shares, including U.S. Persons, may tender their Shares in the Argentine Offer. Holders of ADSs may not tender their ADSs in the Offers. Holders of ADSs who wish to participate in the Argentine Offer must cancel their ADSs in accordance with the terms thereof, receive the Class B Shares and then comply with the requirements of the Argentine Offer. U.S. holders of Class B Shares and U.S. holders of ADSs who surrender their ADSs to the Depositary and withdraw the Class B Shares underlying the ADSs from the Edenor ADS program who wish to participate in the Argentine Offer should carefully consider that they will not be granted the protections under the Exchange Act. | |
Why is there a separate Argentine Offer? | Edenor is an Argentine corporation. ADSs and the Class B Shares underlying them are registered under the Exchange Act and listed on the New York Stock Exchange (the “NYSE”). Edenor’s Class B Shares are listed on the Buenos Aires Securities Market (Bolsas y Mercados Argentinos, or the “BYMA”). Upon the consummation of the Transaction, Edelcos acquired a controlling interest in Edenor. Accordingly, pursuant to Argentine law, Edelcos is obligated to make an offer in Argentina to purchase all outstanding Shares. U.S. and Argentine law both require that tender offers comply with the home country rules and regulations. Because the U.S. and Argentine laws relating to tender offers are different and inconsistent in certain ways, we are making two separate offers. The U.S. Offer will be conducted in accordance with U.S. federal securities laws, including Regulation 14D and Regulation 14E promulgated under the Exchange Act. The Argentine Offer will be conducted in accordance with Argentine securities law and CNV regulations. | |
For more information, see “INTRODUCTION.” | ||
What are the principal differences between the U.S. Offer and the Argentine Offer? | The terms and conditions of the U.S. Offer and the Argentine Offer are substantially similar and only differ to the extent required by law or local customary market practice. The principal differences between the Argentine Offer and the U.S. Offer are: | |
· U.S. holders of Class B Shares who wish to participate in the Argentine Offer will not be granted the protections under the Exchange Act. | ||
· Holders of Class B Shares tendering in the U.S. Offer will have withdrawal rights provided under U.S. law. The Argentine Offer does not allow withdrawal of tendered Shares unless the terms of the Argentine Offer are modified. Withdrawal rights will be available only for tenders of Class B Shares under the U.S. Offer and not under the Argentine Offer. | ||
· The U.S. Offer is conditioned on the completion of the Argentine Offer. However, the Argentine Offer is not conditioned on the completion of the U.S. Offer. |
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· Pursuant to mandatory requirements under CNV regulations, Edelcos is required to obtain a guarantee of its payment obligations under the Argentine Offer. Edelcos has obtained such guarantees from several insurance companies. The guarantee applies only after the expiration of the Offers and only if Shares have been accepted in the Offers. See “THE TENDER OFFER—Source and Amount of Funds; Certain Requirements Regarding Offer Price.” | ||
What are the differences in this U.S. Offer applicable to direct holders of Class B Shares, on the one hand, and holders of ADSs, on the other hand? |
The terms and conditions of the U.S. Offer are the same for all holders of Class B Shares, including Class B Shares represented by ADSs, in all material respects except that holders of ADSs must first surrender their ADSs and receive delivery of the underlying Class B Shares, as described below. All holders of Class B Shares who participate in the U.S. Offer will be paid in Argentina in pesos. See “THE TENDER OFFER – Section 2. Acceptance for Payment and Payment for Class B Shares”. As a result, U.S. holders of ADSs who wish to participate in the U.S. Offer will be required to surrender their ADSs to the Depositary, withdraw the Class B Shares underlying their ADSs from the Edenor ADS program, deposit such Class B Shares into an account at Caja de Valores and follow the procedures described herein as holders of Class B Shares in order to receive the Offer Price. Each ADS represents the rights to 20 Class B Shares. Holders of Class B Shares tendering directly in the U.S. Offer will be paid in Argentine pesos in Argentina, upon the terms and subject to the conditions set forth in this U.S. Offer to Purchase. Non-U.S. holders of ADSs who wish to participate in the Offers should contact the U.S. Information Agent, at its address and telephone number set forth on the back cover of this U.S. Offer to Purchase, for the steps to follow after such non-U.S. holders of ADSs become direct holders of Class B Shares. The procedures for tendering your Class B Shares differ depending on whether you hold ADSs representing rights to Class B Shares or hold Class B Shares directly. see “THE TENDER OFFER—Section 2. Acceptance for Payment and Payment for Class B Shares.” |
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How much are you offering to pay? What is the form of payment? |
The Offer Price in the U.S. Offer will be Ps. 29.34 per Class B Share, in each case validly tendered and not validly withdrawn. Upon the terms and conditions of the U.S. Offer, we will pay the Offer Price in cash, in Argentine pesos in Argentina, net of the stock exchange and settlement fees described herein, any applicable brokerage fees or commissions, any applicable Distributions and applicable withholding taxes, upon the terms and subject to the conditions set forth in the U.S. Offer to Purchase and related documents. We do not intend to change the Offer Price. ADSs may not be tendered directly in the Offers. Holders of ADSs who wish to participate in the U.S. Offer will be required to surrender their ADSs to the Depositary, withdraw the Class B Shares underlying their ADSs from the Edenor ADS program and follow the procedures described herein for holders of Class B Shares to participate in the U.S. Offer in order to receive the Offer Price. We will be responsible for paying any cancellation fees charged by the Depositary in connection with ADSs surrendered for cancellation, provided that the underlying Class B Shares are credited to a Caja de Valores account of the Argentine Receiving Agent. |
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How will payment be made for the Class B Shares that I tender? | We will be deemed to have accepted for purchase (and thereby purchased) Class B Shares validly tendered in the U.S. Offer and not validly withdrawn when we give written notice to the U.S. Receiving Agent of acceptance for purchase of such Class B Shares. | |
For holders of ADSs who wish to participate in the Offers, you will be required to surrender your ADSs to the Depositary, and withdraw the Class B Shares underlying your ADSs from the Edenor ADS program. We will be responsible for paying any cancellation fees charged by the Depositary in connection with ADSs surrendered for cancellation, provided that the underlying Class B Shares are credited to a Caja de Valores account of the Argentine Receiving Agent. Once the Class B Shares are withdrawn, (i) U.S. holders of such Class B Shares may choose to tender them for the Offer Price pursuant to the U.S. Offer, and (ii) non-U.S. holders of such Class B Shares may choose to tender them for the Offer Price pursuant to the Argentine Offer. For U.S. holders of Class B Shares who validly tender and do not validly withdraw their Class B Shares, settlement of the Class B Shares will be made promptly, but no later than 5 (five) business days, after the Expiration Date. |
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For more information on the payment mechanics, see “THE TENDER OFFER—Section 2. Acceptance for Payment and Payment for Class B Shares.” | ||
Will holders have to pay brokerage fees or commissions if they tender their Class B Shares? | If you own your Class B Shares through a broker or other nominee, and your broker tenders your Class B Shares on your behalf, your broker or nominee may charge you a fee for doing so. You should consult your broker or nominee to determine whether any charges will apply. For more information, see “INTRODUCTION.” |
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Do you have the financial resources to pay for the Class B Shares? | The Bidders have access to the necessary economic resources to pay the Offer Price. Pursuant to the Purchase Agreement, including by giving effect to shareholders’ contributions, loans from local and foreign institutions, and/or the commitment by Pampa Energía S.A. (“Pampa”) to acquire, subject to the satisfaction of certain conditions, as described in “Special Factors – Background of the Offers” the lesser of: (x) 90% of the Class B Shares that are tendered in the Offers and (y) the number of Class B Shares representing 35% of the capital stock and votes of Edenor. To the extent that Pampa is required to purchase from us any such Class B Shares, such shares will be purchased after the Expiration at the same price as the Offer Price. In addition, pursuant to CNV regulations, we have procured insurance policies that guarantee the payment to the Argentine Receiving Agent for the benefit of the tendering holders of our obligations in respect of any Class B Shares that are tendered in the offer. See “THE TENDER OFFER—Section 5. Source and Amount of Funds; Certain Requirements Regarding Offer Price” and “—Section 2. Acceptance for Payment and Payment for Class B Shares.” | |
Is your financial condition relevant to my decision whether to tender in this U.S. Offer? | We do not believe that our financial condition is relevant to a decision by a holder of Class B Shares, including Class B Shares represented by ADSs, to tender Class B Shares in the U.S. Offer because (a) the U.S. Offer is being made for all Class B Shares, including Class B Shares represented by ADSs, (b) the U.S. Offer is solely for cash and (c) the U.S. Offer is not subject to any financing condition. Nonetheless, certain selected financial information of the Bidders is included in “THE TENDER OFFER—Section 9. Certain Information About the Bidders,” in line with information included in the Spanish-language offer document for the Argentine Offer (the “Prospecto”). | |
Are there any conditions to the U.S. Offer? | The U.S. Offer is not subject to any financing condition or minimum amount of Class B Shares tendered. However, the U.S. Offer will be subject to the satisfaction of certain Conditions (as defined below) as described in “THE TENDER OFFER—Section 13. Conditions of the U.S. Offer.” | |
Are there any conditions to the Argentine Offer? | The Argentine Offer is subject to substantially the same Conditions as the U.S. Offer except that the Argentine Offer is not conditioned on the completion of the U.S. Offer. |
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How will you notify holders if you extend the U.S. Offer? | If we extend the U.S. Offer, we will announce such extension by giving written notice to Computershare Inc. (the “U.S. Receiving Agent”) followed as promptly as practicable by a public announcement thereof (which, in any event, will be made no later than 9:00 a.m., New York City time, on the first business day after the scheduled Expiration Date). During any extension, all Class B Shares previously tendered in the U.S. Offer and not withdrawn will continue to be deemed tendered in the U.S. Offer, subject to the rights of a tendering holder to withdraw its Class B Shares in accordance with the terms of this U.S. Offer to Purchase. Any notice regarding the extension of the Argentine Offer will be given in accordance with CNV regulations. For more information regarding extensions of the U.S. Offer, see “THE TENDER OFFER—Section 1. Terms of the U.S. Offer and Expiration Date.” | |
What happens if I hold ADSs and I want to receive the Offer Price? |
ADSs are not permitted to be directly tendered in the U.S. Offer but their holders may choose to participate therein indirectly by surrendering their ADSs to the Depositary and withdrawing the Class B Shares underlying their ADSs. Once a holder of Class B Shares, such holder, in the case of the U.S. holders, must follow the procedures described herein for U.S. holders of Class B Shares to participate in the U.S. Offer in order to receive the Offer Price, and, in the case of non-U.S. holders, must tender their Class B Shares in the Argentine Offer in order to receive the Offer Price. We will be responsible for paying any cancellation fees charged by the Depositary in connection with ADSs surrendered for cancellation, provided that the underlying Class B Shares are credited to a Caja de Valores account of the Argentine Receiving Agent. In order for a registered holder on the books of the Depositary to withdraw the Class B Shares underlying such holder’s ADSs, registered holders should contact the Depositary, at drsettlements@bnymellon.com, telephone number (+1) 212 815 2783, and in order for a person or entity that holds ADSs through a broker or other securities intermediary to withdraw the Class B Shares underlying such holder’s ADSs, such holders should contact the securities intermediary holding their ADSs, in either case, to surrender their ADSs and withdraw the underlying Class B Shares. If you are a U.S. holder of ADSs and you wish to participate in the U.S. Offer, you should allow sufficient time to complete all required steps to convert your ADSs into Class B Shares prior to the expiration of the U.S. Offer. See “THE TENDER OFFER—Section 3. Procedures for Participating in the U.S. Offer.” |
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What happens if I hold ADSs and I want to participate in the Argentine Offer? |
ADSs are not permitted to be directly tendered in the Argentine Offer but their holders may choose to participate indirectly therein by surrendering their ADSs to the Depositary, paying the Depositary’s fee of U.S.$0.05 per ADS for cancellation of the ADSs, and withdrawing the Class B Shares underlying their ADSs, which may then be tendered directly in the Argentine Offer. In order for a registered holder on the books of the Depositary to withdraw the Class B Shares underlying such holder’s ADSs, registered holders should contact the Depositary, at drsettlements@bnymellon.com, telephone number (+1) 212 815 2783, and in order for a person or entity that holds ADSs through a bank, broker or other nominee to withdraw the Class B Shares underlying such holder’s ADSs, such holders should contact the bank, broker or nominee holding their ADSs, in either case, to surrender their ADSs and withdraw the underlying Class B Shares, which may then be tendered directly in Argentina pursuant to the procedures described in the Prospecto for the Argentine Offer. For a person to tender the Class B Shares represented by ADSs, such person shall first open a cuenta comitente at Caja de Valores that is able to receive delivery of the Class B Shares following the cancellation of the corresponding ADSs. All cancellation and withdrawal fees charged by the Depositary will be borne solely by the respective holders. If you hold ADSs and you wish to participate in the Argentine Offer, you should allow sufficient time to complete all required steps to convert your ADSs into Class B Shares prior to the Expiration Date. You must also have a securities account with a broker or other intermediary that can receive delivery of Class B Shares. |
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I am a U.S. Person and I hold Class B Shares of Edenor. How do I participate in the U.S. Offer? |
If you are a U.S. Person and you are either a registered holder or beneficial owner on the books and records of Caja de Valores of Class B Shares and you wish to tender your Class B Shares, you must do so by book-entry transfer as described herein. You will not be able to tender in the U.S. Offer any Class B Shares in certificated form. Any broker, dealer, bank, trust company or other nominee acting on your behalf that is a participant at Caja de Valores may make delivery of Class B Shares by causing Caja de Valores to transfer such Class B Shares into the U.S. Tendered Class B Shares Account (as defined below), in accordance with the procedures of Caja de Valores. In order to effect a tender of the Class B Shares you own directly or beneficially, you should promptly contact your nominee and instruct it to tender such Class B Shares. If you hold your Class B Shares through a broker, dealer, bank, trust company or other nominee who is not a Caja de Valores participant, such nominee, on your behalf, should promptly contact a Caja de Valores participant and make arrangements for the tender of the Class B Shares into the U.S. Tendered Class B Shares Account, including the opening of a cuenta comitente at Caja de Valores, in accordance with the procedures of Caja de Valores, to be received prior to the expiration of the U.S. Offer. A valid tender will be deemed to have been received only if (i) transfer of the Class B Shares into the U.S. Tendered Class B Shares Account is duly registered in the Daily Registry (as defined below) and (ii) the Caja de Valores participant through which such Class B Shares were tendered delivers before the expiration of the U.S. Offer a duly completed and executed form of acceptance (the “Form of Acceptance”) to the U.S. Receiving Agent. See “THE TENDER OFFER—Section 3. Procedures for Participating in the U.S. Offer.” |
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Can I withdraw Class B Shares previously tendered in the U.S. Offer? | Yes. To be effective, a written or facsimile transmission notice of withdrawal must be timely received by the U.S. Receiving Agent at its address set forth on the back cover of this U.S. Offer to Purchase and must specify the name of the person who tendered the Class B Shares to be withdrawn and the number of Class B Shares to be withdrawn and the name of the registered holder of Class B Shares, if different from that of the person who tendered such Class B Shares. Withdrawal rights will be available only for tenders of Class B Shares under the U.S. Offer and not under the Argentine Offer. For more information regarding withdrawal of Class B Shares tendered from the U.S. Offer, see “THE TENDER OFFER—Section 4. Withdrawal Rights.” | |
Will I receive any Distributions with respect to the Class B Shares tendered? | Upon consummation of the U.S. Offer, we will acquire the Class B Shares together with all economic and voting rights, including rights to any Distributions declared on or after the Commencement Date. If, on or after the date hereof, Edenor should declare or pay any Distributions on the Class B Shares that are payable or distributable to stockholders of record on Edenor’s stock transfer records of Class B Shares on a date prior to the transfer to our name of the tendered Class B Shares that are accepted for purchase pursuant to the U.S. Offer, then (i) the Offer Price payable by us per Security in the U.S. Offer will be further reduced to the extent such Distributions are payable in cash and (ii) any non-cash Distributions received and held by a tendering holder shall be required to be promptly remitted and transferred to the U.S. Receiving Agent for our account accompanied by appropriate documents of transfer. Pending such remittance, we will be entitled to all rights and privileges, as owner of any such non-cash Distributions and may withhold the entire Offer Price or deduct from the Offer Price the amount or value thereof, as determined by the us in our sole discretion. See “THE TENDER OFFER—Section 2. Acceptance for Payment and Payment.” |
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Do you think the U.S. Offer is fair to holders of Class B Shares? | The Bidders believe that the U.S. Offer is substantively and procedurally fair to unaffiliated holders of Securities under Argentine laws and regulations applicable to mandatory tender offers. However, (i) the Offer Price of Ps.29.34 per Class B Share is below Ps.66.7, the closing trading price per Class B Share and (ii) the aggregate Offer Price of Ps.586.80 for the twenty (20) Class B Shares underlying each ADS is below the aggregate closing trading price of for twenty (20) Class B Shares ofPs.1,334.00, in each case, as of November 11, 2021 (the last trading day prior to the Commencement Date). Accordingly, holders of Class B Shares (including holders of ADSs who surrender their ADSs and take possession of Class B Shares) tendering into the U.S. Offer would receive less per Class B Share than the then current market price per Class B Share if the current market price per Class B Share exceeds the Offer Price on the Expiration Date, as applicable. See “SPECIAL FACTORS—Position of the Bidders Regarding Fairness of the U.S. Offer” | |
What does the Board of Directors of Edenor think of the Offers? | In accordance with Argentine law, on August 9, 2021, the Board of Directors issued a favorable opinion on the reasonableness of the Offer Price under the Argentine Offer. | |
Within 10 (ten) business days after the day the U.S. Offer is commenced, Edenor is required by the Exchange Act to file with the SEC and distribute to holders of Class B Shares that are U.S. residents a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 and a Transaction Statement on Schedule 13E-3 containing a statement of Edenor’s Board position with respect to the U.S. Offer. | ||
To the best of our knowledge, none of the directors or affiliates of Edenor have made any recommendation with respect to the U.S. Offer in its individual capacity. The executive officers of Edenor holding Class B Shares expressed their intention not to participate in the Argentine Offer. For more information, see “INTRODUCTION.” | ||
Are there appraisal rights with respect to the U.S. Offer? | No, there are no appraisal or similar rights available in connection with the U.S. Offer. | |
What are your plans for Edenor following the Offers? | We plan to continue operating Edenor as a going concern for the foreseeable future. We expect to continue reviewing Edenor and its assets, corporate structure, capitalization, operations, properties, policies, management and personnel to determine what changes, if any, would be desirable following the completion of the Offers. We presently anticipate that Edenor will continue as a public company and will maintain its listings on the NYSE and BYMA following our consummation of the Offers. For more information, see “—SPECIAL FACTORS—Purpose of and Reasons for the U.S. Offer; Plans for Edenor Following the U.S. Offer.” |
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How will consummation of the U.S. Offer affect untendered Class B Shares? Will Edenor be delisted or deregistered in the U.S. and in Argentina following the completion of the Offers? |
If you do not tender your Class B Shares in the U.S. Offer, including Class B Shares represented by ADSs, you will remain a holder of Class B Shares and/or ADSs, as the case may be. We presently anticipate that Edenor will continue as a public company and will maintain its listing on the NYSE and BYMA following our consummation of the Offers. Depending upon the number of Shares purchased in the Offers, the Offers may adversely affect the liquidity and market value of any Class B Shares held by public shareholders after the U.S. Offer is completed. See “SPECIAL FACTORS—Certain Effects of the Offers.” |
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What are the U.S. federal income tax and Argentine tax consequences to a tendering shareholder? | The receipt of cash in exchange for Class B Shares pursuant to the U.S. Offer will generally give rise to gain or loss for U.S. federal and Argentine income tax purposes. Under Argentine law, capital gains obtained by individuals and entities that are not Argentine residents for Argentine tax purposes (“Foreign Beneficiaries”) are subject to a capital gains tax at a fifteen percent (15%) rate unless an exemption applies. Unless a tendering holder not resident in Argentina delivers a valid Tax Cost Certificate (as defined below) to us in accordance with “THE TENDER OFFER—Section 2. Acceptance for Payment and Payment for Class B Shares—Procedures for Delivering Tax Cost Certificate,” we are required to withhold thirteen and one-half percent (13.5%) of the Offer Price (fifteen percent (15%) of an assumed gain provided in the Argentine Income Tax Law of ninety percent (90%) of the gross amount of the Offer Price) payable to any such tendering holder of Class B Shares that is not resident in Argentina for Argentine tax purposes, in respect of Argentine income tax on the capital gains derived from the disposition of the Class B Shares. If the tendering holder provides a valid Tax Cost Certificate, we are required to withhold fifteen percent (15%) of the Net Gain (as defined below), if any, of such tendering holder. The Offer Price will be paid net of the applicable withholding tax. See “THE TENDER OFFER—Section 2. Acceptance for Payment and Payment for Class B Shares—Procedures for Delivering Tax Cost Certificate.” | |
If I decide not to tender, what will happen to my Class B Shares after the completion of the Offers? | If you do not tender your Class B Shares in the U.S. Offer, you will remain a holder of Class B Shares or ADSs, as the case may be. We do not have the intention to “squeeze out” holders that elect not to accept the Offers and to remain shareholders of Edenor. Following completion of the Offers, the number of Class B Shares remaining in public circulation may decrease and the already small market for such securities may be even further reduced. |
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Who may I contact with questions about the U.S. Offer? | You may contact the U.S. Information Agent for information regarding this U.S. Offer to Purchase or the U.S. Offer. The U.S. Information Agent for the U.S. Offer is: D.F. King & Co. Inc.. | |
If you are an ADS holder and have questions about how to participate in the U.S. Offer, you should contact the U.S. Information Agent. |
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To U.S. Holders of Class B Shares and all Holders of ADSs:
INTRODUCTION
Empresa de Energía del Cono Sur S.A. (“Edelcos” or the “Bidder”), a corporation (sociedad anónima) organized under the laws of Argentina and South American Energy LLP, a limited liability partnership organized under the laws of England and Wales (“SAE” and, together with Edelcos, the “Bidders”), hereby offer to purchase any and all outstanding Class B common shares, par value Ps. 1.00 per share (the “Class B Shares”), held by U.S. Persons (as defined below), including outstanding Class B Shares represented by American Depositary Shares (each representing rights to 20 Class B Shares) (the “ADSs” and, together with the Class B Shares, the “Securities”), of Empresa Distribuidora y Comercializadora Norte S.A. (“Edenor”), a corporation (sociedad anónima) organized under the laws of Argentina, other than those held by the Bidders or their affiliates, in cash at a price of Ps.29.34 per Class B Share (the “Offer Price”), less (i) the stock exchange and settlement fees described herein, (ii) any applicable brokerage fees or commissions, (iii) any applicable Distributions (as defined below), and (iv) any applicable withholding taxes, upon the terms and subject to the conditions set forth in this U.S. Offer to Purchase and the related documents. Non-U.S. Persons will not be permitted to tender their Class B Shares in the U.S. Offer. Holders of ADSs who wish to participate in the U.S. Offer will be required to surrender their ADS, withdraw the Class B Shares underlying their ADSs and follow the procedures described herein for holders of Class B Shares to participate in the U.S. Offer to Purchase in order to receive the Offer Price.
The U.S. Offer is being made in conjunction with the Argentine Offer. The Class A Shares are not publicly traded and are not the subject of the Offers and the Class C Shares are not publicly traded and are not the subject of the U.S. Offer.
The price offered in the Argentine Offer is the same on a per Class B Share basis as the Offer Price in the U.S. Offer, which is payable in Argentine pesos under the terms described in the offer materials for the Argentine Offer, but the net amount of Offer Price payable by us to each holder may differ because of the deduction of taxes. We do not intend to change the Offer Price and, while the Offers are open, will not purchase or make any arrangements to purchase Shares, other than pursuant to the Offers.
The U.S. Offer is not conditioned on any minimum number of Class B Shares being tended. However, the U.S. Offer is subject to certain Conditions.
Holders tendering in the U.S. Offer will have withdrawal rights until the Expiration Date. See “THE TENDER OFFER—Section 2. Acceptance for Payment and Payment for Class B Shares”, “THE TENDER OFFER—Section 4. Withdrawal Rights”, and “THE TENDER OFFER—Section 13. Conditions of the U.S. Offer.”
On June 30, 2021, Edelcos acquired all the Class A Shares of Edenor, representing 51% of the capital stock and votes of Edenor, resulting in the Change in Control of Edenor. As a result of the Change in Control of Edenor, pursuant to the provisions of Section 87 and subsequent sections of Argentine Law No 26,831 of Capital Markets (as amended), and Section II, Chapter II, Title III, of the rules of the CNV, we are required to offer to purchase all of the Shares of Edenor.
Subject to the terms described herein, unless the U.S. Offer is extended, to tender Class B Shares in the U.S. Offer a holder must tender their Class B Shares, including Class B Shares represented by ADSs, no later than the Expiration Time on December 13, 2021 (such date, as it may be extended by us in our sole discretion, the “Expiration Date”). Holders of ADSs that wish to tender the Class B Shares represented by ADSs should take action as soon as possible in order to receive delivery of Class B Shares before the Expiration Date. Those holders must have an account with a broker or other intermediary that is able to receive delivery of Class B Shares.
If you own your Securities through a broker or other nominee, and your broker tenders your Securities on your behalf, your broker or nominee may charge you a fee for doing so. You should consult your broker or nominee to determine whether any charges will apply. For more information, see “THE TENDER OFFER—Section 11. Fees and Expenses.”
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Holders of ADSs who wish to participate in the U.S. Offer will be required to surrender their ADSs to the Depositary, withdraw the Class B Shares underlying their ADSs from the Edenor ADS program and follow the procedures described herein for holders of Class B Shares to participate in the U.S. Offer in order to receive the Offer Price. We will be responsible for paying any cancellation fees charged by the Depositary in connection with ADSs surrendered for cancellation, provided that the underlying Class B Shares are credited to a Caja de Valores account of the Argentine Receiving Agent. The Offer Price received by holders of Class B Shares participating in the U.S. Offer who are not resident in Argentina for Argentine tax purposes are subject to applicable withholding on Argentine capital gains tax. See “THE TENDER OFFER—Section 6. Certain U.S. Federal Income and Argentine Tax Consequences.”
On August 9, 2021, in accordance with Argentine law, the Board of Directors of Edenor issued a favorable opinion on the reasonableness of the Offer Price under the Argentine Offer, consisting of Ps.29.34 per Class B Share (or U.S.$0.28 per Class B Share, using the selling exchange rate of Ps.105.25 per U.S.1.00 reported by Banco de la Nación Argentina on November 11, 2021), under the Argentine Offer. The Board of Directors of Edenor based its analysis on the BA Advisors Valuation Report. In such Board of Directors’ meeting the executive officers of Edenor holding Class B Shares expressed their intention not to participate in Argentine the Offer. Under U.S. law, within 10 (ten) business days after the day the U.S. Offer is commenced, Edenor is required by the Exchange Act to file with the SEC and distribute to holders of Securities that are U.S. residents a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 and a Transaction Statement on Schedule 13E-3 containing a statement of the position of the Board of Directors with respect to the U.S. Offer. A copy of the Schedule 14D-9 and Schedule 13E-3 will be furnished to all holders of ADSs and U.S. resident holders of Class B Shares. Holders of Securities are urged to read these documents carefully when they become available and as they may be amended from time to time, before making any decision with respect to the U.S. Offer.
The Offer Price received by holders of Class B Shares participating in the U.S. Offer who are not resident in Argentina for Argentine tax purposes are subject to applicable withholding on Argentine capital gains tax unless an exemption applies. If holders do not present a valid Tax Cost Certificate within such time period, thirteen and one-half percent (13.5%) of the Offer Price will be withheld pursuant to Argentine law. If the tendering holder provides a valid Tax Cost Certificate, fifteen percent (15%) of the Net Gain (as defined below) will be withheld pursuant to Argentine law. Pursuant to General Resolution (AFIP) No. 1107/2001, Argentine resident individuals that validly tender their Class B Shares in the U.S. Offer will be subject to Argentine withholding tax at one and one-half percent (1.5%) over the Offer Price on account of their final tax liability. See “THE TENDER OFFER—Section 6. Certain U.S. Federal Income and Argentine Tax Consequences—Capital Gains Tax—Foreign Beneficiaries.”
This U.S. Offer qualifies as a “Tier II” offer in accordance with Rule 14d-1(d) under the Exchange Act and is, as a result, exempt from certain provisions of otherwise applicable U.S. statutes and rules relating to tender offers.
Certain amounts and percentages presented in this U.S. Offer to Purchase have been subject to rounding adjustments and, accordingly, certain totals presented may not correspond to the arithmetic sum of the amounts or percentages that precede them.
This U.S. Offer to Purchase and its related documents contain important information that you should read carefully and in their entirety before making any decision in connection with the U.S. Offer.
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SPECIAL FACTORS
Background of the Offers
Collectively through the Offers, we are offering to purchase any and all Shares, including Class B Shares represented by ADSs, in connection with the Transaction. The Class A Shares are not publicly traded and are not the subject of the Offers and the Class C Shares are not publicly traded and are not the subject of the U.S. Offer.
On December 28, 2020, Pampa entered into a binding stock purchase agreement (the “Purchase Agreement”) with Edelcos, as purchaser, and Integra Capital S.A., Messrs. Daniel Eduardo Vila, Mauricio Filiberti and José Luis Manzano as guarantors, for the sale of Pampa’s total Class A shares, representing 51% of the capital stock and voting rights of Edenor, pursuant to certain conditions precedent, including but not limited to the approval by Pampa’s shareholders’ meeting and the Ente Nacional Regulador de la Electricidad (the “ENRE”) (the “Transaction”). The Transaction was approved by Pampa’s Ordinary and Extraordinary General Shareholders’ Meeting held on February 17, 2021. On June 23, 2021, the ENRE approved the Change in Control of Edenor.
On June 30, 2021, Edelcos acquired a controlling interest in Edenor upon the consummation of the Transaction. Pursuant to the Purchase Agreement, Edelcos agreed to pay: (i) U.S.$ 95.0 million (the “Cash Purchase Price”) and (ii) 21,876,856 Class B Shares owned by Edelcos (the “In-kind Purchase Price” and together with the Cash Purchase Price, the “Purchase Price”) in consideration for the acquisition of 462,292,111 Class A Shares. In addition, Edelcos will be required to pay to Pampa contingent payments pursuant to the Purchase Agreement, if certain change of control events occur (the “Contingent Payments”). Excluding the Contingent Payments, as of the date hereof, the balance of the Purchase Price is U.S.$40,000,000, to be paid on June 30, 2022, plus interest payable on a quarterly basis at a fixed annual rate of 10% from June 30, 2021. The first interest payment of U.S.$1,022,222.22 was due on September 30, 2021 and was paid on October 22, 2021.
Pursuant to the Purchase Agreement, Pampa committed to enter into a purchase agreement with Edelcos (the “Pampa Commitment”) to acquire, subject to the satisfaction of certain conditions, including (i) the absence of an event of default with respect to certain affirmative and negative covenants undertaken by Edelcos in connection with the financing of a portion of the price for the acquisition of a controlling interest in Edenor; and (ii) the absence of an event of default under the Class 9 notes of Edenor, among others), the lesser of: (x) 90% of the Securities that are tendered in the Offers and (y) the number of Securities representing 35% of the capital stock and votes of Edenor. To the extent that Pampa is required to purchase from us any such Class B Shares, such shares will be purchased after the Expiration of the Offers at the same price per Class B Share as the Offer Price.
We have access to the necessary economic resources to pay the Offer Price, including by giving effect to shareholders' contributions, loans from local and foreign financial institutions and/or the Pampa Commitment. In addition, pursuant to Article 34, Chapter II, Title III of the CNV regulations, we have procured insurance policies from Afianzadora Latinoamericana Cia. de Seguros S.A., Premiar Compañía Argentina de Seguros S.A., Galeno Caución S.A., Fianzas y Crédito S.A. Compañía de Seguros and Tutelar Seguros S.A., that guarantee the payment to the Argentine Receiving Agent for the benefit of the tendering holders of our obligations in respect of any Class B Shares that are tendered in the Offers. Therefore, we believe that sufficient funds are available to us to purchase the maximum amount of securities sought in the Offers.
Edelcos and Edenor are currently negotiating a technical assistance agreement pursuant to which Edelcos will provide Edenor certain financial advisory services in exchange for a management fee.
As a result of the Transaction, Edelcos directly owns a total of 462,292,111 Class A Shares of Edenor, or 100% of the total outstanding number of Class A Shares, representing 51% of the capital stock and votes of Edenor. SAE owns approximately 100% of the capital stock of Edelcos.
The price that Edelcos paid for the Class B Shares comprising the In-kind Purchase Price was Ps.21.79 per Class B Share, calculated on the basis of the total amount paid for the Class B Shares on the different dates divided by the number of shares. The Class B Shares comprising the In-kind Purchase Price were purchased by Edelcos on November 18, 2020, and November 24, 2020.
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On July 29, 2021, we announced our intention to commence a mandatory tender offer that would satisfy the requirement under the Argentine Capital Markets Law and applicable CNV rules in connection with the Change in Control of Edenor. We also announced that our price for the proposed tender offer would be Ps.29.34 per Class B Share. In such announcement, we expressly conditioned the execution of the Offers to the approval by the CNV of the Argentine Offer in accordance with applicable regulations.
As required under applicable CNV rules in connection with the Argentine Offer (i) the Bidder requested the preparation of an accounting certification by PKF Audisur SRL (the “PKF Certification”) related to the Offer Price; and (ii) on August 9, 2021, the Board of Directors issued a favorable opinion on the reasonableness of the Offer Price under the Argentine Offer based on a valuation report (the “BA Advisors Valuation Report”) prepared by Buenos Aires Advisors S.C. (“BA Advisors”). CNV regulations require the Bidder to obtain an accounting certification from an independent third-party accounting firm and require Edenor to obtain one valuation opinion from an independent third-party valuation firm to determine whether the Offer Price is fair under Argentine law. The highest price paid by Edelcos per Class B Share was Ps. 21.79, therefore, the Offer Price represents a 35% premium for the shareholders accepting the Offers.
The BA Advisors Valuation Report presents an analysis and determination of the economic value of Edenor’s Class B Shares. On August 9, 2021, Edenor filed a summary of the BA Advisors Valuation Report with the CNV. The Offer Price is higher than the price reflecting the economic value of the Class B Shares indicated by the PKF Certification and is higher than the range of economic values considered reasonable under the BA Advisors Valuation Report. See “—Accounting Certification of PKF” and “—Valuation Report of BA Advisors.”
On July 30, 2021, we submitted a first draft of the Prospecto for the Argentine Offer to the CNV, describing our proposed Argentine Offer at the offer price of Ps.29.34 per Class B Share. Following receipt of comments from the CNV, we submitted a second draft of the Prospecto to the CNV on August 19, 2021. Following receipt of further comments from the CNV, we submitted a third draft of the Prospecto to the CNV on September 16, 2021. Following receipt of further comments from the CNV, we submitted a fourth draft of the Prospecto to the CNV on October 22, 2021. Following receipt of further comments from the CNV, we submitted a fifth draft of the Prospecto to the CNV on October 29, 2021. The CNV approved the Prospecto on November 4, 2021.
As of the date of this U.S. Offer to Purchase, the approval of the Argentine Antitrust Commission (Comisión Nacional de Defensa de la Competencia or “CNDC”) had not been obtained. See “THE TENDER OFFER—Section 10. Certain Legal and Regulatory Matters - Antitrust Approval”.
As of the date of this U.S. Offer to Purchase, there are no legal, administrative or precautionary measures notified to Edelcos or Edenor challenging the terms of the Offers.
Recent Changes in the Market Price of Edenor Class B Shares
Following the Announcement Date, the market price per Class B Share on the BYMA has increased significantly. As of November 11, 2021, the last trading day prior to the Commencement Date, (i) the closing price per Class B Share on the BYMA was Ps.66.7 which is approximately one hundred and twenty seven percent (127%) more than the Offer Price and (ii) the closing price of twenty (20) Class B Shares underlying each ADS was Ps.1,334, which is approximately three percent (127%) more than the aggregate offering price of twenty (20) Class B Shares. This increase in the trading price of Edenor’s Securities was in line with the increase in the trading prices of the equity securities of other Argentine energy public companies during the relevant period. See “THE TENDER OFFER—Section 7. Certain Information about the Class B Shares and ADSs.”
Exchange Controls
Exchange controls may limit the opportunity for liquidity for U.S. holders who wish to participate in the U.S. Offer and do not wish to hold Argentine Pesos.
In September 2019, the Argentine Federal Government issued Decree No. 609/2019 establishing extraordinary and transitory rules related to exports of goods and services, transfers outside Argentina and access to the Argentine foreign exchange market (Mercado Libre de Cambios, or the “exchange market”), delegating the power to regulate these matters to the Argentine Central Bank (the “Central Bank”). Consequently, the Central Bank reinstated regulations on foreign currency transactions, requiring financial institutions to obtain prior approval of the Central Bank before transferring foreign currency outside Argentina and accessing to the exchange market for certain specific purposes. In other cases, access to the exchange market was not subjected to prior Central Bank approval to the extent the particular requirements established in the regulations were met.
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In November 2019, the Central Bank tightened the foreign exchange regulations and introduced new regulations on individual and legal persons’ access to the exchange market, including, among others, monthly limits of U.S.$200 on purchases of foreign currency by resident individuals. Pursuant to foreign exchange regulations in place as of the date of this Offer to Purchase, the proceeds of foreign financial indebtedness disbursed after September 1, 2019 must be repatriated and settled in the exchange market for Pesos for the debtor to be able to access such market for scheduled payments of principal and interest (with certain limited exceptions). Access to the exchange market for repayment of foreign financial indebtedness and certain other transactions is also conditioned on the debtor’s compliance with the External Assets and Liabilities Reporting Regime.
Exporters of goods are generally required to repatriate and settle for Pesos through the exchange market the proceeds of exports that cleared customs as of September 2, 2019 (subject to limited exceptions). Any amounts collected in foreign currency in connection with insurance claims related to exported goods must also be repatriated and settled in Pesos through the exchange market, up to the amount of the insured exported goods. Exporters of services must repatriate and settle through the exchange market the proceeds of exports of services within five business days following the earlier of the receipt of such proceeds by the exporter in Argentina or abroad, or the crediting of such amounts to any foreign account of the exporter.
Residents are authorized to access the exchange market for the payment of imports of goods to non-Argentines subject to certain requirements (which, among others, vary depending on whether these relate to imports of goods with or without customs clearance at the time the payment is made). Residents may access the exchange market for the payment of services provided by non-residents (provided they are unrelated entities) if the relevant transaction has been reported in accordance with the External Assets and Liabilities Reporting Regime, if applicable.
In December 2019, Law No. 27,541 (Ley de Solidaridad Social y Reactivación Productiva en el Marco de la Emergencia Pública or the “Solidarity Law”) introduced a special tax on a number of transactions such as the purchase of foreign currency, the purchase of services abroad through travel or tourism agencies, and the purchase of land, air or water passenger transport services to destinations outside the country, among others, for a period of five fiscal years, commencing on the date of the enactment of the law. In May and June 2020, the Central Bank further tightened restrictions on access to the exchange market for (i) payments outside Argentina (particularly, in case the local entity has “available external liquid assets”), (ii) trading securities with settlement in foreign currency, (iii) payments of imports of goods, and (iv) payments of principal of financial debt to non-Argentine affiliates.
In September 2020, the Central Bank required that non-financial private sector debtors under the obligation to make scheduled repayments of principal maturing between October 15, 2020 and March 31, 2021 (subsequently extended to cover principal services maturing through December 31, 2021), relating to (i) foreign financial indebtedness with a creditor who is not a counterparty related to the debtor; (ii) foreign financial indebtedness of financial institutions; and/or (iii) issuances of debt securities publicly registered in Argentina, denominated in foreign currency, by private sector customers or the financial entities themselves, submit a refinancing plan to the Central Bank in line with the following criteria: (a) debtors shall gain access to the exchange market on the original maturity dates to make payments of net principal amounts not exceeding forty percent (40%) of the principal amounts due; and (b) the balance of the principal amount shall have to be refinanced by new foreign indebtedness with an average life of, at least, two (2) years. Access to the exchange market to pay principal or interest on foreign financial indebtedness is only allowed up to three days prior to the maturity date except for certain refinancing transactions, including in connection with a refinancing plan submitted to the Central Bank as described above, where access can occur up to 45 days prior to the maturity date. The above-mentioned provisions do not apply to: (i) indebtedness with international organizations or associated agencies thereof or secured by them; (ii) indebtedness granted to the debtor by official credit agencies or secured by them; and (iii) when the amount for which access to the exchange market is requested for repayment of principal under such indebtedness does not exceed the equivalent of U.S.$2,000,000 per calendar month.
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On July 10, 2021, the Central Bank established that financial entities must request an affidavit from companies that access the foreign exchange market. A company’s affidavit must declare that for the 90 days preceding and following the affidavit, the company has neither arranged nor will arrange (i) sales of securities in Argentina with settlement in foreign currency or (ii) exchanges of securities for other foreign assets or transfers thereof to foreign depository entities. The affidavit must also include information on the human or legal persons that exercise a relationship of direct control over said company.
In addition, on July 8, 2021, the CNV reduced the mandatory term to hold securities from 3 to 2 days for dollar purchases settled through a local asset and implemented a mandatory holding term of 2 days for the purchase of swaps for blue chip securities denominated in U.S. dollars. Moreover, the new weekly purchase limit was set at USD 50,000 for both local-law governed bonds and foreign-law governed bonds.
On August 13, 2021, Communication “A” 7340 established that any settlement of securities in U.S. dollars must be effected in a bank account of the holder of the security excluding any securities account (cuenta comitente) of such holder or an account of a third party.
Similarly, through CNV Resolution No. 898/2021, the CNV has recently restricted the activities of local settlement and clearing agents (“ALyCs” for its acronym in Spanish) who may currently only carry out activities that are controlled and supervised by the CNV, with certain exceptions applicable to banks and financial institutions.
Since the reinstatement of foreign exchange controls in September 2019, an unofficial U.S. Dollar trading market has further developed in which the peso-U.S. Dollar exchange rate differs substantially from the official peso-U.S. Dollar exchange rate.
On October 5, 2021, through General Resolution No. 907/2021, the CNV introduced additional foreign exchange restrictions by setting a U.S.$50,000 per week limit on the sale of marketable securities issued under Argentine law and denominated in U.S. dollars, settling in foreign currency in the bidding segment with price-time priority, by considering the established limit for all transactions with settlement in foreign currency.
Orders to execute transactions involving securities settling in foreign currency not covered by the provisions of Section 6 of Chapter V of Title XVIII of the CNV rules, or to make transfers of securities from or to depository institutions abroad, may only be executed if:
· | During the previous 30 calendar days, no sale transactions of securities denominated and payable in U.S. dollars issued by the Argentina under Argentine Law, settling in foreign currency, have been executed in the bidding segment with price-time priority; and |
· | There is a reliable statement of not having executed sale transactions of securities denominated and payable in U.S. dollars issued by the Argentina under Argentine Law, settling in foreign currency, in the bidding segment with price-time priority, as from the moment in which the referred transactions are settled and for the following 30 calendar days. |
Settlement and clearing agents and trading agents shall, prior to executing any of the abovementioned transactions, require the filing of an affidavit evidencing compliance with these regulations.
The following is a description of the main aspects of the Central Bank regulations concerning outflows of funds from Argentina, based on Communication “A” 7272 (as amended or supplemented, “Communication 7272”).
Remittances of profits and dividends
Section 3.4 of Communication 7272 allows access to the exchange market to remit foreign currency abroad for the payment of dividends and profits to non-resident shareholders, provided that the following conditions are met:
(a) | profits and dividends shall be supported by closed audited financial statements; |
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(b) | the total amount paid to non-resident shareholders shall not exceed the amount in Argentine pesos that is payable to them according to the distribution resolved by a shareholders’ meeting; |
(c) | if applicable, the transactions involved shall have complied with the Survey of External Assets and Liabilities Regime; and |
(d) | the company complies with any of the following: |
(i) | it has direct investment contributions made since January 17, 2020, where (i) the total amount of remittances made through the exchange market as from such date shall not exceed 30% of the amount of new capital contributions made in the resident company, entered and settled through the exchange market since such date; (ii) the financial institution involved shall have secured a certificate issued by the entity that executed the settlement to the effect that it has not issued any certificates for the same purpose contemplated in an aggregate amount exceeding 30% of the amounts so settled; (iii) access to the exchange market shall take place not less than thirty (30) calendar days from the date of payment of the most recent capital contribution that is being computed for purposes of determining the above-mentioned 30% limit; and (iv) upon accessing the exchange market, evidence shall be given of the final capitalization of the contribution or of the start of proceedings for registering the contribution with the Public Registry of Commerce (in this case, within 365 calendar days from the start of the registration proceedings); |
(ii) | in the case of profits derived from projects under the Gas Plan (the “Argentine Natural Gas Production Promotion Plan - Supply and Demand Scheme 2020-2024” as set forth in Section 2 of Decree No. 892/20): (i) profits shall derive from direct foreign investment contributions entered and settled through the exchange market since November 16, 2020, intended to be used to finance projects under such plan; (ii) access to the exchange market shall occur at least 2 (two) calendar years after the date of settlement of the contribution qualifying under this item in the exchange market; and (iii) the customer shall file the documents evidencing the final capitalization of the contribution in question; and |
(iii) | it has a “Certificate of Increase of Goods’ Exports in 2021” issued within the framework of Section 3.18. of Communication 7272, for the equivalent value of the profits and dividends to be paid. |
Any cases not falling under the scope of the events mentioned above will require the Central Bank’s prior authorization to access the exchange market.
Purchase of foreign currency by non-residents
Section 3.13 of Communication 7272 provides that the Central Bank’s prior authorization shall be required for non-residents to access the exchange market for purposes of purchasing foreign currency.
The following transactions are exempt from such rule: (a) international bodies and institutions serving as official export credit agencies; (b) diplomatic and consular representations and accredited diplomatic staff based in Argentina, with respect to transfers made in the course of their duties; (c) Argentine-based representative offices of Courts, Authorities or Bureaus, Special Missions, Commissions or Bilateral Agencies established by International Treaties or Conventions to which Argentina is party, to the extent the transfers are made in the course of their duties; (d) transfers made abroad in the name of individuals who are beneficiaries of retirement benefits and/or pensions paid by the Argentine Social Security Administration (Administración Nacional de la Seguridad Social, ANSES), to the extent of the amount paid by such administration in the applicable calendar month and provided that the transfer is made to a bank account held by the beneficiary in their registered country of residence; (e) purchase of foreign currency by non-resident individuals in connection with tourism and travel activities for a maximum amount equivalent to U.S.$100 vis-à-vis all the institutions. This mechanism shall be authorized when the sale of foreign currency settled by the customer is registered with the Central Bank by the incumbent financial institution, pursuant to customary practices; (f) transfers to offshore bank accounts held by individuals in connection with funds received by them in Argentina related to the benefits granted by the Argentine Government under Laws Nos. 24,043, 24,411 and 25,914 and related provisions; and (g) remittances of direct investments by non-residents in companies that are not controlling companies of local financial institutions, provided that the capital contribution has been entered and settled in the exchange market as from October 2, 2020, and the remittance is made at least 2 (two) years after the inflow of funds.
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In addition, Communication “A” 7106 provided that non-residents will be prevented from carrying out sales of securities settled in foreign currency in Argentina, other than those sales of securities which have been acquired in Argentina and are settled in foreign currency as from September 16, 2020, and which have been held by the non-resident for a term of at least one year.
Capital Markets Transactions
Section 4.3 of Consolidated Communication 7272 provides that securities transactions executed abroad shall not be settled in pesos in Argentina; only transactions executed in Argentina may be settled in pesos in Argentina.
Institutions authorized to deal in foreign exchange shall not be allowed to purchase securities with settlement in foreign currency in the over-the-counter market or use any holdings in their general foreign exchange position to make payments to local suppliers.
In addition to exchange restrictions, the Central Bank, through Communication “A” 7340, established, that securities transactions that settle in the segment known as “cash with settlement” must originate in a local account of the holder of the securities and be transferred to an account of such holder abroad.
Advance information on foreign exchange transactions
The financial institutions authorized to deal in foreign exchange shall provide the Central Bank, at the end of each business day and two business days in advance, with information on transactions relative to outflows through the exchange market in daily amounts equal to or higher than the equivalent of U.S.$50,000.
Customers of licensed institutions shall provide such institutions with information sufficiently in advance so that they may comply with the requirements under this reporting regime and, accordingly, to the extent any further requirements set forth in the exchange regulations are simultaneously satisfied, they may process the exchange transactions
Purpose of and Reasons for the U.S. Offer; Plans for Edenor Following the U.S. Offer
Purpose of and Reasons for the Offers
In the U.S. Offer, we are offering to purchase any and all outstanding Class B Shares held by U.S. Persons, including Class B Shares represented by ADSs other than those held by us or our affiliates.
The Offers are comprised of a U.S. Offer and an Argentine Offer. The U.S. Offer is being made by us in connection with Edelcos’s mandatory tender offer in Argentina, required by its recent acquisition of all Class A Shares of Edenor, resulting in a Change in Control of Edenor. The Argentine Offer is required under Argentine law as a mandatory offer in connection with the Change in Control of Edenor. As a result of the Argentine Offer, the U.S. Offer is required pursuant to Regulation 14D of the Exchange Act.
Plans for Edenor Following the Offers
We plan to continue operating Edenor as a going concern for the foreseeable future. On July 6, 2021, Neil A. Bleasdale was appointed chief executive officer, German Ranftl was appointed chief financial officer and María José Van Morlegan as chief legal and regulatory officer, in each case, of Edenor. We currently do not have specific plans affecting the continuity of Edenor employees.
We currently intend to retain all of the Class B Shares tendered pursuant to the Offers, other than any Class B Shares that we may be required to sell to Pampa pursuant to the Purchase Agreement if the conditions to such purchase are satisfied following the consummation of the Offers. We may also in the future consider transfers or sales of Securities to related companies.
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We presently anticipate that Edenor will continue as a public company and will maintain its listings on the NYSE and BYMA following our consummation of the Offers.
Certain Effects of the Offers
Holders who sell their Shares in the Offers will cease to have any equity interest in Edenor or any right to participate in its earnings and future growth, including as a result of acquisitions or mergers. After selling their Shares in the Offers, such holders also will not bear the risk of any decrease in the value of Edenor.
If you do not tender your Class B Shares in the U.S. Offer, including Class B Shares represented by ADSs, you will remain a holder of Class B Shares and/or ADSs, as the case may be. As of September 30, 2021, there were 442,210,385 Class B Shares, 48.78 % of the total outstanding capital stock of Edenor in public circulation (representing approximately 96.57% of the total outstanding Class B Shares, excluding 31,1364,420 treasury shares), including 4,115,242 ADSs. After the completion of the Offers, the number of Class B Shares, including Class B Shares represented by ADSs, remaining in public circulation may decrease, and the already small market for such securities may be even further reduced. We do not have the intention to “squeeze out” holders that elect not to accept the Offers and to remain shareholders of Edenor.
The purchase of Class B Shares by the Bidders in the Offers will have no effect on the financial statements of Edenor.
Market for Class B Shares
We presently anticipate that Edenor will continue as a public company and will maintain its listing on the NYSE and BYMA following the consummation of the Offers. Neither we nor our affiliates are seeking to deregister or de-list the Securities from any stock exchange on which the Securities are listed. Following completion of the Offers, the number of Securities remaining in public circulation may decrease and the already small market for such securities may be even further reduced. Depending upon the number of Shares purchased in the Offers, the Offers will likely adversely affect the liquidity and market value of any Securities held by public shareholders after the Offers are completed.
Argentine Tax Consequences
Under Argentine law, the exchange of cash for Class B Shares pursuant to the Offers requires us to withhold thirteen and one-half percent (13.5%) of the Offer Price in respect of Argentine capital gains tax payable by holders who are not resident in Argentina for tax purposes if the holder does not provide a valid Tax Cost Certificate. If the holder provides a valid Tax Cost Certificate, fifteen percent (15%) of the Net Gain will be withheld pursuant to Argentine law. The exchange of Class B Shares for cash pursuant to the Offers gives rise to a tax on gains realized by a holder not resident in Argentina for Argentine tax purposes (individual or legal entities), legal entities incorporated in Argentina and, to the extent the sale is not made through a securities market duly authorized by the CNV, to individuals resident in Argentina. Pursuant to General Resolution (AFIP) No. 1107/2001, Argentine resident individuals that validly tender their Class B Shares in the U.S. Offer will be subject to Argentine withholding tax at one and one-half percent (1.5%) over the Offer Price on account of their final tax liability. See “THE TENDER OFFER—Section 6. Certain U.S. Federal Income and Argentine Tax Consequences.”
U.S. Federal Income Tax Consequences
The receipt of cash in exchange for Class B Shares pursuant to the Offers by U.S. holders (as defined in “THE TENDER OFFER—Section 6. Certain U.S. Federal Income and Argentine Tax Consequences”) will generally give rise to taxable gain or loss for U.S. federal income tax purposes. See “THE TENDER OFFER—Section 6. Certain U.S. Federal Income and Argentine Tax Consequences.”
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Margin Regulations
The ADSs and the Class B Shares are currently “margin securities” under the regulations of the Board of Governors of the Federal Reserve System. This classification has the effect, among other things, of allowing U.S. registered broker-dealers to extend credit using those securities as collateral.
Certain Rights of Shareholders Following the U.S. Offer
No Appraisal Rights
Holders will not have appraisal or similar rights in connection with the Offers. No provision has been made to grant unaffiliated shareholders access to the corporate files of Edenor or to obtain counsel or appraisal services at the expense of the Bidders in relation to the Offers. The PKF Certification, however, is attached as exhibit to the combined Schedule TO and Schedule 13E-3 to which this U.S. Offer to Purchase relates.
Position of the Bidders Regarding Fairness of the U.S. Offer
Edenor is an Argentine company, and Argentine law and regulations govern our duties and obligations to Edenor and the holders of Shares with respect to the Offers. As a result of the Change in Control of Edenor, applicable CNV rules require us to make the Offers for all of Edenor’s Shares, not owned by us or our affiliates. CNV rules also require us to determine a price that is fair under Argentine law and obtain an opinion on the Offer Price for the Shares from one independent valuation firm. The requirements to make the Offers are intended to protect minority shareholders.
The CNV has the right to object to the fairness of the price. In addition, after the initial Argentine Offer period is completed, CNV regulations allow us to extend the Argentine Offer for not less than 5 (five) Argentine business days, so holders have a second opportunity to sell their Shares with knowledge of the tender offer results. The U.S. Offer and the Argentine Offer will expire on the Expiration Date and, except as required by applicable laws and regulations, we do not expect to extend the Expiration Date unless the conditions to the U.S. Offer have not been satisfied.
Other than these requirements, Argentine law does not impose any obligation on us to make any determination or analysis regarding whether the U.S. Offer is fair to unaffiliated shareholders. Nonetheless, the U.S. Offer constitutes a “going private” transaction pursuant to Rule 13e-3, and “going-private” rules set forth in Rule 13e-3 under the Exchange Act require us (as affiliates of Edenor for this purpose under U.S. securities laws) to do so. We believe that the U.S. Offer is substantively and procedurally fair to unaffiliated holders of Securities under Argentine laws and regulations applicable to mandatory tender offers.
