Item 2
. English translation of the terms and conditions of
the new Shareholders Agreement of CP Renovables S.A., dated as of
November 28, 2018
TERMS AND
CONDITIONS
OF THE
SHAREHOLDERS’ AGREEMENT
WHEREAS:
A.
CEPU and the Class B Shareholder have
decided to create the Corporation.
B.
As an essential
condition for the creation and operation of the Corporation, the
Parties have agreed that they would regulate in the bylaws of the
Corporation and/or in a separate agreement, the disposal of Shares
(as defined below) and the governance, administration, and control
of the Corporation and its Affiliates (as defined
below).
C.
At the Special
Meeting held on April 28, 2016, the Parties, as shareholders of the
Corporation, decided,
inter
alia
, (i) to create ordinary, registered,
non-endorseable, with five votes each, Class “A” shares
(“
Class A
Shares
”), ordinary, registered, non-endorseable, with
five votes each, Class “B” shares (“
Class B
Shares
”) and ordinary, registered, non-endorseable,
with one vote each, Class “C” shares; (ii) to
convert all of the Corporation’s shares into Class A Shares
and Class B Shares; and (iii) to amend Sections 13 and 23
of the corporate bylaws.
D.
The entire interest
of the Class B Shareholder in the Corporation has been converted
into Class B Shares.
E.
Based on the
amendment of the bylaws detailed under C.(iii) above, the Class B
shareholders have to choose (i) one (1) regular
member and up to one (1) alternate member of the Board of
Directors of the Corporation (the “
Class B
Director
”), and (ii) one (1) regular
member and up to one (1) alternate member of the
Corporation’s auditing committee.
F.
Certain provisions
regarding the disposal of shares of the Corporation and the
governance, administration, and control of the Corporation were not
included in the amendments to the bylaws as the Parties were still
negotiating its terms and conditions.
G.
On January 18,
2017, the Parties established in writing the remaining terms and
conditions they considered for the purposes of investing in the
Corporation (the “
Pre-existent
Shareholders’ Agreement
”).
H.
The Parties agreed
to hold interests in the corporate stock of the Corporation on an
initial thirty percent (30%) Class B Shareholder/seventy percent
(70%) CEPU basis, and consequently, the Parties have made
successive capital contributions, on a coordinated basis, so that,
as of the date hereof, the shareholding in the corporate stock of
the Corporation reflects such percentage, notwithstanding the Class
B Shareholder’s right to eventually acquire a greater
shareholding interest in the Corporation.
I.
The Parties
initially agreed to channel the projects for investment in
electricity generation from renewable sources exclusively through
the Corporation. On this occasion, the Parties believe that, in the
event the Corporation chooses not to carry out any project, it is
necessary to have the possibility of conducting such projects
outside the Corporation.
J.
The Parties wish to
terminate the Pre-existent Shareholders’ Agreement in both
Parties’ best interests.
K.
The Parties agree
to approve a new shareholders’ agreement (the
“
Shareholders’
Agreement
”), subject to the terms and conditions
herein set forth.
THEREFORE
, after Offer AC 2018 has been accepted under the
terms detailed above, the Shareholders’ Agreement shall be
governed by the following terms and conditions:
FIRST PART
INTERPRETATION AND DEFINITIONS
Section 1.1.
When capitalized terms are
used herein, such terms shall have the meaning assigned to them
herein, except as otherwise noted, that the context so requires,
that such capitalization is due to the fact that the term starts a
sentence, or that the term is a proper name.
Section 1.2.
For the purposes hereof,
and unless otherwise noted or the context so requires:
(i)
the terms defined herein
include plural and singular forms;
(ii)
the terms
“herein”, “hereof”, “hereunder”
and similar terms refer to the Shareholders’ Agreement as a
whole and not to a Section or any other specific subdivision
hereof;
(iii)
any
reference to a Section in particular shall be to the relevant
Section in the Shareholders’ Agreement;
(iv)
the terms defined herein shall
have the meanings assigned to them herein when used in any another
document delivered in accordance with this instrument, unless
otherwise specified;
(v)
the terms
“inclusive”, “including” and similar terms
shall mean “including without limitation”, unless
otherwise noted;
(vi)
any references to any person
includes that person’s successors and permitted assigns, and
the term “Class B Shareholder” shall also include any
new holders of Class B Shares; and
(vii)
the headings of the Parts and
Sections hereof shall only be for reference purposes and in no way
shall affect the meaning and/or interpretation of the provisions
hereof.
Section 1.3.