In reaching our conclusion that the consideration that unaffiliated holders of Securities will receive in the Rule 13e-3 transaction is fair, and that the Rule 13e-3 transaction is substantively fair to unaffiliated shareholders, we considered and relied upon a number of factors, including the following:
· | As required by the Argentine Capital Markets Law and Section II, Chapter II, Title III of the CNV, the Offer Price represents the higher of (i) the last price paid by the Bidders in connection with the acquisition of Class B Shares and (ii) the volume weighted average price of the Class B Shares on the BYMA for the six months prior to the Announcement Date of Ps.33.21, or U.S.$0.33, using the selling exchange rate of Ps.101.75 per U.S.$ 1.00 reported by Banco de la Nación Argentina on July 28, 2021, which is one of the minimum price references we are required to consider under CNV regulations. |
· | We believe that the PKF Certification, which was prepared in compliance with CNV regulations, support our conclusion that the Offer Price is fair and expressly adopt the analysis and discussion as our own. For a summary of the PKF Certification, see “—Accounting Certification of PKF” and “—Valuation Report of BA Advisors.” |
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· | The Offer Price will be paid entirely in cash, which reduces uncertainties in valuing the consideration. |
· | The Offer Price was determined in accordance with the CNV regulations, which require us to determine a price that is fair and engage one independent third-party accounting expert to prepare an accounting certification. |
· | The Rule 13e-3 transaction provides an opportunity for liquidity. As of September 30, 2021, 442,210,385 Class B Shares were outstanding, including approximately 4,115,242 ADSs. Of these outstanding Class B Shares, approximately 242,999,553 were owned by the Sustainability Fund of Argentina, acting through the Argentine administrator of social security pension and retirement benefits, ANSES; approximately 38,286,700 are owned directly by Pampa; 31,134,420 are treasury shares and approximately 18.54% of the outstanding Class B Shares in the hands of the public. The Offers will provide holders with the opportunity for liquidity by permitting them to sell all or a portion of their Shares for cash, without the usual transaction costs associated with open-market sales. However, exchange controls may limit the opportunity for liquidity for U.S. holders who wish to participate in the U.S. Offer and do not wish to hold Argentine Pesos. See “SPECIAL FACTORS—Exchange Controls.” |
· | The Offers are not subject to any conditions relating to either the number of Class B Shares tendered or any financing condition. |
We believe that the Rule 13e-3 transaction is procedurally fair to unaffiliated shareholders for the following reasons:
· | The Argentine Capital Markets Law and Section II, Chapter II, Title III of the CNV provisions require us to make the Argentine Offer as a result of the Change in Control of Edenor. |
· | The Rule 13e-3 transaction is not subject to any conditions relating to either the number of Class B Shares tendered or any financing condition. |
· | Acceptance of the Rule 13e-3 transaction is voluntary, and we do not have the intention to “squeeze out” holders that elect not to accept the U.S. Offer and to remain shareholders of Edenor. Any holders who choose not to tender their Class B Shares will continue to share in any economic benefit received by Edenor in the future. |
· | Applicable CNV regulations require the Board of Directors to provide unaffiliated holders with a recommendation in favor or against the offer price for the Argentine Offer. On August 9, 2021, the Board of Directors issued a favorable opinion on the reasonableness of the Offer Price under the Argentine Offer. |
· | Applicable CNV regulations require Edenor to obtain a valuation opinion from an independent third-party valuation firm to find that the Offer Price is substantially fair under Argentine law, in light of prevailing exchange rates and market conditions in Argentina. |
· | The CNV has the right to object to the fairness of the Offer Price and must approve the Argentine Offer before it commences, which approval the CNV issued on November 4, 2021. |
· | We expect to keep the Offers open such that the U.S. Offer expires at the same time as the expiration of the Argentine Offer. |
We believe that each of the factors above is relevant to unaffiliated holders of Securities. The foregoing discussion of the information and factors we considered is not intended to be exhaustive but includes all material factors we considered. In light of the variety of factors considered in connection with our evaluation of the fairness of the Offers, we did not find it practicable to, and therefore did not, quantify or otherwise attempt to assign relative weights to the factors considered in reaching its conclusion as to the fairness of the Offers.
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We also considered the following factors, each of which we consider to be negative in our deliberation of concerning the fairness of the Offers:
· | The current market trading price per Class B Share exceeds the Offer Price and the current market trading price per ADS exceeds the implied Offer Price for such ADSs. |
· | Exchange controls in Argentina may impair or prevent the conversion of the Offer Price from Argentine pesos into U.S. dollars and the remittance of any such U.S. dollars abroad. See “SPECIAL FACTORS—Exchange Controls.” |
· | The public ADS holders and Class B holders would cease to participate in the future earnings and growth prospects, if any, of Edenor, or in the increase, if any, of the value of the shares they previously owned. |
· | Shareholders may be liable for taxes payable on the gains from the sale of their Class B Shares. |
We did not consider the following factors to be relevant indicators of the value of the Securities:
· | We did not consider liquidation value, which we do not believe is a meaningful approximation of the value of the Securities, because our intention is to continue operating Edenor as a going concern and substantial value would be destroyed from a liquidation process. |
· | We are not aware of, and therefore did not consider any of the following: bona fide firm offers made by unaffiliated persons during the past two years for the merger or consolidation of Edenor with another company or vice versa, for the sale or transfer of substantially all assets of Edenor, or for purchases of Edenor securities that would enable the purchaser to control Edenor. |
In making our determinations as to the substantive and procedural fairness of the Offers, we recognized that no unaffiliated representative has been retained by the members of Edenor’s Board of Directors that is not an employee of Edenor to act solely on behalf of unaffiliated holders of Securities for purposes of negotiating the terms of the Offers and/or preparing a valuation report concerning the fairness of the Offers. This is not a requirement under CNV regulations or Argentine securities law and did not affect our determination of fairness of the Offers. We also recognize that the Offers are not structured to require approval of at least a majority of unaffiliated security holders, which we view as supporting our determination of fairness of the Offers since each unaffiliated holder that wishes to tender in the Offers may do so regardless of the view of other holders. Accordingly, the absence of such a condition did not affect our determination that the Offers are substantively and procedurally fair to unaffiliated holders.
Our views as to the fairness of the Rule 13e-3 transaction to the unaffiliated holders of Class B Shares and ADSs are not meant, and should not be construed, as a recommendation to any holder as to whether such holder should tender its Class B Shares (including Class b Shares underlying ADSs). Each holder should consult with its legal, financial and tax advisors to determine whether to tender its Class B Shares. See “THE TENDER OFFER—Section 7. Certain Information about the Class B Shares and ADSs.”
Accounting Certification of PKF
PKF, an independent accounting firm, was retained by Edelcos to issue the PKF Certification, which is an accounting certification required to comply with applicable CNV regulations. Such CNV regulations require Edelcos to obtain an accounting certification by at least one independent third-party accounting firm on the fairness of the Offer Price. CNV rules set out requirements for the valuation methods underlying the determination of fairness of offer prices in mandatory tender offers.
PKF prepared the PKF Certification with respect to, and exclusively for, the Offers in connection with the Change in Control of Edenor, in accordance with applicable provisions of CNV regulations. As a result of the various valuation methods applied and considered in the PKF Certification, PKF, based on its professional experience.
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The PKF Certification is intended solely for the Bidder’s use for the purpose of compliance with CNV regulations applicable to the Offers. It was prepared for exclusive use within the context of the Offers and should not be used for any other purpose. Edenor’s shareholders should conduct their own analysis of the tender offer and should rely on their own financial, tax and legal advisers when evaluating the Offers.
The PKF Certification is not, and should not be used as, (i) an opinion as to the adequacy of the Offers; (ii) a recommendation regarding any aspects of the Offers; or (iii) a report issued for any purposes other than those provided for by applicable CNV regulations in connection with tender offer of this type. The PKF Certification was not compiled or created for the purposes of complying with any law or regulation in Argentina or abroad other than those applicable CNV regulations described above.
Upon delivery of the PKF Certification by PKF to us, we paid PKF a fee of Ps.150,000 (plus value added tax) for the preparation of the PKF Certification.
You should consider the following when reading the discussion of the PKF Certification:
· | We urge you to read carefully the full text of the PKF Certification, which has been filed with the CNV and is available on the CNV’s Internet site at http://www.cnv.gob.ar. An English free translation of the PKF Certification has also been filed with the SEC and is available on the SEC’s Internet site at http://www.sec.gov. The U.S. Information Agent set forth on the back cover of this U.S. Offer to Purchase will provide a copy of the PKF Certification, in either Spanish or English, upon written request and at the expense of the requesting holder or its representative designated in writing. The summary of the PKF Certification set forth below is qualified in its entirety by reference to the full text of the PKF Certification. |
· | The PKF Certification was prepared exclusively in Spanish and has been freely translated into English. |
· | The PKF Certification was prepared in conformity with the Argentine legal requirements referred to above solely for the purpose described above and is not to be used for any other purpose or by third parties. The PKF Certification considered only those factors required to be considered under Argentine law, and did not consider all of the factors described above in “—Position of the Bidders Regarding Fairness of the U.S. Offer”. PKF’s services did not include any advice whatsoever, including legal or accounting, and it has not provided any legal, regulatory or tax services with respect to the PKF Certification or the Offers. Consequently, the preparation of the PKF Certification does not include any opinion related to such services. |
For the analysis and conclusions contained in the PKF Certification, PKF reviewed the following information (the “Information”):
· | Minutes of the Extraordinary General Shareholders Meeting of Edelcos in which the shareholders approved the making of an offer to Pampa leading to the Purchase Agreement. |
· | Irrevocable offer letter for the acquisition, by Edelcos from Pampa, of 462,292,111 Class A ordinary shares issued by Edenor, representing 51% of its capital stock and votes, the corresponding letter of acceptance executed by Pampa, dated December 28, 2020, and its ancillary documents. |
· | The interim financial statements of Edelcos as of January 31, 2021, reflecting the acquisition of the shares of Edenor and the execution of the Purchase Agreement with Pampa. |
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· | Statutory information affecting Edenor and/or the business. |
· | The prices of the marketable securities subject to the Offers during the six-month period immediately preceding the date of announcement of the Transaction, as informed by Bloomberg Finance LP system. |
In preparing the PKF Certification, PKF did not meet with the Board of Directors and/or Edenor’s management to clarify or update any of the Information. In addition, PKF did not carry out (i) any independent verification of any Information or any documentation on which the Information was based that was publicly available or that was provided to PKF for the preparation of the PKF Certification, and, accordingly, does not assume any responsibility for such Information, (ii) any due diligence activities about Edenor, or (iii) an independent verification or audit of the technical aspects related to Edenor’s business.
The PKF Certification is not intended to be the sole basis for an evaluation of the Class B Shares and, therefore, the PKF Certification does not comprise all the necessary information needed for such purpose. Consequently, it does not represent or constitute any form of recommendation in connection with the tender offer. The content of the PKF Certification is not, and shall not be considered, a promise or guarantee with respect to the past or future. The decision to accept or reject the Offers is solely the responsibility of Edenor’s shareholders.
The PKF Certification shall not be used for any purpose other than within the strict context of the Offers without the previous and written authorization of PKF.
Valuation Report of BA Advisors
BA Advisors was hired by Edenor to issue a fairness opinion required to comply with applicable CNV regulations. BA Advisors delivered the BA Advisors Valuation Report with respect to, and exclusively, for the Offers in connection with the Change in Control of Edenor, in accordance with applicable provisions of CNV regulations. Based on their analysis, they have determined that the Offer Price is substantially fair and within a reasonable price range.
The BA Advisors Valuation Report was prepared exclusively for use within the context of the Offers and should not be used for any other purpose. Edenor’s shareholders should conduct their own analysis of the Offers and should rely on their own financial, tax and legal advisers when evaluating the Offers.
The BA Advisors Valuation Report is not, and should not, be used as a recommendation to the shareholders as to the adequacy of the Offers. The BA Advisors Valuation Report was not compiled or created for the purposes of complying with any law or regulation in Argentina or abroad other than those applicable CNV regulations described above.
Upon delivery of the BA Advisors Valuation Report by BA Advisors to Edenor, Edenor paid BA Advisors a fee of Ps.2,541,875, plus value added tax, for the preparation of the BA Advisors Valuation Report.
You should consider the following when reading the discussion of the BA Advisors Valuation Report:
· | We urge you to read carefully the full text of the BA Advisors Valuation Report, which has been filed with the CNV and is available on the CNV’s Internet site at http://www.cnv.gob.ar. An English free translation of the BA Advisors Valuation Report has also been filed with the SEC and is available on the SEC’s Internet site at http://www.sec.gov. The U.S. Information Agent set forth on the back cover of this offer to purchase will provide a copy of the BA Advisors Valuation Report, in either Spanish or English, upon written request and at the expense of the requesting holder or its representative designated in writing. The summary of the BA Advisors Valuation Report set forth below is qualified in its entirety by reference to the full text of the BA Advisors Valuation Report. |
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· | The BA Advisors Valuation Report was prepared exclusively in Spanish and has been freely translated into English. |
· | The BA Advisors Valuation Report was prepared in conformity with the Argentine legal requirements referred to above solely for the purpose described above and is not to be used for any other purpose or by third parties. BA Advisors’ services did not include any advice whatsoever, including legal or accounting, and it has not provided any legal, regulatory or tax services with respect to the BA Advisors Valuation Report or the tender offer. Consequently, the preparation of the BA Advisors Valuation Report does not include any opinion related to such services. |
For the analysis and conclusions contained in the BA Advisors Valuation Report, BA Advisors reviewed the following information (the “Edenor Information”):
· | annual report and financial statements of Edenor for the fiscal years ended December 31, 2018, 2019 and 2020; |
· | information related to the management of Edenor for those years; |
· | Edenor’s budget plan for the year 2021; |
· | general information of Edenor obtained from the CNV; |
· | data of similar companies with publicly listed shares (source: Bloomberg); |
· | public analysis related to similar companies abroad over future business prospects for the power sector; and |
· | other information on market and regulatory issues available from public sources. |
In preparing the BA Advisors Valuation Report, BA Advisors assumed, and relied upon, the accuracy, content, veracity, completeness, sufficiency and integrity of all such Edenor Information provided, obtained or discussed with Edenor or from other public and non-public information, in all material respects. BA Advisors was not requested to carry out, and did not carry out, (i) any independent verification of any Edenor Information or any documentation on which the Edenor Information was based that was publicly available or that was provided by Edenor, its representatives or any third parties for the preparation of the BA Advisors Valuation Report, and, accordingly, does not assume any responsibility for such Edenor Information, (ii) any accounting, tax or any other audit of Edenor or any third parties, or (iii) any validation with regards to the technical information provided by Edenor.
The BA Advisors Valuation Report applied the discounted cash flow analysis (“DCF”).
Unless otherwise indicated in the BA Advisors Valuation Report, the Edenor Information used in the BA Advisors Valuation Report regarding the accounting, financial and operational position or performance of Edenor, as well as about the market, was limited to information available as of July 30, 2021. BA Advisors did not, and does not, undertake any obligation to review, amend or update the BA Advisors Valuation Report, in whole or in part, after July 30, 2021, or to advise of any third-party facts or matters of which BA Advisors may have become aware that would impact the content of the BA Advisors Valuation Report after such date, subject to the applicable terms of Argentine law and regulations.
The BA Advisors Valuation Report is not intended to be the sole basis for an evaluation of the Class B Shares and, therefore, the BA Advisors Valuation Report does not comprise all the necessary information needed for such purpose. Consequently, it does not represent or constitute any form of recommendation by Edenor in connection with the Offers. The content of the BA Advisors Valuation Report is not, and shall not be, considered a promise or guarantee with respect to the past or future. The decision to accept or reject the Offers is solely the responsibility of Edenor’s shareholders.
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The BA Advisors Valuation Report shall not be used for any purpose other than within the strict context of the Offers without the previous and written authorization of BA Advisors.
The following is a summary of the material analyses undertaken by BA Advisors in connection with the preparation of the BA Advisors Valuation Report.
Discounted Cash Flow Analysis. BA Advisors determined that the DCF methodology was the most relevant methodology for assessing the economic value of Edenor’s Class B Shares. The main factors used by BA Advisors in determining the discounted cash flow were: (1) projections of the operating cash flow of Edenor, (2) the discount rate of such flows and (3) the terminal value of Edenor.
The projections that BA Advisors used in its calculation of Discounted Cash Flow were: (1) a 10-year “base case” projection partly based on the growth prospects of the industry and the operation and (2) market projections performed by analysts of financial entities BA Advisors believed to be well-known in local and international markets. The 10-year “base case” projection was compared with the market projections to assess the overall internal consistency of the assumptions and factors used in the 10-year “base case” projection.
The discount rate for the 10-year DCF and the terminal value of Edenor were both calculated using a methodology known as the “capital average pricing model,” as summarized below.
DCF Methodology
Edenor Value Resulting from DCF Methodology (in millions of U.S.$): | 198.2 | ||
Edenor Value (in millions of Ps.): | 20,167 | ||
Net financial debt (in millions of Ps.): | (9.3) | ||
| | | |
Capital Stock Value (in millions of Ps.): | 188.9 | ||
| | | |
Amount of Outstanding Shares: | 906,455,100 | ||
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Implicit Value of 1 share (in Ps.): | 22.24 | ||
| | | |
Historical Market Prices. BA Advisors measured the volume-weighted average price of the Class B Shares of Edenor for the six-month period preceding the Announcement Date, as required by applicable CNV regulations. Based on this analysis, the volume weighted average price of each Class B Share was Ps. 29.34 for the six-month period preceding the Announcement Date.
USD per
|
Market Cap |
Volume
|
|
July 28, 2021 | 4.36 | 198 | 24,900 |
For the three-months prior to the Announcement Date | 4.24 | 192 | 197356 |
For the six-months prior to the Announcement Date | 3.94 | 178 | 163,137 |
Historical Maximum Price | 62.55 | 2,835 | January 26, 2016 |
Historical Minimum Price | 1.71 | 78 | November 19, 2012 |
BA Advisors determined that the DCF methodology was the most relevant, since all factors inherent to the business’ value are included in the methodology. The multiples of comparable public companies is not used a primary methodology of valuation because even though companies may be comparable, they do not have identical characteristics or market conditions as Edenor. The equity value (book value) of shares is considered by BA Advisors as the least relevant methodology because it does not indicate the capacity of Edenor to generate future revenues.
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Position of Edenor’s Board of Directors Regarding Fairness of the U.S. Offer
Edenor is an Argentine company, and Argentine law and regulations govern the duties and obligations of Edenor’s Board of Directors. Pursuant to applicable CNV rules, Edenor’s Board of Directors is required to provide unaffiliated holders with a technical opinion in favor or against the Offer Price and may not remain neutral. Such opinion must be presented no later than 15 days following the Announcement Date. Edenor is also required to file a Solicitation Statement on Schedule 14D-9 and a Transaction Statement on Schedule 13E-3. Holders of Class B Shares and ADSs are urged to read these documents carefully when they become available and as they may be amended from time to time, before making any decision with respect to the U.S. Offer.
Interests of Certain Persons in the Offers; Security Ownership; Transactions and Arrangements Concerning the Class B Shares and ADSs
Outstanding
Shares |
Treasury
Class B Shares |
Total Equity
Interest |
|
(in Ps.) | |||
Class A | 462,292,111 | 51% | |
Class B | 442,210,385 | 31,134,420 | 48.78% |
Class C | 1,952,604 | 0.22% | |
Total | 906,455,100 | 31,134,420 | 100% |
Ownership of Class A Shares of Edenor
As a result of the Transaction, Edelcos directly owns a total of 462,292,111 Class A Shares of Edenor, or 100% of the total outstanding number of Class A Shares, representing 51% of the capital stock and votes of Edenor. SAE owns 99.99% of the capital stock of Edelcos.
To the best of our knowledge, none of the executive officers, directors or affiliates of any of the Bidders has made any recommendation with respect to the U.S. Offer in its individual capacity or intends to tender or sell Securities owned in its individual capacity.
None of the executive officers or directors of any of the Bidders expressed their intention to participate in the Offers.
Transactions in Class B Shares of Edenor by Certain Persons
The Bidders have not acquired any Class B Shares or ADSs since June 30, 2021. To the best of our knowledge, there have been no transactions involving Class B Shares or ADSs effected by Edenor or by any pension, profit-sharing or similar plan of Edenor or the Bidders since such date.
Past Contacts, Transactions, Negotiations and Agreements with Edenor.
On December 28, 2020, Pampa entered into the Purchase Agreement with Edelcos, as purchaser, and Integra Capital S.A., Messrs. Daniel Eduardo Vila, Mauricio Filiberti and José Luis Manzano as guarantors, for the sale of Pampa’s total Class A shares, which represent 51% of the capital stock and voting rights of Edenor, pursuant to certain conditions precedent, including but not limited to the approval by Pampa’s shareholders’ meeting and the Ente Nacional Regulador de la Electricidad (the “ENRE”). The Transaction was approved by Pampa’s Ordinary and Extraordinary General Shareholders’ Meeting held on February 17, 2021. On June 23, 2021, the ENRE approved the Transaction.
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On June 30, 2021, Edelcos acquired a controlling interest in Edenor upon the consummation of the Transaction. Pursuant to the Purchase Agreement, Edelcos agreed to pay in consideration for the sale of 462,292,111 Class A Shares: (i) the Cash Purchase Price and (ii) the In-kind Purchase Price. Additionally, under certain change of control events, Edelcos will be required to pay to the Seller the Contingent Payments. Except for the Contingent Payments, as of the date hereof, the balance of the Purchase Price is U.S. $40,000,000 (Forty Million Dollars) to be paid on June 30, 2022, plus interest at a fixed annual rate of 10% from June 30, 2021. The first interest payment of U.S.$1,022,222.22 was due on September 30, 2021 and was paid on October 22, 2021.
As a result of the Transaction, Edelcos directly owns a total of 462,292,111 Class A Shares of Edenor, or 100% of the total outstanding number of Class A Shares, representing 51% of the capital stock and votes of Edenor. SAE owns approximately 100% of the capital stock of Edelcos.
Pursuant to the Purchase Agreement, Pampa committed to enter into the Pampa Commitment, subject to the satisfaction of certain conditions, including (i) the absence of an event of default with respect to certain commitments affirmative and negative covenants undertaken by Edelcos in connection with the financing of a portion of the price for the acquisition of a controlling interest in Edenor; and (ii) the absence of an event of default under the Class 9 notes of Edenor, among others.
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THE TENDER OFFER
1. Terms of the U.S. Offer and Expiration Date.
General
Upon the terms and subject to the Conditions set forth in this U.S. Offer to Purchase, including, if the U.S. Offer is extended or amended, the terms and conditions of any extension or amendment, we will accept for purchase and pay for all Class B Shares, including Class B Shares represented by ADSs that are validly tendered on or prior to the Expiration Time on the Expiration Date, and not withdrawn as provided in “—Section 4. Withdrawal Rights.”
Subject to the exceptions described herein, unless the U.S. Offer is extended, to tender Class B Shares in the U.S. Offer, a holder must tender such Class B Shares prior to the Expiration Time on the Expiration Date. Unless the U.S. Offer is extended, holders of Class B Shares who have tendered their Class B Shares, will be entitled to withdraw from the U.S. Offer up until the Expiration Time on the Expiration Date.
ADS holders may participate in the Offers indirectly by surrendering its ADSs to the Depositary, as ADS depositary, withdrawing the Class B Shares underlying the ADSs from the Edenor ADS program and tendering Class B Shares directly in the Offers as holders of Class B Shares, in which case holders need to allow sufficient time to complete all required steps described in this U.S. Offer to Purchase before the Expiration Time on the Expiration Date. See “—Section 3. Procedures for Participating in the U.S. Offer.”
We will pay the purchase price for all Class B Shares validly tendered and not validly withdrawn. The price offered for Class B Shares in the Offers will be payable in Argentine pesos in Argentina. See “—Section 2. Acceptance for Payment and Payment for Class B Shares.”
Extension and Amendment
Under U.S. law, if we make a material change to the terms of the U.S. Offer or the information concerning the U.S. Offer or if we waive a material Condition of the U.S. Offer, we will disseminate additional tender offer materials and extend the U.S. Offer if and to the extent required by Rules 14d-4(c), 14d-6(c) and 14(e)-1 under the Exchange Act (which require that material changes be promptly disseminated to security holders in a manner reasonably designed to inform them of such changes) or otherwise. The minimum period during which an offer must remain open following material changes in the terms of the offer or information concerning the offer, other than a change in price or a change in percentage of securities sought, will depend upon the facts and circumstances, including the relative materiality of the terms or information changes. In the SEC’s view, an offer should remain open for a minimum of 5 (five) business days from the date the material change is first published, sent or given to holders of securities, and with respect to a change in price or a change in percentage of securities sought, a minimum 10 (ten) business-day period is generally required to allow for adequate dissemination to security holders and investor response.
Although we do not intend to provide any subsequent offering periods under the U.S. Offer or the Argentine Offer, under Rule 14d-11 of the Exchange Act, we may elect to provide for a subsequent offering period, immediately following the Expiration Time on the Expiration Date. If provided, a subsequent offering period would be an additional period of time, following the Expiration Time on the Expiration Date, during which holders of Class B Shares that were not previously tendered in the U.S. Offer may tender such Class B Shares on the same terms that applied to the U.S. Offer. A subsequent offering period is not the same as an extension of the U.S. Offer, which will have been previously completed if a subsequent offering period is provided. We will accept for purchase, and pay for, any Class B Shares that are validly tendered during a subsequent offering period, if provided, as promptly as practicable after any such Class B Shares are validly tendered during such subsequent offering period, for the same price paid to holders of Class B Shares, respectively, that were validly tendered in the U.S. Offer and not validly withdrawn.
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Under Argentine law, the 10 (ten) to 20 (twenty) Argentine business day initial term of the Argentine Offer may be extended by an additional period of 5 (five) Argentine business days to give those holders that have not accepted the Argentine Offer during the original term an opportunity to do so during such additional term. The U.S. Offer and the Argentine Offer will expire on the Expiration Date and, except as required by applicable laws and regulations, we do not expect to extend the Expiration Date unless the conditions to the U.S. Offer have not been satisfied. However, we will extend the U.S. Offer to the extent the Bidder extends the Argentine Offer, if such extension is required by Argentine tender offer regulations or for any other reason. We may also request that the CNV authorize the amendment of the terms of the Argentine Offer at any time prior to the last 7 (seven) days of the initial offering period, as long as the amendment reflects an improvement of the original offer (e.g., by means of an increase in the consideration offered), which request will automatically extend the offer period for 7 (seven) additional days. In addition, if the CNV deems it necessary, it may require that the offer period be further extended due to the amendment.
Mailing
This U.S. Offer to Purchase and Acceptance Letter and other relevant materials will be mailed or otherwise delivered by us to the record holders of ADSs and the U.S. resident record holders of Class B Shares whose names appear on the shareholder lists maintained by Edenor, the list of record holders of ADSs maintained by the Depositary and the security position listing of The Depository Trust Company (“DTC”), as the book-entry transfer facility for ADSs of Edenor, and will be furnished, for subsequent transmittal to the beneficial owners of ADSs and the U.S. resident beneficial owners of Class B Shares, to brokers or other securities intermediaries and similar persons whose names, or the names of whose nominees, appear on shareholder lists or, if applicable, who are listed as participants in the security position listing of DTC or Caja de Valores, as applicable. We will also mail this U.S. Offer to Purchase and Acceptance Letter and other relevant materials to any registered or beneficial holder of ADSs, and, in the case of U.S. Persons, Class B Shares, that requests a copy of the U.S. Offer materials.
Definitions
For purposes of this U.S. Offer to Purchase and the related documents:
· | “Argentine business day” means any day on which the Argentine Stock Exchange is open for trading; and |
· | “business day” means any day on which the principal offices of the SEC in Washington, D.C. are open to accept filings or, in the case of determining a date when any payment is due, any day on which banks are not required or authorized to close in New York City, and consists of the time period from 12:01 a.m. through 12:00 midnight, New York City time. |
2. Acceptance for Payment and Payment for Class B Shares.
For purposes of the U.S. Offer, we will be deemed to have accepted for purchase (and thereby purchased) Class B Shares validly tendered and not validly withdrawn prior to the Expiration Time on the Expiration Date, when the Bidders give written notice to the Argentine Receiving Agent of acceptance for payment of such Class B Shares (the “Acceptance Date”).
Pursuant to Argentine law, unless a tendering holder not resident in Argentina for Argentine tax purposes delivers a valid Tax Cost Certificate to the us in accordance with “—Procedures for Delivering Tax Cost Certificate” below, we are required to withhold thirteen and one-half percent (13.5%) of the Offer Price payable to any such tendering holder in respect of Argentine income tax on the capital gains derived from the disposition of the Class B Shares. If the tendering holder provides a valid Tax Cost Certificate, we are required to withhold fifteen percent (15%) of the Net Gain (as defined below), if any, of such tendering holder. The Offer Price will be less (i) the applicable thirteen and one-half percent (13.5%) withholding tax if the tendering holder does not provide a valid Tax Cost Certificate prior to the Expiration Time on the Expiration Date or (ii) fifteen percent (15%) of the Net Gain if the tendering holder provides a valid Tax Cost Certificate prior to the Expiration Time on the Expiration Date. See “—Procedures for Delivering Tax Cost Certificate.” For Argentine resident individuals, pursuant to General Resolution (AFIP) No. 1107/2001, the Offer Price will be subject to Argentine withholding tax at one and one-half percent (1.5%) over the Offer Price on account of their final tax liability.
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Payment for tendered Class B Shares accepted by us pursuant to the U.S. Offer is expected to be made 5 (five) business days after the Acceptance Date (the “Payment Date”) in accordance with Argentine law and practices. The Offer Price for the Class B Shares accepted for purchase pursuant to the U.S. Offer will be settled and paid in Argentine pesos in Argentina.
Payment for Class B Shares accepted by us pursuant to the U.S. Offer will be made by deposit of the Offer Price therefor in pesos with the Argentine Receiving Agent and subsequent payment to holders tendering Class B Shares in the U.S. Offer through the Argentine Receiving Agent in Argentina. Payment of the Offer Price shall be made by the Argentine Receiving Agent only to the person identified on the Acceptance Form or its Custodian for the benefit of such person as the seller of the tendered Class B Shares, and any of said persons shall be treated both by us and by the Argentine Receiving Agent as the sole owner and seller of the tendered Class B Shares.
Holders of ADSs who wish to participate in the U.S. Offer will be required to surrender their ADSs to the Depositary, withdraw the Class B Shares underlying their ADSs from the Edenor ADS program and follow the procedures described above as holders of Class B Shares in order to receive the Offer Price. We will be responsible for paying any cancellation fees charged by the Depositary in connection with ADSs surrendered for cancellation, provided that the underlying Class B Shares are credited to a Caja de Valores account of the Argentine Receiving Agent.
The Argentine Receiving Agent will act as agent for U.S. tendering holders of Class B Shares for the purpose of receiving payments from us and transmitting payments in Argentina in Pesos to such tendering holders of Class B Shares whose Class B Shares have been accepted for payment and who have opened a cuenta comitente in Argentina to receive such funds. Under no circumstance shall the Argentine Receiving Agent be required to make payments outside of Argentina. The Argentine Receiving Agent shall not be responsible for any shortfall of funds or delay in the payment of the tender offer.
U.S. holders of Securities may not be able to freely convert into U.S. dollars and transfer abroad the Argentine pesos they receive as the Offer Price. See “SPECIAL FACTORS—Exchange Controls.”
Procedures for Delivering Tax Cost Certificate
Holders of Class B Shares who validly tender and do not validly withdraw their Class B Shares prior to the Expiration Time on the Expiration Date will receive an SBS Internal Reference Number (the “Identifying Number”).
In order for the Offer Price to be paid less fifteen percent (15%) of the Net Gain, if any, holders who are non-Argentine residents for Argentine tax purposes must complete the Tax Cost Certificate in the form attached to each of the Form of Acceptance. Such Tax Cost Certificate must include notarized and apostilled (or authenticated by a consulate in the case an apostilled form is not available) copies of all documentation supporting the information set forth in the Tax Cost Certificate and must be (i) prepared and certified by a registered accountant in the jurisdiction of the tendering holder (ii) notarized and apostilled (or authenticated by a consulate in the case an apostilled form is not available) and (iii) prepared in accordance with Argentine tax regulations, as described therein. The Tax Cost Certificate shall certify the original acquisition price in pesos of the Class B Shares by the holder of the Securities, converted, in the case of ADSs, at the applicable selling exchange rate published by Banco de la Nación Argentina at the date of such acquisition.
The Tax Cost Certificate must include the holder’s Identifying Number and be received by the U.S. Receiving Agent for further transfer to the Bidder prior to the Expiration Time on the Expiration Date. We reserve the right to reject any Tax Cost Certificate received which would not, in our sole judgment, be considered valid by the Administración Federal de Ingresos Públicos or “AFIP” (Argentine Internal Revenue Service) or if we decide that such Tax Cost Certificate does not allow the proper calculation of the applicable withholding. If we reject a Tax Cost Certificate, a thirteen and one-half percent (13.5%) withholding will be applied to such holder by us as if no Tax Cost Certificate had been received.
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We will inform the Argentine Receiving Agent of the non-Argentine residents who have, in our sole judgment, validly submitted a Tax Cost Certificate and the Argentine Receiving Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon such information provided by us. The Argentine Receiving Agent shall not have any duty or obligation to verify or confirm that the person sending the Tax Cost Certificate or other ancillary documents is, in fact, a person authorized to provide or certify or legalize such Tax Cost Certificate; and the Argentine Receiving Agent shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance on the information provided by us.
General Provisions
If any tendered Class B Shares are not purchased for any reason, the documents of title relating to the Class B Shares or American Depositary Receipts (the “ADRs”) evidencing ADSs and other documents of title, if any, will be returned, without expense to, but at the risk of, the tendering holder (or, in the case of ADSs delivered by book-entry transfer, by transfer of such ADSs to an account maintained at DTC), as promptly as practicable.
We seek to acquire the Class B Shares together with all economic and voting rights, including rights to any Distributions declared on or after the Commencement Date. If on or after the date hereof Edenor should declare or pay any Distributions on the Securities that are payable or distributable to stockholders of record on Edenor’s stock transfer records of Class B Shares on a date prior to the transfer to our name the tendered Class B Shares that are purchased pursuant to the U.S. Offer, then (i) the Offer Price payable by us per Security in the U.S. Offer will be further reduced to the extent such Distributions are payable in cash and (ii) any non-cash Distributions received and held by a tendering holder shall be required to be promptly remitted and transferred to the U.S. Receiving Agent for our account accompanied by appropriate documents of transfer. Pending such remittance, we will be entitled to all rights and privileges, as owner of any such non-cash Distributions and may withhold the entire Offer Price or deduct from the Offer Price the amount or value thereof, as determined by us in our sole discretion. “Distributions” mean any distributions declared or paid by Edenor in respect of any tendered Class B Shares, including Class B Shares represented by ADSs, on or after the Commencement Date including, but not limited to, any payment of dividends in cash or in kind (in Class B Shares or securities of any type), distributions of reserves, reimbursements of capital, full or partial redemptions, distributions for capital reductions, or rights to purchase any securities.
Under no circumstances will interest be paid on the Offer Price for the tendered Class B Shares whether or not the Expiration Date is extended. After the Acceptance Date, our obligation to make payments to tendering holders of Class B Shares shall continue until the Offer Price is paid to tendering holders whose Class B Shares were accepted in the U.S. Offer. Upon the deposit of funds with Caja de Valores for the purpose of making payments to tendering holders whose Class B Shares were accepted in the U.S. Offer, our obligation to make the payment shall be satisfied, and tendering holders whose Class B Shares were accepted in the U.S. Offer must thereafter look solely to Caja de Valores for payment of amounts owed to them by reason of the acceptance for payment of Class B Shares pursuant to the U.S. Offer.
To the extent permitted by applicable Argentine and U.S. securities laws, we reserve the right to transfer or assign, in whole or in part at any time, to one or more of our subsidiaries or affiliates, the right to purchase Shares, including Class B Shares represented by ADSs, in the Offers, but any such transfer of assignment will not relieve us of our obligations under the Offers and will not prejudice the rights of tendering holders to receive payment for purchase of Shares, including Class B Shares represented by ADSs, validly tendered and accepted upon the terms and subject to the conditions set forth in the Offers.
3. Procedures for Participating in the U.S. Offer.
Only holders of Class B Shares who are U.S. Persons are eligible to participate in the U.S. Offer. All other holders of Class B Shares, and holders of Class B Shares who are U.S. Persons but wish to participate in the Argentine Offer, must tender their Class B Shares in the Argentine Offer. Before they decide to tender their Class B Shares in the Argentine Offer, U.S. holders of Class B Shares who wish to participate in the Argentine Offer should carefully consider the Prospecto to be published on the CNV’s website (www.argentina.gob.ar/cnv), all other documents related to the Argentine Offer and the fact that they will not be granted the protections under the Exchange Act. For assistance in connection with the Argentine Offer, please contact the Argentine Receiving Agent at its address and telephone number set forth on the back cover of this U.S. Offer to Purchase.
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As used herein, a “U.S. Person” means: (1) any individual resident in the United States; (2) any partnership or corporation organized or incorporated in the United States; (3) any estate of which any executor or administrator is a U.S. Person; (4) any trust of which the trustee is a U.S. Person; (5) any agency or branch of a foreign entity located in the United States; (6) any non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. Person; (7) any discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated or (if an individual) resident in the United States; and (8) any partnership or corporation if (A) organized or incorporated under the laws of any foreign jurisdiction and (B) formed by a U.S. Person for the purpose of investing in securities not registered under the Securities Act, unless it is organized or incorporated, and owned by accredited investors (as defined in Rule 501(a) under the Securities Act); excluding, in each case, persons deemed not to be “U.S. persons” pursuant to Rule 902 (k)(2) of Regulation S under the Securities Act. The tendering of Class B Shares pursuant to the U.S. Offer shall constitute a binding agreement between the tendering holder of Class B Shares and us pursuant to the terms and subject to the conditions of the U.S. Offer.
Pursuant to the terms of the U.S. Offer and subject to the Conditions hereof, we shall acquire such Class B Shares as are validly tendered prior to the Expiration Time on the Expiration Date pursuant to the requirements listed below and provided that tendered Class B Shares are not withdrawn as set forth in “—Section 4. Withdrawal Rights.”
The U.S. Offer to Purchase, the Acceptance Letter and other relevant materials may be obtained from the U.S. Receiving Agent, at the addresses indicated on the back cover of this U.S. Offer to Purchase during normal business hours through the Expiration Time on the Expiration Date. However, failure to receive any documentation related to this U.S. Offer by any holder of Class B Shares shall not invalidate this U.S. Offer or any aspect hereof.
U.S. holders who wish to participate in the U.S. Offer should open a cuenta comitente at Caja de Valores, which process may take time. Caja de Valores requires that such process be concluded at least 72 business hours prior to the Expiration Time, during which time such Class B Shares will remain blocked. Neither the Bidder nor the U.S. Receiving Agent or the Argentine Receiving Agent can guarantee any specific timeframe necessary to open a cuenta comitente. Those who wish to participate in the U.S. Offer should initiate the process of opening of a cuenta comitente as soon as possible.
Holders of Class B Shares
A U.S. holder of Class B Shares who decides to tender all or part of its Class B Shares in the U.S. Offer, shall follow the procedures described below:
(i) Holders whose Class B Shares are registered under their name in the share registry of Edenor kept by Caja de Valores.
A holder whose Class B Shares are registered under its name in the share registry of Edenor kept by Caja de Valores and who intends to tender its Class B Shares in the U.S. Offer must first transfer the Class B Shares to the collective deposit system of Caja de Valores and follow the procedure described below.
A U.S. holder of Class B Shares that does not have a holder’s account (cuenta comitente) in the collective deposit system of Caja de Valores through a financial intermediary (“Custodian”), may open a cuenta comitente in its name through any Custodian. The Custodian will open a cuenta comitente at Caja de Valores in which it will deposit the stock certificate issued by Caja de Valores (“Certificate”) and a cash account, in the name of the U.S. holder of Class B Shares. For purposes of this U.S. Offer to Purchase, a “cuenta comitente” shall mean an account opened by a Custodian at Caja de Valores in the name of a holder of Class B Shares.
The Class B Shares may not be tendered by a U.S. holder until they are credited in the cuenta comitente at Caja de Valores. A holder wishing to open a cuenta comitente should therefore contact a Custodian with sufficient time to allow the Custodian to open the cuenta comitente to permit the tendering of Class B Shares prior to the Expiration Time on the Expiration Date.
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Once the applicable requirements are met, the cuenta comitente has been opened, and the Class B Shares have been credited to such cuenta comitente, the U.S. holder may tender its Class B Shares in the U.S. Offer, following the steps set forth below:
(a) | the U.S. holder of Class B Shares shall request its Custodian to instruct Caja de Valores to transfer its Class B Shares to the account opened by the custodian retained by Global Valores S.A. (the “Argentine Receiving Agent”) for purposes of the U.S. Offer (Account Name: Global Valores S.A., Depositante No. 59, Comitente No. 4604) with Caja de Valores (the “U.S. Tendered Class B Shares Account”). |
(b) | Caja de Valores will inform the Argentine Receiving Agent and the Bidder on a daily basis of the Class B Shares that have been tendered in the U.S. Tendered Class B Shares Account (the “Daily Registry”). The Daily Registry shall indicate (i) the date of transfer, (ii) the number of Class B Shares transferred to the U.S. Tendered Class B Shares Account and (iii) the name, identification number and/or the registration information with public registrar, as applicable. The tendering holder should provide its Custodian with this information and, in turn, the Custodian should make it available to Caja de Valores. |
(c) | Once the corresponding transfer is complete, a U.S. holder of Class B Shares who wishes to tender its Class B Shares in the U.S. Offer shall file a completed and signed Acceptance Letter and all other documentation that the U.S. Receiving Agent may request, with the U.S. Receiving Agent at the address indicated on the back cover of this U.S. Offer to Purchase during normal business hours, prior to the Expiration Time on the Expiration Date. |
(d) | The U.S. Receiving Agent shall inform the Argentine Receiving Agent on a daily basis, the Acceptance Letters received under the U.S. Offer, specifying the name, identification number and/or the registration information of such U.S. Holder and the number of Class B Shares transferred by such U.S. Holder to the U.S. Tendered Class B Shares Account. The Argentine Receiving Agent may conclusively rely on the information provided by the U.S. Receiving Agent and any documents provided by it and shall be fully protected in acting or refraining from acting upon such information or documents. The Argentine Receiving Agent shall have no duty or obligation to verify or confirm that the person sending the Acceptance Letter and other required documents have been received or whether, a person authorized to provide, certify or legalize such Acceptance Letter and other required documents has in fact done so; and the Argentine Receiving Agent shall have no liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such information or documents received. |
(ii) Holders whose Class B Shares are deposited in the collective deposit system of Caja de Valores.
A U.S. holder whose Class B Shares are deposited in the collective deposit system of Caja de Valores that wishes to tender its Class B Shares in the U.S. Offer shall follow the steps set forth below:
(a) | The U.S. holder shall request its Custodian to transfer the Class B Shares that the holder wishes to tender into the U.S. Tendered Class B Shares Account pursuant to the terms of this U.S. Offer to Purchase. |
(b) | Caja de Valores will provide the Argentine Receiving Agent and the Bidder, on a daily basis, the Daily Registry. The Daily Registry shall indicate (i) the date of transfer, (ii) the number of Class B Shares transferred to the U.S. Tendered Class B Shares Account and (iii) the name, identification number and/or the registration information with public registrar, as applicable. The tendering holder should provide its Custodian with such information and, in turn, the Custodian should make it available to Caja de Valores. |
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(c) | Once the corresponding transfer is complete, a U.S. holder of Class B Shares that wishes to tender its Class B Shares in the U.S. Offer shall file the completed and signed Acceptance Letter and all other documentation that the U.S. Receiving Agent may request, to the U.S. Receiving Agent at the address indicated on the back cover of this U.S. Offer, prior to the Expiration Time on the Expiration Date. |
(d) | The U.S. Receiving Agent shall inform the Argentine Receiving Agent, on a daily basis, the Acceptance Letters received under the U.S. Offer, specifying the name, identification number and/or the registration information of such U.S. Holder and the number of Class B Shares transferred by such U.S. Holder to the U.S. Tendered Class B Shares Account. The Argentine Receiving Agent may conclusively rely on the information provided by the U.S. Receiving Agent and any documents provided by it and shall be fully protected in acting or refraining from acting upon such information or documents. The Argentine Receiving Agent shall have no duty or obligation to verify or confirm that the person sending the Acceptance Letter and other required documents has, in fact, done so or whether, a person authorized to provide, certify or legalize such Acceptance Letter and other required documents have been received; and the Argentine Receiving Agent shall have no liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such information or documents received. |
(iii) General Provisions
Class B Shares held directly may not be tendered by a U.S. person in the U.S. Offer until they are transferred into the collective deposit system and credited in the holder’s account (cuenta comitente) at Caja de Valores. Each holder wishing to open a cuenta comitente should therefore contact a Custodian with sufficient time to allow the Custodian to open the cuenta comitente to permit the tendering of Class B Shares prior to the Expiration Time on the Expiration Date. Each U.S. holder of Class B Shares should consult with its Custodian as to whether there may be any delay in the transfer of shares into the U.S. Tendered Class B Shares Account. The transfer of Class B Shares to the U.S. Tendered Class B Shares Account may take time. Neither we nor the U.S. Receiving Agent may provide holders of Class B Shares with a specific timeframe for performing these steps, and therefore each holder should start this procedure as soon as possible.
If the tendered Class B Shares are deposited in joint accounts, all holders in whose name the Class B Shares are registered must sign an Acceptance Letter. However, if each joint account holder is authorized to dispose the Class B Shares without the consent of the other holder/s, any of the joint account holders may sign the Acceptance Letter. Unless evidence is provided to the contrary, joint account holders will be deemed to require the consent of the other holder/s to dispose the Class B Shares deposited in the joint account.
U.S. holders of Class B Shares may choose to file the Acceptance Letter personally, by authorized agent, or through their Custodians.
The method for delivering the Acceptance Letter and all the other documents required is at the sole option and risk of the tendering holders of Class B Shares. The Class B Shares shall be deemed tendered only when the Class B Shares have been deposited in the U.S. Tendered Class B Shares Account and the Acceptance Letter and other required documents have been received, and not rejected, by the Argentine Receiving Agent.
The U.S. Receiving Agent may conclusively rely on the Acceptance Letter and other required documents have been received and shall be fully protected in acting or refraining from acting upon the Acceptance Letter and other required documents have been received or any ancillary document thereto reasonably believed by it to be genuine and to have been signed or presented by the proper person. The U.S. Receiving Agent shall not have any duty or obligation to verify or confirm that the person sending the Acceptance Letter and other required documents have been received or other ancillary documents is, in fact, a person authorized to provide or certify or legalize such Acceptance Letter and other required documents have been received; and the U.S. Receiving Agent shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such Acceptance Letter and other required documents have been received.
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Subject to the right of any tendering U.S. holder to withdraw any tendered Class B Shares, the U.S. Receiving Agent will keep the Class B Shares deposited in the U.S. Tendered Class B Shares Account until such time as the U.S. Offer is settled and we pay the Offer Price or the U.S. Offer is terminated.
When a U.S. Person that holds Class B Shares and wishes to participate in the U.S. Offer has correctly completed the procedure described in this section, it shall be deemed to have tendered its Class B Shares in the U.S. Offer and to have accepted all the terms and conditions thereof. The Class B Shares shall not be deemed to have been tendered in the U.S. Offer until such time as the U.S. Receiving Agent has received the documents described above. Once the documents are received by the U.S. Receiving Agent and the transfer of shares is complete, the tendering U.S. holder of Class B Shares may only withdraw the tendered Class B Shares by following the procedure detailed in Section 4 (four) below.
Acceptance Letter
The provisions hereof shall be included in the Acceptance Letter and shall be deemed to form part thereof. Each U.S. holder of Class B Shares who has signed or in whose name an Acceptance Letter has been signed, irrevocably represents and warrants to us, and agrees with us, that:
(a) | the presentation of the Acceptance Letter constitutes (i) an acceptance of the U.S. Offer with respect to the number of Class B Shares indicated on the Acceptance Letter, (ii) a commitment to present any other document and to take any other steps necessary to allow us to consummate the transfer of ownership of the Class B Shares, subject to the terms and conditions established in this U.S. Offer to Purchase and in the Acceptance Letter, and (iii) with the exception of the withdrawal rights of the tendering holders of Class B Shares, an irrevocable tender of the Class B Shares in the U.S. Offer; |
(b) | the U.S. holder of Class B Shares is the owner of the Class B Shares indicated on the Acceptance Letter and the holder has full authority and rights to deliver, sell, and transfer such Class B Shares and rights inherent thereto to us; |
(c) | the tendered Class B Shares are tendered free and clear from all liens, titles, charges, privileges and/or encumbrances, and together with all the rights which they grant or may grant in the future; |
(d) | the presentation of the Acceptance Letter to the U.S. Receiving Agent constitutes an instruction (which shall become irrevocable after the Acceptance Date) to deliver to us the tendered Class B Shares as of the Payment Date; |
(e) | the presentation of the Acceptance Letter constitutes (i) an instruction (which shall be irrevocable as from the Acceptance Date) to Edenor, Caja de Valores, the U.S. Receiving Agent, the Argentine Receiving Agent, as applicable, to cause the registration and/or register the transfer of the tendered Class B Shares in our favor and to deliver to us a certificate of ownership of the tendered Class B Shares (“Constancia de Saldo de Cuentas”) and/or other documents which prove ownership of such Class B Shares, on the Payment Date; and (ii) a commitment (which shall be irrevocable as from the Acceptance Date) to present any other document and to take any other measure necessary to allow us to consummate the transfer of ownership of the Class B Shares, pursuant to the terms and conditions set forth in this U.S. Offer to Purchase and in the Acceptance Letter; |
(f) | the U.S. holder undertakes to ratify any and all of the acts or procedures that may be performed or effected by us or any of our directors or agents or Edenor or any of its agents, as the case may be, in the exercise of any of our, its or their respective powers and/or authorizations in virtue hereof; |
(g) | the U.S. holder accepts that the voting and any other rights attaching to the tendered Class B Shares, may not be exercised by the U.S. holder of Class B Shares while the tendered Class B Shares are deposited in the U.S. Tendered Class B Shares Account; |
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(h) | the U.S. holder accepts that we seek to acquire the Class B Shares together with all economic and voting rights, including rights to any Distributions declared on or after the Commencement Date. Accordingly, the holder accepts that if on or after the date hereof Edenor should declare or pay any Distributions on the Securities that are payable or distributable to stockholders of record on Edenor’s stock transfer records of Class B Shares on a date prior to the transfer to our name of the tendered Class B Shares that are purchased pursuant to the U.S. Offer, then (i) the Offer Price payable by us per Security in the U.S. Offer will be further reduced to the extent such Distributions are payable in cash and (ii) any non-cash Distributions received and held by a tendering holder shall be required to be promptly remitted and transferred to the U.S. Receiving Agent for our account accompanied by appropriate documents of transfer. Pending such remittance, we will be entitled to all rights and privileges, as owner of any such non-cash Distributions and may withhold the entire Offer Price or deduct from the Offer Price the amount or value thereof, as determined by us in our sole discretion; |
(i) | the U.S. holder grants a power of attorney in favor of the U.S. Receiving Agent to receive such notifications, documents or other communications to be sent to the holders of the tendered Class B Shares, to execute any documents necessary to receive and keep in custody the tendered Class B Shares and to exercise all other rights attaching to the tendered Class B Shares; |
(j) | the U.S. holder agrees not to sell, assign, transfer, pledge or encumber in any manner the tendered Class B Shares while they are deposited in the U.S. Tendered Class B Shares Account and to keep the tendered Class B Shares free and clear from any liens, charges, privileges and/or encumbrances, and not to exercise any of the rights appertaining thereto; |
(k) | the U.S. holder agrees to open a cuenta comitente from which the tendered Class B Shares are to be transferred into the U.S. Tendered Class B Shares Account; |
(l) | the U.S. holder agrees not to modify or close the cuenta comitente from which the tendered Class B Shares were transferred while the Class B Shares are deposited in the U.S. Tendered Class B Shares Account; |
(m) | the U.S. holder has reviewed the U.S. Offer documents; has not received from the U.S. Receiving Agent, the Argentine Receiving Agent any information or representations inconsistent with or differing from the information or representations contained in the U.S. Offer documents; and the holder’s decision to tender in the U.S. Offer has been based on the holder’s own analysis of Edenor and of the U.S. Offer, including the benefits and risks involved and the holder has not received any type of legal, business, financial, tax and/or any other type of advice from us, the U.S. Receiving Agent, the Argentine Receiving Agent, the U.S. Information Agent and/or any of their parent, subsidiary, affiliated or related entities; |
(n) | the holders whose Class B Shares have not been validly received by the Argentine Receiving Agent, and who have not delivered the Class B Shares within the period indicated, or who for any reason beyond the control of the Bidders, the U.S. Receiving Agent and the Argentine Receiving Agent have not been able to tender the Class B Shares, shall lose the right to receive payment of the Offer Price, without the possibility of remedying such situation, and such circumstance shall not give rise to any liability whatsoever on the part of the Bidders, the U.S. Receiving Agent and/or the Argentine Receiving Agent shall not be liable for any compensation and/or indemnification whatsoever to such holder; |
(o) | all the information contained in the Acceptance Letter is true and correct; |
(p) | the U.S. holder accepts and agrees that we are required to and will withhold thirteen and one-half percent (13.5%) of the Offer Price payable to any such tendering holder not resident in Argentina for Argentine tax purposes (or, if such holder delivers to us a valid Tax Cost Certificate, in the form of either (i) Exhibit 1 attached to the Form of Acceptance, in the case of individual holders or (ii) Exhibit 2 attached to the Form of Acceptance, in the case of holders that are corporate entities, reasonably satisfactory to us prior to the Expiration Time on the Expiration Date, fifteen percent (15%) of the Net Gain) in respect of Argentine income tax on the capital gains derived from the disposition of the Securities; |
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(q) | the U.S. holder accepts and agrees that in the event that a tendering holder delivers a Tax Cost Certificate not reasonably satisfactory to us, we will withhold thirteen and one-half percent (13.5%) of the Offer Price payable to any such tendering holder not resident in Argentina for Argentine tax purposes in respect of Argentine income tax on the capital gains derived from the disposition of the Securities; |
(r) | the holder represents that all documents submitted in connection with the Tax Cost Certificate are genuine and accurate; and |
(s) | the holder is a U.S. Person or is holding for a U.S. Person. |
Certification of Signatures
Neither we nor the U.S. Receiving Agent shall be obligated to accept the Acceptance Letter if the authenticity of the signatures of the persons signing them is not certified by a notary public. This certification will not be necessary if the signing takes place at the U.S. Receiving Agent’s office.
Partial Tenders
If fewer than all of the Class B Shares delivered by a holder to the U.S. Receiving Agent are to be tendered, the holder should so indicate in the Acceptance Letter by filling in the number of Class B Shares that are to be tendered in the Box 1 of the Acceptance Letter. In such case, a new certificate of ownership (or Constancia de Saldo en Cuentas) for the untendered Class B Shares may be requested by the person(s) signing such Acceptance Letter (or delivered as the holder indicates thereon) as promptly as practicable following the Payment Date.
Maintenance of Class B Shares to be Transferred in Custody
The Argentine Receiving Agent will maintain the Class B Shares transferred into the U.S. Tendered Class B Shares Account in custody in favor of both us and the tendering holder of Class B Shares until the Payment Date, provided that (i) the tendering holder of Class B Shares has not withdrawn its Class B Shares; (ii) the tendering of the Class B Shares was not defective; and (iii) the U.S. Offer remains open.
While the Class B Shares remain deposited in the U.S. Tendered Class B Shares Account, the tendering holder of Class B Shares may not exercise the voting rights of the tendered Class B Shares.
If the tendering holder were to withdraw the tendered Class B Shares or the U.S. Offer were to be terminated by us because any of the Conditions described in “—Section 13. Certain Conditions of the U.S. Offer” have not been met, or due to any other reason, the U.S. Receiving Agent shall instruct the Argentine Receiving Agent to return the tendered Class B Shares as promptly as practicable after the date on which we notify the tendering holders that the U.S. Offer has been terminated. The Argentine Receiving Agent will transfer the tendered Class B Shares to the cuentas comitentes opened at Caja de Valores in the name of the respective U.S. holders. Under no circumstance will the Argentine Receiving Agent be required to transfer Class B Shares outside Argentina.
All Class B Shares delivered to the Argentine Receiving Agent will be deemed to have been tendered unless otherwise indicated. See Instruction 1 of the Acceptance Letter.
If you are in any doubt as to the procedure for acceptance of Class B Shares, please call the U.S. Information Agent at the telephone numbers set forth on the back cover of this U.S. Offer to Purchase.
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Defects in Tendering in the Offer. Falsehood or Inaccuracy of Tendering Holder’s Representations.
All questions as to the form of documents and the validity, form, eligibility, including time of receipt, and acceptance for purchase of any tender of Class B Shares will be determined by us in our sole discretion, which determination shall be final and binding on all parties. We reserve the absolute right to reject any or all tenders of Class B Shares determined by us not to be in proper form or the acceptance for purchase for which may, in the opinion of our counsel, be unlawful. We also reserve the absolute right to waive any defect or irregularity in the tender of any Class B Shares of any particular holder, whether or not any similar defect or irregularity is waived in the case of other holders. No tender of Class B Shares will be deemed to have been validly made until all defects and irregularities have been cured or waived. Neither we nor any of our affiliates or assigns nor any person, including the U.S. Receiving Agent and/or the Argentine Receiving Agent, will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. Our interpretation of the terms of the U.S. Offer will be final and binding.
We reserve the right to reject the tendering of any Class B Shares if, at our sole and exclusive discretion, we believe that the payment to be made by us or the transfer of such Class B Shares to us is illegal or contrary to any judgment, order, decision or opinion of the competent authority. In addition, we shall have the right to reject any tendered Class B Shares at any time until the Payment Date in the event of the lack of performance by the holder of Class B Shares of any of the covenants agreed to herein or if any representation made proves to be false or inaccurate.
We will rely on the information provided to us by Caja de Valores in connection with (i) the Daily Registry, and (ii) the accuracy of the identity and capacity, and adequacy of the required consents, of the holder of the cuenta comitente to instruct its Custodian to effect the transfer of the Class B Shares to the U.S. Tendered Class B Shares Account. Any mistake, error or inaccuracy in connection thereto will be the sole responsibility of the tendering holder and its Custodian.
In the event of a rejection of tendered Class B Shares by us, the Class B Shares shall be returned to the tendering holder, and no payment of the Offer Price shall be made to such holder if the U.S. Offer is consummated.
Holders of ADSs
Holders of ADSs who wish to participate in the Offers must first become direct holders of Class B Shares by surrendering their ADSs to the Depositary for cancellation and taking delivery of the Class B Shares represented thereby into a cuenta comitente in its name in Argentina. Once a holder of Class B Shares, such holder, in the case of the U.S. holders, must follow the procedures described herein for U.S. holders of Class B Shares participating in the U.S. Offer in order to receive the Offer Price, and, in the case of non-U.S. holders, must tender their Class B Shares in the Argentine Offer in order to receive the Offer Price. We will be responsible for paying any cancellation fees charged by the Depositary in connection with ADSs surrendered for cancellation, provided that the underlying Class B Shares are credited to a Caja de Valores account of the Argentine Receiving Agent. In order for a registered holder on the books of the Depositary to withdraw the Class B Shares underlying such holder’s ADSs, registered holders should contact the Depositary, at drsettlements@bnymellon.com, telephone number (+1) 212 815 2783, and in order for a person or entity that holds ADSs through a broker or other securities intermediary to withdraw the Class B Shares underlying such holder’s ADSs, such holders should contact the broker or other securities intermediary holding their ADSs, in either case, to surrender their ADSs and withdraw the underlying Class B Shares, which may then be tendered directly in Argentina pursuant to the procedures described. If you hold ADSs and you wish to participate in the Argentine Offer, you should allow sufficient time to complete all required steps to surrender your ADSs for delivery of Class B Shares prior to the expiration date of the Argentine Offer. You must also have a securities account with a broker or other intermediary that can receive delivery of Class B Shares in Argentina. See “Acceptance for Payment and Payment for Class B Shares.”
No Guaranteed Delivery
There will be no guaranteed delivery process available to tender Class B Shares.
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General |
Questions or requests for assistance may be directed to the U.S. Information Agent set forth on the back cover of this U.S. Offer to Purchase. Additional copies of this U.S. Offer to Purchase may also be obtained from the U.S. Information Agent.
All questions as to the form of documents and the validity, form, eligibility, including time of receipt, and acceptance of any tender of Class B Shares will be determined by us in our sole discretion, which determination shall be final and binding on all parties. We reserve the absolute right to reject any and all tenders of Class B Shares determined by us not to be in proper form. We also reserve the absolute right to waive any defect or irregularity in the tender of any Class B Shares of any particular holder, whether or not similar defects or irregularities are waived in the case of other holders. No tender of Class B Shares will be deemed to have been validly made until all defects and irregularities have been cured or waived. Neither we nor any of our affiliates or assigns nor any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. Our interpretation of the terms of the U.S. Offer will be final and binding.
The tender of Class B Shares pursuant to any of the procedures described above will constitute the tendering holder’s acceptance of the terms of the U.S. Offer, as well as the tendering holder’s representation and warranty to us that:
· | the holder has the full power and authority to tender, sell, assign and transfer the tendered Class B Shares (and any and all other Class B Shares or other securities issued or issuable in respect of those Class B Shares); and |
· | when the Class B Shares are accepted for purchase by us, we will acquire good and unencumbered title to the Class B Shares, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claims. |
The Argentine Receiving Agent assumes no responsibility for the information included in this U.S. Offer to Purchase or with respect to any U.S. holder tendering its Class B Shares in the U.S. Offer. The Argentine Receiving Agent and its affiliates, and each of their respective directors, officers, employees and agents will not regard us or any other person as their client, nor will they be responsible to us or any other person for providing the protections afforded to their clients or for providing advice in relation to this U.S. Offer to Purchase, or any other matter referred to herein. The Argentine Receiving Agent has not been retained to make solicitations or recommendations, and as such, makes no solicitation or recommendation, in connection with the U.S. Offer to Purchase in its role as Argentine Receiving Agent.
4. Withdrawal Rights.
Tenders of Class B Shares made pursuant to the U.S. Offer may be withdrawn at any time prior to the Expiration Time on the Expiration Date.
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The withdrawal of any Class B Shares tendered in the U.S. Offer can only be made by presenting a signed form of withdrawal (the “Form of Withdrawal”) to the U.S. Receiving Agent. Such withdrawal will be effective only if the U.S. Receiving Agent timely receives the Form of Withdrawal at its address set forth on the back cover of this U.S. Offer to Purchase. The Form of Withdrawal must specify the name of the person who tendered the Class B Shares to be withdrawn and the number of Class B Shares to be withdrawn and the name of the registered U.S. holder of Class B Shares, if different from that of the person who tendered such Class B Shares.
The U.S. Receiving Agent shall, on a daily basis, inform the Argentine Receiving Agent of the U.S. holders from whom it has validly received a Form of Withdrawal. The Argentine Receiving Agent will then proceed to transfer the respective Class B Shares to the cuenta comitente in the name of such U.S. holder in Argentina. Under no circumstance will the Argentine Receiving Agent be required to transfer Class B Shares outside of Argentina.
Withdrawal rights will be available only for tenders of Class B Shares under the U.S. Offer and not under the Argentine Offer.
General
In accordance with Section 14(d)(5) of the Exchange Act, a holder that has tendered Class B Shares may withdraw any or all of those Class B Shares at any time before the Expiration Time on the Expiration Date, by communicating its request to withdraw its Class B Shares in the manner described above.
Even if we extend the U.S. Offer or we are delayed in accepting, or unable to accept, Class B Shares for purchase pursuant to the U.S. Offer for any reason, elections to tender may be withdrawn only as described herein. Any such delay will be made by an extension of the U.S. Offer to the extent required by law. See “—Section 1. Terms of the U.S. Offer and Expiration Date.”
All questions as to the form and validity, including time of receipt, of any notice of withdrawal will be determined by us, in our sole discretion, and our determination will be final and binding. Neither we nor any of our affiliates or assigns nor any other person, including the U.S. Receiving Agent and/or the Argentine Receiving Agent, will be under any duty to give any notification of any defects or irregularities in any withdrawal or incur any liability for failure to give any such notification.
Withdrawals of tendered Class B Shares may not be rescinded. Any Class B Shares validly withdrawn will thereafter be deemed not to have been validly tendered for purposes of the U.S. Offer. However, holders of Class B Shares that have validly withdrawn tendered Class B Shares may re-tender those Class B Shares at any time before the Expiration Time on the Expiration Date. See “—Section 3. Procedures for Participating in the U.S. Offer.”
5. Source and Amount of Funds; Certain Requirements Regarding Offer Price.
Funds
The total amount of funds that we must provide to purchase all of the Class B Shares held by investors which is the maximum number of Class B Shares (including Class B Shares represented by ADSs and excluding treasury shares) subject to the Offers, before fees and expenses, is estimated to be approximately Ps.13,031,742,097.26 million based on an Offer Price of Ps.29.34 per Class B Share.
We have access to the necessary economic resources to pay the Offer Price, including by giving effect to shareholders' contributions loans, from local and foreign financial institutions and/or the Pampa Commitment . In addition, pursuant to Article 34, Chapter II, Title III of the CNV regulations, our payment obligations in respect of any Class B Shares that are tendered in the Offers are guaranteed by Afianzadora Latinoamericana Cia. de Seguros S.A. Premiar Compañía Argentina de Seguros S.A., Galeno Caución S.A., Fianzas y Crédito S.A. Compañía de Seguros and Tutelar Seguros S.A.. Therefore, we believe that sufficient funds are available to us to purchase the maximum amount of securities sought in the Offers.
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6. Certain U.S. Federal Income and Argentine Tax Consequences.
The following describes the material U.S. federal income tax and Argentine tax consequences of the sale of Class B Shares pursuant to the U.S. Offer.
U.S. Federal Income Tax Consequences
The following is a summary of certain U.S. federal income tax consequences of the U.S. Offer with respect to the Class B Shares. The discussion set forth below is only applicable to U.S. Holders (as defined below) that tender Class B Shares in the U.S. Offer. This discussion addresses only beneficial owners of Class B Shares that hold such Class B Shares as capital assets.
The summary does not purport to be a comprehensive description of all of the tax considerations that may be relevant to any particular investor, including tax considerations that arise from rules of general application to all taxpayers or certain aspects of U.S. federal income taxation that may be applicable to a holder subject to special treatment under the Internal Revenue Code of 1986, as amended (the “Code”), including, but not limited to, banks or other financial institutions, regulated investment companies, holders that own or are treated as owning 10% or more of the stock of Edenor (by vote or value), entities that are treated for U.S. federal income tax purposes as partnerships or other pass-through entities, tax-exempt organizations, insurance companies, brokers or dealers in securities or foreign currency, traders in securities who elect to mark their securities to market for U.S. federal income tax purposes, holders that have a functional currency other than the U.S. dollar, and holders that acquired Class B Shares pursuant to the exercise of an employee stock option or otherwise as compensation. In addition, the discussion does not address the Medicare tax on net investment income, the alternative minimum tax or state, local or foreign tax consequences (or other tax consequences such as estate or gift tax consequences) of the U.S. Offer. The discussion below is based upon the provisions of the Code and U.S. Treasury regulations, rulings and decisions thereunder as of the date hereof, and such authorities may be repealed, revoked or modified (with possible retroactive effect) so as to result in U.S. federal income tax consequences different from those discussed below.
Holders should consult their own tax advisors concerning the tax consequences of the U.S. Offer in light of their particular situations, as well as any consequences arising under the laws of any other taxing jurisdiction.
As used in this subsection “—U.S. Federal Income Tax Consequences,” the term “U.S. Holder” means a beneficial holder of Class B Shares that is (1) an individual citizen or resident of the United States (as defined for US federal income tax purposes), (2) a corporation, or other entity taxable as a corporation, created or organized in or under the laws of the United States, any state thereof or the District of Columbia, (3) an estate whose income is subject to US federal income taxation regardless of its source, or (4) a trust if (i) a court in the United States can exercise primary supervision over the administration of the trust, and one or more United States persons can control all of the substantial decisions of the trust, or (ii) the trust has in effect a valid election to be treated as a United States person for US federal income tax purposes, (3) an estate whose income is subject to US federal income taxation regardless of its source, or (4) a trust if (i) a court in the United States can exercise primary supervision over the administration of the trust, and one or more United States persons can control all of the substantial decisions of the trust, or (ii) the trust has in effect a valid election to be treated as a United States person for US federal income tax purposes. This summary does not apply to holders of Class B Shares who are not U.S. Holders. Non-U.S. Holders should consult their own tax advisors regarding the U.S. federal income tax consequences and any applicable state, local and non-U.S. tax consequences of the tender offer.
Characterization of the U.S. Offer
The receipt of cash in exchange for Class B Shares pursuant to the tender offer will be a taxable transaction for U.S. federal income tax purposes. A U.S. Holder of Class B Shares will generally recognize gain or loss for U.S. federal income tax purposes in an amount equal to the difference between the amount of cash received and the U.S. Holder’s tax basis in the Class B Shares exchanged. Such gain or loss generally will be capital gain or loss. (3) an estate whose income is subject to US federal income taxation regardless of its source, or (4) a trust if (i) a court in the United States can exercise primary supervision over the administration of the trust, and one or more United States persons can control all of the substantial decisions of the trust, or (ii) the trust has in effect a valid election to be treated as a United States person for US federal income tax purposes. (3) an estate whose income is subject to US federal income taxation regardless of its source, or (4) a trust if (i) a court in the United States can exercise primary supervision over the administration of the trust, and one or more United States persons can control all of the substantial decisions of the trust, or (ii) the trust has in effect a valid election to be treated as a United States person for US federal income tax purposes.
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Foreign Tax Credits
U.S. Holders should consult their tax advisors as to whether the Argentine tax on capital gains may be creditable against the U.S. Holder’s U.S. federal income tax liability and the application of any foreign tax credit limitations in light of their particular situations. Any gain or loss generated by the sale of Class B Shares by a U.S. Holder will generally be treated as U.S. source gain or loss. Accordingly, a U.S. Holder may not be able to use the foreign tax credit (if any) arising from any Argentine tax imposed on the disposition of the Class B Shares. The calculation and availability of foreign tax credits and, in the case of a U.S. Holder that elects to deduct foreign taxes, the availability of deductions, involves the application of complex rules that depend on a U.S. Holder’s particular circumstances. U.S. Holders should consult with their own tax advisors with regard to the availability of foreign tax credits and the application of the foreign tax credit limitations in light of their particular situations.
Information Reporting and Backup Withholding
In general, information reporting requirements will apply to the cash payments received pursuant to the U.S. Offer that are paid within the United States (and in certain cases, outside of the United States) to U.S. Holders other than certain exempt recipients that, if required, establish their exemption, and backup withholding at a current rate of 24% may apply to such amounts if a U.S. Holder fails to provide an accurate taxpayer identification number and make any other required certification or otherwise establish an exemption. The amount of any backup withholding from a payment to a U.S. Holder will be allowed as a refund or a credit against the U.S. Holder’s U.S. federal income tax liability so long as the required information is provided to the U.S. Internal Revenue Service.
Backup withholding and information reporting will not generally apply to the cash payments made pursuant to the U.S. Offer that are received by a non-U.S. Holder if such holder certifies under penalties of perjury that such holder is a non-U.S. person for U.S. federal income tax purposes. Backup withholding is not an additional tax. Amounts withheld as backup withholding may be credited against a shareholder’s US federal income tax liability, and a U.S. Holder may obtain a refund of any excess amounts withheld under the backup withholding rules by filing the appropriate claim for refund with the IRS and furnishing any required information.
Argentine Tax Consequences
The following section refers to the main Argentine taxes applicable to the U.S. Offer, including but not limited to, the amendments introduced by Laws No. 27,430 and 27,541. It does not contain a comprehensive analysis of all the tax-related matters that might be considered relevant in making a decision. Further, it does not specifically describe all the Argentine tax-related matters applicable to any particular holder. This analysis is based on the tax laws in force in Argentina applicable as of the date of this U.S. Offer, which may be subject to amendment and different interpretations. Each holder of Class B Shares or ADSs should consult with its own tax advisors about the specific tax consequences of this U.S. Offer.
Taxation on dividends
Pursuant Section 97 of the Income Tax Law, dividends paid on the Class B Shares, whether in cash, property or any other kind—except in the case of fully paid shares (acciones liberadas)—are subject to Argentine income tax withholding (“Dividend Tax”) at a rate of 7% on the amount of such dividends, in respect of both Argentine holders who are individuals or undivided estates and holders not domiciled in Argentina for Argentina tax purposes (for purposes of this subsection—”Argentine Tax Consequences,” a “non-Argentine holder”).
Dividends paid in excess of Taxable Accumulated Income, as defined below, during the previous fiscal period are also subject to an additional withholding tax (“Equalization Tax”) at a rate of 35% on such excess amount in respect of both Argentine and non-Argentine resident holders. The Equalization Tax is applicable when the amount of dividends paid exceeds income accumulated as of the fiscal year immediately preceding the year in which the dividend distribution is made (“Taxable Accumulated Income”), as determined pursuant to Argentine income tax law. The Equalization Tax will not be applicable to Taxable Accumulated Incomes accrued after January 1, 2018.
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The Dividend Tax and the Equalization Tax, if applicable, are imposed as a withholding tax on the holder receiving the dividend. In the event that both the Dividend Tax and the Equalization Tax apply, the latter is applied first and the Dividend Tax is subsequently applied on the remaining amount of dividends (in other words, on the amount of dividends remaining after the Equalization Tax has been deducted from the gross dividend amount).
Holders are encouraged to consult a tax advisor as to the particular Argentine income tax consequences arising from dividends paid on the Class B Shares.
Income Tax - Capital gains
· | Resident individuals and undivided estates. |
Gains arising from the disposition of the shares as a result of the participation in this offering obtained by individuals or undivided estates considered residents of Argentina for tax purposes, are considered exempt from income tax pursuant to Article 26 paragraph u) of Law No. 20,628 (the “Income Tax Law”), provided that: (a) it is a placement by public offering with the authorization of the CNV, a decentralized agency within the scope of the Finance Secretariat of the Ministry of Finance; and/or (b) the transactions have been carried out in markets authorized by such agency under segments that ensure priority price time and by bid interference; and/or (c) they are carried out through a public tender offer and/or exchange authorized by the CNV.
In case the exemption mentioned in the previous paragraph is not applied, according to the provisions of Section 98 of the Income Tax Law, as amended by Law No. 27.430, the net gain of Argentine source of individuals and undivided estates derived from results from the sale of shares will be taxed at a rate of 15%. Losses arising in a fiscal year as a result of the sale of shares may only be offset against net gains derived from the same type of transactions obtained in the five years immediately following the year in which the losses occurred.
· | Resident legal entities |
Local companies and legal entities must include the results from the disposal of the shares in their income tax returns. Such subjects pay Income Tax at a rate of 30% on the net taxable income for the tax periods 2018 and 2019 and 2020, and at a rate of 25%, 30% or 35% depending on the level of income of the company or corporate entity as from the tax period 2021 onwards.
For the purposes of the provisions of the preceding paragraph, the term “Legal entities” covers Law No. 24.441 (currently in accordance with the provisions of the Civil and Commercial Code) Foreign Beneficiary, permanent establishments, commission agents, income tax.
· | Foreign Beneficiary |
Pursuant to Article 26 paragraph u) of the Income Tax Law, the results from the sale of the Shares are exempt from income tax as long as (a) it is a placement through a public offering authorized by the Argentine Securities Commission; and/or (b) the transactions have been carried out in markets authorized by such agency under segments that ensure priority price-time and bid interference; and/or (c) they are carried out through a public tender offer and/or exchange authorized by the CNV. The exemption detailed above shall be applicable insofar as it does not reside in non-cooperating jurisdictions and/or the invested funds do not come from non-cooperating jurisdictions.
For Foreign Beneficiaries, to the extent that the exemption provided in Section 26 clause u) of the LIG does not apply, and to the extent that the Foreign Beneficiary does not reside in non-cooperative jurisdictions or the invested funds do not come from non-cooperative jurisdictions, it shall be taxed at the rate of 15%, applying such rates on the presumption of profit provided in Section 104 subsection (i) or in the second paragraph of such section.
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In this sense, the foreign beneficiary can choose between applying the presumption of profit of Section 93, paragraph (i) of 90% of the funds paid, or determine the profit in the amount resulting from deducting from the gross profit paid or credited, the expenses incurred in the country necessary to obtain, maintain and preserve it, as well as the deductions allowed by the Income Tax Law, according to the type of profit in question and which have been expressly recognized by the AFIP.
For foreign beneficiaries residing in non-cooperating jurisdictions or whose invested funds come from non-cooperating jurisdictions, the 35% tax rate will be applied on the profit determined in accordance with the provisions of Section 93 paragraph (i) of the Income Tax Law, i.e., on 90% of the profits obtained.
Value added tax
Pursuant to the provision in Section 7 subsection (b) of Law No. 23,349 (the “Value Added Tax Law”), share transactions are exempt of the Value Added Tax Law.
Tax on Debits and Credits in Bank Current Accounts.
Law No. 25.413 established the Tax on Debits and Credits in Bank Current Accounts (“IDC” for its acronym in Spanish) which is applicable with respect to: (i) credits and debits of any nature, made in accounts opened in the entities included in Law No. 21,526 (the “Financial Entities Law”) -except for those expressly excluded by law and regulation-; as well as, for (ii) the taxable transactions indicated in item (i), in which bank accounts are not used, carried out by the entities included in the Financial Entities Law, whatever the denominations given to them, the mechanisms used to carry them out -including through the movement of cash- and their legal instrumentation and (iii) the movements and deliveries of funds -which are carried out through organized payment systems in replacement of the use of current accounts-, provided that they are carried out for their own account and/or for the account of others in the exercise of economic activities.
The general IDC rate is 0.6% for each credit and debit (as established in Article 1 of Law No. 25,413). In the case of items (ii) and (iii) of the preceding paragraph, the applicable rate will be 1.2%. The holders of bank accounts subject to the general rate of 0.6% may compute as tax credit, 34% of the amounts liquidated and collected by the collecting agent in respect of this tax, originated in the amounts credited to such accounts. The holders of bank accounts taxed at the rate of 1.2% may compute 17% of the amounts paid as IDC. The crediting of such amount as payment on account shall be made, indistinctly, against Income Tax, minimum presumed income tax and/or the special contribution on the capital of cooperatives.
Pursuant to Article 10 paragraph a) of Decree No. 380/2001, debits and credits in the accounts used by the markets authorized by the CNV and their respective agents, exclusively for transactions inherent to their specific activity and the drafts and transfers they order for the same purpose, are exempt from IDC.
Gross Income Tax
This is a provincial tax that falls on the regular exercise of a commercial activity for valuable consideration in the geographic area of the City of Buenos Aires or the provincial jurisdictions, regardless of the result obtained and the nature of the subject performing such activity.
Investors who regularly participate, or who are presumed to participate on a regular basis in the purchase and sale of shares may be subject to the payment of gross income tax at the rates established by the specific laws of each Argentine province, unless an exemption is applicable.
In the City of Buenos Aires, income from any transaction on shares is exempt from this tax.
Stamp Taxes
All acts and/or instruments related to the trading of shares and other securities duly authorized for public offering by the CNV are exempted from Stamp Tax in the City of Buenos Aires. This exemption shall be void if within ninety (90) calendar days the authorization for the public offering of such securities is not requested before the CNV and/or if the placement of such securities is not made within one hundred and eighty (180) calendar days as from the date the requested authorization is granted.
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Given the provincial autonomy in tax matters, the potential implications of the transactions in the provincial jurisdictions where there is any connection or nexus with the respective transaction must be reviewed.
Justice Fee
In the event it is necessary to initiate enforcement proceedings in connection with the Offers in Argentina, a justice fee will be charged on the amount of any claim brought before the Argentine courts. In the City of Buenos Aires, the justice fee is 3% of the amount claimed.
Tax treaties
Argentina has signed tax treaties for the avoidance of double taxation with several countries, including Australia, Belgium, Bolivia, Brazil, Canada, Finland, France, Germany, Italy, Norway, the Netherlands, the United Kingdom, Russia, Spain, Sweden, Switzerland (approved by the National Argentine Congress, but pending effectiveness until the procedural requirements for its effectiveness are complied with) and Uruguay (through an information exchange treaty that contains clauses for the avoidance of double taxation. Holders domiciled in any of those jurisdictions may be required to pay taxes applicable on the sale of the Class B Shares or any dividends thereon at lower rates. There is currently no tax treaty or convention in effect between Argentina and the United States to avoid double taxation with the United States.
7. Certain Information about the Class B Shares and ADSs.
The principal market on which the Class B Shares are traded is the Buenos Aires Stock Exchange (the “BASE”), where they are listed under the ticker symbol “EDN”. ADSs representing rights to Class B Shares are traded on the NYSE under the ticker symbol “EDN.” Each ADS represents rights to twenty Class B Shares of Edenor. As of September 30, 2021, there were 442,210,385 Class B Shares outstanding (excluding treasury shares). The following table sets forth, for the calendar quarters indicated, the low and high closing sales prices for one Class B Share and one ADS.
Class B Shares | ADSs | ||||||||||||
Low | High | Low | High | ||||||||||
(Ps.) | (U.S.$) | ||||||||||||
2019 | |||||||||||||
1st Quarter | 42.50 | 56.50 | 19.10 | 29.60 | |||||||||
2nd Quarter | 36.80 | 43.50 | 16.73 | 19.73 | |||||||||
3rd Quarter | 15.20 | 44.70 | 5.26 | 21.40 | |||||||||
4th Quarter | 16.25 | 26.80 | 4.25 | 7.21 | |||||||||
2020 | |||||||||||||
1st Quarter | 13.40 | 24.70 | 2.96 | 5.99 | |||||||||
2nd Quarter | 13.70 | 28.65 | 2.83 | 4.83 | |||||||||
3rd Quarter | 18.65 | 28.00 | 2.93 | 4.57 | |||||||||
4th Quarter | 21.50 | 30.55 | 2.88 | 4.24 | |||||||||
2021 | |||||||||||||
1st Quarter | 25.15 | 28.45 | 3.35 | 4.00 | |||||||||
2nd Quarter | 25.95 | 45.90 | 3.44 | 5.47 | |||||||||
3rd Quarter | 39.60 | 64.45 | 4.21 | 7.52 | |||||||||
4th Quarter (through November 11) | 61.75 | 75.55 | 6.19 | 7.61 |
The following table sets forth, for the calendar months indicated, the trading volume, number of shares traded and weighted average price of the ADSs over the last twelve months:
18 |
Total Volume
of ADSs Traded |
Number of
ADSs Traded |
Weighted
Average Price per ADS |
|
(US$) | (US$) | ||
2020 | |||
August | 5,550,376 | 1,383,925 | 4.01 |
September | 1,373,256 | 426,361 | 3.22 |
October | 2,179,405 | 664,433 | 3.28 |
November | 3,768,997 | 1,088,782 | 3.46 |
December | 5,388,570 | 1,389,104 | 3.88 |
2021 | |||
January | 3,239,323 | 883,613 | 3.67 |
February | 2,795,828 | 744,184 | 3.76 |
March | 3,100,722 | 880,759 | 3.52 |
April | 1,969,631 | 545,900 | 3.61 |
May | 2,283,737 | 637,715 | 3.58 |
June | 7,912,082 | 1,627,782 | 4.86 |
July | 2,207,797 | 505,570 | 4.37 |
August | 9,053,064 | 1,464,345 | 6.18 |
September | 8,351,459 | 1,215,660 | 6.87 |
October | 4,922,621 | 700,830 | 7.02 |
November (through November 11) | 1,563,172 | 238,925 | 6.54 |
(1) For the period from, and including, January 1, 2021, through, and including, August 31, 2021.
Source: Bloomberg
On November 11, 2021, the last full trading day before the date of this U.S. Offer to Purchase, the last reported sale price of the Class B Shares on the BYMA was Ps. 66.7 per Class B Share, and the last reported sale price of the ADSs on NYSE was U.S.$5.80 per ADS. Holders are urged to obtain a current market quotation for the Class B Shares and ADSs.
Since the fiscal year ended in December 2017, Edenor has not made dividend payments to its shareholders.
8. Certain Information about Edenor.
Edenor holds a concession to distribute electricity on an exclusive basis to the northwestern part of the greater Buenos Aires metropolitan area and in the northern part of the City of Buenos Aires, comprising an area of 4,637 square kilometers and a population of approximately 9 million people.
Edenor is a corporation (sociedad anónima) duly organized under the laws of Argentina. Its principal executive offices are located at Avenida del Libertador 6363, 11° floor, City of Buenos Aires, C1428ARG, Argentina, and its general telephone number at this location is +54 11 4346 5000.
The outstanding capital stock of Edenor is comprised of 462,292,111 Class A Shares, 442,210,385 Class B Shares and 1,952,604 and Class C ordinary shares, each with a par value of Ps. 1.
Financial Information
The tables below set forth certain selected consolidated financial information relating to Edenor and its subsidiaries as of December 31, 2020 and 2019 and for each of the two fiscal years then ended.
19 |
The consolidated financial information of Edenor set forth below was excerpted from the annual report on Form 20-F of Edenor for its fiscal year ended December 31, 2020 (“2020 Form 20-F”) furnished by Edenor to the SEC and, according to the 2020 Form 20-F, was prepared in accordance with International Financial Accounting Standards (“IFRS”) as issued by the International Accounting Standards Board (IASB).
Period ended December 31, | ||
2020 | 2019 | |
Statement of comprehensive income (loss) | (Stated in millions of Argentine pesos in constant currency) | |
Revenue (1) |
91,316 |
122,437 |
Electric power purchases | (57,930) | (77,649) |
Subtotal |
33,386 |
44,788 |
Transmission and distribution expenses |
(19,866) |
(21,980) |
Gross margin |
13,520 |
22,808 |
Selling expenses |
(10,843) |
(10,007) |
Administrative expenses | (5,353) | (5,223) |
Other operating income (3) | 2,200 | 2,364 |
Other operating expense | (2,045) | (3,479) |
Impairment of property, plant and equipment Gain from interest in joint ventures |
(17,396) | 2 |
Operating (loss) profit |
(19,917) |
6,465 |
Agreement on the Regularization of Obligations |
- |
23,270 |
Financial income (3) |
55 |
78 |
Finance costs | (9,276) | (9,205) |
Other finance costs | (1,890) | (4,796) |
Net finance costs |
(11,111) |
(13,923) |
Monetary gain (RECPAM) |
9,767 |
15,236 |
(Loss) Profit before taxes | (21,261) | 31,048 |
Income tax |
3,563 |
(14,530) |
(Loss) Profit for the year |
(17,698) |
16,518 |
(Loss) Profit for the year attributable to: Owners of the Company |
(17,698) |
16,518 |
(Loss) Profit for the year |
(17,698) |
16,518 |
Other comprehensive income (loss) Items that will not be reclassified to profit or loss Results related to benefit plans |
108 |
(10) |
Tax effect of actuarial results on benefit plans | (33) | 3 |
Total other comprehensive results |
75 |
(7) |
20 |
(1) | Revenue from operations is recognized on an accrual basis and derives mainly from electricity distribution. Such revenue includes electricity supplied, whether billed or unbilled, at the end of each year. |
(2) | Each ADS represents 20 Class B common shares. |
(3) | The classification of commercial interests and surcharges in the Statement of Comprehensive Income is modified, since the Company understands that the items related to late payment interest on the cancellation of credits for sale and surcharges applied to customers for late payment or other associated penalties, provide relevant information on the operations and operating cash flows of the business. For this reason, this item is included in other operating income. Edenor's management considers that this disclosure reflects the impacts of the operating business process, allowing for consistency of treatment with other items such as credit deterioration. This particularly considering the current economic and financial context that worsened the delay in payment terms, including in the latter case, the restriction of some measures aimed at limiting customer payment delays. |
Statement of Financial Position as of December 31, 2020 and 2019
Period ended December 31, | ||
ASSETS |
2020 |
2019 |
Non-current assets Property, plant and equipment |
124,914 |
137,894 |
Interest in joint ventures | 11 | 15 |
Right-of-use asset | 280 | 355 |
Other receivables | 42 | 35 |
Financial assets at amortized cost |
239 |
- |
Total non-current assets |
125,486 |
138,299 |
Current assets Inventories |
1,873 |
2,623 |
Other receivables | 624 | 394 |
Trade receivables | 14,151 | 16,961 |
Financial assets at fair value through profit or loss | 2,222 | 3,798 |
Financial assets at amortized cost | 78 | - |
Cash and cash equivalents |
4,362 |
558 |
Total current assets |
23,310 |
24,334 |
TOTAL ASSETS |
148,796 |
162,633 |
Period ended December 31, | ||
EQUITY |
2020 |
2019 |
Share capital and reserve attributable to the owners of the Company Share capital |
875 |
875 |
Adjustment to share capital | 36,404 | 36,404 |
Treasury stock | 31 | 31 |
Adjustment to treasury stock | 782 | 782 |
Additional paid-in capital | 504 | 504 |
Cost treasury stock | (3,053) | (3,053) |
Legal reserve | 2,581 | 1,755 |
Voluntary reserve | 42,690 | 26,998 |
Other comprehensive loss | (218) | (294) |
Accumulated (losses) profits |
(17,698) |
16,518 |
TOTAL EQUITY |
62,898 |
80,520 |
LIABILITIES Non-current liabilities Trade payables |
521 |
503 |
Other payables | 6,285 | 5,472 |
21 |
Borrowings | 8,261 | 11,159 |
Deferred revenue | 1,471 | 368 |
Salaries and social security payable | 303 | 327 |
Benefit plans | 749 | 713 |
Deferred tax liability | 23,709 | 27,300 |
Provisions |
2,431 |
2,808 |
Total non-current liabilities |
43,730 |
48,650 |
Current liabilities Trade payables |
33,019 |
17,288 |
Other payables | 2,999 | 4,895 |
Borrowings | 143 | 2,259 |
Derivative financial instruments | 1 | 279 |
Deferred revenue | 37 | 7 |
Salaries and social security payable | 3,734 | 3,278 |
Benefit plans | 84 | 70 |
Income tax payable | - | 2,681 |
Tax liabilities | 1,793 | 2,415 |
Provisions | 358 | 291 |
Total current liabilities |
42,168 |
33,463 |
TOTAL LIABILITIES |
85,898 |
82,113 |
TOTAL LIABILITIES AND EQUITY |
148,796 |
162,633 |
The tables below set forth certain selected consolidated financial information relating to Edenor and its subsidiaries as of September 30, 2021 and for the three months then ended.
The consolidated financial information of Edenor set forth below was excerpted from the interim reports on Form 6-K of Edenor, furnished to the SEC on November 10, 2021 and incorporated by reference herein by reference to such reports.
Condensed Interim Statement of Comprehensive Income (Loss) | Nine-months period ended September | Three-month period ended September | |||||
30, 2021 | 30, 2020 | 30, 2021 | 30, 2020 | ||||
Revenue | 80,802 | 100,050 | 29,236 | 34,961 | |||
Energy purchases | 49,365 | 63,331 | 17,039 | 21,715 | |||
Subtotal | 31,437 | 36,719 | 12,197 | 13,246 | |||
Transmission and distribution expenses | 19,221 | 20,500 | 6,654 | 6,737 | |||
Gross margin | 12,216 | 16,219 | 5,543 | 6,509 | |||
Selling expenses | 7,824 | 11,200 | 2,317 | 3,744 | |||
Administrative expenses | 5,145 | 4,708 | 1,767 | 1,607 | |||
Other operating income | 3,396 | 2,367 | 1,150 | 508 | |||
Other operating expense | 3,155 | 1,895 | 1,327 | 641 | |||
Loss from interest in joint ventures | 3 | 1 | 3 | 1 | |||
Operating Profit | 515 | 782 | 1,279 | 1,024 | |||
Financial income | 26 | 25 | 2 | 5 | |||
Financial costs | 16,903 | 8,215 | 5,766 | 3,398 | |||
Other financial costs | 1,570 | 2,626 | 850 | 304 |
22 |
Where You Can Find More Information about Edenor
Edenor files annual reports on Form 20-F and furnishes reports on Form 6-K to the SEC. You may read and copy any of these reports at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330. The SEC maintains an Internet site at http://www.sec.gov that contains reports and other information regarding issuers that file electronically with the SEC. Edenor publishes a variety of information of interest to the holders of Securities on its Internet site at https://www.edenor.com.ar/.
Edenor is also subject to the informational requirements of the CNV and the BASE and files reports and other information relating to its business, financial condition and other matters with the CNV and the BASE. The CNV maintains an Internet site at http://www.cnv.gob.ar, which contains reports and other information regarding issuers that file electronically with the CNV.
9. Certain Information about the Bidders.
EDELCOS
Edelcos is an Argentine corporation (sociedad anónima) and an almost wholly-owned subsidiary of SAE. The purpose of Edelcos is to develop on its own account or for third parties, within or outside Argentina, the following activities: (i) operations for the distribution of electricity; (ii) investment in energy projects, renewable energies, energy transition projects, development of sustainable technology, electrification of the economy and transportation, energy storage, technologies for the development of lithium, copper and palladium, rare earths and hydrogen; (iii) generation of renewable energy, solar, wind, biomass, geothermal and any other that is viable or is in the research and development stage; (iv) development of technologies for the protection of the environment; (v) in general, carry out commercial, investment, including sale of shares, financial operations, including the granting of endorsements, guarantees and sureties in favor of third parties, or real estate or civil, commercial acts or of any other nature, and all activities in general that may be related or that are necessary to carry out its corporate purpose, but excluding the activities covered by the Argentine Financial Entities Law No. 21,526 and its amendments and regulations. The principal place of business of Edelcos is located at City of Buenos Aires. Edelcos’s domicile is Maipú 1252, 12th floor, City of Buenos Aires, Argentina. The telephone number at which Edelcos’s principal executive offices can be reached is (+549) 11-4110-5150.
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SAE
SAE is a special purpose vehicle duly organized and existing in accordance with the laws of England and Wales, registered with the Register of Companies for England and Wales under number OC434488. SAE’s domicile is CMS Cameron McKenna Nabarro Olswang LLP, 1-3 Charter Square, Sheffield, S1 4HS, England. The telephone number at which SAE’s principal executive offices can be reached is (+44) 11 4279-4000.
Financial Information of the Bidders
We do not believe that our financial condition is material to a decision by a holder of Class B Shares or ADSs to tender Class B Shares in the U.S. Offer because (a) the U.S. Offer is being made for all Class B Shares, including Class B Shares represented by ADSs, (b) the U.S. Offer is solely for cash and (c) the U.S. Offer is not subject to any financing condition. Nonetheless, certain selected financial information of Edelcos and SAE is included in this section, in line with information included in the Prospecto for the Argentine Offer.
The tables below set forth certain selected unaudited interim financial information relating to Edelcos as of January 31, 2021.
January 31, | |
FINANCIAL POSITION DATA |
2021 |
(in US$) | |
ASSETS | |
Non-Current assets | |
Investments | 2,260 |
Current assets | |
Trade and other receivables | 10,000,000 |
TOTAL ASSETS |
10,002,260 |
LIABILITIES | — |
Current liabilities | |
Trade and other payables | 2,260 |
Amounts due to members | 10,000,000 |
Total liabilities |
10,002,260 |
Net assets attributable to members |
- |
Represented by: | |
Members capital | - |
Amounts due to members | 10,000,000 |
Total Members Interest |
10,000,000 |
Additional Information
The name, business address, citizenship, present principal occupation and employment history for the past five years of each of the directors and executive officers of the Bidders is set forth on Schedule 1 to this U.S. Offer to Purchase.
We do not have, or, to our knowledge, after reasonable inquiry, any of the persons listed in Schedule 1 has, during the last five years (a) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) been a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, U.S. federal or state securities laws or a finding of any violation of U.S. federal or state securities laws.
24 |
Except as set forth elsewhere in this U.S. Offer to Purchase or in Schedule 1: (a) none of the Bidders or, to the knowledge of the Bidders, after reasonable inquiry, any of the persons listed in Schedule 1 or any associate or majority-owned subsidiary of the Bidders, or any of the persons so listed, beneficially owns or has a right to acquire any Class B Shares or any other equity securities of Edenor, (b) none of the Bidders, or, to the knowledge of the Bidders, after reasonable inquiry, any of the persons referred to in clause (a) above or any of their executive officers, directors, affiliates or subsidiaries has effected any transaction in Class B Shares or any other equity securities of Edenor during the past 60 days, (c) none of the Bidders, their subsidiaries or, to the knowledge of the Bidders after reasonable inquiry, any of the persons listed in Schedule 1, has any agreement, arrangement, or understanding, whether or not legally enforceable, with any other person with respect to any securities of Edenor including, but not limited to, any agreement, arrangement, or understanding concerning the transfer or the voting of any such securities, joint ventures, loan or option arrangements, puts or calls, guarantees of loans, guarantees against loss or the giving or withholding of proxies, consents or authorizations, (d) in the past two years, except as set forth elsewhere in this document, there have been no transactions that would require reporting under the rules and regulations of the SEC between any of the Bidders their subsidiaries or, to the knowledge of the Bidders after reasonable inquiry, any of the persons listed in Schedule 1, on the one hand, and Edenor or any of its executive officers, directors or affiliates, on the other hand and (e) in the past two years, except as set forth elsewhere in this document, there have been no negotiations, transactions or material contacts between any of the Bidders, their subsidiaries or, to the knowledge of the Bidders, after reasonable inquiry, any of the persons listed in Schedule 1, on the one hand, and Edenor or any of its affiliates, on the other hand, concerning a merger, consolidation or acquisition, a tender offer or other acquisition of Edenor’s securities, an election of Edenor’s directors or a sale or other transfer of a material amount of assets of Edenor.
Where You Can Find More Information about the Bidders
Edelcos is not subject to the informational requirements of the CNV, the CNV or the SEC. SAE is not subject to the informational requirements of the CNV, the CNV or the SEC.
10. Certain Legal and Regulatory Matters.
General
Based on their examination of publicly available information filed by Edenor with the SEC and other publicly available information concerning Edenor, we are not aware of (i) any governmental license or regulatory permit that appears to be material to Edenor’s business that might be adversely affected by our acquisition of Class B Shares as contemplated herein, or (ii) any approval or other action by any government or governmental administrative or regulatory authority or agency, domestic or foreign, that would be required for the acquisition or ownership of Class B Shares by us as contemplated herein, or any approval or other action by any government or governmental administrative regulatory authority or agency, domestic or foreign, or any consent, waiver or other approval that would be required as a result of or in connection with the Offers, including but not limited to, any consents or other approvals under any licenses, concessions, permits and agreements to which we or any of its respective subsidiaries or affiliates is a party, other than approvals or other actions that have been obtained prior to the Commencement Date.
In addition, our obligation under the Offers to accept for purchase and pay for the tendered Class B Shares is subject to certain Conditions as described in “—Section 13. Conditions of the U.S. Offer.”
ENRE Approval
Under Argentine Decree 267/2015, the Change in Control of Edenor was subject to approval by ENRE. On June 23, 2021, the ENRE approved the Transaction.
25 |
Antitrust Approval
Under Argentine Law No. 25,156, as amended, the CNDC has jurisdiction over mergers and acquisitions that allow a party to acquire control of or significant influence over a company, where the combined volume of business of the parties involved exceeds certain thresholds (“economic concentrations”). The CNDC has authority to analyze and approve, including subject to satisfaction of conditions, or reject any such economic concentration. The CNDC has a waiting period of 45 (forty-five) business days from the date the parties complete the statutory filing to render its decision. However, the 45-business day period is interrupted each time the CNDC requests additional information, until the information is furnished to the satisfaction of the CNDC.
The CNDC review process is structured in three sequential stages defined largely by the information required at each stage, and the CNDC may choose not to perform the review provided by any stage. During Stage One, the CNDC requests and reviews basic information on the relevant parties, the main aspects of the transaction and identifies the relevant market (by market size and relative market share). During Stage Two, the CNDC requests more detailed information on the relevant market, the products and services produced by the issuer and details on a transaction’s impact on the manufacturing, transportation, service costs and consumer price for such products and services. In Stage Three, the CNDC can request additional details on a transaction or its potential effects, particularly with respect to competition in the market, barriers to import/export or entry into the relevant market.
If at any point during the CNDC review process, the CNDC may request additional or more specific information and documents from the parties involved or may schedule hearings with chambers, associations, competitors, suppliers, clients and others involved in or affected by a transaction to assist it its analysis of any possible anti-competitive concentration.
On July 7, 2021, we filed for antitrust approval. As of the date of this filing, the antitrust approval has not yet been granted. The Offers are not subject to receipt of the antitrust approval, but are subject to a condition that there has been no rejection of the Transaction by the CNDC or condition or conditions imposed thereon that is or are unfavorable to Edenor, us, any of their respective affiliates or entities controlling, controlled by or subject to common control with, us.
As of the date of this U.S. Offer to Purchase, the approval of the CNDC had not been obtained. However, the Purchase Agreement provides that, if the transfer of the Class A Shares to Edelcos is totally or partially objected to, in no event shall Pampa be obligated to reimburse Edelcos, nor shall Edelcos be entitled to waive or excuse itself from the payment of the Purchase Price (in whole or in part) to Pampa, and the transactions contemplated by the Purchase Agreement shall not be terminated under any circumstances, and, in such case, Edelcos shall have the right to transfer the Class A Shares to any third party, assuming all costs.
If the CNDC, before the Expiration Time: (i) subjects its approval to the satisfaction of any condition, the Bidders will request authorization from the CNV to modify the Argentine Offer (and will also seek to amend the U.S. Offer) accordingly and, if necessary, will extend the Offers, or (ii) rejects the Transaction, the Bidders may withdraw the Offers and immediately return any Class B Shares that may have been tendered in the Offers. However, the approval of the CNDC is not a condition to the consummation of the Offers.
“Going Private” Transactions
Because we may be deemed to be an affiliate of Edenor for the purposes of Rule 13e-3 under the Exchange Act, this U.S. Offer constitutes a “going private” transaction pursuant to Rule 13e-3. Rule 13e-3 requires, among other things, that certain financial information concerning Edenor and certain information relating to the fairness of the Offer Price be filed with the SEC. We have provided such information in this U.S. Offer to Purchase and in the combined Schedule TO and Schedule 13E-3, together with the exhibits thereto, filed with the SEC pursuant to Rule 14d-3 under the Exchange Act.
26 |
Statutory Exemption from Certain U.S. Offer Requirements
This U.S. Offer qualifies as a “Tier II” offer in accordance with Rule 14d-1(d) under the Exchange Act and is, as a result, exempt from certain provisions of otherwise applicable U.S. statutes and rules relating to tender offers. U.S. and Argentine law and practice relating to tender offers are inconsistent in a number of ways. We intend to rely on the Tier II exemption from Rule 14e-1(c) on prompt payment and from Rule 14e-1(d) on the procedures for giving notices of any extensions of the length of the U.S. Offer, where we will follow Argentine law and practice.
Argentine Securities Law
The registration of securities and the conduct of public offers in Argentina is regulated by the Argentine Capital Markets Law No. 26.831, the rules issued by the CNV in accordance with General Resolution No. 622/2013 and by CNV’s General Resolution No. 779/2018, as supplemented or amended from time to time.
Pursuant to the applicable CNV rules, any individual or legal entity that proposes to launch a tender offer must file a request for approval of the offer with the CNV, which has 15 (fifteen) business days from the filing to approve the terms and conditions or to request additional information (in which case the 15-day period will be interrupted). Except as otherwise provided by the CNV, the request for approval must include, among other requirements, a Prospecto containing the terms and conditions of the offer and other relevant information.
Concurrently with the filing with the CNV, the offeror must publicly announce its intention to make the offer by publishing the principal terms and conditions for one day in a major Argentine newspaper and in the official gazette of the BASE. Once the Argentine Offer is approved, the offeror must publish the approval of the terms and conditions of the tender offer, as originally filed or as modified, in the same manner in which the announcement of the tender offer was previously published.
In addition, simultaneously with the publication of the terms and conditions of the Argentine Offer, the offeror must give a detailed notice of the terms and conditions to the target company. The board of directors of the target company must express its opinion and recommendation as to the Offer Price under the proposed tender offer within 15 (fifteen) days from receipt of the notification from the offeror. The opinion of the board of directors of the target company must cover in detail the terms and conditions of the Argentine Offer, its technical recommendation of the offer, the existence of any agreement between the offeror and the target or between the offeror and the members of the board of directors of the target, and whether the board of directors will obtain an opinion from a specialized independent consultant. The board of directors must disclose its knowledge of any significant decision to be adopted that, in its judgment, may affect the Argentine Offer and whether the members of the board of directors of the target and officers who are shareholders of the target will accept or reject the Argentine Offer. The opinion of the board of directors of the target must be furnished to both the BASE and the CNV and must be published for 2 (two) days in the official gazette of the BASE.
The Argentine Offer must remain open in Argentina for a period of no less than 10 (ten) business days, and no more than 20 (twenty) business days, unless an exception is obtained from the CNV. After the Argentine Offer period expires, the offeror may reopen the offer open for another 5 (five) to 10 (ten) business days on the same terms and conditions as the original offer. Once the Argentine Offer expires, the offeror and the receiving agent must inform the CNV and the BASE of the results of the offer and must publish the results in the official gazette of the BASE and in a major Argentine newspaper. Concurrently, the BASE must notify the CNV of the aggregate number of shares of the target tendered. Once the results are known, the CNV will notify the BASE, and if applicable, the offeror and the target company, of the number of shares tendered. The BASE will publish the results in its gazette on the day following notification from the CNV.
If, subject to the Regulations, the offeror elects to terminate the offer, the offeror must notify the CNV of its decision and the notice of termination must be published in the same manner as the approval of the original offer. Once the notice of termination is published, all tenders will be deemed withdrawn and all expenses incurred by the tendering holders will be paid by the offeror.
27 |
Argentine Corporate Law
Holders of Class B Shares and/or ADSs will not have appraisal rights as a result of the Offers.
11. Fees and Expenses.
We have retained Computershare Inc. as the U.S. Receiving Agent, and D.F. King & Co. Inc., as the U.S. Information Agent in connection with the U.S. Offer. Each of these entities will receive customary compensation and reimbursement for reasonable out-of-pocket expenses, as well as indemnification against certain liabilities in connection with the U.S. Offer.
The U.S. Information Agent may contact holders of Class B Shares and ADSs by personal interview, mail, electronic mail, telephone and other methods of electronic communication and may request brokers and other securities intermediaries to forward the U.S. Offer materials to beneficial holders of Securities to the extent permitted by applicable law.
Except as set forth above, we have not retained and will not pay any fees or commissions to any broker or dealer or other person for recommending or soliciting tenders of Class B Shares pursuant to the U.S. Offer.
The following is an estimate of the fees and expenses to be incurred by us:
Filing Fees | U.S.$10,633.00 | |
U.S. Receiving Agent and U.S. Information Agent Fees | U.S.$32,500 | |
Valuation Report Fees | Ps.2,691,875 | |
Legal Fees | U.S.$310,000 | |
Printing, Mailing and Miscellaneous Fees and Expenses | U.S.$85,000 | |
| | |
Total in U.S. dollars | U.S.$229,500 | |
Total in Argentine pesos | Ps.2,691,875 | |
| | |
| | |
Brokers and other securities intermediaries will be reimbursed by us for customary handling and mailing expenses incurred by them in forwarding material to their customers.
We will reimburse Edenor for any fees and expenses incurred by Edenor on behalf of us.
12. Miscellaneous.
This U.S. Offer to Purchase is intended solely for holders of Class B Shares that are U.S. residents (within the meaning of Rule 14d-1(d) under the Exchange Act) and holders of ADSs representing rights to Class B Shares. Holders of Class B Shares that are not U.S. residents may not use this U.S. Offer to Purchase. Separate offer materials referred to as a Prospecto in Spanish have been published in Argentina, as required by Argentine law. We are not aware of any jurisdiction where the making of the U.S. Offer or the election to tender Class B Shares in connection therewith would not be in compliance with the laws of that jurisdiction. If we become aware of any jurisdiction in which the making of the U.S. Offer or the election to tender Class B in connection therewith would not be in compliance with applicable law, we will make a good faith effort to comply with any such law. If, after making such good faith effort, we cannot comply with any such law, the U.S. Offer will not be made to (nor will elections to tender Class B Shares be accepted from or on behalf of) the holders of Class B Shares or ADSs in that jurisdiction. In any jurisdiction where the securities, blue sky or other laws require the U.S. Offer to be made by a licensed broker or dealer, the U.S. Offer will be deemed to be made on our behalf by one or more registered brokers or dealers licensed under the laws of such jurisdiction.
No person has been authorized to give any information or make any representation on our behalf not contained in this U.S. Offer to Purchase, and if given or made, such information or representation must not be relied upon as having been authorized.
28 |
We have filed with the SEC a combined Schedule TO and Schedule 13E-3, together with exhibits, furnishing certain additional information with respect to the U.S. Offer. You may read and copy the combined Schedule TO and Schedule 13E-3 and any amendments thereto, including exhibits, at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330. The SEC maintains an Internet site at http://www.sec.gov that contains reports and other information regarding issuers that file electronically with the SEC.
You should rely only on the information incorporated by reference or provided in this U.S. Offer to Purchase or any supplement to this U.S. Offer to Purchase. We have not authorized anyone to provide you with different information. The date of this U.S. Offer to Purchase is November 12, 2021. You should not assume that the information in this U.S. Offer to Purchase is accurate as of any date other than that date, regardless of the time such offer to purchase is made available to you.
13. Conditions of the U.S. Offer.
The U.S. Offer is not conditioned on any minimum number of Class B Shares being tendered nor it is subject to a financing condition. However, the U.S. Offer is subject to the satisfaction of the following conditions (the “Conditions”):
(a) | the making of the Offers, or the development of the process or procedures thereof, shall not be partially or wholly prevented or obstructed by any action, order, decision or other measure issued by any government or governmental, regulatory or administrative agency or authority or tribunal or other judicial authority of competent jurisdiction; and |
(b) | the Argentine Offer shall have been authorized by the CNV and shall have been completed. |
Tendering holders will have withdrawal rights in the U.S. Offer until the Expiration Time on the Expiration Date. See “—Section 4. Withdrawal Rights.”
Notwithstanding the foregoing, the Conditions may be waived by us, in whole or in part, at any time and from time to time in their sole discretion, subject to applicable law. Our failure at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right; the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts or circumstances; and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by us concerning the events described above will be final and binding on all parties.
EMPRESA DE ENERGÍA DEL CONO SUR S.A.
SOUTH AMERICAN ENERGY LLP
Dated: November 12, 2021
29 |
SCHEDULE
1
INFORMATION ABOUT THE DIRECTORS AND EXECUTIVE OFFICERS OF THE BIDDERS
The name, business address and telephone number, current principal occupation with the relevant Bidder, citizenship and five-year employment history of the directors and executive officers of the relevant Bidder, together with the names, principal businesses and addresses of any corporations or other organizations in which such principal occupations are conducted, are set forth below. During the last five years, none of the Bidders or, to the best knowledge of the Bidders, any of the persons listed in this Schedule has been convicted in a criminal proceeding. During the last five years, none of the Bidders or, to the best knowledge of the Bidders, any of the persons listed in this Schedule was a party to any civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which would be or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting activities subject to, federal or state securities laws or finding any violation of such laws.
1. Directors and Executive Officers of Edelcos.
Set forth below is the name, citizenship, business address and telephone number and the present principal occupation or employment, and material occupations, positions, offices or employment for the past five years of each executive officer of Edelcos. The principal address and the principal business address for each individual listed below is Maipú 1252, 12th floor, City of Buenos Aires, Argentina and its telephone number at such office is (+549) 11-4110-5150.
Name |
Position | Citizenship | Principal Occupation or Employment; Employment History | ||
Ricardo Nicolás Mallo Huergo | Director, President | Argentine |
Mr. Huergo is currently president of Edelcos and also a member of the board of directors of Phoenix Global Resources Plc (Ticker: AIM: PGR), among other companies.
Mr. Huergo has experience in the Oil & Gas sector, including exploration, development and exploitation. Within the Oil and Gas sector, Mr. Huergo has advised local and foreign companies on corporate matters, mergers, acquisitions, privatizations and financing, public and private tenders, share offer mechanisms, acquisitions with leverage and other restructuring transactions, strategic investments and joint ventures, operations of venture capital and project financing, and transaction structuring
Mr. Huergo is a lawyer and graduated from Universidad Católica Argentina. Mr Huergo also graduated from Northwestern University School of Law, Chicago, United States, in 1999 with a Master of Laws (LLM) with honors. |
S-1 |
Name |
Position | Citizenship | Principal Occupation or Employment; Employment History | ||
Marcelo Alejandro Rufino | Director, Vice-president | Argentine |
Mr. Rufino is a lawyer and partner in the firm Romero Carranza, Rufino & Monsegur Abogados and serves as Arbitrator in the Arbitration Court of the Electronic Open Market.
Mr. Rufino previously served as Advisor to the Undersecretary of Labor of Argentina, Secretary of First Instance in the Federal Court on Commercial Matters in and for the City of Buenos Aires. He also participated as Secretary in the Commission for the Reform Project of the Argentine Civil and Commercial Code.
Previously, Mr. Rufino served as Professor of Reorganization Proceedings and Bankruptcies at the School of Law of Universidad de Palermo, Buenos Aires (2002–2006) and held a chair in Reorganization Proceedings, Bankruptcies and Commercial Papers at the School of Law of Universidad de Buenos Aires (1990-2005).
Mr. Rufino graduated from the School of Law and Social Sciences of Universidad de Buenos Aires. In 2000, he attended the Program of Instruction for Lawyers and Negotiation Workshop, both at Harvard Law School. |
S-2 |
Name |
Position | Citizenship | Principal Occupation or Employment; Employment History | ||
Cecilia Inés Aversa | Director | Argentine |
Since 2020, Ms. Aversa has been a managing director innovation at Integra Capital S.A. and a member of the board of directors of Integra Lithium. Before joining Integra Capital S.A., from 2018 to 2019 she was designated General Manager of the first Innovation Lab of Argentina in the Space Sector, and supported collaboration with NASA, ESA, ASI. Previously, Ms. Aversa services a member of the staff of the Argentine Republic and led initiatives around Big Data, Internet of Things and Artificial Intelligence.
She served at the Ministry of Science, Technology and Innovation of the Argentine Republic for more than a decade as Counselor for International Relations, representing the country at the European Commission, United Nations agencies, and the OECD.