The following terms
and expressions, when used in this Shareholders’ Agreement,
shall have the meanings assigned to them
below:
“
Shares
”
means any and all shares of the Corporation and of the
Corporation’s subsidiaries in which the Parties have an
interest. The term “Shares” also includes any stock of
corporate capital, of any type or class, which the Parties may
acquire or receive, directly or indirectly, by any means or reason,
and would therefore be included within the scope of the
Shareholders’ Agreement. The following scenarios of
acquisition of shares of the Corporation are listed, without
limitation:
(i)
reserve
capitalizations, accumulated results, loans and contributions on
account of future subscriptions; payment of dividends with
shares;
(ii)
subscriptions due
to capital increase;
(iii)
conversion of
corporate bonds, bonds, debentures, or any other equivalent
negotiable instrument; and/or
(iv)
acquisition under
purchase options.
“
Necessary
Actions
” means, with respect to an intended result,
any actions (to the extent such actions are permitted under any
applicable regulations) reasonably necessary to produce such
result, which may include, without limitation, (i) voting or
giving consent or proxy in writing regarding voting Shares to allow
for the adoption of resolutions by shareholders at a meeting;
(ii) having the members of the Board of Directors (to the
extent such members have been nominated or appointed by the Party
obliged to take the Necessary Action) act in a certain way;
(iii) entering into and executing agreements and instruments;
and (iv) making any governmental, regulatory, or
administrative filings which are necessary to attain such
result.
“
Affiliate
”
means any Entity Controlled by the owners or Entity with respect to
which such nature is determined.
“
Special
Matters
” means any of the following matters with
respect to the Corporation or any Affiliate of the Corporation
(except as otherwise expressly established):
(i)
amendment to the
Bylaws;
(ii)
the creation or
disposal of any Affiliate or the shares of any
Affiliate;
(iii)
redemption,
reimbursement, and amortization of shares, issue or redemption of
securities convertible into shares or other corporate bonds,
modification of share, corporate bond, or securities convertible
into shares issue conditions;
(iv)
suspension or
limitation of the right of first refusal; acceptance of revocable
or irrevocable contributions on account of any future capital
increases, whether made by shareholders or a third
party;
(v)
merger,
transformation, split-up, initial public offering, or other public
offering transactions;
(vi)
sale or disposal of
all or a substantial part of the business or the
assets;
(vii)
purchase of shares,
interests, or shareholdings in any other corporation;
(viii)
posting of bonds,
guarantees, or securities over property to third
parties;
(ix)
distribution of
dividends, and dividend policy;
(x)
transactions with
related parties;
(xi)
liquidation,
dissolution, filing for reorganization, and any other procedure
involving debt or asset restructuring;
(xii)
appointment and
removal of internal and external auditors of the
Corporation;
(xiii)
execution,
termination of, or significant change to, the material provisions
of the following agreements:
(a)
supply of electricity from
renewable sources;
(b)
equipment purchase;
(c)
operation and
maintenance,
(d)
long-term
financial indebtedness for Project financing, as well as the
relevant court or out-of-court claims related to such
agreements;
(xiv)
other debt
transactions (other than that detailed in Item (xiii)(
d
) above) that are outside the ordinary
course of business, are not intended for working capital financing,
as well as decisions to prepay such financings;
(xv)
the creation or
issuance of shares or the issuance of corporate bonds, whether or
not convertible into shares, and stock options; and
(xvi)
capital increases
and determination of share premium.
In the
event the Class B Shareholder exercises the right to introduce
Special Matters under Section 6.5., the following matter with
regard to the Corporation or any Affiliate of the Corporation
(except as otherwise expressly established) shall also be
considered a “Special Matter”: appointment and removal
of the Corporation’s general manager.
“
Change
of Control
” means (i) when there occurs a change of
Control per se in CEPU, or (ii) when there occurs a change in the
composition of CEPU’s board of directors which results in the
majority of the members thereof not being made up of Continuing
Directors.
“
Control
”
means the power, directly or indirectly, by owning the corporate
capital, by virtue of a contract or otherwise, to appoint the
majority of the members of the board of directors of any such
Entity, or otherwise direct or cause to be directed the management
and policies of such Entity. The term “
Controlled Entity
” has a
correlative meaning.
“
Continuing
Director
” means any regular member of CEPU’s
board of directors (i) acting as regular director of CEPU as of the
IPO Date, or (ii) who, despite having been appointed as member of
CEPU’s board of directors after the IPO Date, has been
appointed to act as such by a majority of shareholders who were,
directly or indirectly, CEPU’s shareholders immediately
before the IPO Date.
“
Dollars
”
or “
$
”
means the legal currency of the United States of
America.
“
IPO
Date
” means February 6, 2018, i.e., the date CEPU was
admitted to public offering in the United States of America and
started to list its shares on the New York Stock
Exchange.
“
BOA
”
means Business Organizations Act, Law No. 19550 and any
amendments thereto.