Ms. Aversa is also a Professor at the Catholic University, was awarded Argentinian Eisenhower Global Fellow ‘17, and associated to the Eisenhower Fellowships Selection & Mentoring Committee. In 2018, she was appointed Member of the distinguished Board of Directors of the Argentine- North American Cultural Institute (ICANA).
Ms. Aversa has a Ph.D. in Political Sciences (Catholic University- University of Salamanca- University of Pittsburgh). |
S-3 |
Name |
Position | Citizenship | Principal Occupation or Employment; Employment History | ||
Rodrigo Alejandro Casano | Director | Argentine |
Mr. Casano is an International Banker with experience with international capital markets and negotiating with government authorities, corporations and financial entities.
Mr. Casano previously was a Managing Director of the Emerging Markets Group of Bank of America, New York, USA where he participated in the origination and structuring of multiple financings for multinational corporations and government entities, as well as, on the credit approval process of many credits and projects. Mr. Casano also has experience managing large groups of traders, analysts and professionals located in different countries around the world.
Mr. Casano has a Master’s in International Business Studies from the University of South Carolina, Columbia, South Carolina, USA. |
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Carlos Alberto Borgatello | Director | Argentine |
Mr. Borgatello is an accountant and since 2003 has been working as an independent consultant. From 1980 to 1994 he was Partner in the Consulting and Auditing Department of Gruslin, Martinez y Asociaados and Rodriguez, Zachera y Asociados from 1994 to 2003. Mr. Borgatello has more than 35 years of experience as an administration and finance professional in national and multinational companies of first level and with a wide business knowledge in countries such as Brazil and Uruguay. Mr. Borgatello graduated from the University of Buenos Aires.
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Fabiana Colombo | Director | Argentine | Mrs. Columbo is the former CFO of Grupo América. Since July 2021, she has been the Purchases, Logistics and Supply Director in Edenor. Mrs. Colombo is an accountant, graduated from the University of Buenos Aires and has a certification in e-commerce finance from UCEMA and an Executive Program for Corporate Finance. Specialized in Administration and Finance, Budgeting, Management and Control, she has vast experience in finance, information and communication technologies, network deployment, audiovisual media and electronic commerce. |
S-4 |
Name |
Position | Citizenship | Principal Occupation or Employment; Employment History | ||
Geraldine Ana Ponzio | Director | Argentine | Mrs. Ponzio is an attorney at law, graduated from University of Buenos Aires. She has been the Head of the Legal Department of Pamar SACIFI since 2014. Previously she served in several positions in the Legal Department of Atos Argentina S.A. (2012/2014), Ricoh Argentina S.A. (2009/2012), Carrier S.A. (2007/2009) and Estudio Jurídico Grancharoff y García Torralba (2004/2007). | ||
Valeria De Oliveira Cezar | Director | Argentine |
Mrs. De Oliveira Cézar graduated as an Economist from the Universidad Nacional de Rosario. She obtained a master’s degree in finance from the Tocuato Di Tella University in Buenos Aires and a diploma in renewable energy from the Champagnat University of Mendoza. Since 2010, Mrs. De Oliveira Cézar served as financial analyst and M&A consultant at Ernst & Young, Banco Meridian and Integra Capital. In 2016, Mrs. De Oliveira Cézar joined Empresa Distribuidora de Electricidad de Mendoza (EDEMSA). |
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Romina Alejandra Díaz | Director | Argentine | Mrs. Díaz is an accountant, graduated from University of Buenos Aires. She has been part of Estudio Parejas, Vazquez y Asociados S.A. since June 2010, previously she worked in Shelten, Weyers y Asociados and Accounting Studio Coppo. | ||
María Constanza Martella | Director | Argentine | Mrs. Martella is a lawyer, graduated from University of Buenos Aires. She has experience in banking and capital markets developed in law firms and banks. She is part of EGFA Abogados (Banking and Capital Markets, local and international) since 2009. Mrs. Martella was In-house Counsel at Banco Itaú Argentina S.A., Legal Affairs Management 2017-2018 and Visiting Attorney at Shearman & Sterling LLP, New York Office (Project Development and Finance and Capital Markets) (2016/2017). Adjunct Professor of Forensic I (Legal Informatics) at Universidad del Salvador (USAL) (2006/2009). |
S-5 |
Name |
Position | Citizenship | Principal Occupation or Employment; Employment History | ||
Tomás Pérez Virasoro | Director | Argentine |
Mr. Virasoro is a Lawyer and is currently part of PEREZ VIRASORO Law Firm (L + E & B), specializing in legal advice and administrative and legal representation of individuals and legal entities who carry out business in regulated or competing markets, in matters of private and public law.
Previously, from September 2009 to April 2012, Mr. Virasoro worked at the legal firm "Diligentia S.A.", where he provided advice to national and international companies on legal and economic matters. Before joining Diligentia SA from April 1999 to August 2009, he worked at the legal - accounting firm "Galán & Treppo".
Mr. Virasoro graduated from the University of Buenos Aires and holds a 5-years degree in Economics from the University of Business and Social Sciences. He also has a Master's Degree in Law and Economics from Universidad Torcuato Di Tella and a Master's Degree in Business Administration (MBA) from IAE Business School-Universidad Austral.
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Paola Carla Marré | Director | Argentine | She is a lawyer graduated from Cuyo National University in 2004. She has been working in the legal area in different companies such as Supercanal S.A. (2012 – 2017) and other entities in the media and energy business. Since May 2012, she is in-house counsel in the corporate area for Grupo America and Empresa Distribuidora de Electricidad de Mendoza S.A. (EDEMSA). |
2. Directors and Executive Officers of SAE.
Set forth below is the name, citizenship, business address and telephone number and the present principal occupation or employment, and material occupations, positions, offices or employment for the past five years of each executive officer of South American Energy LLP. The principal address and the principal business address for each individual listed below is Cms Cameron Mckenna Nabarro Olswang LLP, 1-3 Charter Square, Sheffield, United Kingdom, S1 4HS and its telephone number at such office is (+44) 11 4279-4000.
S-6 |
Name |
Position |
Citizenship |
Principal Occupation or Employment; Employment History |
||
Ricardo Nicolás Mallo Huergo | Director, President | Argentine |
Mr. Huergo is currently president of Edelcos and also a member of the board of directors of Phoenix Global Resources Plc (Ticker: AIM: PGR), among other companies.
Mr. Huergo has experience in the Oil & Gas sector, including exploration, development and exploitation. Within the Oil and Gas sector, Mr. Huergo has advised local and foreign companies on corporate matters, mergers, acquisitions, privatizations and financing, public and private tenders, share offer mechanisms, acquisitions with leverage and other restructuring transactions, strategic investments and joint ventures, operations of venture capital and project financing, and transaction structuring.
Mr. Huergo is a lawyer and graduated from Universidad Católica Argentina. Mr Huergo also graduated from Northwestern University School of Law, Chicago, United States, in 1999 with a Master of Laws (LLM) with honors. |
S-7 |
Name |
Position |
Citizenship |
Principal Occupation or Employment; Employment History |
||
Marcelo Alejandro Rufino | Director, Vice-president | Argentine |
Mr. Rufino is a lawyer and partner in the firm Romero Carranza, Rufino & Monsegur Abogados and serves as Arbitrator in the Arbitration Court of the Electronic Open Market.
Mr. Rufino previously served as Advisor to the Undersecretary of Labor of Argentina, Secretary of First Instance in the Federal Court on Commercial Matters in and for the City of Buenos Aires. He also participated as Secretary in the Commission for the Reform Project of the Argentine Civil and Commercial Code.
Previously, Mr. Rufino served as Professor of Reorganization Proceedings and Bankruptcies at the School of Law of Universidad de Palermo, Buenos Aires (2002–2006) and held a chair in Reorganization Proceedings, Bankruptcies and Commercial Papers at the School of Law of Universidad de Buenos Aires (1990-2005).
Mr. Rufino graduated from the School of Law and Social Sciences of Universidad de Buenos Aires. In 2000, he attended the Program of Instruction for Lawyers and Negotiation Workshop, both at Harvard Law School. |
S-8 |
Name |
Position |
Citizenship |
Principal Occupation or Employment; Employment History |
||
Eduardo Vila | Director | Argentine |
Mr. Vila was born in the City of Mendoza on October 23, 1964. He is a Lawyer and Civil Law Notary Public graduated from the University of Mendoza. Mr. Vila has developed his professional activity in the business advice, especially in regulated activities and/or activities subject to state control, including media and public service companies in particular in the electricity sector.
For 20 years Mr. Vila has served as Director of Legal Affairs of Grupo America, one of the main multimedia groups in Argentina, with vast experience in the information technology sector and communication services, as well as in various companies related to the development of real estate, technology startup, fintech and family office activities. Mr. Vila is in charge of all the legal issues related to Grupo America in Argentina and abroad.
As part of his professional experience, he has participated in different processes of national and international debt restructuring, mergers and acquisition and corporate and business restructuring processes; also served as a member of the board of directors of some of the companies of the business group. In addition, Mr. Vila advises EDEMSA, the main electricity distribution company in the province of Mendoza. |
S-9 |
Name |
Position |
Citizenship |
Principal Occupation or Employment; Employment History |
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Jean-Daniel Cohen | Director | French |
Mr. Cohen is the chairman of Hoche Partners Group of Companies, a ‘merchant banking’ network, specialized in structured financing, with presence in Luxembourg, France, China and the US. Prior to creating Hoche Partners in 2001, Mr. Cohen was managing partner (from 1997 to 2001) at leading independent stockbroker and investment bank Aurel Leven (now Aurel BGC) and, previously, chairman of Louis Dreyfus Finance (Banque) SA, the banking arm of the Louis Dreyfus Group, a finance and commodity trading group, where he stayed more than 10 years.
During his career, Mr. Cohen has been involved in numerous cross border transactions in Europe, US and Canada, and has particular expertise in distress financing, loan and company restructuring, and project financing (particularly in the field of energy) in various jurisdictions.
Recently, within Hoche Partners, Mr. Cohen has developed a particular focus on the insurance and reinsurance market, becoming a shareholder in the European arm of Barents.
Re, partly leading the set up effort to enter the French market. Mr. Cohen is a board and audit committee member of INOVALIS REIT, Chairman of Realia Properties Inc, both companies listed in Toronto, SCBSM, a French listed REIT, Fonciere Volta, a French listed investment company, and Advenis, a French listed company active in private banking.
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S-10 |
Name |
Position |
Citizenship |
Principal Occupation or Employment; Employment History |
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Jorge Rosenblut | Director | Chilean | Mr. Rosenblut graduated in Industrial Civil Engineering from University of Chile and later obtained a master's degree in Public Administration from Harvard Kennedy School. In 1985, he joined the World Bank in Washington, DC. Mr. Rosenblut joined the Board of Andina Plc on October 31, 2019. He is the President of Smart Utilities LLC, a Florida-based investment vehicle for opportunities in the growing Smart Energy sector. Mr. Rosenblut also serves as Chairman of the Board of Directors of the Institute of the Americas, a non-governmental organization that brings together renowned leaders from the business, government, and political sectors to discuss growth, development, and sustainability in the Americas. Extending his 30-year tenure as an executive leader in the private industry and the government sector, Mr. Rosenblut now works as an independent investor and consultant in the smart energy sector helping clients incubate growth, encourage the evolution of the legacy practice, and facilitate the transition from disrupted business models to sustainability and profitability. | ||
Claudio Fernando Martinelli | Director | Argentine | Mr. Martinelli is a certified public accountant and holds a Master from Universidad Torcuato Di Tella. He has obtained a Financial Planning & Analysis certificate from Rice University, Houston. Mr. Martinelli has worked for more than 10 years in the administration and finance sector of the oil & gas industry. Since 2018, he has served as director of Hidroeléctrica Ameghino SA. |
S-11 |
Name |
Position |
Citizenship |
Principal Occupation or Employment; Employment History |
||
Tomás Pérez Virasoro | Director | Argentine |
Mr. Virasoro is a Lawyer and is currently part of PEREZ VIRASORO Law Firm (L + E & B), specializing in legal advice and administrative and legal representation of individuals and legal entities who carry out business in regulated or competing markets, in matters of private and public law.
Previously, from September 2009 to April 2012, Mr. Virasoro worked at the legal firm "Diligentia S.A.", where he provided advice to national and international companies on legal and economic matters. Before joining Diligentia SA from April 1999 to August 2009, he worked at the legal - accounting firm "Galán & Treppo".
Mr. Virasoro graduated from the University of Buenos Aires and holds a 5-years degree in Economics from the University of Business and Social Sciences. He also has a Master's Degree in Law and Economics from Universidad Torcuato Di Tella and a Master's Degree in Business Administration (MBA) from IAE Business School-Universidad Austral.
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S-12 |
Name |
Position |
Citizenship |
Principal Occupation or Employment; Employment History |
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Ruth Nathalie Mamane Cohen | Director | French |
Mrs. Cohen is, since 2008, managing director at Hoche Partners International, an advisory and investment group of companies.
Prior to joining Hoche Partners International, Mrs. Cohen spent more than 20 years occupying senior positions in investment and private banking, including Executive Director of Banque de Neuflize, in charge of Private Banking, or hear of equity derivatives at Banque Paribas (now BNP Paribas)
Mrs. Cohen is also very active in charity and art, as she is now Vice Chairman of Société des Amis du Musée National d’Art Moderne (Centre Pompidou) in Paris, in charge of acquisition committees (Contemporary Art – GAC, Photography – GAP – and Design – GAD) as well as Vice Chairman of the Friends of Jeu de Paume.
Member of the photography acquisition committee of MOMA in New York, or the Mediterranean Committee of the Israel Museum, Mrs. Cohen is active in several other international institutions such as director of the American Foundation Artis, or director of the Center for Contemporary Art in Tel Aviv.
Mrs. Cohen is a former student of Université Paris Dauphine, and Institut des Sciences Politiques Paris.
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S-13 |
Name |
Position |
Citizenship |
Principal Occupation or Employment; Employment History |
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Gustavo José Coll Pisani | Director | Uruguayan |
Mr. Pisani is a certified public accountant graduated from Universidad de la Republica (Uruguay), and holds a Master in Financial Engineering for Asset Management from Université de Lausanne (Switzerland)
Currently, Mr. Pisani is the Vice president of the Chamber of Investment Advisers and Portfolio Managers of Uruguay. Since 2009, Mr. Pisani has been Shareholder/Owner of Coll, Kränzlin & Cie., a group of independent financial advisers providing wealth management services to high-net-worth individuals in Latin America. From 2012 to 2021, Mr. Pisani was 2nd Vice President of the Uruguayan Olympic Committee. Previously, he served as President of the Chamber of Investment Advisers of Uruguay (2015-2021) and was also a founding member of Helvecia Financial Services, which provides integrated business solutions to independent financial advisers in Latin America. Additionally, he served as Director at Montevideo's Rep. Office of Dexia Private Bank (Switzerland) for almost two years, and as Director at Montevideo's Rep. Office of Banque Privée Edmond de Rothschild (Geneva) between 1984 and 2007.
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S-14 |
SCHEDULE
2
RECENT ACQUISITIONS OF Edenor’S SECURITIES BY THE Bidders
The Bidders have not acquired any Class B Shares since April 29,
2019.
S-15 |
Any questions or requests for assistance or additional copies of this U.S. Offer to Purchase may be directed to the U.S. Information Agent listed below. Beneficial owners may also contact their broker, dealer, commercial bank, trust company or other nominee for assistance concerning the U.S. Offer.
The U.S. Information Agent
for the U.S. Offer is:
D.F. King & Co. Inc.
48 Wall Street, 22nd Floor,
New York, NY 10005
Bankers and Brokers Call Collect: (212) 269-5550
All Others Call Toll-Free: (866) 356-7813
Email: edenor@dfking.com
The U.S. Receiving Agent
for the U.S. Offer is:
Computershare Trust Company, N.A.
By First Class, Registered or Certified Mail:
Computershare Trust Company,
N.A.
|
By Express or Overnight Delivery:
Computershare Trust Company,
N.A.
|
The Argentine Receiving Agent
for the U.S. Offer is:
Global Valores S.A.
Ortiz de Ocampo 3302, Module 1, 5 floor, Nº 623
City of Buenos Aires
Argentina
S-16 |
THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION.
If you are in any doubt about that action to take, you should immediately consult your stockbroker, bank manager law accountant or other professional or investment advisor.
If you have sold all your Class B Shares, please send this Form of Acceptance together with the accompanying documents as soon as possible to the Bidders or to the stockbroker, bank or other agent through whom the sale was affected for transmission to the Bidders.
This document should be read in conjunction with the U.S. Offer to Purchase dated November 12,2021 (the “U.S. Offer to Purchase”). All the definitions used in the U.S. Offer to Purchase apply in this U.S. Form of Acceptance (the “Form”). All terms and conditions contained in the U.S. Offer to Purchase applicable to the U.S. Offer (as defined in the U.S. Offer to Purchase) for Class B Shares are deemed to be incorporated in and form part of this Form.
U.S. FORM OF ACCEPTANCE
To Tender Class B Shares (ISIN: ARENOR010020), including Class B Shares represented by American Depositary Shares (CUSIP: 29244A102), held by U.S. Persons of
EMPRESA DISTRIBUIDORA Y COMERCIALIZADORA NORTE S.A. (EDENOR)
Pursuant to the U.S. Offer to Purchase dated November 12, 2021
by
EMPRESA DE ENERGÍA DEL CONO SUR S.A.
SOUTH AMERICAN ENERGY LLP
THIS FORM OF ACCEPTANCE OF THE U.S. OFFER MUST BE RECEIVED BY THE U.S. RECEIVING AGENT BY 5:00 P.M., NEW YORK CITY TIME, ON DECEMBER 13, 2021, UNLESS THE U.S. OFFER IS EXTENDED OR EARLIER TERMINATED.
|
The U.S. Receiving Agent is:
COMPUTERSHARE INC.
By First Class, Registered or Certified Mail: |
By Express or Overnight Delivery:
|
Computershare Trust Company, N.A. c/o Voluntary Corporate Actions PO Box 43011 Providence, RI 02940-3011
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Computershare Trust Company,
N.A. c/o Voluntary Corporate Actions
|
THIS U.S. FORM OF ACCEPTANCE IS TO BE USED ONLY FOR TENDERING CLASS B SHARES (AS DEFINED BELOW). DO NOT USE THIS U.S. FORM OF ACCEPTANCE FOR ANY OTHER PURPOSE.
Action to be taken to accept the U.S. Offer
Please read the detailed instructions on how to complete this Form. This Form should only be used to accept the U.S. Offer if you are a registered holder of Class B Shares and you are a U.S. Person or holding for a U.S. Person. Class B Shares beneficially owned or held of record by persons who are not U.S. Persons cannot be tendered pursuant to the U.S. Offer and can only be tendered pursuant to the concurrent Argentine Offer.
If you wish to accept the U.S. Offer, please follow the instructions set forth in the U.S. Offer to Purchase and file this Form of Acceptance duly completed and signed and all other documentation that the U.S. Receiving Agent might request, with the U.S. Receiving Agent at the address indicated on the back cover of the U.S. Offer to Purchase, by no later than the Expiration Time on the Expiration Date, unless the U.S. Offer is extended.
Your acceptance of the U.S. Offer is on the terms and subject to the conditions contained in the U.S. Offer to Purchase and in this Form of Acceptance. In the event of an inconsistency between the terms and procedures in this Form of Acceptance and the U.S. Offer to Purchase, the terms and procedures in the U.S. Offer to Purchase shall govern.
If you have any questions as to how to complete this Form of Acceptance, please contact the U.S. Information Agent, toll-free (866) 356-7813, and banks and brokers at (212) 269-5550.
Representations and Warranties
By signing this Form of Acceptance you agree that you irrevocably undertake, represent and warrant to and with the Bidders the following:
(a) | the presentation of the Acceptance Letter constitutes (i) an acceptance of the U.S. Offer with respect to the number of Class B Shares indicated on the Acceptance Letter, (ii) a commitment to present any other document and to take any other steps necessary to allow us to consummate the transfer of ownership of the Class B Shares, subject to the terms and conditions established in this U.S. Offer to Purchase and in the Acceptance Letter, and (iii) with the exception of the withdrawal rights of the tendering holders of Class B Shares, an irrevocable tender of the Class B Shares in the U.S. Offer; |
(b) | the U.S. holder of Class B Shares is the owner of the Class B Shares indicated on the Acceptance Letter and the holder has full authority and rights to deliver, sell, and transfer such Class B Shares and rights inherent thereto to us; |
(c) | the tendered Class B Shares are tendered free and clear from all liens, titles, charges, privileges and/or encumbrances, and together with all the rights which they grant or may grant in the future; |
(d) | the presentation of the Acceptance Letter to the U.S. Receiving Agent constitutes an instruction (which shall become irrevocable after the Acceptance Date) to deliver to us the tendered Class B Shares as of the Payment Date; |
(e) | the presentation of the Acceptance Letter constitutes (i) an instruction (which shall be irrevocable as from the Acceptance Date) to Edenor, Caja de Valores, the U.S. Receiving Agent, the Argentine Receiving Agent, as applicable, to cause the registration and/or register the transfer of the tendered Class B Shares in our favor and to deliver to us a certificate of ownership of the tendered Class B Shares (“Constancia de Saldo de Cuentas”) and/or other documents which prove ownership of such Class B Shares, on the Payment Date; and (ii) a commitment (which shall be irrevocable as from the Acceptance Date) to present any other document and to take any other measure necessary to allow us to consummate the transfer of ownership of the Class B Shares, pursuant to the terms and conditions set forth in this U.S. Offer to Purchase and in the Acceptance Letter; |
(f) | the U.S. holder undertakes to ratify any and all of the acts or procedures that may be performed or effected by us or any of our directors or agents or Edenor or any of its agents, as the case may be, in the exercise of any of our, its or their respective powers and/or authorizations in virtue hereof; |
(g) | the U.S. holder accepts that the voting and any other rights attaching to the tendered Class B Shares, may not be exercised by the U.S. holder of Class B Shares while the tendered Class B Shares are deposited in the U.S. Tendered Class B Shares Account; |
(h) | the U.S. holder accepts that we seek to acquire the Class B Shares together with all economic and voting rights, including rights to Distributions declared on or after the Commencement Date. Accordingly, the holder accepts that if on or after the date hereof Edenor should declare or pay any Distributions on the Securities that are payable or distributable to stockholders of record on Edenor’s stock transfer records of Class B Shares on a date prior to the transfer to our name of the tendered Class B Shares that are purchased pursuant to the U.S. Offer, then (i) the Offer Price payable by us per Security in the U.S. Offer will be further reduced to the extent such Distributions are payable in cash and (ii) any non-cash Distributions received and held by a tendering holder shall be required to be promptly remitted and transferred to the U.S. Receiving Agent for our account accompanied by appropriate documents of transfer. Pending such remittance, we will be entitled to all rights and privileges, as owner of any such non-cash Distributions and may withhold the entire Offer Price or deduct from the Offer Price the amount or value thereof, as determined by us in our sole discretion; |
(i) | the U.S. holder grants a power of attorney in favor of the U.S. Receiving Agent to receive such notifications, documents or other communications to be sent to the holders of the tendered Class B Shares, to execute any documents necessary to receive and keep in custody the tendered Class B Shares and to exercise all other rights attaching to the tendered Class B Shares; |
(j) | the U.S. holder agrees not to sell, assign, transfer, pledge or encumber in any manner the tendered Class B Shares while they are deposited in the U.S. Tendered Class B Shares Account and to keep the tendered Class B Shares free and clear from any liens, charges, privileges and/or encumbrances, and not to exercise any of the rights appertaining thereto; |
(k) | the U.S. holder agrees to open a cuenta comitente from which the tendered Class B Shares are to be transferred into the U.S. Tendered Class B Shares Account; |
(l) | the U.S. holder agrees not to modify or close the cuenta comitente from which the tendered Class B Shares were transferred while the Class B Shares are deposited in the U.S. Tendered Class B Shares Account; |
(m) | the U.S. holder has reviewed the U.S. Offer documents; has not received from the U.S. Receiving Agent, the Argentine Receiving Agent any information or representations inconsistent with or differing from the information or representations contained in the U.S. Offer documents; and the holder’s decision to tender in the U.S. Offer has been based on the holder’s own analysis of Edenor and of the U.S. Offer, including the benefits and risks involved and the holder has not received any type of legal, business, financial, tax and/or any other type of advice from us, the U.S. Receiving Agent, the Argentine Receiving Agent, the U.S. Information Agent and/or any of their parent, subsidiary, affiliated or related entities; |
(n) | the holders whose Class B Shares have not been validly received by the Argentine Receiving Agent, and who have not delivered the Class B Shares within the period indicated, or who for any reason beyond the control of the Bidders, the U.S. Receiving Agent and the Argentine Receiving Agent have not been able to tender the Class B Shares, shall lose the right to receive payment of the Offer Price, without the possibility of remedying such situation, and such circumstance shall not give rise to any liability whatsoever on the part of the Bidders, the U.S. Receiving Agent and/or the Argentine Receiving Agent shall not be liable for any compensation and/or indemnification whatsoever to such holder; |
(o) | all the information contained in the Acceptance Letter is true and correct; |
(p) | the U.S. holder accepts and agrees that we are required to and will withhold thirteen and one-half percent (13.5%) of the Offer Price payable to any such tendering holder not resident in Argentina for Argentine tax purposes (or, if such holder delivers to us a valid Tax Cost Certificate, in the form of either (i) Exhibit 1 attached to the Form of Acceptance, in the case of individual holders or (ii) Exhibit 2 attached to the Form of Acceptance, in the case of holders that are corporate entities, reasonably satisfactory to us prior to the Expiration Time on the Expiration Date, fifteen percent (15%) of the Net Gain) in respect of Argentine income tax on the capital gains derived from the disposition of the Securities; |
(q) |
the U.S. holder accepts and agrees that in the event that a tendering holder delivers a Tax Cost Certificate not reasonably satisfactory to us, we will withhold thirteen and one-half percent (13.5%) of the Offer Price payable to any such tendering holder not resident in Argentina for Argentine tax purposes in respect of Argentine income tax on the capital gains derived from the disposition of the Securities; |
(r) | the holder represents that all documents submitted in connection with the Tax Cost Certificate are genuine and accurate; and |
(s) | the holder is a U.S. Person or is holding for a U.S. Person. |
How to complete this Form |
Please complete in BLOCK CAPITALS |
Do not detach any part of this Acceptance Letter
1. | The U.S. Offer |
To tender in the U.S. Offer write in Box 1 the total number of Class B Shares which you wish to tender in the U.S. Offer. If no number, or a number greater than your entire holding of Class B Shares, is written in Box 1 and you have signed Box 2 the Bidders will deem that no Class B Shares have been tendered. To accept the U.S. Offer complete boxes 1 and 3 and, if applicable, Box 4, and sign Box 2 below.
BOX 1 | |||
Depositante/Custodian | Cuenta Comitente | No. of Class B Shares | Class of Shares |
No.: Name: |
No.: Name: |
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2. | Signatures |
You must execute Box 2 and, in the case of a joint holding, arrange for the designated common representative to sign or, otherwise, all joint holders to do likewise. All signatures must be certified.
If you sign in a capacity other than that of a registered holder (e.g., under a Power-of-Attorney) please state the capacity in which you sign and send together with the Form of Acceptance an authorized copy of the Power-of-Attorney.
Sign at the appropriate spaces in Box 2 to accept the U.S. Offer.
BOX 2 | ||
Execution by Individuals Signed and delivered as a deed by In presence |
Execution by a company Executed and delivered as a deed by
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(Name of record holder) |
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(Signature of record holder) |
(Name of Company) |
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(Taxpayer ID or SSN) |
(Taxpayer ID) |
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Signature: |
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Full name: |
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Capacity: (Spouse/Representative) |
(Representative) |
(Signature) |
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(Representative) | (Signature) | |
(The space above should be used to certify as appropriate) |
3. | Name(s) and address |
Complete Box 3 with the full name and address of the first named registered holder together with the names of all other joint holders (if any) in BLOCK CAPITALS.
Full name(s) and address
4. | Payment. |
Upon the compliance of all the terms and conditions set forth in the U.S. Offer, you hereby instruct the Argentine Receiving Agent to make the payment of consideration in respect of the tendered Class B Shares (see Box No. 1) pursuant to the U.S. Offer to Purchase.
Additional notes regarding the completion and submission of this Form of Acceptance.
The signatures as well as the identity and capacity of each holder of Class B Shares must be independently certified before a Notary Public. The certification expense will be for the account of the tendering holder of Class B Shares.
The Argentine Custodian shall maintain the Class B Shares transferred into the U.S. Tendered Class B Shares Account in custody in favor of both the Bidders and the tendering holder of Class B Shares until the Payment Date, provided that (i) the tendering holder of Class B Shares has not withdrawn his Class B Shares, (ii) the tendering of the Class B Shares was not defective, and (iii) the Offers remain in effect.
EXHIBIT 1
Tax Cost Certificate for Individuals
REPORT OF FACTUAL FINDINGS
To [Name of Individual]:
[Address]
Country of birth: [ ]
Date of birth: [ ]
We have performed the procedures agreed with you and enumerated below with respect to the amount[s] paid by [Name of Individual], as detailed in the table below, for the acquisition of the Class B Shares ("Class B Shares") of Empresa Distribuidora y Comercializadora Norte S.A. ("Edenor"), in connection with the U.S. Cash Tender Offer to purchase any and all outstanding Class B Shares of Edenor, other than those held by Empresa de Energía del Cono Sur S.A. and South American Energy LLP. (the "Bidders") or their affiliates. [Name of Individual] is responsible for maintaining the appropriate documentation. Our engagement was undertaken in accordance with the International Standard on Related Services 4400, 'Engagements to perform agreed-upon procedures regarding financial information.' The procedures were performed solely to assist you in evaluating the validity of the amount[s] paid by [Name of Individual] for the acquisition of the Class B Shares of Edenor based on the appropriate documentation of [Name of Individual], apostilled and notarized copies of which are attached hereto as Annex A, and are summarized below, together with the findings.
· | We compared the amounts in the table below under the headings "Quantity of Class B Shares" and "Amount in currency of payment" to the amount[s] in the [specify supporting documentation, such as invoices, bank statements, brokers' statements, contracts, etc.] of [Name of Individual] and found the amounts compared to be in agreement. |
· | We compared the date[s] in the table below under the heading "Date of acquisition" to the date[s] in the [specify supporting documentation, such as invoices, bank statements, brokers' statements, contracts, etc.] of [Name of Individual] and found the dates compared to be in agreement. |
· | We compared the amounts in the table below under the heading "Exchange rate at acquisition date" to the corresponding buying exchange rate for the date of the transaction as published by the Banco de la Nación Argentina and found the amounts compared to be in agreement. |
· | We checked the calculation of the product of the amounts in the table below under the heading "Amount in currency of payment" by the amounts in the table below under the heading "Exchange rate at acquisition date" and found the result included in the table below under the heading "Amount in AR$" to be correct. |
· | [Other procedures as deemed necessary under the circumstances.] |
Quantity of Class B Shares
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Amount in currency of payment [specify currency] | Buying exchange rate at Banco de la Nación Argentina at acquisition date AR$1 | Amount in AR$ | Additional information | |
Date of acquisition | |||||
[Include individual lines for each acquisition] |
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Total |
[Name of firm]
[Date]
[Address]
1 | Historical exchange rates should be obtained at http://www.bna.com.ar. If the acquisition was made in a currency other than US dollars, such currency must be translated into US dollars before converting it into Argentine Pesos ("AR$"). The conversion into AR$ shall be made using the Banco de la Nación Argentina selling exchange rate. |
ANNEX A
[Apostilled and Notarized Copies of Supporting Documents]
EXHIBIT 2
Tax Cost Certificate for Corporate Entities
REPORT OF FACTUAL FINDINGS
To the Management Company of [Name of the Company]
[Address]
Country of Constitution: [ ]
Date of constitution: [ ]
We have performed the procedures agreed with you and enumerated below with respect to the amounts paid by [Name of the Company] (the "Company"), as detailed in the table below, for the acquisition of the Class B Shares ("Class B Shares") of Empresa Distribuidora y Comercializadora Norte S.A. ("Edenor"), in connection with the U.S. Cash Tender Offer to purchase any and all outstanding Class B Shares of Edenor other than those held by Empresa de Energía del Cono Sur S.A. and South American Energy LLP (the "Bidders") or their affiliates. The Company's management is responsible for maintaining the appropriate documentation. Our engagement was undertaken in accordance with the International Standard on Related Services 4400, 'Engagements to perform agreed-upon procedures regarding financial information.' The procedures were performed solely to assist you in evaluating the validity of the amounts paid by the Company for the acquisition of Class B Shares of Edenor based on the appropriate documentation and accounting records of the Company, apostilled and notarized copies of which are attached hereto Annex A, and are summarized below, together with the findings.
· | We compared the amounts in the table below under the headings "Quantity of Class B Shares" and "Amount in currency of payment" to the amounts in the accounting records and [specify supporting documentation, such as invoices, bank statements, brokers' statements, contracts, etc.] of the Company and found the amounts compared to be in agreement. |
· | We compared the date[s] in the table below under the heading "Date of acquisition" to the date[s] in the accounting records and [specify supporting documentation, such as invoices, bank statements, brokers' statements, contracts, etc.] of the Company and found the dates compared to be in agreement. |
· | We compared the amounts in the table below under the heading "Exchange rate at acquisition date" to the corresponding buying exchange rate for the date of the transaction as published by the Banco de la Nación Argentina and found the amounts compared to be in agreement. |
· | We checked the calculation of the product of the amounts in the table below under the heading "Amount in currency of payment" by the amounts in the table below under the heading "Exchange rate at acquisition date" and found the result included in the table below under the heading "Amount in AR$" to be correct. |
· | [Other procedures as deemed necessary under the circumstances.] |
Date of acquisition | Quantity of Class B Shares or ADS | Buying exchange rate at Banco de la Nacion Argentina at acquisition date [ARS]1 | Amount in ARS | Additional information |
[Include individual lines foreach acquisition] | ||||
Total |
[Name of firm]
[Date]
[Address]
1 | Historical exchange rates should be obtained at http://www.bna.com.ar. If the acquisition was made in a currency other than US dollars, such currency must be translated into US dollars before converting it into Argentine Pesos ("AR$"). The conversion into AR$ shall be made using the Banco de la Nación Argentina exchange rate. |
ANNEX A
[Apostilled and Notarized Copies of Supporting Documents]
THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION
This document should be read in conjunction with the U.S. Offer to Purchase dated November 12, 2021 (the "U.S. Offer to Purchase"). The definitions used in the U.S. Offer to Purchase apply in this Form of Withdrawal (the "Form"). All terms and conditions contained in the U.S. Offer to Purchase applicable to the U.S. Offer (as defined in the U.S. Offer to Purchase) for Class B Shares are deemed to be incorporated in and form a part of this Form.
U.S. FORM OF WITHDRAWAL
Of the Class B Shares (ISIN: ARENOR010020) held by U.S. Persons, including Class B Shares represented by American Depositary Shares (CUSIP: 29244A102)
Of
EMPRESA DISTRIBUIDORA Y COMERCIALIZADORA NORTE S.A. (EDENOR)
Pursuant to the U.S. Offer to Purchase dated November 12, 2021
by
EMPRESA DE ENERGÍA DEL CONO SUR S.A.
SOUTH AMERICAN ENERGY LLP
THIS FORM OF WITHDRAWAL OF THE U.S. OFFER MUST BE RECEIVED BY 5:00 P.M., NEW YORK CITY TIME, ON DECEMBER 13, 2021, OR UNTIL THE NEW EXPIRATION DATE,
IF THE U.S. OFFER WERE EXTENDED. |
The U.S. Receiving Agent is:
Computershare Inc.
By First Class, Registered or Certified |
Mail: By Express or Overnight Delivery: |
Computershare Trust Company, N.A. c/o Voluntary Corporate Actions |
Computershare Trust Company, N.A. c/o Voluntary Corporate Action |
PO Box 43011 |
250 Royall Street, Suite V |
Providence, RI 02940-3011 |
Canton, MA 02021
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Action to be taken to withdraw the tendered Class B Shares
Please read the detailed instructions on how to complete this Form. Tenders of Class B Shares made pursuant to the U.S. Offer may be withdrawn at any time prior to the Expiration Time on the Expiration Date, unless the U.S. Offer is extended, in which case you will have until the new Expiration Date. Any tender of Securities will be irrevocable after that time.
If you have any questions as to how to complete this Form of Withdrawal, please contact the U.S. Information Agent at (866) 356-7813 (Toll-Free), and banks and brokers at (212) 269-5550.
Instructions
If you wish to withdraw acceptance of the U.S. offer, you must:
(1) | complete and sign this Form in accordance with the instructions set out below and in the U.S. Offer to Purchase; and |
(2) | forward this Form to the U.S. Receiving Agent at the address set forth on the back cover of the U.S. Offer to Purchase. |
If the tendered Class B Shares were timely and validly withdrawn, the Argentine Receiving Agent shall return the tendered Class B Shares to the tendering holders of Class B Shares as set forth in the U.S. Offer to Purchase.
Notice
By signing this Form you agree that withdrawals may not be rescinded. Consequently, Class B Shares withdrawn will thereafter be deemed not validly tendered for the purposes of the U.S. Offer. However, withdrawn Class B Shares may be re-tendered following the procedures described in Section 4 of the U.S. Offer to Purchase at any time prior to the Expiration Time on the Expiration Date, or prior to the new Expiration Date if the U.S. Offer were extended.
How to complete this Form |
Please complete in BLOCK CAPITALS |
Do not detach any part of this Form
1. | Withdrawal Rights |
To withdraw from the U.S. Offer, write in Box 1 the total number of Class B Shares for which you wish to withdraw your acceptance of the U.S. Offer.
BOX 1 | ||
Depositante | Securities Account (Cuenta Comitente) | No. of Class B Shares |
No.: Name: |
No.: Name: |
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2. | Signatures |
You must execute Box 2 and, in the case of a joint holding, arrange for the designated common representative to sign, or otherwise, all joint holders to do likewise. All signatures must be certified. If you sign in a capacity other than that of a registered holder (e.g., under a Power-of-Attorney) please state the capacity in which you sign and send together with the Form an authorized copy of the Power-of-Attorney.
Sign here to withdraw the acceptance of the U.S. Offer
BOX 2 | ||
Execution by Individuals Signed and delivered as a deed by In presence |
Execution by a company Executed and delivered as a deed by
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(Name of record holder)
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(Signature of record holder)
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(Name of Company) |
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(Taxpayer ID or SSN)
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(Representative) |
(Signature)
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(Representative) |
(Signature)
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(Taxpayer ID) |
2. Name(s) and address
Complete Box 3 with the full name and address of the sole or first named registered holder together with the names of all other joint holders (if any) in BLOCK CAPITALS
Full name(s) and address
The signatures as well as the identity and capacity of each holder of Class B Shares must be independently certified before a notary public. The certification expense will be for the account of the withdrawing holders of Class B Shares.
U.S. Offer to Purchase for Cash
All Outstanding Class B Shares (ISIN: ARENOR010020), including Class B Shares represented by American Depositary Shares (CUSIP: 29244A102), held by U.S. Persons of
EMPRESA DISTRIBUIDORA Y COMERCIALIZADORA NORTE S.A. (EDENOR)
by
EMPRESA DE ENERGÍA DEL CONO SUR S.A.
SOUTH AMERICAN ENERGY LLP
Pursuant to the U.S. Offer to Purchase dated November 12, 2021
THIS U.S. OFFER CAN BE ACCEPTED BY U.S. HOLDERS OF CLASS B SHARES BY 5:00 P.M., NEW YORK CITY TIME, ON DECEMBER 13, 2021, UNLESS THE TENDER OFFER IS EXTENDED OR EARLIER TERMINATED.
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November 12, 2021
To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
Enclosed is an offer to purchase, dated November 12, 2021, (the “U.S. Offer to Purchase”) and the Form of Acceptance, Form of Withdrawal and other related documents in connection with the tender offer by Empresa de Energía del Cono Sur S.A. (“Edelcos” or the “Bidder”), and South American Energy LLP (“SAE” and, together with Edelcos, the “Bidders”) to purchase any and all outstanding Class B common shares, par value Ps. 1.00 per share (the “Class B Shares”), held by U.S. Persons (as defined below), including outstanding Class B Shares represented by American Depositary Shares (each representing rights to 20 Class B Shares) (the “ADSs” and, together with the Class B Shares, the “Securities”), of Empresa Distribuidora y Comercializadora Norte S.A. (“Edenor”), a corporation (sociedad anónima) organized under the laws of Argentina, other than those held by the Bidders or their affiliates, , in cash at a price of Ps. 29.34 per Class B Share (the "Offer Price”), without interest thereon, less (i) the stock exchange and settlement fees described herein, (ii) any applicable brokerage fees or commissions, (iii) any applicable Distributions, and (iv) any applicable withholding taxes, upon the terms and subject to the conditions set forth in this U.S. Offer to Purchase and the related documents. The U.S. Offer is being made in conjunction and simultaneously with an offer by Edelcos in Argentina for all outstanding Class B Shares and Class C common shares, par value Ps. 1.00 per share (the “Class C Shares,” and together with the Class B Shares, the “Shares”) of Edenor, which represent 0.2% of Edenor’s outstanding capital stock and are held in Argentina pursuant to Edenor’s Employee Stock Participation Program (the “Argentine Offer” and, together with the U.S. Offer, the “Offers”).
All terms not otherwise defined herein have the meaning set forth in the U.S. Offer to Purchase.
The U.S. Offer is not conditioned on any minimum number of Securities being tendered. However, the U.S. Offer is subject to certain Conditions. See "THE U.S. OFFER—Section 13. Conditions of the U.S. Offer" in the U.S. Offer to Purchase.
ADSs cannot be tendered by means of the enclosed U.S. Form of Acceptance without the holder first becoming a direct holder of Class B Shares by surrendering their ADSs to the ADR Depositary for cancellation and taking delivery of the Class B Shares represented thereby into a cuente comitiente (client account) in Argentina. The Bidders will be responsible for paying any cancellation fees charged by the Depositary in connection with ADSs surrendered for cancellation, provided that the underlying Class B Shares are credited to a Caja de Valores account of the Argentine Receiving Agent. Once a holder of ADSs surrenders such ADSs to the Depositary for cancellation and has taken delivery of the Class B Shares such holder may tender into the U.S. Offer pursuant to the enclosed Form of Acceptance. Instructions for cancelling ADSs, withdrawing the underlying Class B Shares and tendering into the U.S. Offer can be obtained from the U.S. Information Agent at Toll-Free (866) 356-7813 (Toll Free), and banks and brokers at (212) 269-5550.
For your information, and for forwarding to those clients for which you hold Class B Shares registered in your name or in the name of your nominee, we are enclosing the following documents:
1. | The U.S. Offer to Purchase; |
2. | A printed form of letter that may be sent to clients for whose account you hold Class B Shares registered in your name or in the name of a nominee, with space provided for obtaining such client's instructions with regard to the U.S. Offer; |
3. | The Form of Acceptance to be used by holders of Class B Shares in accepting the U.S. Offer; and |
4. | The Form of Withdrawal. |
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE.
Please note the following:
1. Any U.S. Person desiring to accept the U.S. Offer in respect of all or any portion of the held Class B Shares, should complete Boxes 1 and 3 and, if appropriate, Box 4 and sign Box 2 of the U.S. Form of Acceptance in accordance with the instructions printed thereon. An accepting holder of Class B Shares should then submit the U.S. Form of Acceptance to the U.S. Receiving Agent by hand delivery at the address shown on the back cover of the U.S. Offer to Purchase during normal business hours no later than the Expiration Time on the Expiration Date. See "THE U.S. OFFER—Section 3. Procedures for Participating in the U.S. Offer—Holders of Class B Shares" in the U.S. Offer to Purchase.
2. After purchase by Edelcos of the Class B Shares tendered in compliance with the procedure set forth in the U.S. Offer to Purchase, through the Custodian and receipt by the Argentine Receiving Agent of payment of the consideration for those Class B Shares, the Argentine Receiving Agent will pay to the applicable holders of Class B Shares the Offer Price, settled in pesos, in cash, without interest thereon, net of (i) the stock exchange and settlement fees described herein, (ii) any applicable brokerage fees or commissions, (iii) any applicable Distributions (as defined below), and (iv) any applicable withholding taxes, upon the terms and subject to the conditions set forth in the U.S. Offer to Purchase. (See "THE TENDER OFFER—Section 11. Fees and Expenses" and "THE TENDER OFFER—Section 6. Certain U.S. Federal Income and Argentine Tax Consequences" in the U.S. Offer to Purchase). Payment for Class B Shares will be made by deposit of the Offer Price, without interest thereon, net of (i) the stock exchange and settlement fees described herein, (ii) any applicable brokerage fees or commissions, (iii) any applicable Distributions (as defined below), and (iv) any applicable withholding taxes, upon the terms and subject to the conditions set forth in the U.S. Offer to Purchase, in pesos with the Argentine Receiving Agent and subsequent payment to tendering holders through the Argentine Receiving Agent by a check to be mailed to the address indicated.
The Bidders will not pay any fees or commissions to any broker, dealer or other person for soliciting tenders of Class B Shares pursuant to the U.S. Offer other than those fees and commissions described in "THE U.S. OFFER—Section 11. Fees and Expenses" in the U.S. Offer to Purchase. In addition, the Bidders will not pay any transfer taxes payable on the transfer of Class B Shares to them. The Bidders will, however, upon request, reimburse you for customary mailing and handling expenses incurred by you in forwarding any of the enclosed materials to your clients.
Any inquiries you may have with respect to the U.S. Offer and requests for copies of the enclosed materials should be addressed to the U.S. Information Agent for the U.S. Offer, at the addresses and telephone numbers set forth on the back cover page of the U.S. Offer to Purchase.
Very truly yours,
Empresa de Energía del Cono Sur S.A.
South American Energy LLP.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU, OR ANY OTHER, PERSON THE AGENT OF THE BIDDERS, EDENOR, THE U.S. RECEIVING AGENT, THE ARGENTINE RECEIVING AGENT, THE U.S. INFORMATION AGENT OR ANY AFFILIATE OF ANY OF THEM, OR AUTHORIZE YOU, OR ANY OTHER PERSON, TO MAKE ANY STATEMENT OR USE ANY DOCUMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE U.S. OFFER, OTHER THAN THE ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.
U.S. Offer to Purchase for Cash
All Outstanding Class B Shares held by U.S. Persons of
EMPRESA DISTRIBUIDORA Y COMERCIALIZADORA NORTE S.A. (EDENOR)
by
EMPRESA DE ENERGÍA DEL CONO SUR S.A.
SOUTH AMERICAN ENERGY LLP
Pursuant to the U.S. Offer to Purchase dated November 12, 2021
THIS U.S. OFFER CAN BE ACCEPTED BY U.S. HOLDERS OF CLASS B SHARES BY 5:00 P.M., NEW YORK CITY TIME, ON DECEMBER 13, 2021, UNLESS THE TENDER OFFER IS EXTENDED OR EARLIER TERMINATED.
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November 12, 2021
To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
Enclosed is an offer to purchase, dated November 12, 2021, (the “U.S. Offer to Purchase”) and the Form of Acceptance, Form of Withdrawal and other related documents in connection with the tender offer by Empresa de Energía del Cono Sur S.A. (“Edelcos” or the “Bidder”), and South American Energy LLP (“SAE” and, together with Edelcos, the “Bidders”) to purchase any and all outstanding Class B common shares, par value Ps. 1.00 per share (the “Class B Shares”), held by U.S. Persons (as defined below), including outstanding Class B Shares represented by American Depositary Shares (each representing rights to 20 Class B Shares) (the “ADSs” and, together with the Class B Shares, the “Securities”), of Empresa Distribuidora y Comercializadora Norte S.A. (“Edenor”), a corporation (sociedad anónima) organized under the laws of Argentina, other than those held by the Bidders or their affiliates, , in cash at a price of Ps. 29.34 per Class B Share (the "Offer Price”), without interest thereon, less (i) the stock exchange and settlement fees described herein, (ii) any applicable brokerage fees or commissions, (iii) any applicable Distributions, and (iv) any applicable withholding taxes, upon the terms and subject to the conditions set forth in this U.S. Offer to Purchase and the related documents. The U.S. Offer is being made in conjunction and simultaneously with an offer by Edelcos in Argentina for all outstanding Class B Shares and Class C common shares, par value Ps. 1.00 per share (the “Class C Shares,” and together with the Class B Shares, the “Shares”) of Edenor, which represent 0.2% of Edenor’s outstanding capital stock and are held in Argentina pursuant to Edenor’s Employee Stock Participation Program (the “Argentine Offer” and, together with the U.S. Offer, the “Offers”).
All terms not otherwise defined herein have the meaning set forth in the U.S. Offer to Purchase.
The U.S. Offer is not conditioned on any minimum number of Securities being tendered. However, the U.S. Offer is subject to certain Conditions. See "THE U.S. OFFER—Section 13. Conditions of the U.S. Offer" in the U.S. Offer to Purchase.
ADSs cannot be tendered by means of the enclosed U.S. Form of Acceptance without the holder first becoming a direct holder of Class B Shares by surrendering their ADSs to the ADR Depositary for cancellation and taking delivery of the Class B Shares represented thereby into a cuenta comitiente (securities account) in Argentina. The Bidders will be responsible for paying any cancellation fees charged by the Depositary in connection with ADSs surrendered for cancellation, provided that the underlying Class B Shares are credited to a Caja de Valores account of the Argentine Receiving Agent. Once a holder of ADSs surrenders such ADSs to the Depositary for cancellation and has taken delivery of the Class B Shares such holder may tender into the U.S. Offer pursuant to the enclosed Form of Acceptance. Instructions for cancelling ADSs, withdrawing the underlying Class B Shares and tendering into the U.S. Offer can be obtained from the U.S. Information Agent at Toll-Free (866) 356-7813 (Toll Free), and banks and brokers at (212) 269-5550.
For your information, and for forwarding to those clients for which you hold ADS registered in your name or in the name of your nominee, we are enclosing the following documents:
1. | The U.S. Offer to Purchase; |
2. | A printed form of letter that may be sent to clients for whose account you hold ADS registered in your name or in the name of a nominee; |
3. | The Form of Acceptance to be used by holders of Class B Shares (including holders of ADSs who surrender their ADSs to the Depositary and take delivery of the Class B Shares as described above) in accepting the U.S. Offer; and |
4. | The Form of Withdrawal. |
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE.
Please note the following with respect to holders of ADS who surrender their ADSs to the Depositary and take delivery of the Class B Shares as described above:
1. Any U.S. Person desiring to accept the U.S. Offer in respect of all or any portion of the held Class B Shares, should complete Boxes 1 and 3 and, if appropriate, Box 4 and sign Box 2 of the U.S. Form of Acceptance in accordance with the instructions printed thereon. An accepting holder of Class B Shares should then submit the U.S. Form of Acceptance to the U.S. Receiving Agent by hand delivery at the address shown on the back cover of the U.S. Offer to Purchase during normal business hours no later than the Expiration Time on the Expiration Date. See "THE U.S. OFFER—Section 3. Procedures for Participating in the U.S. Offer—Holders of Class B Shares" in the U.S. Offer to Purchase.
2. After purchase by Edelcos of the Class B Shares tendered in compliance with the procedure set forth in the U.S. Offer to Purchase, through the Custodian and receipt by the Argentine Receiving Agent of payment of the consideration for those Class B Shares, the Argentine Receiving Agent will pay to the applicable holders of Class B Shares the Offer Price, settled in pesos, in cash, without interest thereon, net of (i) the stock exchange and settlement fees described herein, (ii) any applicable brokerage fees or commissions, (iii) any applicable Distributions (as defined below), and (iv) any applicable withholding taxes, upon the terms and subject to the conditions set forth in the U.S. Offer to Purchase. (See "THE TENDER OFFER—Section 11. Fees and Expenses" and "THE TENDER OFFER—Section 6. Certain U.S. Federal Income and Argentine Tax Consequences" in the U.S. Offer to Purchase). Payment for Class B Shares will be made by deposit of the Offer Price, without interest thereon, net of (i) the stock exchange and settlement fees described herein, (ii) any applicable brokerage fees or commissions, (iii) any applicable Distributions (as defined below), and (iv) any applicable withholding taxes, upon the terms and subject to the conditions set forth in the U.S. Offer to Purchase, in pesos with the Argentine Receiving Agent and subsequent payment to tendering holders through the Argentine Receiving Agent by a check to be mailed to the address indicated.
The Bidders will not pay any fees or commissions to any broker, dealer or other person for soliciting tenders of Class B Shares pursuant to the U.S. Offer other than those fees and commissions described in "THE U.S. OFFER—Section 11. Fees and Expenses" in the U.S. Offer to Purchase. In addition, the Bidders will not pay any transfer taxes payable on the transfer of Class B Shares to them. The Bidders will, however, upon request, reimburse you for customary mailing and handling expenses incurred by you in forwarding any of the enclosed materials to your clients.
Any inquiries you may have with respect to the U.S. Offer and requests for copies of the enclosed materials should be addressed to the U.S. Information Agent for the U.S. Offer, at the addresses and telephone numbers set forth on the back cover page of the U.S. Offer to Purchase.
Very truly yours,
Empresa de Energía del Cono Sur S.A.
South American Energy LLP.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU, OR ANY OTHER, PERSON THE AGENT OF THE BIDDERS, EDENOR, THE U.S. RECEIVING AGENT, THE ARGENTINE RECEIVING AGENT, THE U.S. INFORMATION AGENT OR ANY AFFILIATE OF ANY OF THEM, OR AUTHORIZE YOU, OR ANY OTHER PERSON, TO MAKE ANY STATEMENT OR USE ANY DOCUMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE U.S. OFFER, OTHER THAN THE ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.
This announcement is neither an offer to purchase nor a solicitation of an offer to sell any securities. The U.S. offer (the “U.S. Offer”) is being made only by the offer to purchase dated November 12, 2021 (the “U.S. Offer to Purchase”) and any amendments or supplements thereto. The U.S. Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of securities in any jurisdiction in which the making of the U.S. Offer or the acceptance thereof would be unlawful.
Notice of U.S. Offer to Purchase for Cash
Any and All Outstanding Class B Shares held by U.S. Persons, including Class B shares represented by American Depositary Shares
(each American Depositary Share representing rights to twenty Class B Shares)
of
EMPRESA DISTRIBUIDORA Y COMERCIALIZADORA NORTE S.A. (EDENOR)
at
Ps. 29.34 per Class B Share (ISIN ARENOR010020), including Class B Shares represented by American Depositary Shares (CUSIP: 29244A102)
by
EMPRESA DE ENERGÍA DEL CONO SUR S.A.
SOUTH AMERICAN ENERGY LLP
THE U.S. OFFER AND ASSOCIATED WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME (THE “EXPIRATION TIME”) ON DECEMBER 13, 2021 (THE “EXPIRATION DATE”), UNLESS THE TENDER OFFER IS EXTENDED.
Empresa de Energía del Cono Sur S.A. (“Edelcos” or the “Bidder”), and South American Energy LLP (“SAE” and, together with Edelcos, the “Bidders”) to purchase any and all outstanding Class B common shares, par value Ps. 1.00 per share (the “Class B Shares”), held by U.S. Persons (as defined below), including outstanding Class B Shares represented by American Depositary Shares (each representing rights to 20 Class B Shares) (the “ADSs” and, together with the Class B Shares, the “Securities”), of Empresa Distribuidora y Comercializadora Norte S.A. (“Edenor”), a corporation (sociedad anónima) organized under the laws of Argentina, other than those held by the Bidders or their affiliates, in cash at a price of Ps. 29.34 per Class B Share (the “Offer Price”), without interest thereon, less (i) any stock exchange and settlement fees described in the U.S. Offer to Purchase, (ii) any applicable brokerage fees or commissions, (iii) any applicable Distributions, and (iv) any applicable withholding taxes, upon the terms and subject to the conditions set forth in the U.S. Offer to Purchase and the related documents. The U.S. Offer is being made in conjunction with an offer by Edelcos in Argentina for all outstanding Class B Shares and Class C common shares, par value Ps. 1.00 per share (the “Class C Shares”, and together with the Class B Shares, the “Shares”) of Edenor, which represent 0.2% of Edenor’s outstanding capital stock and are held in Argentina pursuant to Edenor’s Employee Stock Participation Program (the “Argentine Offer” and, together with the U.S. Offer, the “Offers”). The Class A Shares (as defined below) are not publicly traded and are not the subject of the Offers and the Class C Shares are not publicly traded and are not the subject of the U.S. Offer. All terms not otherwise defined herein have the meaning set forth in the U.S. Offer to Purchase.
The Bidders are offering to purchase all Class B Shares as a result of the Bidder’s recent acquisition of all Class A common shares, par value Ps.1.00 per share of Edenor, representing 51% of the capital stock and votes of Edenor (the “Class A Shares”), resulting in the Change in Control of Edenor (the “Transaction”). The Transaction is more fully described in the U.S. Offer to Purchase.
This U.S. Offer constitutes a “going private” transaction pursuant to Rule 13e-3, and the U.S. “going-private” rules set forth in Rule 13e-3 under the Exchange Act require the Bidders (as affiliates of Edenor for this purpose under U.S. securities laws) to state whether the U.S. Offer is fair to unaffiliated shareholders. The Bidders believe that the U.S. Offer is substantively and procedurally fair to unaffiliated holders of Class B Shares and/or ADSs under Argentine laws and regulations applicable to mandatory tender offers.
Payment for Class B Shares accepted by us pursuant to the U.S. Offer will be made by deposit of the Offer Price therefor in pesos, without interest therein, upon the terms and subject to the conditions set forth in the U.S. Offer to Purchase, with Global Valores S.A. (the “Argentine Receiving Agent”) and subsequent payment to holders tendering Class B Shares in the U.S. Offer through the Argentine Receiving Agent in Argentina. The Bidders do not intend to change the Offer Price and, while the Offers are open, will not purchase or make any arrangements to purchase Securities, other than pursuant to the Offers.
Subject to the terms described in the U.S. Offer to Purchase, unless the U.S. Offer is extended, to tender Class B Shares in the U.S. Offer, a holder must tender its Class B Shares or ADSs prior to the Expiration Time on the Expiration Date. The Bidders will announce any decision to extend the U.S. Offer in a press release stating the extension no later than 9:00 a.m., New York City time, on the first business day after the scheduled Expiration Date.
Payment for tendered Class B Shares accepted by us pursuant to the U.S. Offer is expected to be made 5 (five) business days after the Acceptance Date in accordance with Argentine law and practices.
There will be no guaranteed delivery process available to tender Class B Shares. Under no circumstances will interest be paid on the Offer Price for the tendered Class B Shares whether or not the Expiration Date is extended.
To the extent permitted by applicable Argentine and U.S. securities laws, the Argentine National Securities Commission (the Comision Nacional de Valores or “CNV”), the U.S. Securities and Exchange Commission (the “SEC”) and the terms of the U.S. Offer to Purchase, the Bidders reserve the right, at any time (i) to extend the period of time during which the U.S. Offer is open and thereby delay the purchase of Class B Shares and payment for tendered shares or (ii) to amend the U.S. Offer to Purchase in any respect. If the Bidders extend the U.S. Offer to Purchase, the Bidders will announce such extension by giving written notice to the U.S. Receiving Agent followed as promptly as practicable by a public announcement thereof (which, in any event, will be made no later than 9:00 a.m., New York City time, on the first business day after the scheduled Expiration Date). During any extension, all Class B Shares previously tendered in the U.S. Offer and not withdrawn will continue to be deemed tendered in the U.S. Offer, subject to the rights of a tendering holder to withdraw its Class B Shares in accordance with the terms of this U.S. Offer to Purchase. Any notice regarding the extension of the Argentine Offer will be given in accordance with CNV regulations.
The Bidders do not have the intention to “squeeze out” holders that elect not to accept the Offers and to remain shareholders of Edenor. The Bidders presently anticipate that Edenor will continue as a public company and will maintain its listings on the NYSE and BYMA following our consummation of the Offers. Depending upon the number of Shares purchased in the Offers, the Offers may adversely affect the liquidity and market value of any Class B Shares held by public shareholders after the U.S. Offer is completed.
Direct holders of Class B Shares who wish to tender all or part of its shares and whose shares are (i) registered under their name in the share registry of Edenor kept by Caja de Valores or (ii) deposited in the collective deposit system of Caja de Valores through its financial intermediary, must follow the specific procedures contained in “THE TENDER OFFER—3. Procedures for Participating in the U.S. Offer” of the U.S. Offer to Purchase. Class B Shares held directly may not be tendered by a U.S. person in the U.S. Offer until they are transferred into the collective deposit system and credited in the holder’s account (cuenta comitente) at Caja de Valores. Each holder wishing to open a cuenta comitente should therefore contact a Custodian with sufficient time to allow the Custodian to open the cuenta comitente to permit the tendering of Class B Shares prior to the Expiration time on the Expiration Date. Each holder of Class B Shares should consult with its Custodian as to whether there may be any delay in the issuance of the Tender Certificate (as defined in the U.S. Offer to Purchase) by Caja de Valores. The transfer of Class B Shares to the U.S. Tendered Class B Shares Account (and the obtaining of the Tender Certificate) may take time. Neither the Bidders nor the U.S. Receiving Agent may provide direct holders of Class B Shares with a specific timeframe for performing these steps, and therefore each direct holder should start this procedure as soon as possible.
Holders of ADSs who wish to participate in the Offers must first become direct holders of Class B Shares by surrendering their ADSs to the Depositary for cancellation and taking delivery of the Class B Shares represented thereby into a cuenta comitente in its name in Argentina. Once a holder of Class B Shares, such holder, in the case of the U.S. holders, must follow the procedures described in the U.S. Offer to Purchase for U.S. holders of Class B Shares participating in the U.S. Offer in order to receive the Offer Price, and, in the case of non-U.S. holders, must tender their Class B Shares in the Argentine Offer in order to receive the Offer Price. ADSs are not permitted to be directly tendered in the U.S. Offer. The cancellation and withdrawal fees charged by the Depositary in connection with ADSs surrendered for cancellation will be borne by the Bidders provided that the underlying Class B Shares are credited to a Caja de Valores account of the Argentine Receiving Agent. In order for a registered holder on the books of the Depositary to withdraw the Class B Shares underlying such holder’s ADSs, registered holders should contact the Depositary, at drsettlements@bnymellon.com, telephone number (+1) 212 815 2783, and in order for a person or entity that holds ADSs through a broker or other securities intermediary to withdraw the Class B Shares underlying such holder’s ADSs, such holders should contact the broker or other securities intermediary holding their ADSs, in either case, to surrender their ADSs and withdraw the underlying Class B Shares, which may then be tendered directly in Argentina pursuant to the procedures described. If you hold ADSs and you wish to participate in the Argentine Offer, you should allow sufficient time to complete all required steps to surrender your ADSs for delivery of Class B Shares prior to the expiration date of the Argentine Offer. You must also have a securities account with a broker or other intermediary that can receive delivery of Class B Shares in Argentina. Instructions for cancelling your ADSs, withdrawing the underlying Class B Shares and tendering into the U.S. Offer can be obtained from the U.S. Information Agent pursuant to the contact information below. See “THE TENDER OFFER—2. Acceptance for Payment and Payment for Class B Shares” of the U.S. Offer to Purchase.
A beneficial owner of Class B Shares or ADSs registered in the name of a broker or other nominee must contact that entity if that beneficial owner desires to tender Class B Shares or ADSs and may be charged a fee or commission by that entity for tendering Class B Shares or ADSs in the U.S. Offer. Each beneficial owner of such securities should consult its broker or other nominee to determine what fees or commissions apply. See “INTRODUCTION” of the U.S. Offer to Purchase.
Holders that have tendered their Class B Shares may withdraw from the U.S. Offer, but they may do so only as described in “THE TENDER OFFER—4. Withdrawal Rights.” of the U.S. Offer to Purchase. For direct holders of Class B Shares, the withdrawal of any Class B Shares tendered in the U.S. Offer can only be made by presenting a signed Form of Withdrawal (as defined in the U.S. Offer to Purchase) to the U.S. Receiving Agent. Such withdrawal will be effective only if the U.S. Receiving Agent timely receives the Form of Withdrawal at its address set forth in the U.S. Offer to Purchase. The Form of Withdrawal must specify the name of the person who tendered the Class B Shares to be withdrawn and the number of Class B Shares to be withdrawn and the name of the registered holder of Class B Shares, if different from that of the person who tendered such Class B Shares, and signatures must be certified by a notary public.
All questions as to the form and validity (including time of receipt) of any notice of withdrawal will be determined by the Bidders, in their sole discretion, and their determination will be final and binding. Neither the Bidders nor any of their affiliates or assigns nor any other person will be under any duty to give any notification of any defects or irregularities in any withdrawal or incur any liability for failure to give any such notification.
The information required to be disclosed by 14d-6(d)(1) of the General Rules and Regulations under the Exchange Act is contained in the Offer to Purchase and is incorporated into this announcement by reference. The Bidders are also filing with the SEC a combined Schedule TO and Schedule 13e-3, together with exhibits, furnishing certain additional information with respect to the U.S. Offer.
This U.S. Offer to Purchase and Acceptance Letter and other relevant materials will be mailed by us to the record holders of ADSs and the U.S. resident record holders of Class B Shares whose names appear on the shareholder lists maintained by Edenor, the list of record holders of ADSs maintained by the The Bank of New York Mellon, as depositary, and the security position listing of The Depository Trust Company (“DTC”), as the book-entry transfer facility for ADSs of Edenor, and will be furnished, for subsequent transmittal to the beneficial owners of ADSs and the U.S. resident beneficial owners of Class B Shares, to brokers or other securities intermediaries and similar persons whose names, or the names of whose nominees, appear on shareholder lists or, if applicable, who are listed as participants in the security position listing of DTC or Caja de Valores, as applicable. We will also mail this U.S. Offer to Purchase and Acceptance Letter and other relevant materials to any registered or beneficial holder of ADSs, and, in the case of U.S. Persons, Class B Shares, that requests a copy of the U.S. Offer materials.
The U.S. Offer to Purchase, the related documents and Edenor’s Solicitation/Recommendation Statement on Schedule 14D-9 and 13E-3 to be filed today with the SEC in connection with the U.S. Offer contain important information and each such document should be read carefully and in its entirety before any decision is made with respect to the U.S. Offer.
Any questions or requests for assistance about how to participate in the U.S. Offer or to obtain additional copies of the U.S. Offer to Purchase may be directed to the U.S. information agent listed below. Beneficial owners may also contact their broker, dealer, commercial bank, trust company or other nominee for assistance concerning the U.S. Offer.
The U.S. information agent for the U.S. Offer is:
D.F. King & Co., Inc.
48 Wall Street, 22nd Floor,
New York, NY 10005
Bankers and Brokers Call Collect: (212) 269-5550
All Others Call Toll-Free: (866) 356-7813
Email: edenor@dfking.com
PRESS RELEASE
Edelcos and SAE Commence Mandatory Tender Offer for Class B Shares, including Class B Shares Represented by American Depositary Shares
**********************************************
New York, NY, November 12, 2021 — Empresa de Energía del Cono Sur S.A. (“Edelcos”) announced today that, along with its affiliate South American Energy LLP. (“SAE” and together with Edelcos, the “Bidders”), it has commenced a previously announced all-cash tender offer in the U.S. (the “U.S. Offer”) for all outstanding Class B Shares, including outstanding Class B Shares represented by American Depositary Shares (each representing 20 Class B Shares (the “ADS”)), held by U.S. holders of Empresa Distribuidora y Comercializadora Norte S.A. (“Edenor”) for Ps. 29.34 per Class B Share, without interest and less any applicable withholding taxes, fees and paid distributions.
The terms and conditions of the U.S. Offer are described in the U.S. Offer to Purchase and related documents to be filed by Edelcos and its affiliate with the United States Securities and Exchange Commission (“SEC”) today, November 12, 2021.
Simultaneously with the U.S. Offer, Edelcos is making an offer (the “Argentine Offer,” and together with the U.S. Offer, the “Offers”), in accordance with the tender offer rules of the Republic of Argentina, to purchase all outstanding Class B Shares of Edenor not owned by Edelcos or its affiliates, for the same price and on substantially the same terms as the U.S. Offer (including that it will be paid in Argentine pesos in Argentina). The Offer Price of Ps.29.34 per Class B Share is below Ps.66.7, the closing trading price per Class B Share on the BYMA, and the aggregate Offer Price of Ps.586.80 for the twenty (20) Class B Shares underlying each ADS is below the aggregate closing trading price of Ps.1,334.00 for twenty (20) Class B Shares on the BYMA, in each case, as of November 11, 2021 (the last trading day prior to the Commencement Date).
The U.S. Offer will expire at 5:00 p.m., New York City time on December 13, 2021, unless the offer period is extended by the Bidders.
Additional Information
This press release is for informational purposes only and does not constitute an offer to buy or a solicitation of an offer to sell any securities of Edenor. Complete terms and conditions of the U.S. Offer are set forth in the U.S. Offer to Purchase and other related materials to be filed by the Bidders with the SEC today. In addition, Edenor is required to file a Solicitation/Recommendation Statement on Schedule 14D-9 and 13E-3 with the SEC relating to the U.S. Offer. Copies of the U.S. Offer to Purchase and other related materials are available free of charge from D.F. King & Co., Inc., the U.S. information agent for the U.S. Offer, toll free at (866) 356-7813, or for bankers and brokers, at (212) 269-5550 or via email at edenor@dfking.com. The receiving agent in the U.S. for purposes of the U.S. Offer is Computershare, Inc.
For further information please contact:
Nicolas Mallo Huergo
c/o Maipú 1252, 12th floor,
City of Buenos Aires, (CP1006),
Argentina
PKF Audisur
INDEPENDENT ACCOUNTANTS' SPECIAL REPORT ON FAIR PRICE ASSESSMENT IN MANDATORY PUBLIC TENDER OFFER DUE TO TAKEOVER (Title III, Chapter II, Section II, paragraph c), Article 10 of CNV's RULES, TEXT AS REVISED IN 2013)
To the
Chairman and Directors of
EMPRESA DE ENERGÍA DEL CONO SUR S.A - (EDELCOS)
Taxpayer ID No. (CUIT): 30-71702715-5
Registered Office: Av. Paseo Colón 746 – 4th Floor
Autonomous City of Buenos Aires
In our capacity as independent accountants, we hereby issue this special report at your request to be filed with the Argentine Securities Commission (“CNV”), as required by such agency in Title III, Chapter II, Section II, paragraph c), Article 10 of the CNV's rules, text as revised in 2013. As far as the matters within our purview are concerned, we have reviewed the information detailed in the following section.
Information subject to review
We have reviewed the information prepared by EMPRESA DE ENERGIA DEL CONO SUR
S.A - (EDELCOS) (the “Company”) concerning accurate fair price assessment in compliance with Article 88, paragraph I of Law No. 26,831 and Article 14, Section III, Title III, Chapter II of the CNV's rules, text as revised in 2013, as described in the information contained in the accompanying Exhibits I and II. We have initialized such Exhibits I and II for identification purposes with this special report.
Management's responsibility for the information subject to review
Company's management is responsible for the preparation and presentation of the information subject to review contained in the accompanying Exhibits I and II, in accordance with the CNV's rules and Article 88, paragraph I) of Law No. 26,831, as amended. Furthermore, the Company's Board of Directors is responsible for the existence of such internal control as might be deemed required to enable the preparation of the information identified in the preceding paragraph.
1
Chartered accountants’ responsibility
We performed our work in accordance with the rules on other related services set forth in Section VII.C., second part, of Technical Pronouncement No. 37 of the Argentine Federation of Professional Councils in Economic Sciences for the issuance of special reports, including the application of certain procedures established in such standard, which are deemed necessary for the issuance of this special report. Such standards require that we fulfill ethical requirements and that we plan for our work.
We have applied the procedures detailed below on the records and documents furnished by the Company. In performing our work, we relied on the fact that the information furnished to us is accurate, complete, legitimate and free from fraud and other unlawful acts, for which we have considered its appearance and formal structure.
The scope of these procedures is lower than that of an audit or assurance engagement. Therefore, we do not express an audit or assurance opinion on the above-described information. The procedures performed by us were exclusively limited to:
a) | Reading the minutes of the Extraordinary General Shareholders' Meeting held on December 23, 2020 transcribed to sheets 3 to 5 of the Book of Minutes of Shareholders' Meetings No. 1, officially signed on January 19, 2021 under No. IF-2021-04921441-APN-DSC#IGJ, with the Argentine Superintendence of Corporations (Inspección General de Justicia, IGJ), in which the shareholders authorized the submission of an offer to Pampa Energía S.A. to enter into an agreement, and its ancillary understandings and instruments, pursuant to which the Company would acquire shares of stock representing a majority interest in Empresa Distribuidora y Comercializadora Norte S.A.’s capital stock and votes; |
b) | Verifying the Offer Letter - Offer EDN-A/2020 signed by EDELCOS, Daniel Eduardo Vila, Integra Capital S.A., José Luis Manzano and Mauricio Filiberti, containing EDELCOS S.A.'s irrevocable offer to purchase from Pampa Energía S.A. 462,292,111 Class "A", book-entry common shares issued by Empresa Distribuidora y Comercializadora Norte S.A., with a nominal value of $1 and one voting right each, representing 51% of the capital stock and votes. |
c) | Verifying Pampa Energía S.A.'s acceptance letter signed on December 28, 2020, whereby EDELCOS, Integra Capital S.A., José Luis Manzano, Daniel Eduardo Vila and Mauricio Filiberti are notified of the irrevocable acceptance of Offer EDN-A/2020 dated December 28, 2020. |
d) | Verifying EDELCOS S.A.'s interim financial statements as of January 31, 2021, which in Note 5 thereto disclose the acquisition of Edenor S.A.'s s shares and the execution of an agreement with Pampa Energía S.A. for the acquisition of a 51% interest in Edenor S.A.'s capital stock and votes. |
e) | Verifying the wire transfer instruction and the Swift Transfer receipt dated November 18 and 19, 2020, respectively, to the accounts designated in the document entitled “Account Designation” for the equivalent in Euros to US$ 5,000,000. |
f) | Verifying the wire transfer instruction and the Swift Transfer receipt dated December 28 and 30, 2020, respectively, to the accounts designated in the document entitled “Account Designation” for the equivalent in Euros to US$ 5,000,000. |
g) | Verifying the authorization to transfer 21,876,856.00 Class "B" shares to the custody account designated in the document entitled “Account Designation” by means of a visual check of the securities transfer authorization receipt. |
h) | Verifying the note entitled “Account Designation” concerning the share purchase agreement from Pampa Energía S.A. relating to Offer Letter EDN-A/2020. |
i) | Verifying EDELCOS's June 2021 bank statement (MUFG Bank) which shows a cash disbursement to Pampa Energía S.A. for $50,000,000 paid on June 29, 2021. |
j) | Notice dated December 28, 2020 given by Pampa Energía to the CNV and Bolsas y Mercados Argentinos S.A. (BYMA) reporting, as a material event, that on the aforementioned date it had entered into a share purchase agreement with EDELCOS and Integra Capital S.A., Daniel Eduardo Vila, Mauricio Filiberti and José Luis Manzano, pursuant to which it agreed to sell the controlling interest in Empresa Distribuidora y Comercializadora Norte S.A. (“Edenor”) by transferring all Class “A” shares representing 51% of the capital stock and votes in that company. |
k) | Notice dated December 28, 2020 given by EDENOR to the CNV and BYMA reporting, as a material event, that it took cognizance that Pampa Energía S.A., the controlling company owner of 100% of Class “A” shares of Edenor's stock, representing 51% of its capital stock and equal number of votes, entered into, in the capacity of seller, a share purchase agreement with EDELCOS and Integra Capital S.A., Daniel Eduardo Vila, Mauricio Filiberti and José Luis Manzano. |
l) | Notice dated June 30, 2021 given by Pampa Energía S.A. to the CNV and BYMA reporting, as a material event, that on the aforementioned date it had completed the transfer of all Class “A” shares of stock, representing 51% of Empresa Distribuidora y Comercializadora Norte S.A. (“Edenor”)’s capital stock and votes owned by it in favor of EDELCOS S.A., as approved at the Company's Ordinary and Extraordinary General Shareholders' Meeting held on February 17, 2021, thereby resulting in Edenor’s change of control. |
m) | Notice dated July 15, 2021 given by EDENOR to the CNV and BYMA reporting, as a material event, the change of control notice received from EDELCOS as part of the transaction whereby it acquired all Class “A” shares of Edenor S.A.’s stock. |
n) | Notice dated July 15, 2021 from EDELCOS given by EDENOR S.A. to the CNV reporting, as a material event, the change of control as a result of the sale of equity interest. |
o) | Verifying the prices for the marketable securities subject matter of the offer during the six-month period immediately preceding the date of the announcement of the transaction involving the change of control, regardless of the number of trading sessions, by means of a visual check of Bloomberg Finance LP's screen. |
p) | Recalculating the simple average price, as required in Article 14 - Section III, Chapter II, Title III of the CNV's rules, text as revised in 2013. |
q) | Verifying the U.S. dollar selling exchange rate published by BNA, as required in Article 14 - Section III, Chapter II, Title III of the CNV's rules, text as revised in 2013. |
r) | Making the required calculations for purposes of the assessments applied in Exhibit I. |
Chartered accountants' opinion
Based on the work performed on the information detailed under the caption “Information subject to review” and within the scope described in “Chartered accountants' responsibility,” we hereby report that:
a) | No findings have arisen in connection with the accurate fair price assessment pursuant to Article 88, paragraph I) of Law No. 26,831, as amended, which is disclosed in the accompanying Exhibits I and II; |
b) | Concerning the higher price paid or agreed to by EMPRESA DE ENERGIA DEL CONO SUR S.A - (EDELCOS) for EDENOR’s securities (EDN AR Equity) during the twelve (12) months prior to the commencement date of the public tender offer period, we hereby report that such price amounts to $ 21.79, according to the calculations detailed in the accompanying Exhibit I; and |
c) | Concerning the average price for the marketable securities subject matter of the offer during the six-month period immediately preceding the date of announcement of the transaction involving the change of control, regardless of the number of trading sessions, we hereby report that such price amounts to $29.34, as detailed in the accompanying Exhibits I and II. |
d) | Concerning the fair price assessment, which is equal to the higher of b) or c), we hereby report that it amounts to $ 29.34. |
Other matters
This special report is issued for exclusive use by the Company to be filed with the CNV (Argentine Securities Commission) and may not be used for any other purpose.
Autonomous City of Buenos Aires, July 27, 2021
PKF AUDISUR S.R.L.
CPCECABA Vol. 1 Fol. 5
Marcelo Horacio Katz
Chartered Accountants (UBA)
CPCECABA Vol. 146 Fol. 82
Partner |
|
EXHIBIT I
AFFIDAVIT ON FAIR PRICE ASSESSMENT BREAKDOWN:
Fair price is equal to the higher of a) or b): $29.34
a) Assessment of the higher price paid or agreed to by EMPRESA DE ENERGIA DEL CONO SUR S.A - (EDELCOS) for EDENOR's shares (EDN AR Equity) during the (12) twelve (12) month period prior to the commencement date of the public tender offer period: $ 21.79.
(1) | Offer Letter referred to in paragraph b) of the information subject to review |
(2) | The number of total shares arises from the Offer Letter submitted to Pampa Energía SA referred to in paragraph b) of the information subject to review |
b) Average price for the marketable securities subject matter of the offer during the six-month period immediately preceding the date of announcement of the transaction involving the change of control, regardless of the number of trading sessions: $ 29.34, as detailed in the accompanying Exhibit II.
Initialized for identification purposes with our
report dated July 27, 2021
PKF AUDISUR S.R.L.
CPCECABA Vol. 1 Fol. 5
Marcelo Horacio Katz
Chartered Accountant (UBA)
CPCECABA Vol. 146 Fol. 82 |
On behalf of EMPRESA DE ENERGIA DEL CONO SUR S.A. |
Partner |
(EDELCOS) |
|
Nicolás Mallo Huergo |
|
Legal representative |
EXHIBIT II (1/2) |
AVERAGE PRICE ASSESSMENT: Item b Exhibit I
Date | Last Price | Volume |
|
Date | Last Price | Volume |
06/29/2021 | 38.6 | 372714 | 05/04/2021 | 27.9 | 88395 | |
06/28/2021 | 40.65 | 198247 | 05/03/2021 | 27.7 | 128951 | |
06/25/2021 | 42.2 | 391657 | 04/30/2021 | 27.75 | 52371 | |
06/24/2021 | 42 | 157336 | 04/29/2021 | 27.5 | 127722 | |
06/23/2021 | 41.65 | 135588 | 04/28/2021 | 27.55 | 136850 | |
06/22/2021 | 40.65 | 206832 | 04/27/2021 | 27.4 | 83686 | |
06/18/2021 | 40.75 | 172929 | 04/26/2021 | 27.25 | 204362 | |
06/17/2021 | 41.9 | 225847 | 04/23/2021 | 26.5 | 51471 | |
06/16/2021 | 42.6 | 146274 | 04/22/2021 | 27.3 | 89366 | |
06/15/2021 | 42.45 | 132186 | 04/21/2021 | 27.25 | 204701 | |
06/14/2021 | 43.5 | 555221 | 04/20/2021 | 26.5 | 81891 | |
06/11/2021 | 42.25 | 602569 | 04/19/2021 | 26.75 | 107149 | |
06/10/2021 | 41.8 | 1074268 | 04/16/2021 | 27 | 71893 | |
06/09/2021 | 45.9 | 840655 | 04/15/2021 | 26.4 | 57142 | |
06/08/2021 | 42.1 | 424354 | 04/14/2021 | 27 | 150897 | |
06/07/2021 | 41.3 | 1168633 | 04/13/2021 | 26.9 | 75808 | |
06/04/2021 | 36.1 | 557071 | 04/12/2021 | 27.35 | 81097 | |
06/03/2021 | 34.5 | 302203 | 04/09/2021 | 27.1 | 117508 | |
06/02/2021 | 32.6 | 113139 | 04/08/2021 | 27.4 | 235814 | |
06/01/2021 | 31.25 | 258354 | 04/07/2021 | 27.15 | 77927 | |
05/31/2021 | 30.95 | 84115 | 04/06/2021 | 26.9 | 110926 | |
05/28/2021 | 31.25 | 232660 | 04/05/2021 | 25.95 | 73607 | |
05/27/2021 | 30.85 | 298758 | 03/31/2021 | 25.55 | 194626 | |
05/26/2021 | 29.95 | 493181 | 03/30/2021 | 26 | 99361 | |
05/21/2021 | 28.45 | 368573 | 03/29/2021 | 25.35 | 80022 | |
05/20/2021 | 27.7 | 387834 | 03/26/2021 | 25.15 | 50781 | |
05/19/2021 | 27.65 | 90914 | 03/25/2021 | 25.3 | 19035 | |
05/18/2021 | 27.7 | 122624 | 03/23/2021 | 26 | 140042 | |
05/17/2021 | 28.05 | 100452 | 03/22/2021 | 25.9 | 40450 | |
05/14/2021 | 27.85 | 211252 | 03/19/2021 | 25.9 | 74302 | |
05/13/2021 | 27.7 | 237929 | 03/18/2021 | 25.65 | 142187 | |
05/12/2021 | 27 | 87336 | 03/17/2021 | 26.15 | 91977 | |
05/11/2021 | 27.3 | 199250 | 03/16/2021 | 26.45 | 147067 | |
05/10/2021 | 27.5 | 147719 | 03/15/2021 | 27 | 140611 | |
05/07/2021 | 27.45 | 50953 | 03/12/2021 | 26.25 | 159283 |
EXHIBIT II (2/2) |
AVERAGE PRICE ASSESSMENT: Item b Exhibit I (Continued)
Date | Last Price | Volume |
|
Date | Last Price | Volume |
05/06/2021 | 27.4 | 98194 | 03/11/2021 | 26.3 | 136250 | |
05/05/2021 | 27.85 | 28347 | 03/10/2021 | 25.7 | 85934 | |
03/09/2021 | 25.9 | 176181 | 02/02/2021 | 26.9 | 163783 | |
03/08/2021 | 25.2 | 69495 | 02/01/2021 | 26.4 | 47241 | |
03/05/2021 | 26 | 85587 | 01/29/2021 | 26.1 | 201640 | |
03/04/2021 | 25.9 | 156361 | 01/28/2021 | 26.8 | 265773 | |
03/03/2021 | 26.8 | 92738 | 01/27/2021 | 27.25 | 241566 | |
03/02/2021 | 27.55 | 40562 | 01/26/2021 | 27.15 | 414921 | |
03/01/2021 | 27.7 | 120791 | 01/25/2021 | 26.65 | 387181 | |
02/26/2021 | 27 | 61333 | 01/22/2021 | 26.1 | 216355 | |
02/25/2021 | 27.6 | 110909 | 01/21/2021 | 25.7 | 478344 | |
02/24/2021 | 27.9 | 115712 | 01/20/2021 | 27.25 | 144292 | |
02/23/2021 | 27.3 | 154341 | 01/19/2021 | 27.35 | 146859 | |
02/22/2021 | 27.5 | 304472 | 01/18/2021 | 26.7 | 64696 | |
02/19/2021 | 27.85 | 155597 | 01/15/2021 | 27.05 | 242320 | |
02/18/2021 | 28 | 293911 | 01/14/2021 | 26.7 | 153841 | |
02/17/2021 | 28.1 | 158965 | 01/13/2021 | 26.5 | 156657 | |
02/12/2021 | 27.75 | 167095 | 01/12/2021 | 26.1 | 165544 | |
02/11/2021 | 27.7 | 142567 | 01/11/2021 | 25.8 | 260582 | |
02/10/2021 | 28.3 | 112362 | 01/08/2021 | 26.9 | 206799 | |
02/09/2021 | 28.1 | 338503 | 01/07/2021 | 27.15 | 295603 | |
02/08/2021 | 27.7 | 857827 | 01/06/2021 | 27.55 | 445947 | |
02/05/2021 | 27.45 | 537079 | 01/05/2021 | 27.75 | 219021 | |
02/04/2021 | 28.45 | 543017 | 01/04/2021 | 28.1 | 410556 | |
02/03/2021 | 28.25 | 524034 | 12/30/2020 | 28.6 | 778180 |
CALCULATION OF SIMPLE AVERAGE PRICE FOR THE MARKETABLE SECURITIES SUBJECT MATTER OF THE OFFER DURING THE IMMEDIATELY PRECEDING SIX-MONTH PERIOD: $ 29.34
Initialized for identification purposes with our
report dated July 27, 2021
PKF AUDISUR S.R.L.
CPCECABA Vol. 1 Fol. 5 Marcelo Horacio Katz
Chartered Accountant (UBA)
CPCECABA Vol. 146 Fol. 82
Partner
On behalf of EMPRESA DE ENERGIA DEL CONO SUR S.A. (EDELCOS) |
|
Nicolás Mallo Huego |
|
Legal representative |
|
Autonomous City of Buenos Aires, July 28, 2021
We hereby certify, pursuant to the authority granted to this PROFESSIONAL COUNCIL under laws 466 (Section 2, paragraphs D and J) and 20,488 (Section 21, paragraph I) the professional report dated July 27, 2021 on Miscellaneous Matters of Empresa de Energía del Cono Sur S.A., Taxpayer Identification No. (CUIT) 30-71702715-5, signed by MARCELO HORACIO KATZ. We further certify that the relevant controls aimed at verifying the effective registration and formal control of such professional report have been made in accordance with Resolution C. 236/88, which controls do not imply any technical opinion on the professional tasks performed.
License Holder Details MARCELO HORACIO KATZ Chartered Accountant (UBA) CPCECABA Vol. 146 Fol. 82 Signing in the capacity as PKF AUDISUR S.R.L. Vol. 1 Fol. 5 PARTNER |
Authentication No. 764802
This professional report has been filed online by the intervening professional, and meets the requirements of effective registration controls, competences, and formal controls on reports and certificates (Resolution C. 236/88). The recipient of this document may check its validity at www.consejo.org.ar/certifcaciones/validar.htm, by entering the following code: wqejhk7
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Edenor
Fairness Opinion, July 30, 2021
Disclaimer
Buenos Aires Advisors S.C. (“BA ADVISORS”) has been engaged by Empresa Distribuidora y Comercializadora Norte S.A. (“EDENOR”) to prepare a valuation report (“Fairness Opinion”) to be shared with EDENOR’s Board of Directors before the Shareholders’ Meeting to be held within the context of the sale of Class A shares representing 51% of the capital stock and voting rights of EDENOR (“the Transaction”). The information contained in this report was prepared to assist EDENOR’s Board of Directors and the Fairness Opinion is not intended to include all the information that the Board of Directors may require, for which purpose the Board of Directors should make its own analysis.
As part of our financial advisory services, BA ADVISORS has prepared this valuation report for informative purposes based on public information or information provided by EDENOR, its officers or representatives. We assume that the information received from the company is true, accurate and complete in order to make the analysis and the valuations included in this report; and that there are no agreements, contracts, rights or other relevant information that have not been disclosed by the company. BA Advisors has neither made any investigation, nor has verified the accuracy or degree of integrity of the information received. The valuations on which our analysis is based are directly related to the condition and expectations on the economy, the purchasing power and the prevailing interest rates on the effective date of the valuation.
Furthermore, all public information available, including market information, stock prices, financial analysts’ reports and other information were obtained, among others, from entities and sites deemed reliable. The analysis, studies and conclusions of this report reflect our independent, impartial and professional opinion on the fair value from EDENOR’s financial point of view. They were developed, and this report has been prepared, in accordance with the valuation methods commonly used in the market.
We are professionals competent to make this analysis from a financial point of view, considering our previous expertise with similar projects and/or academic training in relevant fields.
The Company’s flow projections are made on the basis of information provided by the Company, its management and directors. The financial projections will be affected by the prevailing economic conditions and their consummation or deviation will be contingent upon uncertain future events. Thus, the actual values may significantly vary from those projected. Projections may be affected by circumstances alien to BA Advisors’ professional field of competence or control. The analysis offered in this report shall not be construed as a price guarantee.
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2 |
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Table of Contents
Background |
4 |
Argentine Electricity Market |
5 |
Description of the Company |
6 |
Macro and Operating Assumptions |
8 to 10 |
Estimate of Revenues, Costs and Capex |
11 to 17 |
Projected Cash Flow in $ and USD |
18 and 19 |
Discount Rate: WACC |
20 |
Valuation by Discounted Cash Flow (DCF) |
21 |
Sensitivity Analysis |
22 |
Market Capitalization |
23 |
Conclusion |
24 |
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3 |
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Background
· | On December 28, 2020, Pampa Energía S.A. (“Pampa”) reported that it entered into a stock purchase agreement with Empresa de Energía del Cono Sur S.A. (“EDELCOS”) and Integra Capital S.A., Daniel Eduardo Vila, Mauricio Filiberti, and José Luis Manzano, pursuant to which it agreed, subject to the satisfaction of certain conditions precedent, including, without limitation, the approvals from the shareholders’ meeting of Pampa and the Ente Nacional Regulador de la Electricidad, to sell the control of Empresa Distribuidora y Comercializadora Norte S.A. (“Edenor” or “the Company”) by the transfer of all of Edenor’s Class A shares, representing 51% of the company’s capital stock and voting rights (the “Transaction”). |
· | As a result of the change of control arising from the preceding paragraph and in accordance with the provisions of Sections 87 et seq of the Capital Markets Law and Title III, Chapter II of the rules of the Argentine Securities Commission (the “CNV”), the new controlling company, EDELCOS, launched a Mandatory Tender Offer of Edenor’s Class B and Class C shares on July 29, 2021 (the “Offer”). Said Offer shall be considered by Edenor’s Board of Directors and is the reason why BA Advisors has been engaged to issue an opinion on the reasonability of the price offered in the Tender Offer (OPA, as per its Spanish acronym) from an economic and financial point of view (the “Fairness Opinion”). |
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4 |
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Argentine Electricity Market
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References: OFERTA: OFFER Generadores Térmicos: Thermal power plants Gas natural: Natural gas Líquido: Liquid Uranio: Uranium Embalses / Centrales Hidroeléctricas: Dams / Hydroelectric power plants Renovables: Renewable Energy Importación: Import FÍSICO: PHYSICAL TRANSPORTE: TRANSMISSION DEMANDA: DEMAND Distribuidores: Distributors Grandes usuarios: Large users Exportación: Export
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· | Power generation in Argentina is mostly thermal, representing 62% of the matrix, followed by hydroelectric generation with 25%. By 2025, in accordance with the legal targets set, it is expected that 20% of power generation will derive from renewable sources. |
· | Energy demand: 48% Residential, 27% Commercial and 25% Large Users. |
· | The main market regulatory entities are the Secretariat of Energy, the ENRE, and CAMMESA. |
· | The distribution of energy is a regulated activity whose tariffs were denominated in dollars before 2002. From 2002 to 2017, tariffs were frozen in pesos and there were only partial tariff increases as a recognition of the increase in costs. |
· | In 2017, a Tariff Structure Review was carried out, pursuant to which new schemes were determined for certain distribution companies so as to provide a reasonable return on the assets: tariff adjustments in pesos with semi-annual adjustments based on local inflation and a structure review every five years jointly with an appropriate investment plan during such period. Since 2020, tariff increases have been suspended due to the economic crisis and the effects of the COVID-19 pandemic. |
· | Each distributor provided electricity in a specific geographic area under a concession agreement: Edenor, Edesur and Edelap are the main companies and they share 45% of the electricity distribution market. |
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5 |
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Description of the Company
· | The Concession was granted for 95 years with a residual life of 66 years, and with the possibility of extending it for 10 additional years. The ENRE is the regulatory entity of electricity distribution companies. |
· | It supplies electricity through a system composed of 79 HV/HV, HV/HV/MV, HV/MV and HV/MV transformer substations and interconnections with HV customers, representing 19,199 MVA of installed capacity and 1,538 kilometers of 220 kV, 132 kV and 27.5 kV high voltage networks. The MV/LV and MV/MV distribution system comprises 18,607 transformers, representing 9,078 MVA of installed capacity, 11,687 kilometers of 33 and 13.2 kV medium voltage lines and 27,636 kilometers of 380/220 V low voltage lines. |
· | It is listed on the Buenos Aires Stock Exchange and the NYSE under the ticker EDN. |
Source: the Company.
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6 |
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Evolution of Edenor’s Energy Sales (Volume)
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References: Evolución Volumen de Edenor GWh Vs. PBI: Evolution Edenor Volume GWh v. GDP PBI: GDP Ventas de Edenor GWh: Edenor’s sales GWh Fuente: Focus Economics (PBI) / Edenor: Volúmenes de GWh: Source: Focus Economics (GDP) / Edenor: GWh Volumes
· The variation in the volume of Edenor’s energy sales shows lower volatility compared to GDP variations, however, in normal years, they show certain correlation.
· Nevertheless, during 2020 as a consequence of the pandemic and the lockdown, GDP experienced a significant fall while consumption of energy recorded a slight increase due to higher residential consumption, which largely offset the fall in demand of commercial and industrial customers.
· The year 2021 continues to show an increase in residential demand, and a recovery in demand from large consumers is being seen.
· For the following years, a slight growth in residential demand and a higher recovery in demand from commercial and medium-sized customers are expected, reaching pre-pandemic levels.
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7 |
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Argentine Macroeconomic Assumptions
· | Focus Economics prepares a consensus of the main banks, macroeconomic studies and consultancy companies that make economic projections of Argentina. 50 institutions take part in such consensus. |
· | The market estimates that inflation and the official exchange rate will vary fairly evenly in the following years. The average variation of inflation for the next 5 years amounts to 34% per annum versus an average variation of the official dollar of 30% per annum for the same period, reflecting a slight currency appreciation. |
MACRO ASSUMPTIONS | 2019 A | 2020 A | 2021 E | 2022 P | 2023 P | 2024 P | 2025 P |
GDP variation | -2.1% | -9.9% | 6.3% | 2.5% | 2.5% | 2.4% | 2.4% |
Annual inflation (CPI eop) | 53.8% | 36.1% | 48.4% | 40.7% | 33.5% | 27.3% | 21.2% |
Exchange rate (Official aop) | 48.2% | 70.6% | 97.3% | 135.2% | 181.5% | 230.1% | 279.8% |
% of annual variation | 71.8% | 46.5% | 37.7% | 39.0% | 34.3% | 26.7% | 21.6% |
Exchange rate (Official eop) | 59.9% | 84.1% | 112.2% | 157.8% | 205.2% | 254.9% | 304.6% |
% of annual variation | 59.0% | 40.4% | 33.5% | 40.6% | 30.0% | 24.2% | 19.5% |
References:
Inflación anual (IPC): Annual inflation (CPI) -
Real: Actual - Proyectado: Projected
Variación PBI anual: Annual GDP variation
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8 |
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Operating Assumptions: Customers and Demand
CUSTOMERS | 2019 A | 2020 A | 2021 E | 2022 P | 2023 P | 2024 P | 2025 P | 2026 P |
Small demands (T1) | 3,080,219 | 3,113,302 | 3,144,435 | 3,175,879 | 3,207,638 | 3,239,715 | 3,272,112 | 3,304,833 |
% of change | 2.7% | 1.1% | 1.0% | 1.0% | 1.0% | 1.0% | 1.0% | 1.0% |
Medium demand (T2) | 31,077 | 31,012 | 31,012 | 31,012 | 31,012 | 31,012 | 31,012 | 31,012 |
% of change | -3.2% | -0.2% | 0.0% | 0.0% | 0.0% | 0.0% | 0.0% | 0.0% |
Large demands (T3) | 6,830 | 6,860 | 6,860 | 6,860 | 6,860 | 6,860 | 6,860 | 6,860 |
% of change | -0.4% | 0.4% | 0.0% | 0.0% | 0.0% | 0.0% | 0.0% | 0.0% |
Other: Shantytowns/Wheeling system | 1,153 | 1,169 | 1,169 | 1,169 | 1,169 | 1,169 | 1,169 | 1,169 |
% of change | -0.2% | 1.4% | 0.0% | 0.0% | 0.0% | 00% | 0.0% | 0.0% |
TOTAL CUSTOMERS | 3,119,279 | 3,152,343 | 3,183,476 | 3,214,920 | 3,246,679 | 3,278,756 | 3,311,153 | 3,343,874 |
% of change | 2.6% | 1.1% | 1.0% | 1.0% | 1.0% | 1.0% | 1.0% | 1.0% |
A 1% increase in customers is expected, in line with the population growth.
ENERGY SALES (GWh) | 2019 A | 2020 A | 2021 E | 2022 P | 2023 P | 2024 P | 2025 P | 2026 P |
Small demands (T1) | 10,778 | 11,600 | 12,180 | 12,302 | 12,425 | 12,549 | 12,850 | 13,146 |
% of change | -6.1% | 7.6% | 5.0% | 1.0% | 1.0% | 1.0% | 2.4% | 2.3% |
Medium demand (T2) | 1,549 | 1,341 | 1,301 | 1,347 | 1,395 | 1,444 | 1,496 | 1,549 |
% of change | -7.1% | -13.4% | -3.0% | 3.6% | 3.6% | 3.6% | 3.6% | 3.6% |
Large demands (T3) | 3,503 | 3,210 | 3,338 | 3,422 | 3,507 | 3,592 | 3,678 | 3,762 |
% of change | -3.9% | -8.4% | 4.0% | 2.5% | 2.5% | 2.4% | 2.4% | 2.3% |
Other: Shantytowns/Wheeling system | 4,144 | 4,028 | 4,431 | 4,542 | 4,655 | 4,767 | 4,881 | 4,994 |
% of change | -5.3% | -2.8% | 10.0% | 2.5% | 2.5% | 2.4% | 2.4% | 2.3% |
Total energy sale GWh | 19,974 | 20,179 | 21,250 | 21,612 | 21,982 | 22,352 | 22,905 | 23,451 |
% of change | -5.7% | 1.0% | 5.3% | 1.7% | 1.7% | 1.7% | 2.5% | 2.4% |
Residential demand (T1) is expected to grow at the rate of growth of customers for the next 3 years and then at GDP. For medium-sized customers (T2), we expect that they will recover to pre-pandemic levels in the next years. For large demands (T3), they are expected to grow in line with GDP.
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9 |
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Operating Assumptions: Energy Losses
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References: Pérdidas de Energía históricas y proyectadas: Historical and projected energy losses Pérdidas de energía (real): Energy losses (actual) Pérdidas de energía (proyectadas): Energy losses (projected) |
· | A reduction in the level of energy losses is expected as a result of the end of the pandemic and the normalization of the economy, as well as a result of the special measures taken by the company to reduce them. |
· | Losses recognized in tariffs by the regulatory entity are expected to remain at levels similar to those of the last years: ranging from 9.0% to 9.3% of total energy consumption. |
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10 |
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Estimate of Revenues: Tariff Scheme
CPD Increase Year 2022 | 50% | Additional to the inflation for the year. Increase due to the accumulated delayed tariff adjustment. |
The 20.9% increase granted was allocated to 8 months in 2021 (13.9%) and 4 months in 2022 (7%). |
ASSUMPTIONS | 2019 A | 2020 A | 2021 E | 2022 P | 2023 P | 2024 P | 2025 P | 2026 P |
Annual inflation (CPI eop) | 53.8% | 36.1% | 48.4% | 40.7% | 33.5% | 27.3% | 21.2% | 20.0% |
CPD increase (Remuneration) | 0.0% | 0.0% | 13.9% | 97.7% | 33.5% | 27.3% | 21.2% | 20.0% |
GWh value increase | N/A | 14.2% | 9.6% | 40.7% | 33.5% | 27.3% | 21.2% | 20.0% |
Customers’ increase | 2.6% | 1.1% | 1.0% | 1.0% | 1.0% | 1.0% | 1.0% | 1.0% |
Demand increase (GWh) | -5.7% | 1.0% | 5.3% | 1.7% | 1.7% | 1.7% | 2.5% | 2.4% |
· | The ENRE by means of Resolution No. 107/2021 within the transitional tariff scheme authorized to apply an adjustment of 9% on the final tariff of users, implying an increase of Own Distribution Costs (CPD, as per its Spanish acronym) of 20.9% effective May 1, 2021. Therefore, an increase of 13.9% was estimated during the year 2021 and the remaining (7%) for the year 2022. |
· | However, in spite of this increase, there is still a significant delay in tariffs. In this sense, Edenor has been requesting to the ENRE a CPD adjustment as set forth in Annex XV of its resolution No. 63/2017 for the different periods in which the tariff was not adjusted (since January 2019). The company estimates that even after the increase recently granted, the pending increase to be applied on CPD should be at least 120% as of December 2021. |
· | In our projection, we conservatively estimate only a CPD increase of 50% above inflation as from 2022 (v. the pending 120%). This increase would imply a raise in the final tariff of users of only 21% in actual terms. |
· | In turn, to compensate for the lower increase received and due to the delays in the tariff adjustments, we assume that all outstanding debts with CAMMESA are offset/discharged, with Edenor remaining only with current debts for the purchase of energy, and maintaining the pre-existing payment terms. |
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11 |
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Estimate of Revenues: Mix Evolution
BREAKDOWN OF ENERGY SALES ($) | 2019 A | 2020 A | 2021 E | 2022 P | 2023 P | 2024 P | 2025 P | 2026 P |
Small Demands: Residential and Public Lighting (T1) | 41,429 | 50,967 | 59,204 | 96,873 | 130,619 | 167,940 | 208,429 | 255,867 |
Average Value GWh | 3.8 | 4.4 | 4.9 | 7.9 | 10.5 | 13.4 | 16.2 | 19.5 |
% of change | 14.3% | 10.6% | 62.0% | 33.5% | 27.3% | 21.2% | 20.0% | |
Medium Demand: Commercial and Industrial (T2) | 9,087 | 8,876 | 9,857 | 16,537 | 22,861 | 30,137 | 37,824 | 47,003 |
Average Value GWh | 5.9 | 6.6 | 7.6 | 12.3 | 16.4 | 20.9 | 25.3 | 30.3 |
% of change | 12.8% | 14.5% | 62.0% | 33.5% | 27.3% | 21.2% | 20.0% | |
Large Demands (T3) | 16,136 | 16,167 | 19,575 | 32,505 | 44,479 | 57,981 | 71,959 | 88,337 |
Average Value GWh | 4.6 | 5.0 | 5.9 | 9.5 | 12.7 | 16.1 | 19.6 | 23.5 |
% of change | 9.3% | 16.4% | 62.0% | 33.5% | 27.3% | 21.2% | 20.0% | |
Other: Shantytowns / Wheeling System | 2,181 | 3,003 | 3,501 | 5,813 | 7,955 | 10,370 | 12,870 | 15,799 |
Average Value GWh | 0.5 | 0.7 | 0.8 | 1.3 | 1.7 | 2.2 | 2.6 | 3.2 |
% of change | 41.6% | 6.0% | 62.0% | 33.5% | 27.3% | 21.2% | 20.0% | |
TOTAL ENERGY SALES ($) | 68,833 | 79,012 | 92,137 | 151,728 | 205,914 | 266,428 | 331,082 | 407,006 |
% of change | 14.8% | 16.6% | 64.7% | 35.7% | 29.4% | 24.3% | 22.9% |
ENERGY SALES MIX (%) | ||||||||
Small Demands: Residential and Public Lighting (T1) | 60.2% | 64.5% | 64.3% | 63.8% | 63.4% | 63.0% | 63.0% | 62.9% |
Medium Demand: Commercial and Industrial (T1) | 13.2% | 11.2% | 10.7% | 10.9% | 11.1% | 11.3% | 11.4% | 11.5% |
Large Demands (T3) | 23.4% | 20.5% | 21.2% | 21.4% | 21.6% | 21.8% | 21.7% | 21.7% |
Other: Shantytowns / Wheeling System | 3.2% | 3.8% | 3.8% | 3.8% | 3.9% | 3.9% | 3.9% | 3.9% |
BREAKDOWN OF SALES OTHER SERVICES | 2019 A | 2020 A | 2021 E | 2022 P | 2023 P | 2024 P | 2025 P | 2026 P |
Rights of use of poles | 218 | 273 | 546 | 899 | 1,220 | 1,579 | 1,962 | 2,412 |
% of change | 25.2% | 100% | 65% | 36% | 29% | 24% | 23% | |
Connection and reconnection charges | 67 | 34 | 50 | 82 | 112 | 145 | 180 | 221 |
% of change | -49% | 46% | 65% | 36% | 29% | 24% | 23% | |
TOTAL SALES OTHER SERVICES | 285 | 307 | 596 | 981 | 1,332 | 1,723 | 2,142 | 2,633 |
% of change | 7.7% | 94.0% | 64.7% | 35.7% | 29.4% | 24.3% | 22.9% |
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12 |
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Estimate of Direct Distribution Costs
TRANSMISSION AND DISTRIBUTION EXPENSES | 2019 A | 2020 A | 2021 E | 2022 P | 2023 P | 2024 P | 2025 P | 2026 P |
Salaries, social security taxes and pension plans | 5,039 | 7,030 | 9,491 | 14,126 | 18,859 | 24,007 | 29,097 | 34,916 |
% of change | 39.5% | 35.0% | 48.8% | 33.5% | 27.3% | 21.2% | 20.0% | |
Fees and remuneration for services | 2,147 | 3,658 | 3,570 | 5,766 | 7,619 | 9,591 | 11,588 | 13,960 |
% of change | 70.4% | -2.4% | 61.5% | 32.1% | 25.9% | 20.8% | 20.5% | |
% of energy sales | 3.1% | 4.6% | 3.9% | 3.8% | 3.7% | 3.6% | 3.5% | 3.4% |
Supplies consumption | 1,242 | 1,633 | 1,784 | 2,937 | 3,986 | 5,158 | 6,409 | 7,879 |
% of energy sales | 1.8% | 2.1% | 1.9% | 1.9% | 1.9% | 1.9% | 1.9% | 1.9% |
ENRE penalties | 1,108 | 287 | 921 | 1,517 | 2,059 | 2,664 | 3,311 | 4,070 |
% of energy sales | 1.6% | 0.4% | 1.0% | 1.0% | 1.0% | 1.0% | 1.0% | 1.0% |
Other | 64 | 190 | 154 | 253 | 344 | 445 | 552 | 679 |
% of energy sales | 0.1% | 0.2% | 0.2% | 0.2% | 0.2% | 0.2% | 0.2% | 0.2% |
TOTAL TRANSMISSION AND DISTRIBUTION EXPENSES | 9,600 | 12,800 | 15,920 | 24,600 | 32,866 | 41,865 | 50,957 | 61,505 |
% of change | 33.3% | 24.4% | 54.5% | 33.6% | 27.4% | 21.7% | 20.7% | |
% of sales | 13.9% | 16.1% | 17.2% | 16.1% | 15.9% | 15.6% | 15.3% | 15.0% |
· | A reduction in the cost of energy purchases as a percentage of revenues is projected as a result of the tariff increase of CPD above inflation (year 2022) and due to lower estimated energy losses. |
· | Fees for services, supplies consumption, ENRE penalties as well as other expenses are estimated as a percentage of sales. |
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13 |
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Estimate of Selling Expenses
SELLING EXPENSES | 2019 A | 2020 A | 2021 E | 2022 P | 2023 P | 2024 P | 2025 P | 2026 P |
Salaries, social security taxes and pension plans | 828 | 1,166 | 1,575 | 2,344 | 3,129 | 3,983 | 4,827 | 5,793 |
% of change | 40.8% | 35.0% | 48.8% | 33.5% | 27.3% | 21.2% | 20.0% | |
Allowance for impairment of trade and other receivables | 1,041 | 3,638 | 4,173 | 6,108 | 6,217 | 5,363 | 4,998 | 6,145 |
% of change | 250% | 15% | 46% | 2% | -14% | -7% | 23% | |
% of sales | 1.5% | 4.6% | 4.5% | 4.0% | 3.0% | 2.0% | 1.5% | 1.5% |
Fees and remuneration for services | 1,276 | 1,914 | 1,975 | 3,054 | 4,145 | 5,363 | 6,664 | 8,193 |
% of change | 50.0% | 3.2% | 54.6% | 35.7% | 29.4% | 24.3% | 22.9% | |
% of sales | 1.8% | 2.4% | 2.1% | 2.0% | 2.0% | 2.0% | 2.0% | 2.0% |
ENRE penalties | 1,020 | 317 | 921 | 1,517 | 2,059 | 2,664 | 3,311 | 4,070 |
% of energy sales | 1.5% | 0.4% | 1.0% | 1.0% | 1.0% | 1.0% | 1.0% | 1.0% |
Taxes and charges | 710 | 1,264 | 1,215 | 2,000 | 2,715 | 3,513 | 4,365 | 5,366 |
% of sales | 1.0% | 1.6% | 1.3% | 1.3% | 1.3% | 1.3% | 1.3% | 1.3% |
Other | 333 | 412 | 464 | 764 | 1,037 | 1,342 | 1,667 | 2,050 |
% of sales | 0.5% | 0.5% | 0.5% | 0.5% | 0.5% | 0.5% | 0.5% | 0.5% |
TOTAL SELLING EXPENSES | 5,207 | 8,713 | 10,323 | 15,788 | 19,302 | 22,228 | 25,834 | 31,616 |
% of change | 67.3% | 18.5% | 52.9% | 22.3% | 15.2% | 16.2% | 22.4% | |
% of sales | 7.5% | 11.0% | 11.1% | 10.3% | 9.3% | 8.3% | 7.8% | 7.7% |
· | Selling expenses decreased as a % of sales mainly due to the normalization of account receivables (uncollectible) to historical levels and the tariff increase. It should be taken into account that delinquency rose sharply as a result of the crisis originated in the pandemic, worsened by the prohibition to suspend the provision of services to certain users since March 2020. The projected macroeconomic scenario contemplates a recovery in economy and it is expected that such prohibition will be eliminated in the future. |
· | Fees and remuneration for services, as well as ENRE penalties, taxes, charges and other expenses are estimated as a percentage of the Company’s revenues. |
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14 |
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Estimate of Administrative Expenses and Salaries
ADMINISTRATIVE EXPENSES | 2019 A | 2020 A | 2021 E | 2022 P | 2023 P | 2024 P | 2025 P | 2026 P |
Salaries, social security taxes and pension plans | 1,058 | 2,060 | 2,782 | 4,140 | 5,527 | 7,036 | 8,528 | 10,233 |
% of change | 94.8% | 35.0% | 48.8% | 33.5% | 27.3% | 21.2% | 20.0% | |
Fees and remuneration for services | 1,136 | 1,389 | 1,574 | 2,592 | 3,517 | 4,551 | 5,656 | 6,953 |
% of change | 22.3% | 13.3% | 64.7% | 35.7% | 29.4% | 24.3% | 22.9% | |
% of sales | 1.6% | 1.8% | 1.7% | 1.7% | 1.7% | 1.7% | 1.7% | 1.7% |
Other | 325 | 466 | 491 | 808 | 1,097 | 1,419 | 1,763 | 2,167 |
% of sales | 0.5% | 0.6% | 0.5% | 0.5% | 0.5% | 0.5% | 0.5% | 0.5% |
TOTAL ADMINISTRATIVE EXPENSES | 2,519 | 3,916 | 4,846 | 7,540 | 10,141 | 13,006 | 15,946 | 19,353 |
% of change | 55.5% | 23.8% | 55.6% | 34.5% | 28.2% | 22.6% | 21.4% | |
% of sales | 3.6% | 4.9% | 5.2% | 4.9% | 4.9% | 4.9% | 4.8% | 4.7% |
· | Fees and remuneration for services as well as other expenses are considered as a percentage of sales. |
In 2022 they are adjusted by 1.2x inflation. Since then, they move according to inflation. | ||||||||
EVOLUTION OF SALARIES + SOCIAL SECURITY TAXES + PENSION PLANS | 2019 A | 2020 A | 2021 E | 2022 P | 2023 P | 2024 P | 2025 P | 2026 P |
Total payroll | 4,955 | 4,946 | 4,946 | 4,946 | 4,946 | 4,946 | 4,946 | 4,946 |
Salaries, social security taxes and pension plans | 6,925 | 10,257 | 13,847 | 20,610 | 27,515 | 35,026 | 42,452 | 50,942 |
% of change | 48.1% | 35.0% | 48.8% | 33.5% | 27.3% | 21.2% | 20.0% | |
Average salary | 1.40 | 2.07 | 2.80 | 4.17 | 5.56 | 7.08 | 8.58 | 10.30 |
% of change | 48.4% | 35.0% | 48.8% | 33.5% | 27.3% | 21.2% | 20.0% |
· | It is projected that payroll will remain stable throughout the projection. In turn, it is estimated that during the year the CPD adjustment is made as a result of the delayed tariff adjustments (2022), salaries will be adjusted above inflation (1.2 times the expected inflation for that year), thus improving the purchasing power of the company’s personnel. |
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15 |
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Estimate of Other Operating Income (Expense)
OTHER OPERATING INCOME | 2019 A | 2020 A | 2021 E | 2022 P | 2023 P | 2024 P | 2025 P | 2026 P |
Income from customer surcharges + commissions | 983 | 1,543 | 1,369 | 2,254 | 3,060 | 3,959 | 4,919 | 6,047 |
% of change | 56.9% | -11.3% | 64.7% | 35,7% | 29.4% | 24.3% | 22.9% | |
% of revenues | 1.4% | 1.9% | 1.5% | 1.5% | 1.5% | 1.5% | 1.5% | 1.5% |
Services provided to third parties and other income | 351 | 371 | 433 | 713 | 968 | 1,253 | 1,557 | 1,914 |
% of change | 5.5% | 16.9% | 64.7% | 35.7% | 29.4% | 24.3% | 22.9% | |
% of revenues | 0.5% | 0.5% | 0.5% | 0.5% | 0.5% | 0.5% | 0.5% | 0.5% |
Revenues Framework Agreement | 1,500 | 1,600 | ||||||
TOTAL OTHER OPERATING INCOME | 1,335 | 1,914 | 3,302 | 4,568 | 4,028 | 5,211 | 6,476 | 7,961 |
% of change | 43.4% | 72.6% | 38.3% | -11.8% | 29.4% | 24.3% | 22.9% | |
% of revenues | 1.9% | 2.4% | 3.6% | 3.0% | 1.9% | 1.9% | 1.9% | 1.9% |
Revenues from the Framework Agreement are included pursuant to the agreement executed in December 2020, which revenues are released as long as the ENRE certifies the works committed in such plan. Said works are aimed at increasing the number of users in the network of vulnerable neighborhoods in accordance with the commitment assumed by the Executive Branch, which impacts on the collection of services.
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16 |
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Estimate of Capex and Working Capital
2019 A | 2020 A | 2021 E | 2022 P | 2023 P | 2024 P | 2025 P | 2026 P | |
TOTAL CAPEX FOR THE YEAR | 8,006 | 9,324 | 13,133 | 23,657 | 29,952 | 35,662 | 41,966 | 48,680 |
% of revenues | 11.6% | 11.8% | 14.2% | 15.5% | 14.5% | 13.3% | 12.6% | 11.9% |
CAPEX for the year in USD | 166 | 132 | 135 | 175 | 165 | 155 | 150 | 145 |
· | For the period 2022-2026, investments ranging from USD 175 to USD 145 million per annum are projected, which are consistent with the estimated tariff adjustment scenario, and would allow to maintain the quality levels of services. |
WORKING CAPITAL VARIATION | 2019 A | 2020 A | 2021 E | 2022 P | 2023 P | 2024 P | 2025 P | 2026 P |
Trade receivables | 12,460 | 14,151 | 16,514 | 27,195 | 36,907 | 47,753 | 59,341 | 72,949 |
In days of Total Sales | 66 | 65 | 65 | 65 | 65 | 65 | 65 | 65 |
Other receivables | 290 | 624 | 559 | 921 | 1,250 | 1,617 | 2,009 | 2,470 |
In days of Total Sales | 1.5 | 2.9 | 2 | 2 | 2 | 2 | 2 | 2 |
Inventories | 1,927 | 1,873 | 2,387 | 3,932 | 5,336 | 6,904 | 8,579 | 10,547 |
In days of Total Sales | 10 | 9 | 9 | 9 | 9 | 9 | 9 | 9 |
Trade payables | 12,701 | 14,560 | 17,022 | 28,061 | 38,083 | 49,274 | 61,232 | 75,273 |
In days of Total Sales | 67 | 67 | 67 | 67 | 67 | 67 | 67 | 67 |
Salaries, social security taxes and pension plans | 2,458 | 3,818 | 3,881 | 6,391 | 8,673 | 11,222 | 13,945 | 17,143 |
In days of Total Sales | 13 | 18 | 15 | 15 | 15 | 15 | 15 | 15 |
Other payables | 3,602 | 3,036 | 4,191 | 6,902 | 9,366 | 12,119 | 15,060 | 18,513 |
In days of Total Sales | 19 | 14 | 16 | 16 | 16 | 16 | 16 | 16 |
Tax liabilities | 3,744 | 1,793 | 2,096 | 3,452 | 4,685 | 6,062 | 7,522 | 9.26 |
In days of Total Sales | 20 | 8 | 8 | 8 | 8 | 8 | 8 | 8 |
Working capital | (7,828) | (6,559) | (7,730) | (12,758) | (17,315) | (22,403) | (27,840) | (34,224) |
Changes in working capital | (1,269) | 1,171 | 5,029 | 4,556 | 5,088 | 5.437 | 6,384 |
It is assumed that in the tariff negotiation all overdue debt with CAMMESA is eliminated and trade payables are maintained at historical levels. For purposes of calculating the changes in working capital, overdue debts with CAMMESA were eliminated.
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17 |
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Projected Cash Flows in Pesos
In millions of Argentine pesos
REVENUES | 2019 A | 2020 A | 2021 E | 2022 P | 2023 P | 2024 P | 2025 P | 2026 P |
Energy sales | 68,833 | 79,012 | 92,137 | 151,728 | 205,914 | 266,428 | 331,082 | 407,006 |
Other services | 285 | 307 | 596 | 981 | 1,332 | 1,723 | 2,142 | 2,633 |
TOTAL REVENUES | 69,118 | 79,319 | 92,733 | 152,710 | 207,246 | 268,151 | 333,224 | 409,639 |
% of change | 14.8% | 16.9% | 64.7% | 35.7% | 29.4% | 24.3% | 22.9% |
Energy purchases | 43,834 | 50,386 | 57,678 | 81,529 | 110,034 | 141,571 | 174,778 | 213,451 |
Transmission and distribution expenses | 9,600 | 12,800 | 15,920 | 24,600 | 32,866 | 41,865 | 50,957 | 61,505 |
TOTAL DIRECT COSTS | 53,434 | 63,186 | 73,598 | 106,129 | 142,901 | 183,436 | 225,735 | 274,955 |
% of change | 18.2% | 16.5% | 44.2% | 34.6% | 28.4% | 23.1% | 21.8% | |
GROSS MARGIN | 15,684 | 16,133 | 19,135 | 46,580 | 64,345 | 84,715 | 107,489 | 134,683 |
% of sales | 22.7% | 20.3% | 20.6% | 30.5% | 31.6% | 31.6% | 32.3% | 32.9% |
% of change | 2.9% | 18.6% | 143.4% | 38.1% | 31.7% | 26.9% | 25.3% |
SELLING EXPENSES | 5,207 | 8,713 | 10,323 | 15,788 | 19,302 | 22,228 | 25,834 | 31,616 |
ADMINISTRATIVE EXPENSES | 2,519 | 3,916 | 4,846 | 7,540 | 10,141 | 13,006 | 15,946 | 19,353 |
OTHER OPERATING INCOME | 1,335 | 1,914 | 3,302 | 4,568 | 4,028 | 5,211 | 6,476 | 7,961 |
OTHER OPERATING EXPENSES | 1,964 | 1,779 | 2,357 | 3,882 | 5,268 | 6,816 | 8,470 | 10,413 |
EBITDA | 7,328 | 3,640 | 4,911 | 23,938 | 33,662 | 47,876 | 63,714 | 81,262 |
% of sales | 10.6% | 4.6% | 5.3% | 15.7% | 16.2% | 17.9% | 19.1% | 19.8% |
Income tax | 0 | 3,757 | 5,392 | 8,388 | 11,933 | 17,880 | |
CAPEX/Investments | 13,133 | 23,657 | 29,952 | 35,662 | 41,966 | 48,680 | |
Variation of working capital | 1,171 | 5,029 | 4,556 | 5,088 | 5,437 | 6,384 | |
Free Cash Flow | -7,051 | 1,554 | 2,874 | 8,914 | 15,253 | 21,086 | |
% of change | 84,9% | 210,2% | 71,1% | 38,2% |
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18 |
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Projected Cash Flows in USD
In millions of US dollars
REVENUES | 2019 A | 2020 A | 2021 E | 2022 P | 2023 P | 2024 P | 2025 P | 2026 P |
Energy sales | 1,427 | 1,119 | 947 | 1,122 | 1,134 | 1,158 | 1,183 | 1,212 |
Other services | 6 | 4 | 6 | 7 | 7 | 7 | 8 | 8 |
TOTAL REVENUES | 1,433 | 1,123 | 953 | 1,130 | 1,142 | 1,165 | 1,191 | 1,220 |
% of change | -21.6% | -15.1% | 18.5% | 1.1% | 2.1% | 2.2% | 2.4% |
Energy purchases | 909 | 713 | 593 | 603 | 606 | 615 | 625 | 636 |
Transmission and distribution expenses | 199 | 181 | 164 | 182 | 181 | 182 | 182 | 183 |
TOTAL DIRECT COSTS | 1,108 | 894 | 757 | 785 | 787 | 797 | 807 | 819 |
% of change | -19.3% | -15.4% | 3.8% | 0.3% | 1.3% | 1.2% | 1.5% | |
GROSS MARGIN | 325 | 228 | 197 | 345 | 354 | 368 | 384 | 401 |
% of sales | 22.7% | 20.3% | 20.6& | 30.5% | 31.0% | 31.6% | 32.3% | 32.9% |
SELLING EXPENSES | 108 | 123 | 106 | 117 | 106 | 97 | 92 | 94 |
ADMINISTRATIVE EXPENSES | 52 | 55 | 50 | 56 | 56 | 57 | 57 | 58 |
OTHER OPERATING INCOME | 28 | 27 | 34 | 34 | 22 | 23 | 23 | 24 |
OTHER OPERATING EXPENSES | 4 | 125 | 24 | 29 | 29 | 30 | 30 | 31 |
EBITDA | 152 | 52 | 50 | 177 | 185 | 208 | 228 | 242 |
% of sales | 10.6% | 4.6% | 5.3% | 15.7% | 16.2% | 17.9% | 19.1% | 19.8% |
Income tax | 0 | 28 | 30 | 36 | 43 | 53 | |
CAPEX/Investments | 135 | 175 | 165 | 155 | 150 | 145 | |
Variation of working capital | 12 | 37 | 25 | 22 | 19 | 19 | |
Free Cash Flow | -72 | 11 | 16 | 39 | 55 | 63 | |
% of change | 37.7% | 144.7% | 40.7% | 15.2% |
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19 |
|
Calculation of Discount Rate (WACC)
|
20 |
|
Valuation of Discounted Cash Flow (DCF)
DISCOUNTED CASH FLOW (MM’s USD) | 2021 E | 2022 P | 2023 P | 2024 P | 2025 P | 2026 P |
TOTAL REVENUES | 953 | 1,130 | 1,142 | 1,165 | 1,191 | 1,220 |
% of change | -15.1% | 18.5% | 1.1% | 2.1% | 2.2% | 2.4% |
EBITDA | 50 | 177 | 185 | 208 | 228 | 242 |
% of sales | 5.3% | 15.7% | 16.2% | 17.9% | 19.1% | 19.8% |
Income tax | 0 | 28 | 30 | 36 | 43 | 53 |
Variation of working capital | 12 | 37 | 25 | 22 | 19 | 19 |
CAPEX/Investments | 135 | 175 | 165 | 155 | 150 | 145 |
Free Cash Flow (FCF) | -72.5 | 11.5 | 15.8 | 38.7 | 54.5 | 62.8 |
Terminal Value (TV) | 381.6 |
- Perpetuity calculated at a growth rate of 3.0%
Half of the flow is taken and discounted for 6 months.
FCF + TV | -36.2 | 11.5 | 15.8 | 38.7 | 54.5 | 444.4 |
Discount factor | 0.91 | 0.77 | 0.64 | 0.54 | 0.45 | 0.38 |
FCF + discounted TV | (33.2) | 8.8 | 10.1 | 20.8 | 24.5 | 167.1 |
Enterprise value (millions of USD) | 198.2 | |||||
Enterprise value / EBITDA Year 2021 | 3.9x | |||||
Enterprise value / EBITDA Year 2022 | 1.1x | |||||
Financial debt (March 2021) | 111.8 | It includes corporate notes, finance leases and customer deposits of LP. | ||||
Cash and investments (March 2021) | 102.5 | It includes Cash and banks, government bonds and mutual funds. | ||||
Net Financial Debt | 9.3 | |||||
Value Capital Stock / Equity | 188.9 | |||||
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21 |
|
Value
Valuation Sensitivity
WACC | |||||||
Perpetuity Growth | 18.0% | 18.5 | 19.0% | 19.5% | 20.0% | 20.5% | 21.0% |
2.0% | 207.6 | 197.8 | 188.6 | 180.0 | 171.9 | 164.3 | 157.1 |
3.0% | 218.1 | 207.5 | 197.5 | 188.9 | 179.5 | 171.3 | 163.6 |
4.0% | 230.2 | 218.5 | 207.6 | 197.4 | 187.9 | 179.1 | 170.7 |
The two variables that usually have the greatest impact on company valuations were sensitized: the discount rate (WACC) and the growth rate of future cash flows (perpetuity).
The sensitivity analysis shows that Edenor's equity value is between USD 170 million and USD 210 million, with an average value of USD 190 million.
In accordance with CNV regulations in force, the exchange rate to be applied must be the selling exchange rate of the U.S. dollar bill of Banco Nación, as of the close of business on the business day immediately preceding the calculation date, i.e., the exchange rate of $ 101.75. When applying such exchange rate, the valuation range in pesos of Edenor's equity is between $ 17,297 million and $ 21,367 million. Since Edenor's capital stock consists of 906,455,100 shares, such valuation range is between $ 19.08 and $ 23.57 per share.
Given the high level of uncertainty regarding the tariff scheme, we have not made a sensitivity analysis with respect to the tariff scheme and associated investments. Any deviation from the assumptions used in this valuation would imply a significant impact on the result of this work.
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22 |
|
Market Capitalization
EDN’s equity value as per its listed price is between USD178 and USD198 million depending on the analysis period.
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23 |
|
Conclusion
· | This chart summarizes the analysis and valuation made. |
References:
Rango de valuación – Valor del 100% del Capital en MM A$: Valuation range – Value of 100% of Equity in MM A$
Flujo de fondos descontados: Discounted cash flow
Valor x acción: Value per share
· | Based on the statements made in this report and on the regulations in force, we conclude that the price offered by EDELCOS of $ 29.34 for Class B shares and Class C shares in the Offer dated July 29, 2021 to the minority shareholders is reasonable from an economic and financial point of view, representing a fair market value of Edenor's shares. |
/s/ | /s/ |
Eduardo S. Biocca |
Alan M. Glass |
Partner |
Partner |
BA Advisors |
BA Advisors
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24 |
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TERMS AND CONDITIONS
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms. Unless otherwise specified and/or required by the context and/or unless a capital letter is only used because such term is the first word of a sentence and/or a proper name, any capitalized terms used in these Terms and Conditions shall have (i) the meaning ascribed to them in the Offer Letter, or (ii) if not defined in the Offer Letter, the meaning ascribed to them below:
“Class B Shares” means the book-entry common Class B shares issued by the Company.
“OPA Class B Shares” means a number of Class B Shares equivalent to the lower of (i) such number of Class B Shares representing 35% of the capital stock and voting power of the Company, and (ii) 90% of the total number of Class B Shares in respect of which the Tender Offer (Oferta Pública de Adquisición) has been accepted, as rounded, if in each of (i) and (ii) above the applicable percentage results in a decimal number, to the immediately preceding whole number.
“Treasury Shares” means all Class B Shares purchased by the Company and kept by it in its treasury as of the Closing Date.
“Contract” means any agreement, contract, security, security interest or personal guarantee, license, franchise, commitment or other understanding, arrangement, instrument or legally binding obligation.
“Affiliate” means, with respect to any given Person, any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such first Person.
“Argentine Antitrust Approval” means the approval required by the Antitrust Law from the applicable Argentine Antitrust Authority with respect to the consummation of the Transactions.
“ENRE Approval” means the approval from ENRE with respect to the consummation of the Transactions.
“Required Governmental Approvals” means, both the Argentine Antitrust Approval and the ENRE Approval.
“Argentine Antitrust Authority” means the National Antitrust Authority, Comisión Nacional de Defensa de la Competencia, the Secretariat of Commerce of the Ministry of Productive Development of the Argentine Republic and/or any other authority in charge of enforcing the Argentine Antitrust Law, as designated by the Argentine Antitrust Law or the Argentine Executive Branch of Power.
“Change of Control” means (i) that any Person or group of Persons acquires or otherwise takes, after the Closing, directly or indirectly, Control over the Purchaser and/or the Company, pursuant to one or more transactions (whether related or not), including any merger, spin-off,
reorganization, sale or issuance of shares or other equity interests of any Person, or of all or substantially all of the assets of any Person, or the execution of any Contract, (ii) that Purchaser ceases to Control the Company, or (iii) that José Luis Manzano, Daniel Eduardo Vila, and Mauricio Filiberti, cease to be holders, indiscriminately or jointly and on a combined basis, directly or indirectly, through one or more Persons, of an interest representing at least thirty percent (30%) of the capital stock and voting power of Purchaser.
“Offer Letter” means the offer letter signed and delivered by the Purchasing Group to Seller, dated December 28, 2020, in relation to the Offer EDN-A/2020 (as defined therein), to which these Terms and Conditions are attached.
“CNV” means the Argentine Securities Commission (Comisión Nacional de Valores).
“Agreement” means the stock purchase agreement for the Class A Shares resulting from acceptance of the Offer EDN-A/2020 in accordance with the Offer Letter and subject to these Terms and Conditions, and any amendments thereto made in accordance with Section 9.07.
“Concession Agreement” means the concession agreement for distribution of electric power executed on August 5, 1992 between the Company and the Argentine Government, the restated text of which was approved pursuant to Resolution No. 170/92 issued by the former Secretariat of Electric Energy, as amended and supplemented.
“Share Pledge Agreement” means the share pledge agreement resulting from acceptance by Seller and Purchaser of the Offer EDN-PA/2021 to be made by the Permitted Holders to Seller and Purchaser prior to the Closing pursuant to an offer letter (the “Share Pledge Offer Letter”) to be signed and delivered substantially on the terms attached hereto as Exhibit 1.01-A, in accordance with the provisions of such offer letter.
“Control” (including the verb “to Control” and conjugations thereof and the terms “Controlled by” and “under common Control with”) means:
(i) the power to exercise more than 50% of the voting rights at the meeting of shareholders or members of any other Person, whether by means of a direct or indirect ownership of shares or equity interests, usufruct agreements, pledge, security interest in personal property, trust or similar agreements with other shareholders or members or other act of any nature;
(ii) if there is no power to exercise more than 50% of the voting rights at a meeting of shareholders or members of any other Person, the power to appoint or remove a majority of members of the board of directors (or equivalent body) of such Person, or if there is no board (or equivalent body), its managing partner, manager or principal executive;
(iii) having, directly or indirectly, representation in the board (or equivalent body) of any other Person, higher than 50% of its members; and/or
(iv) the power to direct the administration or policies of a Person by any other means not set forth above (by contract or not);
in each of (i) to (iv) above, either directly or indirectly.
“Ordinary Course” means the conduct by the Company of its business, in all material respects, in a manner consistent with its normal and habitual practice, procedures and usage.
“Fundamental Representations” means the representations and warranties set forth in Section 3.01 (Organization, Standing and Authority of Seller), Section 3.02 (Capital Stock; Shares), clauses (A) and (B) of Section 3.03 (No Conflict), Section 3.05 (Finder Fees), Section 4.01 (Organization, Standing and Authority of Purchaser), Section 4.02 (Capital Stock; Shares), clauses (i) and (ii) of Section 4.03 (No Conflicts), Section 4.05 (Special-Purpose Company; No Liabilities), Section 4.06 (Absence of Certain Changes, Events and Conditions), Section 4.10 (Source and Lawfulness of Funds) and Section 4.12 (Finder Fees).
“Applicable Denominator” means, with respect to any Transfer and/or Indirect Transfer, the total number of Class A Shares directly or indirectly transferred pursuant to such Transfers and/or Indirect Transfers (on the understanding that, in order to determine the number of Class A Shares transferred pursuant to any Indirect Transfer, the effects of consolidation shall not be taken into account as a result of having taken Control over any Person, but only such Class A Shares the economic rights of which have been actually acquired, directly or indirectly, by any Person pursuant to such Indirect Transfers).
“Business Day” means any day of the week, other than a Saturday, Sunday or a day on which banks are required or authorized by Applicable Law to be closed in the City of Buenos Aires, Argentine Republic and/or the city of New York, United States of America.
“Surviving Provisions” means Article I (Definitions), Section 5.04 (Confidentiality), Section 8.03 (Effects of Termination) and Article IX (Miscellaneous).
“Security Documents” means, collectively, the Share Pledge Agreement, the Promissory Note (including any promissory note delivered in lieu thereof pursuant to Section 9.06) and each of the Additional Guarantee Agreements.
“Transaction Documents” means, collectively, the Agreement, the OPA Class B Share Purchase Agreement (if applicable), the Security Documents and the other agreements and documents executed and delivered in relation to the transactions contemplated hereby and thereby.
“Dollars” and “USD” means the legal tender of the United States of America.
“Euro Equivalent” means, with respect to any amount denominated in Dollars, at any time of determination, the amount in Euros resulting from converting such amount denominated in Dollars to Euros at the exchange rate for the purchase of Euros with Dollars as published under Currency Rates in the section Currencies, Bonds & Interest Rates of The Financial Times of the United States of America on the Business Day immediately preceding the date of determination.
“Indebtedness” means, with respect to any Person, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar financial instruments, (iii) all obligations of such Person for payment of the deferred purchase price of goods or services, credit advances, conditional sales and/or transfers with recourse or subject to a buyback obligation, and/or under any lease and/or financial lease required to be accounted for as liabilities under the Applicable GAAP, other than trade debts incurred in the ordinary course of business, (iv) all obligations of such Person with respect to letters of credit, banker’s acceptances or other similar instruments, but excluding any such obligations with respect to commercial letters of credit or banker’s acceptances issued with respect to trade debts incurred in the ordinary course of business, (v) any indebtedness incurred by third parties secured by any Lien on the assets thereof, whether such indebtedness is assumed
by such Person or not, (vi) any indebtedness incurred by other Persons guaranteed by such Person, for the amount guaranteed in such manner, (vii) all obligations of such Person to make any distribution or pay any mandatory dividend, purchase, redeem, retire or otherwise acquire (or exchange for Indebtedness) securities related to its capital stock (or equivalent) or any option, warrants or other rights, agreement or arrangements related thereto, (viii) all obligations of such Person under hedging agreements (other than hedging agreements executed in the ordinary course of business and other than for speculative purposes), swap agreements and any other derivative agreement to which it is a party, and (ix) all obligations of such Person pursuant to any financing agreement secured by trade receivables, receivable assignment agreement, factoring or similar agreement.
“Permitted Indebtedness” means, collectively, (i) Indebtedness for an aggregate amount of up to USD 28,000,000 the proceeds of which are exclusively used to complete the Tender Offer; and (ii) Indebtedness for an aggregate amount of up to USD 95,000,000 the proceeds of which are exclusively used, directly or indirectly through the Company, to repurchase Notes pursuant to Section 5.10; in each of (i) to (ii) above, to the extent that each such Indebtedness is expressly subordinated as to the right of payment to previous performance of the obligations of Purchaser to pay the Price Balance under the Agreement.
“ENRE” means the Argentine Electricity Regulator (Ente Nacional Regulador de la Electricidad).
“Governmental Entity” means any: (i) federal, provincial, municipal agency or entity, or any agency or entity of other jurisdiction; (ii) central, regional, federal, provincial, municipal, foreign or other government; (iii) governmental or quasi-governmental authority of any nature (including any governmental, official entity, department, instrumentality, or entity and judicial court o other tribunal); (iv) multinational agency or organization; or (v) agency with powers or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing or other authority or power.
“Euro” and “€” means the legal tender of the member states of the European Union which participate in the third stage of the European Economic and Monetary Union.
“Cut-off Date” means July 1, 2021, or any such subsequent date as may be determined by mutual written agreement of the Seller and Purchaser; provided that if the Closing is not consummated due to failure of the condition precedent set forth in Section 6.01(c), Seller may, at its sole discretion, postpone the Cut-off Date to a date not later than December 31, 2021 giving written notice thereof to the Purchasing Group.
“Interest Payment Date” means each of the dates that is three, six, nine and twelve months after the Closing Date.
“Purchaser Guarantors” means, collectively, (i) José Luis Manzano (Argentine Passport AAF164449), a Swiss resident identified under number FA 0091837, (ii) Daniel Eduardo Vila, holder of Argentine Identity Document (D.N.I.) No. 10,942,100, (iii) Mauricio Filiberti, D.N.I. No. 5,525,176, and (iv) Integra Capital S.A., a corporation organized under the laws of the Argentine Republic.
“Additional Purchaser Guarantors” means, collectively, (i) Andina Plc., a public limited company organized under the laws of the United Kingdom of Great Britain and Northern Ireland and registered with the Companies House of such jurisdiction under number 8095058, (ii) Global
Income Fund Limited, a limited liability partnership organized under the laws of Bahamas, (iii) Smart Utilities LLC, a limited liability company organized under the laws of the State of Florida, United States of America, and (iv) South American Energy LLP, a limited liability partnership organized under the laws of the United Kingdom of Great Britain and Northern Ireland and registered with the Companies House of such jurisdiction under number OC434488.
“Lien” means any charge, attachment, call or put option, security interest, mortgage, hypothecation, pledge, security trust, easement, usufruct, restriction on the disposition of property or preemptive right.
“Permitted Liens” means (i) in relation to the Class A Shares, the first priority pledge over the Class A Shares originally created in favor of the Argentine Government to secure the obligations of the Company under the Concession Agreement, which was assigned by the Argentine Government on a undivided basis in favor of the Province of Buenos Aires (“PBA”) and the City of Buenos Aires (“CABA”) pursuant to the Transfer Implementation Agreement (Acuerdo de Implementación de Transferencia) executed on May 9, 2019 among the Argentine Government, PBA and CABA as a result of the transfer of the relevant public service of distribution of electricity to the joint jurisdiction of PBA and CABA in compliance with National Budget Law No. 27,467, and (ii) in relation to shares representing the capital stock of Purchaser, only at the Closing, (A) the Share Pledge, and (B) any Lien provided it has been created over shares other than those subject (or which should be subject) to the Share Pledge, and the terms and conditions of which are not contrary to, or do not conflict with, or limit, restrict, condition or otherwise prevent performance of, any provision of the agreement or any of the other Transaction Documents or enforcement of the Share Pledge, and provided that Seller has received a complete copy of all documents related to such Liens prior to creation thereof.
“Taxes” means any and all taxes, assessments, contributions or levies of any nature, including any tax liabilities such as income, capital gains, assets, turnover, value added, withholdings, deductions, excise taxes, duties, licenses, social security charges, family allowances, social services institutes and health insurance, and any interest, fines, adjustments, penalties or other accessory items related to any of the foregoing. The adjective “Tax” shall be construed accordingly.
“Investment” means, with respect to any Person (i) the acquisition (in exchange for cash, property, services or securities or otherwise) of capital stock, bonds, notes, debentures, membership interests or other equity interests and/or securities, and/or assets that comprise a business unit, of any other Person, and/or any Contract to effect such acquisition, (ii) the making of any deposit in any other Person and/or an advance, loan and/or other extension of credit to any other Person (including the purchase of property from other Person subject to an understanding or Contract, contingent or not, to sell such property to such Person) and/or (iii) execution of any Guarantee, and/or any other contingent obligation, with respect to Indebtedness or other obligation of any other Person and (without duplication) any amount agreed to be advanced, lent or delivered to such Person.
“Applicable Law” means the national, supranational, provincial, municipal legal rules in effect, including any constitution, treaty, statute, code, ordinance, regulations, decree, ministry’s agreement, resolution, circular, rule or order or other legal requirement or rule passed by any sphere of government, state agency, autonomous decentralized government or any Governmental Entity.
“Argentine Antitrust Law” means Law No. 27,442, Decree No. 480/2018, Resolution No. 208/2018 issued by the Secretariat of Commerce of the Argentine Ministry of Productive Development and any other Applicable Law or Governmental Order governing antitrust matters, including controlling economic concentrations, as amended and supplemented.
“Capital Market Law” means Capital Market Law No. 26,831, as amended and supplemented, including the CNV Rules (N.T. 2013) approved by the CNV General Resolution No. 622/2013, as amended and/or supplemented (including, without limitation, CNV General Resolution No. 779/2018).
“General Companies Law” means the General Companies Law (Ley General de Sociedades) No 19,550, as amended and supplemented.
“AML/CFT Laws” means all laws, decrees, resolutions and other rules in effect in Argentina, United States of America and/or any jurisdiction in which funds used by Purchaser for payment of the Purchase Price or any amount payable by Purchaser under the Agreement have originated or been held, or from which any such funds have been transferred, in each case, governing prevention of money laundering and/or combating the financing of terrorism.
“Governmental Order” means any order, judgment, resolution, award, decision, injunction o precautionary measure, writ, judicial order or summons issued, made, rendered by any court, tribunal, qualified arbitrator or any other Governmental Entity.
“Restricted Payment” means, with respect to any Person, (i) payment of any dividend or other distribution in respect of its capital stock (or any equity security or right or security convertible into, or exercisable for issuance of equity securities (including options and warrants)), (ii) any payment creditable against the purchase, redemption, defeasance or acquisition of, or sum of money set aside for the creation of a sinking or other fund, intended to be used in the purchase, redemption, defeasance or acquisition of (A) any equity security, or (B) any right or security convertible into or exercisable for issuance of equity securities (including options and warrants), (iii) any payment related to irrevocable contributions by the shareholders creditable against future increases in its capital, and (iv) any compensation (irrespective of the nature, cause or designation thereof) paid to any shareholder of such Person (excluding, for the avoidance of any doubt, any payment made or to be made by the Company with respect to Notes).
“Indemnified Party” means, as required by the context, (i) a Purchaser Indemnified Party, if the claim for indemnification is made pursuant to Section 7.02, or (ii) a Seller Indemnified Party, if the claim for indemnification is made pursuant to Section 7.03.
“Indemnifying Party” means, as required by the context, (i) Seller, if a claim for indemnification is made pursuant to Section 7.02, or (ii) Purchaser, if the claim for indemnification is made pursuant to Section 7.03.
“Parties” means, collectively, Seller, Purchaser and, solely for purposes of Article IX of these Terms and Conditions, each of the Purchaser Guarantors; and each of them is individually referred to herein as a “Party”.
“Liabilities” means any debt or obligation of any nature, actual or contingent, whether due or to become due, determined or determinable, including those resulting from Applicable Law, Claims or Governmental Orders, and those arising from any Contract.
“Applicable GAAP” means, with respect to any entity, generally accepted accounting principles in accordance with the Applicable Law of the jurisdiction of organization of such entity, as amended and supplemented from time to time, consistently applied with respect to such entity during the periods concerned, including, if applicable, the International Financial Reporting Standards (IFRS) issued by the International Accounting Standard Board (IASB).
“Loss” means any losses, damages, interest, fines, penalties, costs and/or expenses (including reasonable costs of investigation and defense, as well as disbursement of reasonable attorneys’, accountants’, experts’ and other professionals’ fees, in each case, as duly documented).
“Permits” means any and all licenses, concessions, permits, approvals, registrations, consents and authorizations from any Governmental Entity (including, in the case of the Company, the Concession Agreement).
“Person” means any natural or legal person, joint venture, undivided estate, trust, association, organization, union or Governmental Entity.
“Pesos” means the legal tender of Argentina.
“Share Pledge” means the first priority pledge created under the Share Pledge Agreement over book-entry shares of common stock issued by Purchaser representing 80% of its capital stock and voting power, to secure performance, as and when required, of all payment obligations of Purchaser with respect to the Price Balance and any and all compensatory and default interest accrued in relation thereto, and any and all obligations of Purchaser under the Pledge Agreement.
“Claim” means any lawsuit, litigation, claim, legal, administrative or regulatory action, complaint, counterclaim, petition, arbitration, appeal, procedure or investigation (including those initiated by or before any Governmental Entity).
“Indemnified Party Representative” means, as required by context, (i) Purchaser, in the case of a claim for indemnification pursuant to Section 7.02, or (ii) Seller, in the case of a claim for indemnification pursuant to Section 7.03.
“Representatives” means, with respect to any Person, its directors, executives, officers, employees, financial, legal, accounting and other advisors, its agents and other representatives.
“SEC” means the U.S. Securities and Exchange Commission.
“Default Rate” means an annual nominal interest rate equal to 12%.
“Permitted Holders” means, collectively, (i) South American Energy LLP, a limited liability partnership organized under the laws of the United Kingdom of Great Britain and Northern Ireland and registered with the Companies House of such jurisdiction under number OC434488, and (ii) Nicolás Mallo Huergo, D.N.I. N° 21,463,232.
“Transactions” means, collectively, any and all transactions contemplated by the Agreement and by the other Transaction Documents.
“Transfer” means, with respect to any of the Class A Shares, any sale, assignment, transfer, distribution, disposal or other disposition of such Class A Shares or any of the voting or economic rights inherent to such Class A Shares (or the granting of any interest in any of such voting or
economic rights), whether voluntary or mandatory (including any event of court or out-of-court enforcement (including, without limitation, the enforcement of the Share Pledge)), or any agreement or covenant to take any of the foregoing actions.
“Indirect Transfer” means, with respect to any of the Class A Shares, an Indirect Transfer of all of such Class A Shares or any portion thereof through any Transfer (and/or issuance), directly and/or indirectly, of shares or other equity interests and/or voting power of any Person (and/or their respective shareholders, partners, members or equivalent, direct and/or indirect).
Section 1.02 Additional Definitions. In addition to the terms defined in Section 1.01, the following terms shall have the meaning ascribed to them in the Sections below:
Defined Term | Section | Defined Term | Section | |||
“Initial Class B Shares” | 2.02(a) | “Tender Offer (OPA)” | 5.08(a) | |||
“Additional Guarantee Agreement” | 5.15 | “Promissory Note” | 2.02(f) | |||
“ADRs” | 5.08(a) | “Contingent Payment” | 2.07 | |||
“ADSs” | 5.08(a) | “Affected Party” | 9.11(c) | |||
“Post-Closing Meeting of Shareholders” | 2.04(a)(iv) | “Purchaser Indemnified Party” | 7.02 | |||
“ICC” | 9.13(a) | “Seller Indemnified Party” | 7.03 | |||
“Closing” | 2.03 | “Purchase Price” | 2.02(a) | |||
“Treasury Share Purchase Agreement” | 5.09(b) | “Purchase Price in Cash” | 2.02(a) | |||
“OPA Class B Share Purchase Agreement” | “Purchase Price in Kind” | 2.02(a) | ||||
5.08(b) | ||||||
“Indenture” | 5.10 | “Reference Price per Class B Share” | ||||
5.08(a) | ||||||
“Closing Date” | 2.03 | “Third Party Claim” | 7.05(a) | |||
“Reference Date” | 2.07 | “Rules of Arbitration” | 9.13(a) | |||
“Purchaser Guarantee” | 9.16(a) | “Price Balance” | 2.02(b)(iii) | |||
“Excluded Taxes” | 9.01(c) | “Closing Amount” | 2.02(b)(ii) | |||
“Applicable Jurisdiction” | 9.11(c) | “Initial Amount” | 2.02(b)(i) | |||
“Guaranteed Obligations of Purchaser” | “Event of Default” | 5.13 | ||||
9.16(a) | ||||||
“Notes” | 5.10 | “Dollar-denominated Security” | 9.11(c) | |||
“OPA Offerors” | 5.08(a) |
Section 1.03 Interpretation. In these Terms and Conditions, unless otherwise provided or required by the context:
(i) the headings and table of contents are included for ease of reference only and shall not affect interpretation thereof;
(ii) defined terms in the singular form shall include the plural forms and vice versa;
(iii) unless otherwise expressly provided, any reference to an Article, Section, Exhibit and/or other particular subdivision shall be to the relevant Article, Section, Exhibit and/or other particular subdivision of these Terms and Conditions;
(iv) any reference to a document shall include any modification, supplement, amendment or instrument superseding such document, but it shall not include any subsequent modification, supplement, amendment or superseding instrument the implementation of which may be contrary to the provisions hereof, unless the Parties agree otherwise;
(v) any reference to any Party shall also include its successors and permitted assigns;
(vi) the term “including” means “including, without limitation”, the term “this” refers to the Agreement and the term “these” refers to these Terms and Conditions; and
(vii) where reference is made herein to the possibility of exercising powers, rights and any other authority of any nature by any of the Parties, the Party in question may exercise any of such powers, rights or other authority of any nature whatsoever, acting directly or indirectly through a third party.
ARTICLE II
PURCHASE OF CLASS A SHARES
Section 2.01 Purchase of Class A Shares. (a) Subject to these Terms and Conditions, Seller shall sell, assign and transfer to Purchaser, and Purchaser shall acquire from Seller, at the Closing, the Class A Shares, along with all rights attached thereto and free and clear of any Lien (other than Permitted Liens).
(b) The sale and transfer of the Class A Shares shall include all rights to take part in decision-making, including the right to vote, and all economic rights inherent thereto (including, if any, the right to all accrued dividends, accounting revaluations, capitalization of reserves, irrevocable contributions of capital creditable against future issuances, the subscription of capital increases and preemptive rights and additional preemptive rights (derecho de acrecer), call or put options) as well as any and all other rights, whether liquid or not, current or future, arising from title to the Class A Shares or related thereto.
Section 2.02 Price of Shares. (a) In consideration for the sale, assignment and transfer of the Class A Shares by Seller to Purchaser as set forth in Section 2.01, Purchaser shall pay to Seller a purchase price (the “Purchase Price”) consisting of (i) 21,876,856 Class B Shares (either the “Initial Class B Shares” or the “Purchase Price in Kind”), (ii) USD 95,000,000 (U.S. Dollars Ninety-Five Million) (the “Purchase Price in Cash”), and (iii) subject to the provisions of Section 2.07, the Contingent Payments, if applicable.
(b) The Purchase Price in Kind shall be paid by Purchaser to Seller concurrently with receipt of the Letter of Acceptance from Purchaser, by transferring the Initial Class B Shares to the custody account (cuenta comitente) opened with a depositary at Caja de Valores S.A. as designated by Seller in writing.
(c) The Purchase Price in Cash shall by paid by Purchaser to Seller on the following dates and as set forth below:
(i) USD 5,000,000 (U.S. Dollars Five Million) (the “Initial Amount”) shall be paid within seven (7) Business Days from the date of receipt of the Letter of Acceptance by Purchaser, by transferring the Euro Equivalent amount of freely and immediately available funds to the account
held in the name of Seller with a banking institution in the United Kingdom of Great Britain and Northern Ireland or of a Member State of the European Union designated by Seller in writing;
(ii) USD 50,000,000 (U.S. Dollars Fifty Million) (the “Closing Amount”) shall be paid at the Closing; and
(iii) USD 40,000,000 (U.S. Dollars Forty Million) (the “Price Balance”) shall be paid on the date that is twelve (12) months after the Closing Date, subject to the provisions of Section 2.02(g), Section 5.12(t), Section 5.12(u), Section 5.13, and Section 7.10;
in the case of (ii) and (iii) above, by wire transfer of freely and immediately available funds to the account held in the name of Seller with a banking institution of the United States of America designated by Seller in writing.
(d) Payment of the Purchase Price shall be made to Seller free from any withholding and/or deduction for and/or on account of any Tax (including interest, charges, fines and related expenses); provided, however, that if Purchaser were required to withhold or deduct Taxes from such payment under any Applicable Law, then (i) the amount payable shall be grossed up as required such that, after making any such required withholdings or deductions (including withholdings or deductions applicable to additional amounts payable under this Section 2.02(d)), Seller shall receive an amount equivalent to the amount that it would have received but for such withholdings or deductions, (ii) Purchaser shall make such withholdings or deductions, and (iii) Purchaser shall pay the total amount withheld or deducted to the relevant Governmental Entity as and when required by Applicable Law, and deliver to Seller, within five Business Days of such payment, a copy of the relevant record of payment in accordance with Applicable Law.
(e) Compensatory interest shall accrue on the outstanding amounts of the Price Balance at a fixed annual nominal rate of 10% starting on the Closing Date, which shall be payable on a quarterly basis on each Interest Payment Date. Interest shall be computed on the basis of a 360-day year. If Purchaser fails to pay any Price Balance amount (including principal and compensatory interest) when due, default on the outstanding amounts due shall occur automatically, and default interest shall accrue on such amounts at the Default Rate until actual payment. If any Interest Payment Date is not a Business Day, the relevant payment shall be made on the immediately succeeding Business Day.
(f) The obligation to pay the Price Balance shall be evidenced by means of a promissory note to order, issued to Seller, to be signed by Purchaser, as issuer, and by each of the Purchaser Guarantors, as guarantors, substantially in the form of Exhibit 2.02(f) attached hereto (the “Promissory Note”). The Promissory Note shall be governed by the laws of the Argentine Republic and shall be delivered to Seller at the Closing, duly completed and signed. Payment of any portion of the principal amount of the Promissory Note shall result in a pro tanto reduction of the obligation to pay the principal amount of the Price Balance, and payment of any principal amount of the Price Balance shall result in a pro tanto reduction of the obligation to pay the principal amount of the Promissory Note. Notwithstanding repayment in full of the Promissory Note, (i) if the amount paid or due on such Promissory Note (whether due to court enforcement thereof or for any other reason) is lower than the amount due under the Agreement on account of Price Balance, to the greatest extent permitted by Applicable Law, Purchaser agrees to pay the difference to Seller and (ii) if the amount paid or due on such Promissory Note (whether due to court enforcement thereof or for any other reason) exceeds the amount due under the Agreement on account of Price Balance, Seller agrees, to the greatest extent permitted by Applicable Law, to pay to Purchaser any excess amount. Upon performance in full of the obligations to pay the Price
Balance and interest as set forth in this Section 2.02, Seller shall return the Promissory Note to Purchaser.
(g) The Price Balance may be voluntarily prepaid, in whole or in part, at any time, subject to the following conditions: (i) at least five Business Days’ notice shall have been given to Seller (prior notice that shall be irrevocable for Purchaser), (ii) in the event of prepayments in part, they shall be made in principal amounts of no less than USD 1,000,000 (U.S. Dollars One Million) (or the total outstanding balance, if lower) and multiples of USD 1,000,000 (Dollars One Million) in excess of such amount; and (iii) together with prepayment of the principal amount of the Price Balance due, Purchaser shall pay compensatory and default interest accrued until the date of prepayment with respect to the prepaid principal amount.
Section 2.03 Closing. Subject to these Terms and Conditions, the closing of the purchase and sale, assignment and transfer of the Class A Shares contemplated by these Terms and Conditions (the “Closing”) shall take place concurrently (i) at the offices of Seller located at Maipú 1, 23rd Floor, City of Buenos Aires, and (ii) solely for purposes of Section 2.04(b), at the offices of Caja de Valores S.A., located at 25 de Mayo 362, City of Buenos Aires, in each of (i) and (ii) above, at 11:00 a.m., time in the City of Buenos Aires, Argentine Republic, on the fifth Business Day following the date on which each of the conditions precedent set forth in Sections 6.01, 6.02 and 6.03 have been satisfied (other than those conditions that by their nature may only be satisfied at the Closing) (or, to the extent permitted by these Terms and Conditions, such conditions have been waived by the Party entitled to the benefits thereof), or at such other place and date as may be agreed by Seller and Purchaser in writing. The date on which the Closing occurs is referred to as the “Closing Date”.
Section 2.04 Closing Actions by Seller. (a) At the Closing, Seller shall deliver to Purchaser:
(i) a signed copy of each of the Transaction Documents to which Seller is or should be a party and required to be signed and delivered on or before the Closing;
(ii) a complete and accurate copy of the resolutions validly adopted at the general ordinary meeting of shareholders of Seller approving the consummation of the Transactions;
(iii) the resignations, effective as of the Closing, by all directors and statutory auditors of the Company listed in Exhibit 2.04(iii), from their respective positions at the Company;
(iv) a complete and accurate copy of the minutes of a board of directors’ meeting of the Company (A) setting forth the resignation from their respective positions by all directors and statutory auditors required to resign pursuant to Section 2.04(iii) above, and (B) calling a general ordinary meeting of shareholders of the Company to consider such resignations and the performance of duties and compensation payable to such directors and statutory auditors, and to appoint new directors (or ratify those nominated by the supervisory committee of the Company as set forth in Section 2.04(v) below) and statutory auditors (the “Post-Closing Meeting of Shareholders”);
(v) a complete and accurate copy of the minutes of a meeting of the supervisory committee of the Company appointing such persons designated by Purchaser by written notice delivered to Seller at least two Business Days prior to the Closing, to serve as directors of the Company in lieu of the resigning directors listed in Exhibit 2.04(iii) in accordance with the provisions of Section 258 of the General Companies Law;
(vi) the certificate required under Section 6.03(c).
(b) At the Closing, Seller shall deliver to Caja de Valores S.A., a notice stating the transfer of the Class A Shares to Purchaser as required by Section 215 of the General Companies Law and the bylaws of the Company, substantially in the form of Exhibit 2.04(b) attached hereto, along with the duly completed Form F-41701.08 issued by Caja de Valores S.A. applying for registration of the transfer of the Class A Shares to Purchaser, in each case, duly signed by Seller.
Section 2.05 Closing Actions by Purchaser. At the Closing, Purchaser shall deliver or cause to be delivered to Seller:
(i) the Closing Amount, by wire transfer of freely and immediately available funds pursuant to the provisions of Section 2.02(b);
(ii) the Promissory Note duly signed by Purchaser and each Purchaser Guarantor pursuant to Section 2.02(f), and all signatures shall be duly certified by a notary public;
(iii) a signed copy of each of the Transaction Documents to which Purchaser, any Permitted Holder and/or any Purchaser Guarantor is or should be a party and required to be signed and delivered on or before the Closing;
(iv) a complete and accurate copy of the authorizations validly given by the respective corporate bodies of Purchaser and each Purchaser Guarantor for execution of the Offer Letter and the other Transaction Documents to which Purchaser or such Purchaser Guarantor is or should be a party, and the consummation of the Transactions; and
(v) the certificate required by Section 6.02(c).
Section 2.06 Closing Actions. All actions required to be taken and all documents required to be delivered at the Closing by the Parties, shall be deemed to be concurrently taken and delivered, and no action shall be deemed to be taken and no document shall be deemed to be delivered until all of them have been taken and delivered, on the understanding that the purchase and sale of the Class A Shares shall be perfected once (i) they have been registered to the name of Purchaser in the stock ledger kept for book-entry shares of the Company by Caja de Valores S.A., and (ii) the Closing Amount has been credited into such bank account designated by Seller in accordance with Section 2.02(b).
Section 2.07 Contingent Payments. In the event of occurrence of a Change of Control at any time prior to, or under or in connection with any offer received from a third party before the later of (i) the date that is twelve (12) months after the Closing Date, and (ii) the date on which the Price Balance and all interest accrued thereon have been discharged in full (the “Reference Date”), Purchaser shall pay to Seller, by wire transfer of freely and immediately available funds to the account held by Seller with a banking institution in the United States of America and designated by Seller in writing:
(A) within two (2) Business Days of occurrence of a Change of Control, an amount in Dollars equivalent to 50% of the product resulting from multiplying (I) the positive difference, if any, between (y) the quotient resulting from dividing (1) the aggregate total amount and/or market value (in the case of any consideration in kind) paid or to be paid (or the equivalent amount in Dollars) by any Person (solely for the purposes of this clause (A), each, a “Specified Person”) in consideration for any Transfer and/or Indirect Transfer contributed by it, whether considered
alone or together with other Transfers or Indirect Transfers, directly or indirectly, upon occurrence of a Change of Control, plus the total amount (or the equivalent amount in Dollars) of financial debt net of cash of any other Person (and any company or other Person, other than the Company, in which such other Person may have any interest), ratably assumed by implication by such persons specified under such Transfer(s) and/or Indirect Transfer(s), by (2) the Applicable Denominator, and (z) USD 0.2163; by (II) the Applicable Denominator; and
(B) with respect to any Transfer and/or Indirect Transfer completed after the date of occurrence of a Change of Control but prior to, or under or in connection with any offer received from a third party before, the Reference Date, within two (2) Business Days of completion of the Transfer and/or Indirect Transfer in question, an amount in Dollars equivalent to 50% of the product resulting from multiplying (I) the positive difference, if any, between (y) the quotient resulting from dividing (1) the total aggregate amount and/or market value (in the case of any consideration in kind) paid or to be paid (or the equivalent amount in Dollars) by any Person (solely for the purposes of this clause (B), each, a “Specified Person”) in consideration for such Transfer(s) and/or Indirect Transfer(s), plus the total amount (or the equivalent amount in Dollars) of financial debt net of cash of any other Person (and any company or other Person, other than the Company, in which such other Person may have any interest), ratably assumed by implication by such persons specified under such Transfer(s) and/or Indirect Transfer(s), by (2) the Applicable Denominator, and (z) USD 0.2163; by (II) the Applicable Denominator;
(each of the payments referred to in clauses (A) and (B) above, a “Contingent Payment”); provided that, for purposes of computing the equivalent amount in Dollars of any amount stated in any other currency, such amount shall be converted into Dollars (y) in the case of Pesos, at the implied exchange rate resulting from applying the mechanism set forth in Section 9.11(c)(i) as of the applicable calculation date, and (z) in the case of any currency other than Dollar or Peso, at the exchange rate for the purchase of Dollars with such other currency published under “Currency Rates” in the section “Currencies, Bonds & Interest Rates” of The Financial Times of the United States of America on the Business Day immediately preceding the applicable calculation date; provided, however, that if determination of the Contingent Payment results from computing any deferred consideration, then Purchaser shall pay the pro rata portion of the Contingent Payment resulting from computing such deferred consideration concurrently with receipt by the Person entitled to it.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser, as of the date of the Letter of Acceptance and as of the Closing (or if a representation or warranty is made as of a specified date, as of such date) the following:
Section 3.01 Organization, Standing and Authority of Seller. (a) Seller has been organized and is in good standing under the laws of the Argentine Republic, has full legal capacity, standing and authority to own, operate, manage and dispose of its assets and property and to carry on its business as presently conducted.
(b) Seller has full legal capacity, standing and authority to enter into the Agreement and the other Transaction Documents to which it is or should be a party, and, subject to approval of the consummation of the Transactions by the general ordinary meeting of shareholders of Seller, to perform its obligations hereunder and thereunder and to consummate the Transactions. Execution,
delivery and performance by Seller of the Agreement and the other Transaction Documents to which Seller is or should be a party, including consummation of the Transactions, has been duly authorized by its relevant corporate bodies or authorities with sufficient powers (except, as of the date of the Letter of Acceptance, for the approval by the general ordinary meeting of shareholders of Seller with respect to consummation of the Transactions).
(c) The Letter of Acceptance has been duly signed and delivered by Seller and (assuming due execution and delivery of the Offer Letter by the Purchasing Group) the Agreement constitutes a valid and binding obligation of Seller, enforceable against Seller in accordance with its terms. Upon execution, the other Transaction Documents to which Seller is or should be a party shall have been duly executed and delivered thereby and (assuming due execution and delivery by the other parties) shall constitute a valid and binding obligation of Seller, enforceable against Seller in accordance with their terms.
(d) Seller is not unable to pay its debts as they become due, neither has it filed a voluntary petition for reorganization proceedings (concurso preventivo) or in bankruptcy, nor has any petition in bankruptcy been filed against it and is pending, nor is it subject to any liquidation or insolvency proceedings. Seller is free from any Lien or Governmental Order preventing it from executing the Agreement or any of the other Transaction Documents to which it is or should be a party, performing its obligations hereunder and thereunder, or consummating the Transactions.
Section 3.02 Capital Stock; Shares. (a) The capital stock of the Company amounts to $ 906,455,100, represented by (i) 462,292,111 book-entry common Class A shares, of $1 par value each and entitled to one vote per share, (ii) 442,210,385 book-entry common Class B shares, of $1 par value each and entitled to one vote per share (out of which 31,380,871 Class B Shares are held as of the date of the Letter of Acceptance in the treasury of the Company), and (iii) 1,952,604 book-entry common Class C shares, of $1 par value each and entitled to one vote per share. The Class A Shares represent 51% of the capital stock and voting power of the Company.
(b) The Class A Shares are held by Seller, have been validly issued and registered in the stock ledger kept for book-entry shares of the Company by Caja de Valores S.A., have been and are fully subscribed and paid-up and are not subject to any Lien or fragmentation of title of any nature (other than Permitted Liens). None of the Class A Shares has been issued in violation of preemptive rights. There are no options, warrants, conversion rights, preemptive rights or other rights, agreements or arrangements currently in effect in relation to the capital stock of the Company to which Seller is a party, except for the provisions of the Agreement and the other Transaction Documents and Applicable Law. The Company has not authorized any issuance of shares that is pending consummation, nor has it received any irrevocable contributions pending capitalization.
(c) There are no shareholders’ agreements, voting agreements, agreements among the shareholders (acuerdos para-sociales) or other similar agreements in effect with respect to voting of, title to, or transfer of, any of the Class A Shares to which Seller or the Company is a party or to which any of them may be subject.
Section 3.03 No Conflicts. On the assumption that (i) approval is obtained for the consummation of the Transactions at the general ordinary meeting of shareholders of Seller, and (ii) all consents, approvals, authorizations, orders, actions, submissions and notices referred to in Section 3.04 are obtained or made, as applicable, and any applicable waiting period has expired or terminated, and except to the extent that it may be required due to any event or circumstance solely related to the Purchasing Group, the execution, delivery and performance by Seller of the
Agreement and the other Transaction Documents to which it is or should be a party, and the consummation of the Transactions: (A) do not violate and shall not result in the violation of any provision of the bylaws of Seller and/or the Company; (B) do not violate any Applicable Law to which Seller and/or the Company is subject or any Governmental Order applicable to Seller and/or the Company; (C) are not contrary to, in conflict with, and do not result in default under, any section of, or give any Person the right to declare a default or exercise any remedy, or to accelerate the maturity or performance of, or to revoke, cancel, terminate, withdraw, suspend or modify, any Contract, Indebtedness, permit or other instrument to which Seller is a party or held by Seller, except, in (B) and (C) above, to the extent that they do not have an adverse effect or would not reasonably be expected to have an adverse effect on the lawfulness, validity or enforceability of the Agreement or any of the other Transaction Documents to which Seller is or should be a party, or the ability of Seller to perform its obligations hereunder or thereunder, or to consummate the Transactions.
Section 3.04 Governmental Approvals. The execution, delivery and performance by Seller of the Agreement and the other Transaction Documents to which it is or should be a party, and the consummation of the Transactions do not or shall not require any consent, approval, authorization or other order or action by, or submission before or notice to, any Governmental Entity other than (i) the Required Governmental Approvals, (ii) any consent, approval, authorization, order, action, submission or notice which failure would not be reasonably expected to have an adverse effect on Seller’s ability to perform its obligations under the Agreement or such Transaction Documents, or to consummate the Transactions, and/or (iii) to the extent required due to any event or circumstance solely related to the Purchasing Group.
Section 3.05 Finder Fees. Seller has not engaged any finder, investment banker, broker or any commission agent in relation to the Transactions.
Section 3.06 Disclaimer. Except to the extent expressly set forth in this Article III, neither Seller nor any of its Affiliates and none of its respective Representatives makes or has made any other representation or warranty, express or implied, under any Applicable Law or the principles of equity, with respect to Seller, the Company, its respective assets, Liabilities and/or business, and/or the Class A Shares, including as to (i) merchantability or fitness thereof for any particular purpose, (ii) the conduct of the Company’s business prior to or after the Closing in any manner, (iii) the probable success or profitability of the Company’s business after the Closing or the investment in the Class A Shares made under the Agreement; and, except for the obligations of indemnification of Seller set forth in Article VII, neither Seller nor any of its Affiliates or any of its respective Representatives shall (A) be liable for the accuracy or completeness of, or (B) have or be subject to any obligation to indemnify Purchaser or any other Person or any other obligation of any nature, as a result of the distribution or delivery to Purchaser, its respective Affiliates or its respective Representatives of, in each of (A) and (B) above, any information related to Seller, the Company, its respective assets and/or business, and/or the Class A Shares (including any oral or written information, management presentations, meetings or otherwise).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller, as of the date of the Offer Letter and as of the Closing (or if a representation or warranty is made as of a specified date, as of such specified date), the following:
Section 4.01 Organization, Standing and Authority of Purchaser. (a) Purchaser has been organized and is in good standing under the laws of the Argentine Republic, has full legal capacity, standing and authority to own, operate, manage and dispose of its assets and property and to carry on its business as presently conducted.
(b) Purchaser has full legal capacity, standing and authority to enter into the Agreement and the other Transaction Documents to which it is or should be a party, to perform its obligations hereunder and thereunder and to consummate the Transactions. Execution, delivery and performance by Purchaser of the Agreement and the other Transaction Documents to which Purchaser is or should be a party, including consummation of the Transactions, has been duly authorized by its relevant corporate bodies or authorities with sufficient powers.
(c) The Offer Letter has been duly signed and delivered by Purchaser and (assuming due execution and delivery of the Letter of Acceptance by Seller) the Agreement constitutes a valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms. Upon execution, the other Transaction Documents to which Purchaser is or should be a party shall have been duly executed and delivered thereby and (assuming due execution and delivery by the other parties) shall constitute a valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with their terms.
(d) The copy of the bylaws of Purchaser contained in Exhibit 4.01(d) is the current wording, and it contains all previous amendments. Purchaser has not taken any action in violation of its bylaws.
(e) Purchaser is not unable to pay its debts as they become due, neither has it filed a voluntary petition for reorganization proceedings (concurso preventivo) or in bankruptcy, nor has any petition in bankruptcy been filed it against and is pending, nor is it subject to any liquidation or insolvency proceedings. Purchaser is free from any Lien or Governmental Order preventing it from executing the Agreement or any of the other Transaction Documents to which it is or should be a party, performing its obligations hereunder and thereunder, or consummating the Transactions.
Section 4.02 Capital Stock; Shares. (a) As of the date of the Offer Letter, the capital stock of Purchaser amounts to $200,000, represented by 200,000 common, registered, non-endorsable shares, of $1 par value each and entitled to one vote per share, out of which (i) 190,000 are held by South American Energy LLP, and (ii) 10,000 are held by Nicolás Mallo Huergo. At the Closing (A) South American Energy LLP shall hold common, registered, non-endorsable shares, of $1 par value each and entitled to one vote per share, representing 95% of the capital stock and voting power of Purchaser, and (B) Nicolás Mallo Huergo shall hold common, registered, non-endorsable shares, of $1 par value each and entitled to one vote per share, representing 5% of the capital stock and voting power of Purchaser.
(b) All shares representing the capital stock of Purchaser (i) are held by Permitted Holders in the proportions therein specified, have been validly issued in accordance with Applicable Law and the bylaws of Purchaser, (ii) at the Closing they shall be duly registered in the stock ledger of Purchaser in the proportions specified in (a) above, (iii) have been and are fully subscribed, (iv) as of the date of the Offer Letter, 25% thereof is paid up and at the Closing they shall be fully paid up, and (v) are not subject to any Lien or fragmentation of title of any nature (other than Permitted Liens). None of such shares has been issued in violation of preemptive rights. There are no options, warrants, conversion rights, preemptive rights or other rights, agreements or arrangements currently in effect in relation to the capital stock of Purchaser to which Purchaser
or any of the Permitted Holders is a party, except for the provisions of the terms of the applicable Permitted Liens and Applicable Law. Purchaser has not authorized any issuance of shares that is pending consummation, nor has it received any irrevocable contributions pending capitalization.
(c) There are no shareholders’ agreements, voting agreements, agreements among shareholders or other similar agreements in effect with respect to voting of, title to, or transfer of, any of the shares representing the capital stock of Purchaser to which Purchaser or any of the Permitted Holders is a party or by which any of them is bound, except for those that may terminate automatically in the event of enforcement of the Share Pledge and do not require mandatory adhesion by the purchaser of such shares in the context of such enforcement. Prior to the Closing, Purchaser shall have delivered to Seller a complete and accurate copy of any such agreements (as amended and supplemented).
(d) As of the date of the Offer Letter, the capital of South American Energy LLP amounts to one hundred thousand pounds (£ 100,000), and (i) Andina Plc. holds economic and voting rights representing 52% of such rights in such company, (ii) José Luis Manzano holds economic and voting rights representing 24% of such rights in such company, and (iii) Nicolás Mallo Huergo holds economic and voting rights representing 24% of such rights in such company. At the Closing, at least 70% of the economic and voting rights of South American Energy LLP shall be held, indistinctly or jointly and in combination, directly or indirectly, through one or more Persons, by Andina Plc., José Luis Manzano, Daniel Eduardo Vila, Mauricio Filiberti, Global Income Fund Limited, and Smart Utilities LLC.
Section 4.03 No Conflicts. On the assumption that all consents, approvals, authorizations, orders, actions, submissions and notices referred to in Section 4.04 are obtained or made, as applicable, and any applicable waiting period has expired or terminated, and except to the extent that it may be required due to any event or circumstance solely related to Seller, the execution, delivery and performance by Purchaser of the Agreement and the other Transaction Documents to which it is or should be a party, and the consummation of the Transactions: (i) do not violate and shall not result in the violation of any provision of the bylaws of Purchaser; (ii) do not violate any Applicable Law to which Purchaser is subject or any Governmental Order applicable to Purchaser; (iii) are not contrary to, in conflict with, and do not result in default under, any section of, or give any Person the right to declare a default or exercise any remedy, or to accelerate the maturity or performance of, or to revoke, cancel, terminate, withdraw, suspend or modify, any Contract, Indebtedness, permit or other instrument to which Purchaser is a party or held by Purchaser, except, in (ii) and (iii) above, to the extent that they do not have an adverse effect or would not reasonably be expected to have an adverse effect on the lawfulness, validity or enforceability of the Agreement or any of the other Transaction Documents to which Purchaser is or should be a party, or the ability of Purchaser to perform its obligations hereunder or thereunder, or to consummate the Transactions.
Section 4.04 Governmental Approvals. The execution, delivery and performance by Purchaser of the Agreement and the other Transaction Documents to which it is or should be a party, and the consummation of the Transactions, do not or shall not require any consent, approval, authorization or other order or action by, or submission before or notice to, any Governmental Entity other than (i) the Required Governmental Approvals, (ii) any consent, approval, authorization, order, action, submission or notice which failure would not reasonably be expected to have an adverse effect on Purchaser’s ability to perform its obligations under the Agreement or such Transaction Documents, or to consummate the Transactions, and/or (iii) to the extent required due to any event or circumstance solely related to Seller.
Section 4.05 Special-Purpose Company; No Liabilities. Purchaser was organized on December 14, 2020 for the sole purpose of executing the Agreement and the other Transaction Documents to which it is or should be a party, consummating the Transactions and holding the shares representing the capital stock of the Company and, potentially, Notes, and, except for such Liabilities (i) incurred or assumed under (A) the Agreement or such Transaction Documents, and/or (B) as of the Closing, Permitted Indebtedness, and/or (ii) derived from consummation of the Transactions under Applicable Law, Purchaser has not incurred, assumed or guaranteed, neither is Purchaser subject for any reason, to any Liability.
Section 4.06 Absence of Certain Changes, Events and Conditions. Except to the extent expressly set forth in the Agreement and the other Transaction Documents, since the date of organization, Purchaser has not:
(i) amended its bylaws;
(ii) issued, sold or assigned any shares of its capital stock (or other equity interest) or securities of Purchaser, or issued or sold any security convertible into, or option with respect to, or warrants to purchase, or rights to subscribe for, any of its capital stock (or other equity interest);
(iii) effected any amortization or redemption of shares (or other equity interests), or effected or engaged in a transaction for acquisition, recapitalization, reclassification of shares, stock or other interest split or a similar transaction;
(iv) merged with any Person or acquired an interest in the capital stock of, or made any other Investment in, any Person, or acquired a significant portion of the assets or business of any Person or any business division or line of any Person, whether in a single transaction or a series of related transactions;
(v) created, or subjected any of its property or assets to, any Lien or registered any Lien on its shares of stock (other than Permitted Liens);
(vi) organized, set up, formed, executed, amended, terminated, or become subject to, any company, association, alliance, joint venture, consortium, unión transitoria de empresa, profit-sharing association agreements or other business collaboration agreements or other entities or business;
(vii) executed, modified, extended, rescinded or otherwise terminated, any Contract (including any Contract related to any Indebtedness and any Contract to perform any of the foregoing), expect for the Agreement, the other Transaction Documents to which it is or should be a party and any Permitted Indebtedness.
Section 4.07 Availability of Funds. Purchaser has freely and immediately available funds and/or firm financing commitments, on a combined basis, sufficient to pay the Purchase Price and any other amount payable by it under the Agreement and/or the other Transaction Documents to which Purchaser is or should be a party, or otherwise required to consummate the Transactions.
Section 4.08 Purpose of the Investment. Subject to consummation of the Closing, Purchaser shall acquire the Class A Shares to invest therein on its own account and not with a view to, or for the sale thereof in relation to, any distribution thereof, other than in compliance with all Applicable Laws governing securities and capital markets (including the Applicable Laws of the Argentine Republic and the United States of America). Purchaser agrees not to sell, offer, transfer,
assign, encumber or otherwise dispose of the Class A Shares other than in compliance with all Applicable Law governing securities and capital markets (including the Applicable Laws of the Argentine Republic and the United States of America).
Section 4.09 Sophisticated Investor. Purchaser possesses such knowledge, sophistication and experience in financial and business matters (including the industry in which the business of the Company is conducted) required to evaluate the merits and risks associated with execution of the Agreement and the other Transaction Documents, performance of its respective obligations thereunder, and consummation of the Transactions (including investment in Class A Shares), and it has the financial and asset capacity required to assume the economic risks associated with an investment in the Class A Shares for an indefinite period of time (including a total loss of its investment). Purchaser has evaluated in detail the legal, tax and accounting aspects of the Agreement, the other Transaction Documents and the Transactions, as well as its own financial and asset condition and business perspectives, and it has engaged expert advisors with experience in the assessment of, and investment in, assets such as the Class A Shares.
Section 4.10 Source and Lawfulness of Funds. All funds used or to be used by Purchaser for payment of the Purchase Price or any amount payable by Purchaser under the Agreement or any of the other Transaction Documents have been or shall have been obtained, as applicable, from transactions not in violation of any Applicable Law, including any AML/CFT Laws. Neither Purchaser nor any of its respective Affiliates nor any Person providing funds to Purchaser, or any of its respective Representatives, (i) is in violation of any AML/CFT Laws, (ii) is under investigation by any Governmental Entity for, or has been charged with or convicted of, money laundering, drug trafficking, terrorism-related activities, any crimes against the economic and financial order or for any violation of any AML/CFT Laws, (iii) has been subject to any civil or criminal penalty under any AML/CFT Laws, or (iv) has suffered an attachment on or the loss any asset as a result of any action under any AML/CFT Law.
Section 4.11 Share Pledge. Effective as of the date of the Share Pledge Agreement, the provisions of the Share Pledge Agreement shall be effective and sufficient to create, in favor of Seller, a lawful, valid, enforceable and perfect first priority pledge over the common, registered, non-endorsable shares issued by Purchaser representing 80% of its capital stock and voting power, free and clear of any other Lien. Neither the Share Pledge nor the exercise of the rights and remedies contemplated by the Share Pledge Agreement on any date, are or will be contrary to any provision of Applicable Law or any Governmental Order. Neither Purchaser nor any of the Permitted Holders has received any notice of any adverse Claim by any Person in relation to ownership or rights held by any Permitted Holder with respect to any of the shares issued by Purchaser.
Section 4.12 Finder Fees. Purchaser has not engaged any finder, investment banker, broker or commission agent in relation to the Transactions.
Section 4.13 Independent Research; Representations and Warranties of Seller.
(a) Purchaser has conducted, to its satisfaction, directly or indirectly through its Affiliates and Representatives, its own independent research on the financial, business, accounting, tax and legal aspects related to the Company (including with respect to its business, transactions, assets, concession, liabilities, results of operations, financial and asset-related conditions and perspectives). For purposes of executing the Agreement, Purchaser acknowledges that it has solely relied on such independent research, review and analysis, rather than on any representation
or opinion of Seller or its Representatives (other than the specific representation and warranties of Seller contained in Article III hereof).
(b) Purchaser acknowledges and agrees that, except to the extent expressly set forth in Article III, neither Seller nor any of its respective Affiliates nor any of its respective Representatives makes or has made any other representation or warranty, express or implied, under any Applicable Law or the principles of equity, with respect to Seller, the Company, its respective assets, Liabilities and/or business, and/or the Class A Shares, including as to (i) merchantability or fitness thereof for any particular purpose, (ii) the conduct the Company’s business prior to or after the Closing in any manner, (iii) the probable success or profitability of the Company’s business after the Closing or the investment in the Class A Shares made under the Agreement; and that, except for the obligations of indemnification of Seller set forth in Article VII, neither Seller nor any of its Affiliates or any of its respective Representatives shall (A) be liable for the accuracy or completeness of, or (B) have or be subject to any obligation to indemnify Purchaser or any other Person or any other obligation of any nature, as a result of the distribution or delivery to Purchaser, its respective Affiliates or its respective Representatives of, in each of (A) and (B) above, any information related to Seller, the Company, its respective assets and/or business, and/or the Class A Shares (including any oral or written information, management presentations, meetings or otherwise).
ARTICLE V
ADDITIONAL COVENANTS
Section 5.01 Business Conduct. (a) Seller undertakes to cause, between the Acceptance Letter and the Closing date, except as provided for under Section 5.02 or to the extent it has obtained prior written consent from Purchaser (which consent may not be unreasonably delayed, conditioned or withheld), the Company to use the best reasonable efforts to conduct the Company business, in all significant respects, in the Ordinary Course.
(b) Without limiting the generality of the provision set forth in paragraph (a) above, Seller undertakes to cause, between the Acceptance Letter and the Closing date, the Company not to extend or shorten the usual payment cycles for its accounts payable and accounts receivable (except for any extension of the usual payment cycles for its accounts receivable as a result of general economic conditions prevailing in the country or the region where the Company operates, including as a result of the Covid-19 pandemic, or any Applicable Law or Governmental Order).
Section 5.02 Exceptions. Notwithstanding any provision to the contrary included in the Agreement or any other Transaction Documents, neither Seller nor the Company shall be limited to or restricted from, or shall be required to obtain Purchaser’s consent to perform, or incur in any Liabilities related to or as a consequence of:
(i) any matter required by any Applicable Law;
(ii) implementation of any of the Transactions;
(iii) assignment, sale or transfer of any assets belonging to the Company recorded at zero ($0) value in its financial statements, to the extent they are not assigned to provision of electricity distribution utility service and to the extent it is not an amount receivable for provision of such service or works performed to the benefit of any third parties;
(iv) performance of any obligation existing as of the date hereof or any obligation undertaken subsequently o the date hereof in compliance with the provisions established under these Terms and Conditions;
(v) performance by the Company of one or more payments in connection with the Company change of control to the benefit of the Director General thereof;
(vi) execution of any Contract with any Governmental Entity in relation to renegotiation of the tariff regime of the Company (including renegotiation of the comprehensive tariff review provided for by Executive Order 1020/2020 issued by the Executive Branch of Government (as amended and supplemented), including the capital base determination, operational expenses and the investment plan of the Company), or performance of any actions as may be necessary or convenient for conclusion of such renegotiation or implementation thereof; provided that, to the extent it is not restricted by any Applicable Law or Governmental Order, or the applicable Governmental Entity shall require such negotiations and discussions maintained for execution of such Contracts to be kept confidential, Seller shall consult with Purchaser, within a reasonably term in advance thereof, with respect to assumption of any significant commitment under such Contracts and consider Purchaser’s comments in good faith in connection therewith; provided, however, for the avoidance of doubt, that the final terms and conditions under such Contracts shall be determined by Seller, at its sole discretion (if applicable, after considering such Purchaser’s comments in good faith), and the applicable Governmental Entity; or
(vii) execution by the Company of the annual budget thereof for the year 2021 (including investments contemplated therein), as such budget has been approved by its Board of Directors at the meeting thereof held on December 17, 2020, and as it may be amended or extended from time to time in the Ordinary Course, or in response to any situations derived from the sanitary measures or any other restrictions as may hinder normal performance of activities and availability of materials and/or specialized labor in the market;
(viii) any decision adopted by the Company board of directors in compliance with obligations thereof under Section 59 of the General Companies Law and/or implementation thereof by the Company.
Section 5.03 Governmental Approvals. (a) Purchaser undertakes to use its best efforts to obtain, as soon as may be reasonably possible, any and all approvals, consents, authorizations, orders or actions (including the Required Governmental Approvals) as may be necessary from any Governmental Entity for consummation of the Transactions (including, in the case of Purchaser, in connection with obtaining ENRE Approval, execution of all the powers of attorney as may be required to be granted under Section 15, second paragraph, of the Concession Agreement in connection with consummation of the Transactions). Purchaser hereby undertakes to prepare and perform, as soon as may be reasonably possible (but (i) with respect to application for ENRE Approval (which shall include an express note in connection with restrictions assumed by Purchaser in connection with disposition of assets (including Class A Shares) hereunder), no later than January 31, 2021, and (ii) with respect to application for Argentine Antitrust Authority Approval, no later than the date when one calendar week has elapsed counted as from the Closing Date), all necessary filings in order to comply with all the notices, reports and other submissions required vis-à-vis any Governmental Entity under any Applicable Law in relation to execution of the Agreement and other Transaction Documents and consummation of the Transactions, in the manner and within the terms as provided therein; provided, however, that Purchaser agrees to consult with Seller, reasonably in advance of any filing as must be made, and consider Seller’s comments in good faith in connection with such filings.
(b) Without limiting the generality of the provision set forth in Section 5.03, the Parties shall mutually cooperate with each other and each Party shall provide the other with all such information as may be reasonably necessary or convenient for performance of such filings or applications as may be required by any Applicable Law, and in connection with the resolution of any investigation or requirement by any Governmental Entity under the Applicable Law, in each
case, with respect to the Transactions. Both Purchaser and Seller shall, as soon as it may be reasonably possible, inform the other Party about any communication with or from, and any agreement, commitment or understanding proposed with, any Governmental Entity in relation to such filings. Without limiting the generality of the Parties’ obligations under this Section 5.03, Purchaser shall control the strategy in order to obtain the Required Governmental Approvals and any other approval or any other permit or authorization of any kind as may be required or convenient for consummation of the Transactions, and it shall lead all communications and meetings with any Governmental Entity in connection with obtaining such approvals or authorizations; provided, however, that Purchaser shall consult with Seller and consider Seller’s opinion in good faith, in relation to any substantial terms under any such agreements, commitments or understandings. The Parties shall mutually consult each other and shall cooperate in connection with any analysis, submission, memorandum, writing, opinion and/or proposal made or filed by or on behalf of either Party in relation to all the meetings, actions and procedures under or related to any Applicable Law with respect to consummation of the Transactions.
(c) Without limiting the generality of the commitments undertaken under this Section 5.03, Purchaser undertakes to use forthwith its best efforts in order to (i) prevent or avoid issuance of, or (ii) annul, revert, modify, amend, suspend, eliminate, remove or render ineffective, any permanent, preliminary or temporary Governmental Order as may delay, restrict, prevent, limit or otherwise prohibit consummation of the Transactions, including defense in trial (including through appellate proceedings as may be available) of any Claim by any Person (including any Governmental Entity) initiated to such end.
(d) The Parties hereby acknowledge and agree that, notwithstanding any provision to the contrary contained herein, Closing shall not be conditioned upon or subject to prior obtaining the Argentine Antitrust Approval in connection with consummation of the Transactions. Consequently, at Closing, the Parties shall fulfill their respective obligations under Article II, regardless of such Argentine Antitrust Approval. Purchaser hereby irrevocably agrees that, in no event where transfer of Class A Shares to Purchaser as provided for under the Agreement shall be totally or partially objected to, rejected or conditioned by the Argentine Antitrust Authority, shall Seller be bound to return or reimburse, or Purchaser shall be entitled to be exempted or excused from effecting payment of, the Purchase Price (either totally or partially) to Purchaser, and the Transactions provided for under Article II shall not be rendered ineffective under any circumstances whatsoever; and, in such event, Purchaser shall be entitled, acting as agent for Seller and for the sole benefit thereof, to take any and all actions as may be necessary to transfer the Class A Shares to any third party, and Purchaser shall assume any and all costs, expenses, Taxes, Liabilities, or Losses as may be derived from such transfer (and the foregoing actions shall not result in Purchaser incurring or assuming any Liabilities on behalf of Seller other than the obligation to transfer the Class A Shares to the extent title thereto has reverted to Seller by virtue of a decision adopted by the Argentine Antitrust Authority).
(e) The Parties shall keep each other mutually apprised of the status of any and all proceedings initiated before any Governmental Entity to the effect of the terms under this Section 5.03, and they shall mutually share copies of any and all notices and other communications as may have been received from any such Governmental Entities in connection with the above-mentioned proceedings. The Parties shall mutually communicate any and all facts, events, circumstances, changes or effects as may be known thereby which, either individually or in combination, may likely affect, restrict or delay, to any substantial extent, their capacity to consummate the Transactions; provided that such notices shall not affect the representations, warranties, commitments or agreements of the Parties or the conditions precedent to such obligations of the Parties under the Agreement.
Section 5.04 Confidentiality. Each Party shall (i) maintain, and it shall cause its Affiliates and respective Beneficiaries thereof, as the case may be, to maintain strictly confidential, and (ii) refrain from disclosing, and cause its Affiliates and respective Representatives thereof to refrain from disclosing, in each case established in (i) and (ii) above, (A) the existence and terms and conditions of the Agreement and the other Transaction Documents, as well as the existence of discussions and negotiations between the Parties in order to perform the Transactions, and (B) insofar as Purchaser is concerned, any and all information as may be related to the Company, and businesses, assets and Liabilities thereof (save for any information as may be publicly available) of which Purchaser or any Representatives shall become aware or to which they may have been provided access from Seller, the Company or their respective Representatives (including within the framework of any discussions under the terms of Section 5.10(b)); in each case, except to the extent (and only to the extent) that such disclosure is required by any Applicable Law (including, without limitation, the Applicable Laws in Argentina or the United States of America in connection with stock or securities exchange markets), the rules or regulations of any stock exchanges or markets where securities issued by Seller or the Company are listed or admitted to trading (or any other security issued by a depositary of any of the foregoing) or Governmental Order, in which case the applicable Party shall use its best reasonable efforts in order to ensure that the information disclosed is treated in a confidential manner. Notwithstanding the foregoing, each Party may disclose the existence and terms and conditions of the Agreement and other Transaction Documents, as well as the existence of discussions and negotiations between the Parties so as to perform the Transactions to Affiliates and Representatives thereof, to the extent it is necessary in order to perform or facilitate consummation of such Transactions, always provided that such Affiliate or Representative have previously informed about the confidential nature of such information and have undertaken in writing to maintain such information confidential under terms which are no less strict that those established under these Terms and Conditions; provided further that such Party shall be liable for any disclosure of such information by the Affiliate or Representative in violation of the provisions under this Section 5.04.
Section 5.05 Convening of Board Meeting and Meeting of Shareholders. In the event it has not been made prior to execution and delivery of the Acceptance Letter, Seller shall convene directors thereof in order to hold, within a five (5) Business Days’ term counted as from the Acceptance Letter delivery date, a Board meeting in order to consider convening a general ordinary meeting of shareholders for the purposes of discussing, among other matters, the Transactions’ consummation approval.
Section 5.06. Pledge of Shares. Purchaser undertakes to (i) cause the Permitted Holders to deliver to Seller, at or prior to the Closing, original copies of the Share Pledge Offer Letter duly signed by each one of the Permitted Holders, and (ii) accept the Share Pledge Offer Letter pursuant to the terms thereof, delivering (A) to the Permitted Holders, duly signed original copies of the relevant acceptance letters, and (B) to Seller, duly signed original copies of such acceptance letters with acknowledgment of receipt signed by each one of the Permitted Holders; and Seller undertakes to deliver to each one of the Permitted Holders, as soon as it may be reasonably possible following receipt of such Share Pledge Offer Letter, duly signed original copies of the relevant acceptance letters.
Section 5.07. Post-Closing Meeting of Shareholders. Purchaser shall communicate attendance and further attend the Post-Closing Meeting of Shareholders in compliance with all the requirements established under the Applicable Law, and vote in favor of (i) approval of resignations from their respective offices submitted by all the Company’s directors and statutory auditors who have resigned pursuant to Section 2.04(iii), and approval of duties discharged thereby and payment of fees thereto, for an amount equivalent to fees paid by the Company for
prior periods, duly adjusted for inflation effects, and (ii) and appointment or ratification of directors who shall serve in lieu thereof.
Section 5.08. Tender Offer (OPA); OPA Class B Shares. (a) After the Closing, Purchaser shall promote and complete a tender offer with respect to all voting shares in the Company and all the subscription rights or stock options, convertible debt securities or any other similar negotiable securities which, either directly or indirectly, may grant subscription or acquisition rights or rights of conversion into voting shares in the Company, pursuant to the terms, methods and other conditions as defined by the Capital Markets Law and the securities laws of the United States of America and other rules or regulations established by the New York Stock Exchange (the “Tender Offer (OPA)”); provided that (i) the acquisition price per share of the Company to be offered by Purchaser and by any other Person participating as offeror or co-offeror in the Tender Offer (OPA) (including, where applicable, Seller) (hereinafter jointly referred to as the “OPA Offerors”) shall not be higher than the relevant equitable price required to be offered pursuant to the Capital Markets Law for mandatory takeover tender offers (the “Reference Price per Class B Share”), (ii) in case the Reference Price per Class B Share is denominated in US Dollars, such price shall be payable in Pesos at the US Dollar note selling exchange rate published by Banco de la Nación Argentina on the date preceding such offer settlement date), and (iii) holders of American Depositary Shares (“ADS”) representing Class B Shares (or American Depositary Receipts (“ADRs”) evidencing ADS) who intend to participate in the Tender Offer (OPA) may so participate solely cancelling their ADS and/or ADR positions and obtaining Class B Shares in a principal account opened with a Caja de Valores S.A. depositary in Argentina, and, subsequently, in compliance with procedures applicable to Class B Shares holders listed in the Tender Offer (OPA) final documents; provided further that, for the purposes of the Tender Offer (OPA), Purchaser undertakes to engage, and cause the other OPA Offerors to engage only renowned agents, legal advisors and accounting advisors in the jurisdiction where they are authorized to operate or practice, as may be reasonably acceptable for Seller.
(b) Subject to the terms of Section 5.08(c), on or prior to the Tender Offer (OPA) launch date, Purchaser shall execute, and cause the other OPA Offerors to execute, with Pampa Energía, and Pampa Energía shall execute with OPA Offerors, a share purchase agreement (the “OPA Class B Share Purchase Agreement”), for sale by the OPA Offerors to Pampa Energía, and for purchase by Pampa Energía from the OPA Offerors, the OPA Class B Shares, at a price per share equivalent to the Reference Price per Class B Share, payable pursuant to the provisions contained in Section 5.08(a)(ii), substantially in the form attached hereto as Exhibit 5.08(b); provided that the agent appointed for implementation of the Tender Offer (OPA) operating matters (who shall be a widely known settlement and clearing agent registered with the CNV and acceptable at Pampa Energía’s sole discretion) shall be a party to such Agreement as security agent.
(c) Should any Governmental Entity (including the CNV or SEC) require Seller’s participation as co-offeror in the Tender Offer (OPA) and such requirement is consented to by Seller or is not subject to any appeal or motion whatsoever, (i) if such requirement is consented to or becomes firm and final prior to formal launch of the Tender Offer (OPA), neither Seller nor Purchaser shall execute, and Purchaser shall not be bound to cause the other OPA Offerors to execute, the OPA Class B Share Purchase Agreement, and (ii) subject to compliance (or waiver agreed upon in writing by Seller at its sole and exclusive expense) with the conditions listed in Section 5.08(d), Seller undertakes to act as co-offeror in the Tender Offer (OPA) solely with respect to acquisition of, and to acquire within the framework of such Tender Offer (OPA), the OPA Class B Shares, at a price per share equal to the Reference Price per Class B Share payable pursuant to the provisions contained in Section 5.08(a)(ii).
(d) Conditions Precedent. Seller’s obligation detailed in Section 5.08(c) is subject to compliance (or waiver in writing by Seller at its sole and exclusive discretion), with each one of
the following conditions, as of such formal launch and settlement of the Tender Offer (OPA) announcement date (except in the case of such conditions which refer to a particular date, which conditions shall be fulfilled as of such date):
(i) No Prohibition. No Applicable Law or Governmental Order shall be in effect whereby the Tender Offer (OPA) or Seller’s participation as co-offeror therein shall be rendered illegal, restricted or prohibited in any manner whatsoever (either temporarily, preliminarily or permanently) within the scope set forth in this Section 5.08.
(ii) No Claims. No pending or imminent Claim shall exist from or vis-a-vis any Governmental Entity against any of the Parties in order to restrict, alter significantly or prohibit the Tender Offer (OPA) or Seller’s participation as co-offeror therein within the scope of this Section 5.08.
(iii) Governmental Approvals.
(A) As of the date of formal launch and settlement of the Tender Offer (OPA), the CNV shall have approved the Tender Offer (OPA) authorization application, and such approval shall be in full force and effect.
(B) As of the Tender Offer (OPA) settlement date, the SEC shall have approved the Tender Offer (OPA) authorization application, and such approval shall be in full and effect.
(iv) Tender Offer (OPA) Documents. The Tender Offer (OPA) documents, including the announcements, the offering memorandum and the TO Schedule TO in relation to such offer, and any Contract entered into in connection therewith, shall have been approved by Seller prior to submission thereof with any Governmental Entity, publication, distribution or execution, as the case may be (which approval may not be withheld, delayed or conditioned unreasonably).
(v) Guarantees. As of the Tender Offer (OPA) formal launch date, Purchaser and/or the other OPA Offerors (other than Seller) shall have furnished, to the satisfaction of Seller, guarantees ensuring compliance with their respective obligations under Tender Offer (OPA).
(vi) Compliance with Certain Obligations. To the extent any Contingent Payment shall be due and payable on or prior to the date scheduled for the Tender Offer (OPA) formal launch, such payment shall have been satisfied in full as provided for hereunder.
(vii) Conduct of Business. Purchaser shall have caused, between the Closing Date and the Tender Offer (OPA) settlement, the Company to use reasonable efforts to conduct its business, in all substantial respects, in the Ordinary Course thereof.
(viii) No Events of Default. No Event of Default shall have occurred and remain uncured.
(ix) No Change of Control. No Change of Control shall have occurred without prior written consent of Seller.
(x) No Event of Default. No Event of Default shall have occurred and remain uncured under the terms of Article 5.1 “Events of Default” of the Indenture.
(xi) Certificate. Purchaser shall have delivered, on the Business Day immediately preceding the Tender Offer (OPA) formal launch date, a certificate dated on the same date and signed by their legal representative or one or more attorneys-in-fact thereof vested with sufficient powers therefor, duly certifying compliance with the conditions set forth under Sections 5.08(c)(vii) to 5.08(c)(x).
(e) To the greatest extent permitted by the Applicable Law and subject to having obtained any consent as may be required from any Governmental Entity, Seller shall be entitled to desist and withdraw as co-offeror from the Tender Offer (OPA) if any of the conditions precedent
detailed in the foregoing Section 5.08(d) shall be no longer satisfied at any time subsequently to the announcement, but prior to settlement, of such offer.
(f) In the event Seller shall act as co-offeror in the Tender Offer (OPA), (i) the Parties shall cooperate with each other, and Purchaser shall cause the other OPA Offerors to cooperate with Seller, and they shall provide to each other, all such information as may be reasonably necessary or convenient for performance of such filings or applications required under any Applicable Law, and in connection with the resolution of any investigation or requirement from any Governmental Entity under any Applicable Law, in each case, with respect to the Tender Offer (OPA); (ii) the Parties shall be kept mutually informed, and Purchaser shall cause the other OPA Offerors to keep Seller duly informed, in each case, as soon as it is reasonably possible, in connection with the status of any proceedings initiated before any Governmental Entity for the purposes of Section 5.08 and any communication with or from, and any contract, commitment or understanding proposed with, any Governmental Entity in relation to such filings; and (iii) the Parties shall mutually consult to each other, and shall mutually cooperate, and Purchaser shall cause the other OPA Offerors to consult previously to and cooperate with Seller, in relation to preparation of any documents (including any announcement or prospectus) and with respect to any analysis, report, filing, memorandum, writing, opinion and/or proposal made or submitted by or on behalf of any of the Parties or the other OPA Offerors, in relation to all the meetings, actions, and procedures under or related to any Applicable Law, or execution of any Contract, with respect to the Tender Offer (OPA).
(g) Without affecting the generality of the Parties’ obligations under this Section 5.08 or any of the conditions established in favor of Seller under Section 5.08(d), regardless of whether Seller shall act as co-offeror or not in the Tender Offer (OPA), Purchaser shall control the strategy in order to obtain the approvals required from any Governmental Entity for launching and consummating the Tender Offer (OPA), and it shall lead all communications and meetings with any Governmental Entity in relation to obtaining such approvals or authorizations; provided, however, that (A) Purchaser shall consult with Seller and consider their opinion in good faith in connection with any substantial term provided under any such documents, filings or Contracts, and (B) Purchaser shall not participate (or agree to participate), and it shall cause none of the other OPA Offerors to participate or agree to participate, in any meeting or discussion with any Governmental Entity in relation to the Tender Offer (OPA) without prior consultation with Seller and, to the greatest extent permitted under the Applicable Law, giving an opportunity to Seller or Representatives thereof to participate in such meetings or discussions.
(h) Any and all costs, expenses and Taxes incurred by any of the Parties in relation to the announcement, application for approval, launch, settlement or consummation of the Tender Offer (OPA) (and preparation, negotiation, execution or filing of any application, communication, Contract or any other document in connection therewith), including agents and legal counsel, accounting and financial advisors’ fees as have been engaged by each Party, shall be fully borne by Purchaser.
Section 5.09. Treasury Shares. (a) Purchaser hereby undertakes to cause, following the Closing, the Company to refrain from selling, assigning, transferring or cancelling any Treasury Shares, except as provided for under this Section 5.09.
(b) Within ten (10) Business Days counted as from publication of the Tender Offer (OPA) result and settlement, Purchaser shall (i) cause the Company to make an offer for sale of all the Treasury Shares, at a price for Treasury Share equivalent to the Reference Price per Class B Share, payable in Pesos at the US Dollar note selling exchange rate published by Banco de la Nación Argentina on the day immediately preceding such purchase and sale transaction closing date, and it shall abide by the preemptive rights established in favor of the shareholders under Section 194
of the General Companies Law, and (ii) concurrently with performance of such offer by the Company, it shall assign, unconditionally and irrevocably to Pampa Energía, under terms reasonably satisfactory to the latter and without any additional consideration whatsoever, their preemptive rights to acquire Treasury Shares pro rata their shareholdings in the Company (and their respective right of first refusal). Pampa Energía undertakes to exercise its preemptive rights for acquisition of Treasury Shares, totally (either by virtue of its own shareholdings in the Company or by virtue of the right of first refusal assigned by Purchaser under the terms set forth in paragraph (ii) above), and exercise its right to of first refusal with respect to the Treasury Shares as have not been acquired by the remaining shareholders of the Company by virtue of exercise of the respective preemptive rights and rights of first refusal thereof.
Section 5.10. Notes Repurchase Offer. (a) Following the Closing, Purchaser shall cause the Company to make an offer to repurchase all Class 9 Notes due on October 25, 2022 with a Fixed Rate of 9.75% issued by the Company (the “Notes”), pursuant to the terms established under Article 10.3 of the Indenture entered into on October 25, 2010 between the Company, as issuer, The Bank of New York Mellon, as trustee, registrar and paying agent, and Banco Santander Río S.A., as registrar, transfer and paying agent in Argentina and trustee representative in Argentina, as amended and supplemented (the “Indenture”).
(b) From the Acceptance Letter date and until Closing, Pampa Energía shall cause the Company to grant to Purchaser and Representatives thereof reasonable access to the Company Finance Manager, on ordinary working days and hours, and so that it shall not interfere with the normal operation of such management office, for discussing any potential alternatives concerning refinancing of Notes, and such access shall not be construed as Pampa Energía’s obligation to cause the Company to initiate, propose, request or complete any refinancing prior to the Closing (or take any action in such connection.)
Section 5.11. Insurance. The Parties hereby agree that, following the Closing, neither Purchaser nor any Affiliates thereof (including, after the Closing, the Company) shall have any rights whatsoever under any insurance policy issued in favor or at the request of Seller or Affiliates thereof (including, prior to the Closing, the Company) whereby any of the activities or assets of the Company shall be covered, except, in the case of the Company, solely to the extent that the Company has been named as exclusive insured under such policies and under the terms and conditions set forth therein. This section shall not restrict Purchaser’s capacity to take out, after the Closing, any new insurance coverage with regard to the Company as it may consider necessary, either with the same insurance companies used by Seller and Affiliates thereof or by other companies.
Section 5.12 Price Balance; Additional Commitments. Purchaser hereby undertakes the following commitments as from the Offer Letter date (or as from any other date as may be specified hereinbelow, in those cases where it may be applicable) and until the Price Balance has been fully repaid to the satisfaction of Seller:
(a) Payment of Price Balance. Purchaser undertakes to pay, in due and timely manner, the Price Balance principal, interest accrued thereon and default interest as may be applicable, in all cases, pursuant to the terms and conditions set forth under the Agreement.
(b) Financial Statements and Other Information. Purchaser undertakes to deliver to Seller:
(i) as soon as they are available and, in all cases, within a 90 calendar days’ term counted as from each fiscal year closing, the financial statements duly audited by Purchaser (including the relevant statement of financial position, statement of income, statement of changes in shareholders’ equity, statement of cash flows) as of the closing date and for such fiscal year, duly accompanied by the relevant auditors’ report (issued by the Argentine Affiliate of any of
PricewaterhouseCoopers, KPMG, EY or Deloitte Touche Tohmatsu Limited) (without any reservation or qualification as concerns its “going concern” or similar status or any other reservation or qualification as concerns the scope of such audit), stating that such financial statements fairly present, in all substantial respects, the financial position and results of operations of Purchaser pursuant to the applicable GAAP, as approved by the Purchaser’s meeting of shareholders;
(ii) as soon as they are available, and in all cases within 60 calendar days counted as from the closing of each calendar quarter, the unaudited financial statements of Purchaser (including the relevant statement of financial position, statement of income, statement of changes in shareholders’ equity, statement of cash flows) as of the closing date of and for the applicable period, duly accompanied by the relevant interim review report, stating that such financial statements fairly present, in all substantial respects, the financial position and results of operations of Purchaser pursuant to the applicable GAAP (subject to normal and usual year-end adjustments);
(iii) simultaneously with delivery of the financial statements pursuant to paragraphs (i) and (ii) of this Section 5.12(b), a certificate issued by the chief financial officer (or equivalent executive officer) of Purchaser (A) certifying whether an Event of Default has occurred and, if so, specifying details and measures adopted or proposed to be adopted in such regard, and (B) indicating whether any changes have occurred or not in the Applicable GAAP and, if any changes of such nature have occurred, specifying the effect of such changes in the financial statements accompanying such certificate;
(iv) within five (5) Business Days immediately after any director, executive officer or manager of Purchaser or the Company has become aware thereof, notice of any Event of Default as could have occurred; and
(v) after the Closing, notice within two (2) Business Days immediately following the date on which any director, executive officer or manager of Purchaser or the Company has become aware of any events, occurrence or circumstance which (including filing or initiation of any action, lawsuit and/or significant procedure by any arbitrator and/or Governmental Entity, and/or before any of the foregoing, against Purchaser and/or the Company or which affects or may affect any of them, which, if resolved in an adverse manner for any of them, either individually or in the aggregate) have or may be reasonably expected to have a substantial adverse effect on the business or financial condition or results of operations of Purchaser or the Company;
including, in each (iv) to (vi) above, a certificate signed by the Chief Financial Director or any other executive officer of Purchaser, indicating details of such events, occurrences or circumstances as may require sending of such notice and decisions and measures taken and/or proposed to be taken in such connection.
(c) Legal Corporate Existence; Conduct of Business. Purchaser shall take or cause to be taken, and cause to be taken or ordered to be taken by the Company after the Closing, any and all actions as may be necessary in order to preserve, renew and maintain legal corporate existence thereof in full force and effect. Purchaser shall refrain from conducting, and it shall cause the Company after the Closing to refrain from conducting, its business in any manner as may be reasonably expected to derive in unenforceability of legal corporate existence or any other legal existence thereof and/or consolidation of assets and liabilities thereof with those of any other Person within the framework of bankruptcy, reorganization or corporate restructuring proceedings. Purchaser shall conduct, and it shall cause the Company to conduct after the Closing, its business in the Ordinary Course thereof.
(d) Payment of Obligations. Purchaser shall pay, and it shall cause the Company to pay after the Closing, its obligations, including its Tax related obligation, prior to default or non-payment thereof, except in those cases where (i) validity or amounts thereof are subject to controversy in good faith by means of the appropriate proceedings, and/or (ii) after the Closing, to the extent that default upon payment thereof may not be reasonably expected to have a significant adverse effect on the business or financial position or results of operations of Purchaser or the Company.
(e) Maintenance of Property. Purchaser shall preserve and maintain, and it shall cause the Company to preserve and maintain after the Closing, any and all property as may be essential for conduct of the respective business thereof in good state of repair and maintenance, except for normal wear and tear, occurring in the Ordinary Course.
(f) Insurance. Purchaser shall maintain, and cause the Company to maintain after the Closing, insurance coverage with widely recognized and financially sound insurance companies, for the amounts and covering the risks as are usually maintained by other companies participating in the same industry as the Company.
(g) Books and Records; Inspection Rights. Purchaser shall (i) keep corporate and accounting books and records where they will record complete, true and accurate entries of all operations and transactions in relation to business and activities thereof; and (ii) permit the Representatives appointed by Seller, by means of notice given reasonably in advance, and during working hours, to visit and inspect property thereof, examine and withdraw any information from books and records thereof and analyze the affairs, financial position and situation thereof with their officers and external auditors.
(h) Compliance with the Laws and Agreements. Purchaser shall (i) comply with, and after the Closing cause the Company to comply, in all significant respects, with the Applicable Laws as are aplicable to assets or property and/or conduct of business thereof, (ii) comply with, and cause the Company to comply with, in all significant respects, all the terms and conditions under all Contracts as Purchaser or the Company are a party to and/or whereby any of their respective assets or property shall be bound, and (iii) demand performance of every Contract pursuant to the respective terms and conditions thereof.
(i) Permits. Purchaser shall obtain, maintain and renew or extend (as the case may be), and after the Closing cause the Company to obtain, maintain and renew or extend (as the case may be), from time to time and in due and timely manner, at its sole expense, any and all Permits as may be required to (i) perform their respective obligations under each one of the Transaction Documents and (ii) be the owner of their respective assets and conduct their respective business and operations as such business and operations are conducted and as each one of them shall propose to conduct them in the future. Purchaser shall comply with and abide by and, after the Closing cause the Company to comply with and abide by, any and all obligations and conditions established or as may be imposed under each one of such Permits.
(j) Priority. Purchaser shall take any and all actions as may be necessary in order to ensure that obligations thereof concerning payment of the Price Balance and interest accrued thereon shall rank at least pari passu, at all times, in right of payment and other rights as may be applicable, with any other unsecured Indebtedness of Purchaser, either existing at present or in the future.
(k) Security Documents. Purchaser shall perform or cause performance of any actions as are or as may be necessary or convenient in order for (i) the Security Documents to be valid, legal and enforceable contracts pursuant to the terms thereof, and (ii) any Liens and guarantees contemplated under the Security Documents to be created and remain in full force and effect at all times, pursuant to the terms set forth under the Security Documents. Purchaser shall take any
and all measures from time to time as may be deemed necessary or appropriate thereby in order to safeguard Seller’s rights under the Security Documents. Without limiting the generality of the foregoing, Purchaser shall execute, and cause the Permitted Holders to execute, such documents, sign and/or file (and cause the Permitted Holders to sign and/or file) any statements, contracts and instruments and take any other actions as may be required under the Applicable Law, and/or as may be reasonably required by Seller, for the purpose of granting, preserving, protecting and perfecting validity and priority of such Liens and guarantees furnished or intended to be furnished under the Security Documents.
(l) Liens. (i) Purchaser shall not create, incur, assume or permit the existence of any Lien, and (ii) following the Closing, Purchaser shall cause the Company to refrain from creating, incurring, assuming or permitting the existence of any Liens, in each case under (i) and (ii) above, upon any of the property, assets, income and/or revenues (including receivables) and/or any rights in connection therewith, as are currently owned thereby and/or acquired in the future, except for (A) in the case of Purchaser, any Permitted Liens, y (B) solely in the case of the Company, any Liens existing as of the Closing Date.
(m) Fundamental Changes.
(i) Mergers, Consolidations, Disposal of Assets and other Actions. (A) Purchaser shall not take any actions as may entail, and (B) after the Closing, Purchaser shall cause the Company not to take any actions as may entail, in each case under (A) and (B) above, (1) any merger, conversion, consolidation, spin-off and/or any other corporate restructuring, (2) capital stock reduction, except in those cases as are mandatorily provided for under the statutory provisions, (3) sale, transfer, lease and/or disposal in any other manner whatsoever of all or a substantial part of such assets, property or rights, or (4) liquidation or dissolution thereof.
(ii) Lines of Business. Purchaser shall not engage in any commercial activity as is not exclusively related to its acting as a holding company of the Company, and, following the Closing, Purchaser shall cause the Company not to engage in any business activity as is not related to the electricity distribution business under the Concession Agreement (except to the extent it shall not affect, either totally or partially, any significant assets or assumption of any significant Liabilities, by the Company).
(n) Transactions with Affiliates. (i) Purchaser shall not sell, lease and/or otherwise transfer any property or assets thereof to any of its Affiliates, and it shall not purchase, lease and/or otherwise acquire any property or assets of any Affiliates thereof, and it shall not participate in any other transaction with any Affiliates thereof, and (ii) after the Closing, Purchaser shall cause the Company not to sell, lease and/or otherwise transfer any property or assets to any Affiliates thereof, or purchase, lease and/or otherwise acquire any property or assets of any Affiliates thereof, or otherwise participate in any other manner in any transaction with any Affiliates thereof, except for, in (i) and (ii) above, any transactions conducted in the ordinary course of business, in a manner consistent with past practice and under terms which are no less favorable for Purchaser and/or the Company, as the case may be, than those as may be obtained by an independent third party under negotiations in good faith.
(o) Indebtedness Limitation. (i) Purchaser shall not incur, and (ii) after the Closing, Purchaser shall cause, unless prior consent from Seller has been given in writing (which consent shall not be unreasonably withheld, conditioned or delayed), the Company not to incur, in (i) and (ii) above, any Indebtedness, except, and provided that no Event of Default has occurred and remains uncured, (A) for any Permitted Indebtedness, and (B) solely in the case of Purchaser, for any Indebtedness which funds (net of any ordinary commissions) are applied to prepayment of the Price Balance and outstanding interest totally (but not partially).
(p) Assets Sales Limitation. (i) Purchaser shall not carry out, and (ii) after the Closing, Purchaser shall cause the Company not to carry out, any sale, transfer, transmission or any other disposition, either directly or indirectly, and either in a single transaction or series of transactions, of any property or assets thereof; provided, however, that this Section 5.12(p) shall not prohibit such disposition by the Company of any deteriorated, worn-out or broken property or assets, or any disposition by the Company of any property or assets in the ordinary course of business, under terms which are no less favorable therefor than such terms as may be obtained by an independent third party under negotiations in good faith.
(q) Restricted Payments Limitation. Purchaser shall not authorize or make any Restricted Payments.
(r) Optional Payments; Amendments to Certain Documents.
(i) Purchaser shall not make, or offer to make, either optionally or voluntarily, any payments, prepayments and/or redemptions in connection with any Indebtedness.
(ii) (A) Purchaser shall not amend, change, waive and/or other modify or consent to or agree upon any amendments, changes, waivers and/or any other modification, and (B) after the Closing, Purchaser shall cause the Company not to amend, change, waive and/or other modify or consent to or agree upon any amendments, changes, waivers and/or any other modification, in each (A) and (B) above, of the terms and conditions of any Indebtedness as may result in reduction of the weighted average duration to maturity.
(s) Investments Limitation. Purchaser shall not organize any subsidiaries or permit any Person to become a subsidiary thereof, or make or maintain any Investment in any Person, except (i) to the extent as may be expressly contemplated under the Agreement and the other Transaction Documents, and (ii) for performance of any deposits and acquisition and maintenance of cash and cash equivalents (pursuant to the Applicable PCGA) in the ordinary course of business.
(t) Early Prepayment for Indebtedness. In the event that, after the Closing, Purchaser shall incur in any Indebtedness in violation of the terms provided for in Section 5.12(o), Purchaser shall apply an amount equivalent to the lesser of (i) all the funds in the aggregate from such Indebtedness (net of usual fees) and (ii) the Price Balance remaining balance and outstanding interest due as of such date, to early prepayment of the Price Balance and outstanding interest due as of such date; provided that:
(A) the applicable funds shall be allocated to prepayment of the Price Balance and outstanding interest due no later than on the second Business Day following the date of receipt of such funds derived from such Indebtedness;
(B) the applicable funds shall be allocated to settle, in the first place, interest and default interest as may be applicable, and secondly, the Price Balance; and
(C) none of the provisions under this Section 5.12(t) shall limit or restrict, in any manner whatsoever, Seller’s rights provided for under Section 5.13 in relation to such breach.
(u) Early Prepayment for Distributions. In the event that, after the Closing, the Company shall make any Restricted Payment to Purchaser, Purchaser shall apply an amount equivalent to the lesser of (i) all the funds in the aggregate from such Restricted Payment, and (ii) the Price Balance remaining balance and outstanding interest unpaid as of such date, to early prepayment of the Price Balance and outstanding interest due as of such date; provided that:
(A) the applicable funds shall be allocated to prepayment of the Price Balance and outstanding interest due no later than on the second Business Day following the date of receipt of such funds derived from such Restricted Payment; and
(B) the applicable funds shall be allocated to settle, in the first place, interest and default interest as may be applicable, and secondly, the Price Balance.
Section 5.13 Price Balance; Events of Default. Notwithstanding any provision of Section 2.02(b) to the contrary, should any of the facts or events described hereinbelow (each, an “Event of Default”) occur after the Closing, the Price Balance shall become immediately payable in full (including payment of the aggregate principal amount of the Price Balance, compensatory interest accrued and default interest, as appropriate), and the maturity of the terms contemplated and stipulated in Section 2.02(b)(iii) will be deemed accelerated:
(i) lack of payment, in due time and manner, of any principal amount of the Balance Price or of any Contingent Payment;
(ii) lack of payment, in due time and manner, of any amount of compensatory interest, default interest and/or any other amount due hereunder, to the extent non-compliance had not been cured within a term of (5) Business Days counted since the respective due date or the date on which such sum became payable, as set forth in the Agreement;
(iii) failure by Purchaser to discharge, in due time and manner, any of its obligations, as provided in any of Sections 5.07 to 5.11, any of paragraphs (b) through (s) of Section 5.12 or in the Share Pledge Agreement, always provided that such non-compliance cannot be cured, or where such breach is capable of being cured, had not been cured within a term of thirty (30) calendar days upon the occurrence thereof;
(iv) if any of the representations and warranties of Purchaser, as provided in Section 4.11 or in the Share Pledge Agreement, were inaccurate, false or incomplete, to the extent such circumstance cannot be corrected, or where such circumstance is capable of being corrected, had not been rectified within a term of five (5) calendar days upon the occurrence thereof;
(v) if Purchaser or the Company fails to discharge in general its obligations to third parties or, in any other manner, falls into suspension of payments and/or generally defaults on its payment obligations, or admits in writing its inability to pay its debts or files a voluntary petition for reorganization proceedings, applies for approval of an out-of-court restructuring agreement, files a voluntary petition for bankruptcy or institutes any similar proceedings under any Applicable Law on insolvency and bankruptcy;
(vi) if Purchaser or the Company institutes proceedings for liquidation, restructuring of liabilities, reorganization or out-of-court restructuring, or any similar insolvency proceedings or process under any Applicable Law on insolvency and bankruptcy, or if any Person files an involuntary bankruptcy petition against Purchaser or the Company;
(vii) if an Event of Default has occurred and is continuing under the Indenture and such default remains uncured after the expiration of the applicable grace period;
(viii) if Purchaser or the Company fails to comply, in due time and manner, with any payment obligation (other than those undertaken under the Agreement although including, without limitation, non-compliance with payment obligations under any guarantee furnished to third
parties) that had been undertaken pursuant to an Indebtedness, the outstanding principal amount whereof is equal to or higher than, whether individually or in the aggregate, the amount of (A) USD$1,000,000, in the case of Purchaser, or (B) USD $15,000,000, in the case of the Company, and such default remains uncured after the expiration of the applicable grace period, if any, specified in the agreement or instrument evidencing such Indebtedness;
(ix) if the accelerated maturity, lapsing or early maturity of the terms under any Indebtedness assumed by Purchaser or the Company had been declared, due to events of default other than those specified in the foregoing paragraph, where the outstanding principal amount is equal to or higher than, whether individually or in the aggregate, the amount of (A) USD$1,000,000, in the case of Purchaser, or (B) USD $15,000,000, in the case of the Company, pursuant to the terms thereof;
(x) if any attachment is levied or any other provisional remedy is granted on any of Purchaser´s or the Company´s assets and/or rights or an injunction is granted enjoining Purchaser or the Company from generally disposing of or encumbering its property in an amount higher than (A) USD $1,000,000, in the case of Purchaser, or (B) USD $15,000,000, in the case of the Company, always provided that such attachments, provisional remedies and/or restraints of property were not lifted within a term of thirty (30) judicial business days after being so requested, which petition must be filed on the first available occasion in the proceedings;
(xi) if one or more final and non-appealable judgments were rendered against Purchaser or the Company in an amount higher than (A) USD $1,000,000, in the case of Purchaser or (B) USD $15,000,000, in the case of the Company, in each case, individually or in the aggregate during any period of twelve (12) calendar months and such judgments were not complied with within the term set forth therein;
(xii) if a Change of Control occurs;
(xiii) if any of the Security Documents is terminated or rescinded, or any section thereof becomes invalid or is no longer fully enforceable pursuant to its terms for any reason whatsoever, or any Person raises objections to the full validity thereof or if, at any time, Seller forfeits its first ranking right in rem of pledge over the registered, common and non-endorsable shares of stock issued by Purchaser representing 80% of its capital stock and voting power;
(xiv) if Purchaser or the Company discontinues the development of its entire business and/or operations or any part of its business and/or operations in such a manner that may prevent the ordinary course of its business;
(xv) if any Governmental Entity (A) expropriates, nationalizes and/or seizes (I) all the property and/or revenues of Purchaser and/or the Company or substantially all such property and/or revenues; and/or (II) all or substantially all the share capital of Purchaser and/or the Company; (B) assumes custody and/or control of such property and/or the business or operations of Purchaser and/or the Company and/or the share capital of Purchaser and/or the Company (including by means of the enforcement of Permitted Liens); and/or (C) takes any action that may be reasonably conducive to the dissolution and/or liquidation of Purchaser and/or the Company;
(xvi) if early termination of the Concession Contract occurs, for any reason whatsoever;
(xvii) if it were unlawful for Purchaser and/or the Company to comply with any obligation undertaken by it under these presents and/or any other Transaction Document and/or any such obligations were no longer valid, legal and enforceable;
(xviii) if the shareholders and/or directors of Purchaser and/or the Company resolve upon the dissolution and/or liquidation thereof; and/or
(xix) if, in case Seller is a Tender Offer co-offeror in compliance with the provisions of Section 5.08(c), (A) any of the conditions precedent specified in Section 5.08(d) remains unsatisfied at any time after notice of such offer is given until the time of settlement thereof (inclusive), and (B) Seller were prevented from desisting and withdrawing as co-offeror from the Tender Offer.
Section 5.14 Price Balance; Guarantees. The fact that Purchaser and/or any of its shareholders and/or Affiliates furnished any guarantee, whether personal, real and/or of any other nature, in connection with the payment of the Price Balance and any ancillary payments (including, without limitation, the Liens and guarantees created under the Security Documents), shall not be construed as a datio pro soluto (voluntary surrender in lieu of payment), novation, repeal and/or amendment whatsoever of these presents and/or any other documents related to these presents and/or any other Lien and/or guarantee in connection herewith. In the event more than one Lien and/or personal, real and/or any type of guarantee had been created in favor of Seller, Seller may enforce its rights on all of them collectively and/or on any of them in the first place, in the order and in the manner as Seller may deem advisable. Forfeiture by Seller of any of such Liens and/or personal, real and/or any type of guarantee, even in the event such forfeiture may be caused by reasons attributable to Seller, may not be asserted by Purchaser, any of its shareholders or Affiliates to alleviate their liability under these presents and/or any other Transaction Document.
Section 5.15 Additional Guarantors. Purchaser undertakes to cause each of the Additional Purchaser Guarantors to submit to Seller, before February 15, 2021, an irrevocable offer for the execution of a guarantee agreement substantially in the form attached hereto as Exhibit 5.15 (each guarantee agreement resulting from the acceptance of any such offers, an “Additional Guarantee Agreement”), duly executed, with the signature and powers duly certified by a notary public licensed in the Argentine Republic.
Section 5.16 Access to Information. For the purpose of facilitating the defense or resolution of any Claim made against Seller, any of its Affiliates and any of its respective Representatives, Purchaser shall, within a term of ten (10) years counted since the Closing Date (i) keep, and cause the Company to keep, the books and records of the Company for the periods prior to Closing, and (ii) after notice having been given reasonably in advance, allow, and cause the Company to allow Seller, its Affiliates and Representatives, reasonable access (including the right to take photostat copies, at their own expense), during regular business hours, to such books and records, and any other information or documentation in Purchaser´s or the Company´s possession, and their respective officers and facilities; provided, however, that upon the expiration of such term of ten (10) years, Purchase shall give notice to Seller, at least 60 days in advance, of its intention to destroy any such books and records so as to give Seller the opportunity to access same in compliance with this Section 5.16. Purchaser undertakes to give notice to Seller about the existence of any Claim against the Company that may in turn be made, or may reasonably be expected to be also made against Seller, any of its Affiliates or any of its respective Representatives, within a term of ten (10) Business Days counted since the date on which any director, executive or manager of Purchaser or the Company had become aware of such Claim.
Section 5.17 Notice of Intervening Events. Until the Closing, each Party shall notify the other, as soon as reasonably possible after having become aware thereof, about the occurrence or non-occurrence of any fact, change, condition, circumstance or event that results or may reasonably be expected to result in the impossibility to comply with any of the conditions set forth in Article VI; provided, however, that no notice under this Section 5.17 shall modify or affect and shall not be regarded as modifying or affecting, any of the representations or warranties, commitments, obligations, agreements or conditions stipulated in the Agreement or any remedy available under these presents in favor of any Party.
Section 5.18 Additional Acts. Each Party irrevocably undertakes to exert its reasonable efforts to take, or cause to be taken, all such steps as may be appropriate, and carry out, or cause to be carried out, all such acts as may be necessary, appropriate or advisable under the Applicable Law, and to execute and deliver all such documents as may be required for the purpose of consummating the Transactions and complying with their respective obligations under the Agreement and the other Transaction Documents.
ARTICLE VI
CONDITIONS TO CLOSING
Section 6.01 Conditions to the Obligations of each Party. The obligations of each one of the Parties to consummate the Closing are conditional upon satisfaction (or waiver granted in writing by Seller and Purchaser), on or before the Closing, of each one of the following conditions:
(a) No Prohibition. No Applicable Law or Governmental Order shall be in force making illegal, restricting or otherwise prohibiting (either on a temporary, preliminary or permanent basis) the approval or consummation of the Transactions; provided, however, that this Section 6.01(a) shall not be enforceable in favor of such Party that, directly or indirectly, had requested, promoted or supported such Applicable Law or Governmental Order.
(b) No Claims. No Claim shall exist, either pending or threatened, by or against any Governmental Entity against any of the Parties having the effect of restricting, materially altering or prohibiting the Transactions that, in the sole discretion of Seller or Purchaser, may likely cause the consummation of the Transactions in the manner contemplated under this Agreement to be impossible or illegal; provided, however, that the provisions of this Section 6.01(b) shall not be enforceable in favor of such Party that, directly or indirectly, had instituted, promoted, made or supported such Claim.
(c) ENRE Approval. ENRE approval shall have been obtained and same shall be fully valid and in force.
(d) Approval by Seller´s Meeting of Shareholders. Seller´s general ordinary meeting of shareholders summoned and held in compliance with the attendance and voting quorum requirements provided in the Applicable Law and its corporate bylaws, shall have approved the consummation of the Transactions.
Section 6.02 Conditions to the Obligations of Seller. The obligations of Seller to consummate the Closing are conditional upon satisfaction (or waiver granted in writing by Seller), on or before the Closing, of each one of the following conditions:
(a) Representations and Warranties. (i) Each one of Purchaser´s Fundamental Representations, as contained in these Terms and Conditions, shall have been true and correct as of the date of the Offer Letter and shall be true and correct as of the Closing Date (except for those made as of a particular date that shall be true and correct as of such specific date); and (ii) all other representations and warranties of Purchaser contained in these Terms and Conditions shall have been true and correct in al material respects as of the date of the Offer Letter and shall be true and correct in all material respects as of the Closing Date (except for those made as of a particular date that shall be true and correct as of such specific date).
(b) Obligations. All the obligations of each member of the Purchasing Group, as set forth in these Terms and Conditions, that should be complied with as of or before the Closing shall have been complied with in all material respects.
(c) Certificate. Purchaser shall have delivered to Seller a certificate, dated as of the Closing Date and executed by its legal representative or one or more of its attorneys-in-fact vested with sufficient powers, attesting to the satisfaction of the conditions provided in Sections 6.02(a) and 6.02(b).
(d) Share Pledge. Seller shall have received original copies of the Share Pledge Offer Letter duly executed by each one of the Permitted Holders and evidence satisfactory to Seller, at its sole discretion, that the Share Pledge has been created as a first ranking pledge (and that all notices and registrations required for it to be perfected and/or enforceable vis-à-vis third parties have been given and made).
(e) Registration. Purchaser shall have been registered as a corporation in the Superintendency of Corporations subordinate to the Ministry of Justice and Human Rights of the Argentine Republic and such registration shall be in full force and effect.
Section 6.03 Conditions to the Obligations of Purchaser. The obligations of Purchaser to consummate the Closing are conditional upon satisfaction (or waiver granted in writing by Purchaser), on or before the Closing, of each one of the following conditions:
(a) Representations and Warranties. (i) Each one of Seller´s Fundamental Representations, as contained in these Terms and Conditions, shall have been true and correct as of the date of the Letter of Acceptance and shall be true and correct as of the Closing Date (except for those made as of a particular date that shall be true and correct as of such specific date); and (ii) all other representations and warranties of Seller contained in these Terms and Conditions shall have been true and correct in al material respects as of the date of the Letter of Acceptance and shall be true and correct in all material respects as of the Closing Date (except for those made as of a particular date that shall be true and correct as of such specific date).
(b) Obligations. All the obligations of Seller, as set forth in these Terms and Conditions, that should be complied with as of or before the Closing shall have been complied with in all material respects.
(c) Certificate. Seller shall have delivered to Purchaser a certificate, dated as of the Closing Date and executed by its legal representative or one or more of its attorneys-in-fact vested with sufficient powers, attesting to the satisfaction of the conditions provided in Sections 6.03(a) and 6.03(b).
ARTICLE VII
INDEMNIFICATION
Section 7.01 Validity. (a) The representations and warranties of the Parties, as contained or made in the Agreement, shall be valid and shall remain in full force until the date that is twelve (12) months after the Closing Date and same shall be extinguished on such date; provided, however, notwithstanding of any provision in these presents to the contrary, that the Fundamental Representations shall survive the Closing Date indefinitely and shall not expire.
(b) The commitments and agreements of the Parties undertaken or included in the Agreement (i) that by their terms are enforceable or should be complied with in their entirety on or before the Closing, shall remain in force and shall terminate as of the Closing (and, after the Closing, neither Party shall have any right of indemnification on the grounds of any breach or violation of any such commitments or agreements), and (ii) that by their terms are enforceable or should be complied with, whether in full or in part, after the Closing, shall remain in force for such term as is stipulated in such commitments and agreements, if any, or until full compliance therewith, as applicable.
(c) Notwithstanding the provisions above, any claim made within the time period stipulated in the foregoing sentences with reasonable accuracy by the Party seeking to be indemnified shall survive until the final resolution thereof.
Section 7.02 Indemnification by Seller. Subject to the provisions of this Article VII, Seller hereby undertakes to indemnify and hold Purchaser and its Affiliates, and their respective directors, executives and employees, representatives, successors and permitted assigns (each one, a “Purchaser Indemnified Party”), and pay or reimburse, as applicable, each Purchaser Indemnified Party, from and against, any Loss actually suffered or incurred by any of them derived from, as a result of or in connection with:
(i) the breach of any representation or warranty made by Seller in these Terms and Conditions; or
(ii) the violation by Seller of any of its respective agreements, obligations or commitments, as set forth in these Terms and Conditions.
Section 7.03 Indemnification by Purchaser. Subject to the provisions of this Article VII, Purchaser hereby undertakes to indemnify and hold Seller and its Affiliates, and their respective directors, executives and employees, agents, representatives, successors and permitted assigns (each one, a “Seller Indemnified Party”), and pay or reimburse, as applicable, each Seller Indemnified Party, from and against, any Loss actually suffered or incurred by any of them derived from, as a result of or in connection with:
(i) the breach of any representation or warranty made by Purchaser or any Purchaser Guarantor in these Terms and Conditions;
(ii) the violation by Purchaser or any Purchaser Guarantor of any of its respective agreements, obligations or commitments, as set forth in these Terms and Conditions; or
(iii) any Third Party Claim (including any Claim filed or made by any Governmental Entity (including the CNV and the SEC)) related to or derived from the Tender Offer (including the likely involvement of Seller as co-offeror thereunder).
Section 7.04 Limitation on the Obligations to Indemnify. The Parties agree that, notwithstanding any provision of these Terms and Conditions to the contrary, the maximum aggregate amount of indemnifiable Losses by any Indemnifying Party under the provisions of Section 7.02(i) or Section 7.03(i), as applicable, always provided that such Losses do not derive from or are related to or result from the bad faith or the willful or fraudulent conduct of any of the Parties that made such representations and warranties, shall be USD $100,000,000 (U.S. Dollars One Hundred Million).
Section 7.05 Indemnification Procedure.
(a) Notice by the Indemnified Party. If any Indemnified Party becomes aware of any event or circumstance that may give rise to a claim for indemnification under this Article VII, the applicable Indemnified Party Representative, shall give written notice to the applicable Indemnifying Party, as soon as may be reasonably possible after having become aware of such event or circumstance, of any Loss in respect of which indemnification may be claimed under the provisions of this Article VII, including any current or potential Claim by any third party that, as determined by the Indemnified Party, has given rise or may reasonably be expected to give rise to an indemnification right under the Agreement (each, a “Third Party Claim”), describing the Sections of these Terms and Conditions on which such claim is based, together with such information (to the extent available) as may be reasonably necessary to allow the applicable Indemnifying Party to evaluate the merits of the relevant claim, indicating the estimated amount of such Losses (to the extent assessable) that are, or may be, the subject-matter of the claim in question; provided, however, that failure to give such notice shall not release the Indemnifying Party from any of its obligations under this Article VII, except to the extent the Indemnifying Party had been materially impaired by such omission. The Indemnified Party Representative shall (to the extent available), as soon as may be reasonably possible, make available to the Indemnifying Party all such additional information and documentation as may be reasonably requested by the Indemnifying Party for the purpose of evaluating the merits of the relevant claim; provided, however, that any potential delay by the Indemnified Party Representative in making available such reasonably requested information or documentation shall not adversely affect the provisions of this Section 7.05, including the calculation of the terms set forth in this Section 7.05.
(b) Defense of Third Party Claims. Other than in the events expressly contemplated in this Section 7.05, if the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party for any Loss that may result from any Third Party Claim, the Indemnifying Party shall have the right to assume and control the defense of such Third Party Claim, at its exclusive cost and through the legal counsel of its choice, if it gives written notice to the Indemnified Party Representative of its intention to that effect at any time prior to the execution of a final settlement agreement or the issuance of a final opinion by experts or a non-appealable decision of a court having competent jurisdiction with respect to the Third Party Claim or before the Third Party Claim is otherwise finally resolved; provided, however that, only in those cases where a conflict of interests exists or is reasonably expected to exist that would make inappropriate, in the reasonable opinion of the Indemnified Party Representative, that the Indemnified Party and the Indemnifying Part be represented by the same legal counsel, the Indemnified Party shall have the right to retain its own legal counsel in each jurisdiction where it understands that such engagement is necessary and the reasonable fees of such legal counsel shall be borne by the Indemnifying Party; provided, further, that after the second Business Day
following the giving of notice of the Third Party Claim to the Indemnifying Party without the latter having resolved to assume the defense, the costs and expenses (including attorneys´ fees) incurred in the preparation and conduct of the defense of the Third Party Claim shall be borne by the Indemnifying Party until the date the Indemnifying Party resolves to exercise its right to control such defense. In each case, the Indemnifying Party and the Indemnified Party Representative shall cooperate with each other and shall ensure that the other be fully informed about such defense and shall make available to each other, all such witnesses, relevant records, material and information in possession or under the control of such Person concerning such Third Party Claim as may be reasonably requested by the Party in charge of conducting the defense of a Third Party Claim (and the Indemnified Party Representative shall cause the Indemnified Party to provide cooperation, keep the Indemnifying Party informed and make available to such Indemnifying Party such witnesses, records, materials and information). The Party liable for conducting the defense of the Third Party Claim shall not admit liability, compromise or settle, pay, discharge, put an end or otherwise resolve such Third Party Claim without the other Party´s prior written consent, which consent may not be unreasonable withheld; provided, however, that the Indemnifying Party shall not require any consent by the Indemnified Party or the Indemnified Party Representative to settle, pay, discharge, put an end or otherwise resolve any Third Party Claim (other than a Third Party Claim where allegations of criminal conduct are asserted) if such settlement or resolution (i) amounts to a complete and unconditional release of the Indemnified Party and, (ii) does not provide for any redress other than the payment of pecuniary damages and such pecuniary damages are fully paid by the Indemnifying Party.
(c) Mitigation. Each Indemnified Party shall use commercially reasonable efforts to lessen or mitigate the amount of any Loss that, in the absence of such lessening or mitigation would give rise to an indemnifiable Loss under these presents. In the event any Indemnified Party fails to exert its commercially reasonable efforts to that effect, the applicable Indemnifying Party shall not be liable exclusively for such portion of the indemnifiable Losses under these presents that would reasonably have been avoided if such efforts had been exerted.
(d) Indemnification Payments. The obligations of the Indemnifying Party to indemnify, pay or reimburse the applicable Indemnified Party for any indemnifiable Loss pursuant to the provisions of this Article VII shall be discharged within a term of ten (10) calendar days counted since the date same became due and payable.
Section 7.06 Treatment of Indemnification Payments. To the maximum extent permitted by the Applicable Law, for all legal effects as may be applicable (including Tax effects), the Parties agree that all payments made under this Article VII shall be treated by them as a Purchase Price adjustment.
Section 7.07 Damages. The Parties agree, with respect to any indemnification obligation set forth in this Article VII or any other document executed or delivered in connection with the Closing, that in no event shall any Indemnifying Party be liable to an Indemnified Party for (i) any Loss arising from special circumstances relative the Indemnified Party that had not been disclosed prior to the date hereof by the Indemnified Party to the Indemnifying Party; (ii) except in case of bad faith, willful misconduct or fraud attributable to the Indemnifying Party or any of its Affiliates, indirect damages (damages derived from casual consequences) or pain and suffering, loss of profit, loss of income, opportunity cost (including loss of chance), reduction or delayed creation of the value of assets, securities or damages based on a profits multiple or similar financial measurement, even though, pursuant to the Applicable Law, such indirect damages or pain and suffering, loss of profit or loss of income, opportunity cost, reduction or delayed creation of the value of the assets, securities or damages could be susceptible of being indemnified;
provided that, upon assessing such Losses, no provisions or adjustment shall be made based on profits or earnings multiple or any other measurement of operating income (loss), increase factor or any other premium to book or historical value and (iii) Losses to the extent same do not amount to the likely and reasonably foreseeable outcome of any breach by the Indemnifying Party of a representation and warranty, commitment or agreement contained in these Terms and Conditions.
Section 7.08 Net Tax Benefit. The amount of any Loss for which reimbursement or indemnification is contemplated pursuant to this Article VII (i) shall be reduced by any Tax benefit actually granted to the Indemnified Party (or any Affiliate of the Indemnified Party) as a consequence of having incurred or suffered such Loss (including as a result of the facts, matters, events or circumstances that gave rise to such Loss), and (ii) shall be increased by any Tax cost actually suffered or incurred by the Indemnified Party (or any Affiliate of the Indemnified Party) as a result of the receipt or accrual of the applicable indemnification or reimbursement payment.
Section 7.09 Contingent Liabilities. No Indemnifying Party shall be liable pursuant to the provisions of this Article VII with respect to any Loss of a contingent nature unless such contingent Loss turns into an actual liability and becomes due and payable.
Section 7.10 Set-off. For as long as the Price Balance is not fully paid to the satisfaction of Seller, any net and payable obligation of Seller to pay any amount under these presents in the nature of Indemnifiable Losses suffered or incurred by any Purchaser Indemnified Party in compliance with the provisions of Section 7.02 shall be offset, automatically and without further ado, either fully or partially, as applicable, against the Price Balance and interest accrued thereon, on the date when Seller recognizes the existence and amount of such obligations, on the date when Seller and Buyer execute a Contract for such purpose or on the date an arbitration award is rendered in compliance with the provisions of Section 9.13 determining the existence and amount of such obligation, as applicable. For such purposes, payment of the relevant indemnification shall be computed as a voluntary prepayment of the Price Balance (whether fully or partially, as applicable, without enforcing in the latter case the limitations set forth in Section 2.02(g)) with the relevant indemnification amount allocated to pay (i) firstly, compensatory and default interest, as applicable, and (ii) secondly, the outstanding principal amount of the Price Balance (in an amount equivalent to the balance of the sums owed by Seller after giving effect to the provisions in paragraph (i) above).
ARTICLE VIII
TERMINATION
Section 8.01 Termination. (a) The Agreement may be terminated only before the Closing:
(i) by Seller or Purchaser, if the general ordinary meeting of shareholders of Seller had not considered the consummation of the Transactions by Seller within a term of sixty (60) calendar days computed since the date of the Letter of Acceptance;
(ii) by Seller or Purchaser, if the Closing had not taken place prior to the Closing Date; provided, however, that the right to terminate the Agreement under this paragraph (ii) shall not be available to such Party whose breach or violation of any representation, warranty or obligation made by such Party or for which such Party is liable, as set forth in the Agreement, had been the reason for, or had resulted in, the non-consummation of the Closing prior to such date;
(iii) by Seller or Purchaser, in the event that a Governmental Entity having competent jurisdiction had issued any Governmental Order or adopted any action intended to restrict, prevent or otherwise prohibit the consummation of the Transactions, to the extent such Governmental Orders or actions were final and not subject to remedies or challenges; provided, however, that the right to terminate the Agreement pursuant to this paragraph (iii) shall not be available to the Party that had applied for, requested, promoted or supported (by itself or through any of its Affiliates or Representatives) the issuance of such Governmental Order or the performance of such action;
(iv) by Seller or Purchaser, in case of any non-compliance or violation, in any material respect, of any representation, warranty, commitment or obligation made by Seller or for which Seller is liable (in the case of termination by Purchaser) or any member of the Purchasing Group (in the case of termination by Seller) under the Agreement, to the extent such non-compliance or violation, whether individually or combined, may result in non-compliance with any of the conditions precedent set forth in Article VI, and always provided that, in the case of non-compliance with any commitment, agreement or obligations, same cannot be remedied or, if capable of being remedied, are not cured within the term of ten (10) days following the occurrence thereof; provided, however, that the right to terminate the Agreement under this paragraph (v) shall not be available to the Party whose breach or violation of any representation, warranty or obligation made by such Party or for which such Party is liable, as set forth in the Agreement, had been the reason for, or had resulted in, the non-consummation of the Closing prior to such date;
(v) by Seller, if Purchaser had not paid the Purchase Price in Kind and the Initial Amount within the terms and subject to any other provisions contained in Section 2.02(b) and Section 2.02(c)(i), respectively; or
(vi) by mutual consent in writing between Seller and Purchaser.
(b) Each Party acknowledges and agrees that, after the Closing, notwithstanding any provisions in these presents to the contrary, under no circumstances shall the breach of any representation, warranty, commitment or agreement, as set forth herein, give rise to any right of any of the Parties to rescind, cancel or terminate the Agreement or any of the Transactions.
Section 8.02 Notice. Either Party that intends to terminate the Agreement pursuant to the provisions of Section 8.01(a) shall notify such circumstance to the other Parties in writing.
Section 8.03 Effects of Termination. In the event of termination of the Agreement pursuant to the provisions of Section 8.01(a):
(i) the Agreement will cease to have effects and the rights and obligations of the Parties under these presents will be extinguished except for (A) the Surviving Provisions, (B) those obligations of the Parties stemming from any breach of the Agreement prior to the termination thereof, and (C) the obligation of Seller to return to Purchaser, only in the event of termination of the Agreement (x) by either Party in accordance with the provisions of Section 8.01(a)(i), or (y) by Purchaser in accordance with the provisions of Section 8.01(a)(iv), the Initial Class B Shares and the Initial Amount, within a term of seven (7) Business Days counted since the date on which Purchaser had disclosed to Seller, after termination of these presents, the bank accounts and custody accounts in Caja de Valores S.A. to which the relevant transfers shall be made; and
(ii) except in the event of termination of the Agreement (A) by either Party in compliance with the provisions of Section 8.01(a)(i), or (B) by Purchaser in compliance with the provisions
of Section 8.01(a)(iv), if, as of the date of termination (x) the ENRE Approval had not been obtained and no member of the Purchasing Group were in default or violation, in any material respect, of any representation, warranty, commitment or obligation made by such member of the Purchasing Group or for which such member is liable, Purchaser will forfeit the Initial Class B Shares to Seller, or (y) the ENRE Approval had been obtained or any member of the Purchasing Group were in default or violation, in any material respect, of any representation, warranty, commitment or obligation made by such member of the Purchasing Group or for which such member is liable, Purchaser shall forfeit the Initial Class B Shares and the Initial Amount to Seller; in each paragraph (x) and (y) above, in the nature of penalty for termination of the Agreement under such circumstances; provided that in the case in paragraph (x) above, Seller shall return to Purchaser the Initial Amount, in U.S. Dollars, within a term of five (5) Business Days counted since the date on which Purchaser had informed Seller, after the termination of these presents, of the bank account to which the relevant transfer of such sum should be made.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 Costs and Expenses; Taxes. (a) Costs and Expenses. Except to the extent expressly set forth in these Terms and Conditions, each Party shall bear all costs and expenses incurred by it in connection with the negotiation, execution and delivery of the Agreement and the other Transaction Documents, the performance of their respective obligations thereunder and the consummation of the Transactions, including fees and expenses of legal, accounting and financial advisors engaged by each one of the Parties.
(b) Taxes. Except to the extent expressly set forth in these Terms and Conditions, any and all Taxes stemming from the execution, delivery and/or performance of the Agreement and/or the consummation of the Transactions, shall be borne or paid by each Party as set forth in the Applicable Law (without this Section 9.01(b) affecting or otherwise limiting any of the provisions of Section 2.02(d)), on their respective maturity dates; provided, (i) for the avoidance of any doubt, that the income tax set forth by the Applicable Law of the Argentine Republic levied on the sale, assignment and transfer of Class B Shares shall be fully borne and paid by Seller, and (ii) that the stamp tax levied on the Promissory Note shall be fully borne and paid by Purchaser.
(c) Taxes in connection with Interest on the Price Balance. Any and all Taxes levied on interest accrued on the Price Balance (including value added tax) shall be borne and/or paid, as applicable, by Purchaser, save for (i) in the case of any interest amount payable to Seller or to any of its permitted assigns (pursuant to the provisions of Section 9.06) with tax residence in the Argentine Republic, the income tax and the turnover tax established by the Argentine Republic, or (ii) in the case of any interest payable to any permitted assign of Seller (or their respective permitted assigns; in each case, pursuant to the provisions of Section 9.06) with tax residence in any jurisdiction other than the Argentine Republic, the tax on income, earnings and/or turnover (or equivalent taxes) established by such other jurisdictions (collectively, “Excluded Taxes”). All payments of interest with respect to the Price Balance shall be made by Purchaser free from any withholding and/or deduction for and/or on account of any Tax other than the Excluded Taxes (including interest, charges, fines and related expenses); provided, however, that if Purchaser were under the obligation to withhold or deduct any such Taxes other than the Excluded Taxes from any of such payments under any Applicable Law, then (A) the amount payable shall be increased as necessary so that, after making all such withholdings or deductions as may be required (including withholdings or deductions applicable to additional amounts payable under this Section 9.01(c)(A)), Seller (or its permitted assign, as appropriate) may receive an amount
equivalent to the sum it would have received if no such withholding or deductions had been made, (B) Purchaser shall make such withholdings or deductions, and (C) Purchaser shall pay the aggregate amount so withheld or deducted to the relevant Governmental Entity in the manner and within the terms set forth in the Applicable Law and shall deliver to Seller (or its permitted assign, as applicable), within a term of five Business Days after making such payment, a copy of the relevant documentary evidence of payment, as mandated by the Applicable Law.
Section 9.02 Notices. (a) All notices, requests, claims, demands, approvals, waivers or any other communications required or permitted to be made in connection with the Agreement shall be given in writing and served by personal delivery or sent by mail (with delivery confirmed) or by e-mail to the relevant Party at the addresses set forth below:
(i) If to any member of the Purchasing Group:
Empresa de Energía del Cono Sur S.A.
Av. Maipú 1252, 12th Floor
City of Buenos Aires (C1006COM) Argentina
Att. Nicolas Mallo Huergo
E-mail: nmh@integraba.com.ar
With copy to (which shall not constitute notice):
Pedro Mazer
Av. Libertador 498, 3rd Floor
City of Buenos Aires (C1001ABR) Argentina]
E-mail: pmazer@alfarolaw.com
(ii) If to Seller:
Pampa Energía S.A.
Maipú 1, 23rd Floor
City of Buenos Aires (C1084ABA)
Argentina
Att.: Nicolás Mindlin / Martín Miliavsky
E-mail: nmindlin@pampaenergia.com / mmiliavsky@pampaenergia.com
With copy to (which shall not constitute notice):
Salaverri, Burgio & Wetzler Malbrán
Av. del Libertador 602, 3rd floor
City of Buenos Aires (C1001ABT)
Argentina
Att.: Diego Salaverri / Tomás Arnaude
E-mail: diego.salaverri@esalaverri.com / tomas.arnaude@esalaverri.com
(b) Any notice and other document to be delivered by mail shall be sent by first class mail, postage prepaid and registered or certified delivery (if the country of destination is the same as the country of origin), by airmail, postage prepaid and registered or certified delivery (if the country of destination is the same as the country of origin) or by email to the applicable addresses specified above.
(c) Any changes in the contact information of any Party, as detailed in Section 9.02(a) above shall be communicated in writing to the other Parties ten calendar days in advance. Failure to comply with such requirement shall cause the communications sent to the domiciles or electronic addresses that are the subject-matter of amendment to be regarded as correctly made.
Section 9.03 Public Announcements. (a) Notwithstanding any provision of these Terms and Conditions to the contrary, neither the Parties nor any of their respective Affiliates may make or issue any announcement, release or advertisement of any kind in connection with the execution of the Agreement, any of its respective terms and conditions, the negotiations conducted in connection with these presents or the Transactions, without the other Party´s prior consent.
(b) The provisions of Section 9.03(a) shall not apply to any announcement, release or advertisement requested to be made or issued:
(i) under any Applicable Law including, without limitation, the Applicable Laws in the Argentine Republic or the United States of America on foreign exchange or securities matters, the rules and regulations of any stock exchange or market where securities issued by Seller or the Company (or any securities issued by a depositary of any of them) are listed or admitted to trading; or
(ii) under any Governmental Order to which any of the Parties may be subject;
always provided that the Party requested to disclose any of the above-mentioned issues had consulted the other, to the extent it were reasonably possible and not prohibited by the relevant Applicable Law or Governmental Order, and had taken into account the other Party´s reasonable requirements as to timing, content, form and scope of such disclosure.
Section 9.04 Entire Agreement. The Offer Letter (including these Term and Conditions and the Exhibits hereto) and the Letter of Acceptance, together with the other Transaction Documents, reflect all the agreements, understanding, commitments and obligations of the Parties regarding the subject-matter of these presents and the other Transaction Documents, superseding all prior agreements between the Parties in connection with the subject-matter of these presents and the other Transactions Documents.
Section 9.05 Severability. Should any term or other provision of these Terms and Conditions be deemed invalid, illegal or unenforceable under any Applicable Law or for reasons of public policy, all other provisions of these Terms and Conditions shall in any case remain fully effective to the extent the economic or legal substance of Transactions has not been materially affected for any of the Parties. Should any provision of these Terms and Conditions be deemed invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend these presents in terms satisfactory to both Parties, so as to give effect to the original intention of the Parties in order for the Transactions to be consummated, to the maximum possible extent, as originally contemplated.
Section 9.06 Assignment. Neither Party may (under any Applicable Law or otherwise) assign, delegate, novate, transfer, encumber or create any security interest on, hold in trust or otherwise dispose of, either fully or partially, its rights or obligations under these presents, or subcontract all or any portion of its obligations under these presents, or attempt to perform any of the foregoing acts, without the other Party´s prior consent (that, in the event of being required from Purchaser with respect to the total or partial assignment of the right of collection on the Price Balance, shall not be unreasonably withheld, conditioned or delayed, always provided it does not entail an increase in the tax burden to be borne by Purchaser based on the provisions of Section 9.01(c));
except that Seller shall have the right to assign or transfer, at any time after an Event of Default occurs and is continuing, either fully or partially, without the consent of any member of the Purchasing Group, the right of collection on the Price Balance and interest amounts payable in connection therewith under these Terms and Conditions, to any Person, by giving written notice of such circumstance to Purchaser at least two (2) Business Days in advance, in which case Purchaser shall execute and deliver to Seller, within a term of five (5) Business Days counted since the receipt of notice of the assignment, in exchange for the Promissory Note timely issued in the name of assignor (which shall be simultaneously returned to Purchaser by such assignor with the legend “cancelled”), a new promissory note issued in the name of the designated assignee in an amount equal to that assigned under the notified assignment, and if the assignor had retained part of its collection rights on the Price Balance and ancillary payments, a new promissory note to the assignor in an amount equal to that of the rights retained thereunder. The new promissory notes shall be dated on the effective date of the assignment and shall be issued substantially in the same terms as the original Promissory Note (save for, if applicable, the amounts of each Promissory Note issued). Additionally, Purchaser shall sign, deliver and/or execute (and shall cause its shareholders and Affiliates that are party to any of the other Transaction Documents to sign, deliver and/or execute) such amendments as may be necessary with respect to such documents in connection with any permitted assignment.
Section 9.07 Amendments. No provisions of these Terms and Conditions may be modified or amended other than (i) by a written document signed by the Parties expressly mentioning the Section or Sections of the Agreement that shall be modified or amended, or (ii) by a waiver pursuant to the provisions of Section 9.08. Any modification or amendment of the Purchaser Guarantee as set forth in Section 9.16 shall be governed by the provision of Section 9.16(h).
Section 9.08 Waivers. (a) Seller may (i) extend the term for compliance with any of the obligations or any other acts that should be discharged or performed by any member of the Purchasing Group, (ii) waive any violation or breach of any of the representations and warranties of any member of the Purchasing Group, as set forth in any of the Transaction Documents, (iii) waive compliance with any of the obligations, commitments or agreements of any member of the Purchasing Group, as set forth in any of the Transaction Documents, or (iv) waive compliance with any of the conditions with respect to the obligations of Seller, as set forth in these presents.
(b) Purchaser may (i) extend the term for compliance with any of the obligations or any other acts that should be discharged or performed by Seller, (iii) waive any violation or breach of any of the representations and warranties of Seller, as set forth in any of the Transaction Documents, (iii) waive compliance with any of the obligations, commitments or agreements of Seller, as set forth in any of the Transaction Documents, or (iv) waive compliance with any of the conditions with respect to the obligations of Purchaser, as set forth in these presents.
(c) Any extension or waiver shall be valid only if it is recorded in a written instrument executed by Seller (in the case of an extension or waiver pursuant to subsection (a) above) or Purchaser (in the case of an extension or waiver pursuant to subsection (b) above). No waiver of any term or condition shall be interpreted as a waiver of any subsequent violation or as a subsequent waiver with respect to compliance with the same term or condition, or as a waiver of any other term or condition of the Agreement. Failure or delay by any Party in exercising any right stemming from these presents shall not be a waiver or relinquishment of any such right. Any waiver of any term or condition of Section 9.16 shall be governed by the provisions of Section 9.16(i).
Section 9.09 No Third Party Beneficiaries. The Agreement shall be binding upon, and shall exclusively inure to the benefit of, the Parties and their respective successors and permitted assigns and nothing in these presents, either express or implied, has been intended to confer and shall not confer to any other Person any right, benefit or remedy of any kind, either pursuant to the Applicable Law or the principles of Equity, without the foregoing provisions affecting or otherwise limiting the stipulations in Section 7.02 or Section 7.03 of these presents.
Section 9.10 Specific Performance. Each Party acknowledges that it could be impossible to assess the amount of damages originating in any violation of the provisions of these Terms and Conditions and that, in view of the singularity of the subject-matter of the Agreement, a violation of these Terms and Conditions by any Party may not be adequately compensated to the other Party in all cases by means of payment of sums of money exclusively and, on such basis, it agrees that the other Party shall have, in addition to any other right or remedy to it may be entitled, the right to demand specific performance of the Agreement and any of the Terms and Conditions and to petition the issuance of such precautionary or provisional remedies available to the Parties by any court having competent jurisdiction ordering specific compliance of, or enjoining non-compliance or violation of, any such provisions. In connection with any formality or procedure to obtain a precautionary or provisional remedy, as permitted under these presents, each Party hereby waives any claim or defense based on the allegation that only a pecuniary indemnification would be adequate and, to the broadest extent permitted by the Applicable Law, accepts that specific compliance with each provision of these Terms and Conditions be enforceable against it, without the need to furnish any surety or any other guarantee, and consents to the issuance of any precautionary or provisional remedy against it to the effect of restricting or preventing any violation or threatened violation of any provision of these Terms and Conditions.
Section 9.11 Payments; Currency; Interest. (a) Notwithstanding any express provision in these presents to the contrary, all payments due under these presents shall be made in U.S. Dollars, by means of transfers of freely and immediately available funds, as follows:
(i) to Seller, be means of transfers of freely and immediately available funds, to such accounts as had been designated by Seller by written notice sent to Purchaser at least five (5) Business Days prior to the date established for the applicable payment; or
(ii) to any member of the Purchasing Group, by means of transfers of freely and immediately available funds, to such accounts and according to such percentages as Purchaser had specified by notice sent to Seller at least five (5) Business Days prior to the date established for the applicable payment.
(b) Each Party hereby irrevocably waives (i) any right (including any right under Section 765 of the Civil and Commercial Code of the Argentine Republic) to which it may be entitled in any jurisdiction to make any payment under the Agreement in any currency other than the U.S. Dollar, or in the case of the Initial Amount, the Euro, and (ii) the right to asserts any defense of impossibility of making payments, impossibility of making payments in U.S. Dollars or, in the case of the Initial Amount, in Euro (assuming the Act of God and force majeure event that may give rise to such impossibility) or similar defenses or doctrines (including defenses based on the application of equity principles or principles or theories of “shared efforts”, “economic hardship” or “unconscionability”) (including any rights under any of Sections 10, 1090, 1091 or 1732 of the Civil and Commercial Code of the Argentine Republic).
(c) Should any prohibition or restriction be in force on any payment date preventing access to the free foreign exchange market in any jurisdiction (the “Applicable Jurisdiction”), any Party
that is a resident in the Applicable Jurisdiction under the obligation to make payment of any amount owed under these Terms and Conditions (the “Affected Party”) shall pay such sum in U.S. dollars or, in the case of the Initial Amount, in Euros, through any of the following procedures, at the option of the Affected Party: (i) by the purchase with currency of legal tender in the Applicable Jurisdiction of such government debt securities issued by the national, federal or central government of the Applicable Jurisdiction in U.S. Dollars that had had the highest average daily trading volume, as reported by Bloomberg L.P. (or its Affiliates) for the five trading days in the City of New York immediately prior to the applicable payment date (or, if Bloomberg L.P. or its Affiliates do not report the trading volume for any such securities issued by the government of the Applicable Jurisdiction on such dates, any other private or public debt or equity securities issued in U.S. Dollars actively traded on any widely renowned international securities exchange or over-the-counter market to be determined by the Party entitled to receive such payment) (the “Dollar-denominated Securities”), and the transfer and sale of such instruments outside the Applicable Jurisdiction for U.S. Dollars (or, in the case of the Initial Amount, for Euros) in an amount that, after being settled in the City of New York and after deducting the relevant Taxes, costs, commissions and expenses, the proceeds thereof in U.S. Dollars (or, in the case of the Initial Amount, in Euros) be equivalent to the amount in such currency due under these presents; (ii) by means of the purchase of U.S. Dollars (or, in the case of the Initial Amount, in Euros) in the City of New York with any means of payment acceptable for such purpose; (iii) through any other legal procedure existing in the Applicable Jurisdiction as of such date to obtain U.S. Dollars (or, in the case of the Initial Amount, of Euros) in the City of New York. Only to the extent that none of the procedures to obtain U.S. Dollars (or, in the case of the Initial Amount, Euros) as specified above is legally available to the Affected Party, the other Party entitled to receive payment of the relevant amount owed by the Affected Party under these Terms and Conditions may opt (at its sole and exclusive discretion) to accept receiving such payment, by transfer to such other Party of Dollar-denominated Securities at a market value in the City of New York as of such date equivalent to the amounts owed under these presents by the Affected Party, for further sale and settlement in U.S. Dollars (or, in the case of the Initial Amount, in Euros) by such other Party; provided that, in the latter case, the Affected Party will only be released from its obligations under these presents for up to the amount in U.S. Dollars (or, in the case of the Initial Amount, in Euros) actually obtained by the Party entitled to receive same as a result of the sale and settlement of the Dollar-denominated Securities in question (net of any cost and Tax payable in connection with the transfer, deposit or sale of such Dollar-denominated Securities). In each case, all Taxes, costs and expenses related to any such transactions shall be borne by the Affected Party in question.
(d) Except as expressly stipulated otherwise in these presents, if one Party fails to comply with payment, on the due date, of any sum payable under these Terms and Conditions, such breaching Party shall pay interest on such amount at the Default Rate since the date established for payment (exclusive), which interest shall accrue on a daily basis and shall be compounded semi-annually. Exercise by a Party of its rights under this Section 9.11(d) shall occur without detriment to any other right or remedy available to such Party in accordance with these Terms and Conditions or otherwise.
Section 9.12 Applicable Law. In all respects (including those related to its validity, effects, performance, non-compliance, legality or interpretation), the Agreement and any non-contractual obligations that may arise from or be related thereto, shall be governed and construed in compliance with the laws of the Argentine Republic, without regard to the rules on conflicts of law whereby the laws of any other jurisdiction should be applicable.
Section 9.13 Dispute Resolution. (a) Any controversy or claim arising from or in connection with the Agreement, including any controversy regarding the interpretation, validity, enforceability or violation of these Terms and Conditions, as well as any controversy concerning any non-contractual obligations that mare arise from or be related thereto or to the competent jurisdiction of the arbitration tribunal shall be exclusively and finally resolved by arbitration at law, in accordance with the Rules of Arbitration (the “Rules of Arbitration”) of the International Chamber of Commerce (the “ICC”) in force at the time the demand for arbitration is filed.
(b) Arbitration proceedings shall be conducted before a tribunal formed by three arbitrators. Each one of the claimants, on the one hand, and the respondents, on the other hand, shall have the right to appoint one arbitrator as per the schedule set forth in the Rules of Arbitration. The third member of the arbitration tribunal shall be designated by the arbitrators appointed by the Parties. If any of the Parties fails to appoint an arbitrator or if the two arbitrators appointed by the Parties fail to appoint the third arbitrator, the arbitrators pending appointment shall be designated by the International Arbitration Court of the ICC in accordance with the Rules of Arbitration. The place of arbitration shall be the City of Buenos Aires and arbitration proceedings shall be conducted in Spanish although documents and testimonies may be submitted in other languages to the extent a translation thereof is provided. Any award or decision of the arbitrators shall specify that same have been summoned pursuant to the provisions of this Section 9.13 and that they have competent jurisdiction by reason of the consent rendered by all the Parties upon executing the Agreement.
(c) The arbitration tribunal shall settle any dispute or controversy in accordance with the substantive law as is stipulated in Section 9.12 and, for the avoidance of doubt, without applying any conflict of laws rules whereby the laws of any other jurisdiction should be applied, as set forth in such Section 9.12. Arbitrators may not render their decision ex aequo et bono.
(d) The arbitration tribunal shall have powers to order the specific performance of obligations to the extent stipulated in Section 9.10 `provided that such specific performance is in consistence with these Terms and Conditions.
(e) The Parties agree that all arbitration proceedings shall be kept confidential and that the materials of such proceedings (including briefs, filings or any other documents submitted or exchanged, any testimonies or oral presentations and any awards) shall not be disclosed other than to the arbitration tribunal, the Parties, their legal counsel and any other Person as may be necessary to conduct the arbitration proceedings, except as may be required in recognition and enforcement proceedings, if any, or in order to comply with duties to disclose stipulated by the Applicable Law.
(f) The arbitration tribunal may resolve upon its own competent jurisdiction, including with respect to any plea or defense related to the existence, validity or effectiveness of this arbitration clause. This arbitration clause shall be regarded as an autonomous section and as a separate agreement of the Parties with respect to any other terms and conditions of the Agreement. A decision of the tribunal on the nullity or invalidity of the Agreement shall not imply or determine, ipso iure, the invalidity of this arbitration clause.
(g) The arbitration award and any other decision handed down by the arbitration tribunal shall be binding upon, final and non-appealable for the Parties, that, to the broadest extent permitted by the Applicable Law, hereby waive any right to which they may be entitled under the laws of any jurisdiction to any appeal against or apply for the court review of the arbitration award or such other decision. The court enforcement of any award or decision handed down by such arbitration tribunal may be petitioned before any court having competent jurisdiction.
(h) No provision contained in these Terms and Conditions shall limit the right of one Party to petition from any court having competent jurisdiction the issuance of any precautionary or provisional remedy or any other similar remedy, prior to, and to ensure compliance with, any arbitration award handed down in accordance with the provisions of this Section 9.13.
Section 9.14 No Remedy. The Agreement may only be enforceable, and any claim based on, arising from or related to the Agreement or with the negotiations, execution or performance thereof, may only be filed, against the entities expressly designated as parties to these presents (and their respective successors and permitted assigns), exclusively in connection with the obligations set forth therein in connection with such Party (and their successors and permitted assigns). No director, officer, employee, founder, manager, member, partner, shareholder, Affiliate, agent, attorney-in-fact or other representative, either former, current or future, of any of the Parties or of any of their respective Affiliates, nor any of their successors or permitted assigns, in each case, to the extent they are not, in turn, Party to the Agreement, shall have any responsibility for the obligations or liabilities of any Party pursuant to these presents or in connection with any claim based on, concerning or related to the Transactions.
Section 9.15 Joint Drafting. The Parties have been jointly involved in the negotiation and drafting of these Terms and Conditions. Should any ambiguity or questioning arise in connection with the intention or interpretation, these Terms and Conditions shall be regarded as jointly drafted by the Parties and none of the Parties shall be bound by or benefit from any presumption or burden of proof due to having drafted any provisions of these presents.
Section 9.16 Purchaser Guarantee. (a) Each one of Purchaser Guarantors irrevocably and unconditionally guarantees to Seller due and punctual compliance and discharge by Purchaser of all and any of its obligations, commitments, agreements, warranties and indemnities under, by virtue of, stemming from or related to the Agreement or any of the other Transaction Documents (the “Guaranteed Obligations of Purchaser”), and assumes liability for due and punctual compliance and discharge thereof as principal payor and joint and several co-debtor, although subject to any limitation on liability pursuant to these presents (the “Purchaser Guarantee”), in compliance with the provisions of Sections 1574, 1591 and related sections of the Civil and Commercial Code of the Argentine Republic.
(b) If Purchaser fails to comply, for any reason, with any of the Guaranteed Obligations of Purchaser, each Purchaser Guarantor shall comply with (or cause to be complied with) and discharge (or cause to be discharged), unconditionally and promptly after being so requested, without duplication, any of the unfulfilled Guaranteed Obligations of Purchaser as stipulated in the Agreement or the relevant Transaction Documents, as applicable, in such a manner as to secure to Seller that same benefits it would have received if the Guaranteed Obligations of Purchaser had been duly complied with by Purchaser. If Purchaser fails to comply with any of the Guaranteed Obligations of Purchaser, Seller may take all such action available to it pursuant to these presents or in accordance with the Applicable Law against one or more Purchaser Guarantors to demand the discharge of the Guaranteed Obligations of Purchaser under this Section 9.16, subject to any limitation on liability pursuant to the Agreement. If Seller brings a Claim against any Purchaser Guarantor to demand compliance with any obligation under this Section 9.16, it will not be necessary for Purchaser, any of the other Purchaser Guarantors or any other Person (including any Additional Purchaser Guarantor) to be made a party to such Claim or give any of them notice of the existence of such Claim.
(c) This guarantee is a continuing guarantee of compliance and payment (and not merely a guarantee of collection) and, accordingly, it will remain valid and in force until the date on which all the Guaranteed Obligations of Purchaser had been complied with or satisfied. This Purchaser Guarantee operates in addition to, irrespective of and not in lieu of any right or guarantee in favor of Seller granted to it at present or that may be granted in the future in connection with the compliance and satisfaction of the Guaranteed Obligations of Purchaser.
(d) As a separate and independent obligation, each Purchaser Guarantor agrees that any of the Guaranteed Obligations of Purchaser (including any obligation to pay any sum of money) that may not be enforceable against Purchaser due to any limitation under the law, disqualification or disability of or affecting Purchaser or due to any other fact, matter, event or circumstance (other than any limitation imposed by or in connection with the Agreement and subject to any defense available to such Purchaser Guarantor if it were the principal payor) shall nevertheless be enforceable against each one of Purchaser Guarantors as if same had been incurred by each Purchaser Guarantor and such Purchaser Guarantor were the only or principal obligor with respect thereto, and shall be complied with or paid by each Purchaser Guarantor, without duplication, at the request of Seller.
(e) No Purchaser Guarantor shall be released or exempted from liability under this Section 9.16 either fully or partially, and such liability shall not be otherwise affected by Sellers´ failure or delay in filing or bringing any claim or complaint or enforcing any right or remedy against such Purchaser Guarantor, including in the event Purchaser becomes subject, either voluntarily or involuntarily, to any insolvency, bankruptcy, reorganization or any other similar proceeding. To the broadest extent permitted by the Applicable Law, each Purchaser Guarantor waives (i) its right to request prior demand for payment and protest, demand, presentation for payment, or the performance of any formalities or any submission before or against any other Person with respect to any of the Guaranteed Obligations of Purchaser; (ii) its right to request notice of acceptance of guarantee, notice of protest for lack of payment or non-compliance and any other notice whatsoever (except for such notices as shall be given to Purchaser Guarantor under the Agreement); and (iii) all defenses to which it may be entitled by reason of any law of suspension, payment holiday or similar law currently in force or that may be in force in the future, any right to apply for the division of the assets of Purchaser, any other Purchaser Guarantor or any other Persons that either currently or in the future may be liable for any of the Guaranteed Obligations of Purchaser or that otherwise have an interest in the Transactions, all defenses available to sureties in general (save for fraud or willful misconduct of Seller or any of its Affiliates, the defenses related to payment of the Guaranteed Obligations of Purchaser to which Purchaser is entitled under these presents (that shall be available to each Purchaser Guarantor pursuant to the provisions of this Section 9.16) or breach by Seller of this Section 9.16). Without limiting the generality of the foregoing, to the broadest extent permitted by the Applicable Law, each Purchaser Guarantor hereby waives the rights and benefits set forth in Section 1583 (Benefit of discussion), first paragraph of Section 1585 (Benefit of discussion in the case of co-obligors), Section 1586 (Survival of the term), Section 1587 (Defenses) (save for the defenses and pleas of documented payment), Section 1588 (Effects of the Judgment), Section 1589 (Benefit of division), Section 1592 (Subrogation) (until actual compliance with or discharge of all and any of the Guaranteed Obligations of Purchaser), Section 1594 (Rights of surety), Section 1596 (Events of termination), Section 1597 (Novation) and Section 1598 (Eviction) of the Civil and Commercial Code of the Argentine Republic. Additionally, each Purchaser Guarantor hereby waives its right to request the termination of Purchaser Guarantee based on any of the events or circumstances set forth in paragraphs (b), (c) and (d) of Section 1596 (Events of termination) of the Civil and Commercial Code of the Argentine Republic. Each Purchaser Guarantor acknowledges that it will derive material benefits, both direct and indirect, from the Transactions and that this Section 9.16,
expressly including the waivers set forth in this Section 9.16, had been knowingly included in contemplation of such benefits. The obligations of Purchaser Guarantors pursuant to these presents shall not be subject to any reduction, limitation, amendment or termination for any reason, including any claim for waiver, release, amendment or settlement and shall not be subject to any release, exemption, defense or set-off, counterclaim or termination of any type whatsoever by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations of Purchaser or due to any other reason. In the event that any payment to Seller with respect to the Guaranteed Obligations of Purchaser were invalidated or should be reimbursed for any reason, each Purchaser Guarantor shall continue to be liable pursuant to the provisions of this Section 9.16 with respect to the Guaranteed Obligations of Purchaser as if such payment had not been made in the first place. Notwithstanding the foregoing provisions, nothing in these presents should be construed as a waiver by any Purchaser Guarantor or a limitation on any Purchaser Guarantor´s ability to enforce any claim, defense or any right to which Purchaser or any of its respective Affiliates may be entitled pursuant to or in connection with the Agreement.
(f) If any Purchaser Guarantor or any of its successors or permitted assigns (i) becomes merged with or into any other Person and it is not the successor or surviving Person under such merger or (ii) transfers or transmits all or substantially all its property and assets to any other Person, then, in any such circumstances, such Purchaser Guarantor shall take all steps required for such successor or assignee Person to expressly undertake the obligations set forth in this Section 9.16.
(g) Each Purchaser Guarantor hereby represents and warrants to Seller that, as of the date of the Offer Letter and as of the Closing:
(i) Organization, Capacity and Authority of Purchaser Guarantors. (A) Each Purchaser Guarantor that is a natural person is, under the Applicable Laws, fully capable of acquiring rights (and exercising same) and undertaking obligations. Each Purchaser Guarantor that is a legal person, has been incorporated and organized and is in good standing under the laws of its respective jurisdiction of incorporation or organization, has full legal capacity, standing and powers to own, operated, manage and dispose of its assets and property and to conduct its business as currently conducted by it, and is authorized to conduct its business as a foreign company and is in good standing as such under the laws of each foreign jurisdiction in which it carries out business or where the ownership, operation or administration of its assets or properties cause such authorization to be required. (B) Each Purchaser Guarantor has full legal capacity, standing and powers to execute the Agreement (exclusively for the purposes of Article IX), comply with its obligations under these presents and consummate the Transactions related to Purchaser Guarantee. The execution, delivery and performance of the Agreement, including the consummation of the Transactions related to the Purchaser Guarantee, have been duly authorized by the corporate bodies of each Purchaser Guarantee that is a legal person. The Offer Letter has been duly executed and delivered by each Purchaser Guarantor and (assuming the due execution and delivery of the Letter of Acceptance by Seller), the Agreement represents a valid and binding obligation of each Purchaser Guarantor, enforceable against each Purchaser Guarantor in accordance with its terms. (C) No Purchaser Guarantor is under suspension of payments or has filed a voluntary petition for reorganization or bankruptcy proceedings, no involuntary petitions for bankruptcy filed against it are currently pending and it is not subject to any liquidation or insolvency proceedings. Each Purchaser Guarantor is free from any Lien or Governmental Order that prevents it from executing the Agreement, complying with its obligations under these presents or consummating the Transactions related to the Purchaser Guarantee.
(ii) No Conflicts. The execution, delivery and performance by any Purchaser Guarantor of the Agreement and the other Transaction Documents to which it is or should be a party, and the consummation of the Transactions regarding the Purchaser Guarantee: (x) do not violate or will cause the violation of any provision of the bylaws (or equivalent organizational or constituent document) of such Purchaser Guarantor, (y) do not violate or will cause the violation of any rule or Applicable Law or Governmental Order to which such Purchaser Guarantor is subject; and (z) are not contrary to, do not conflict with or entail non-compliance with, any section of, do not grant any Person the right to declare non-compliance with or exercise any remedy, or accelerate the maturity or compliance with, or revoke, cancel, rescind, withdraw, suspend or modify, any Contract, indebtedness, permit or any instrument to which such Purchaser Guarantor is a party or holder, except, in the case of subsections (y) and (z) above, to the extent it cannot be reasonably expected that same will affect the legality, validity or enforceability of the Agreement or any of the other Transaction Documents to which such Purchaser Guarantor is or should be a party, or the ability of such Purchaser Guarantor to comply with its obligations under these presents, or to consummate the Transactions concerning the Purchaser Guarantee.
(iii) Sophisticated Investors; Availability of Funds. Each one of Purchaser Guarantors possesses such knowledge, sophistication and experience in financial and business matters (including the industry in which the business of the Company is conducted) required to evaluate the merits and risks associated with execution of the Agreement and the other Transaction Documents to which it is or should be a party, performance of its respective obligations thereunder, and consummation of the Transactions related to the Purchaser Guarantee, and it has the financial and asset capacity required to meet its obligations under the Purchaser Guarantee. Each one of Purchaser Guarantors has evaluated in detail the legal, tax and accounting aspects of the Agreement, the other Transaction Documents to which it is or should be a party and the Transactions related to the Purchaser Guarantee, as well as its own financial and asset condition and business perspectives, and it has engaged expert advisors with experience in the assessment of transactions of the type of such Transactions. Each one of the Purchaser Guarantors possesses freely and immediately available funds and/or firm financing commitments, on a combined basis, that suffice to pay any amount that should be payable by it in connection with the Purchaser Guarantee.
(iv) Source and Lawfulness of Funds. All funds used or to be used by each one of the Purchaser Guarantors for the discharge of its obligations under the Purchaser Guarantee have been or shall have been obtained, as applicable, from transactions not in violation of any Applicable Law, including any AML/CFT Laws. None of Purchaser Guarantors, nor any of their respective Affiliates nor any Person providing funds to any of Purchaser Guarantors, or any of its respective Representatives, (A) is in violation of any AML/CFT Laws, (B) is under investigation by any Governmental Entity for, or has been charged with or convicted of, money laundering, drug trafficking, terrorism-related activities, any crimes against the economic and financial order or for any violation of any AML/CFT Laws, (C) has been subject to any civil or criminal penalty under any AML/CFT Laws, or (iv) has suffered an attachment on or the loss any asset as a result of any action under any AML/CFT Law.
(h) This Purchaser Guarantee may not be modified or amended except by a written instrument signed by Seller and each Purchaser Guarantor. This Purchaser Guarantee represents that entire agreement and understanding of Purchaser Guarantors and Seller in connection with the subject matter hereof.
(i) Waiver of any term or condition of this Purchaser Guarantee shall be made in writing and signed by the Party against which such waiver should be enforced. Waiver of any term or
condition of this Purchaser Guarantee shall not be interpreted as a waiver of any other subsequent violation or as a subsequent waiver with respect to compliance with the same term or condition or as a waiver of any other term or condition of this Purchaser Guarantee. Failure or delay by a Party in exercising any right under the Purchaser Guarantee shall not constitute a waiver or relinquishment of any such right.
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