“
Individual
”
or “
Entity
” means any
individual or legal entity, association, corporation,
not-for-profit organization, foundation, consortium, trust, joint
venture, investment fund, governmental entity, or any other kind of
organization or entity in any jurisdiction.
“
Pesos
”
means the legal currency of the Argentine Republic.
“
Potential
Projects
” has the meaning assigned to it in
Section 2.8.
“
Projects
”
means the projects for investment in electricity generation from
renewable sources carried out through the Corporation.
“
Transfer
”
means any sale, pledge, donation, or any other act of transfer or
disposal over any of the Shares or any financial and voting rights
arising therefrom.
SECOND PART
PURPOSE AND EFFECTIVE TERM. BYLAWS. CONDUCT OF NEW PROJECTS. EACH
PARTY’S SHAREHOLDING INTEREST
Section 2.1.
The Parties agree to terminate the Pre-existent
Shareholders’ Agreement as of right, and consequently, enter
into this Shareholders’ Agreement for the purpose of
regulating their relations as shareholders in the Corporation. Each
of the Parties undertakes to act in good faith and to do any
necessary acts as shareholders of the Corporation so that the
Corporation and the Directors appointed by them fully observe this
Shareholders’ Agreement.
Section 2.2.
This Shareholders’ Agreement shall enter
into force at the date when Offer AC 2018 is accepted by Class B
Shareholder and shall remain valid during the term of the
Corporation.
Section 2.3.
In the event of conflict between the
Shareholders’ Agreement and the bylaws of the Corporation,
the terms of the Shareholders’ Agreement shall
prevail.
Section 2.4.
With respect to Special Matters, such matters
shall not be performed by the Corporation or the
Corporation’s Affiliates without prior adoption of a decision
in that regard, under the provisions of the Third or Fourth Part
below, as appropriate.
Section 2.5.
This Shareholders’ Agreement includes any
and all Class A Shares and Class B Shares. Class A Shares and Class
B Shares issued after the date of the Shareholders’ Agreement
shall be automatically subject to such instrument without the need
to enter into any additional agreement or contract.
Section 2.6.
In the event a Party purchases Shares of a
class different than the class of shares that such Party already
holds, any such Shares shall be automatically converted into Shares
of the class which the purchaser already held.
Section 2.7.
Any decisions to be adopted by each Party or
class of Shares shall be subject to the terms of the BOA for class
meetings, except that all the shareholders of the class agree
otherwise.
Section 2.8.
The Parties agree to evaluate all new projects
for investment in electricity generation from renewable sources,
through the Corporation (the “
Potential Projects
”). If
the Corporation does not have the required economic or financial
resources available in order to carry out the Potential Projects,
or for any reason decides not to conduct them, CEPU shall have a
first option to acquire the Potential Projects and carry them out
separately and independently from the Corporation.
THIRD PART
MANAGEMENT OF THE CORPORATION
Section 3.1.
Quorum and majorities in the meetings of the
Board of Directors shall be governed by the BOA, except with
respect to decisions relative to Special Matters, for which
approval the affirmative vote of at least one (1) Class B Director
shall be required.
Section 3.2.
If during the meetings of the Board of
Directors any Special Matter is transacted with respect to which
there is no approval by at least one (1) Class B Director, the
decision shall not be considered validly adopted, and the Parties
shall take any Necessary Actions so that the Corporation refrains
from doing so, until the Parties come to an
understanding.
Section 3.3.
The Parties agree that both in the Corporation
and in any of their Affiliates, the Class B Shareholder shall be
entitled to appoint at least one (1) regular member and
one (1) alternate member of the Board of Directors. In
that event, any decisions or resolutions by the Board of Directors
of the Affiliates of the Corporation regarding Special Matters, to
be validly adopted, shall require the favorable vote of the
Director which would have been appointed by Class B
Shares.
Section 3.4.
If the Class B Shareholder has not appointed
any director in the Affiliates of the Corporation, Special Matters
relative to such Affiliate shall not be adopted or performed by
such Affiliate unless they have been previously transacted by the
Board of Directors of the Corporation and the decision has been
adopted pursuant to Section 3.1 or another mechanism which is
satisfactory for the Class B Shareholder has been adopted
guaranteeing that the decision shall not be taken without such the
Class B Shareholder’s consent.
FOURTH PART
GOVERNANCE OF THE CORPORATION
Section 4.1.
Save for Special Matters, the quorum and
majorities in Annual General Meetings and Special Meetings shall
conform to the provisions of Sections 243 and 244, BOA. Any
decisions or resolutions taken by shareholders at a meeting of the
Corporation or an Affiliate which relate to Special Matters shall
require the affirmative vote of the Class B Shareholder for their
approval.
Section 4.2.
The Parties agree to take any Necessary Actions
so that the Corporation refrains from executing any Special Matters
which the Class B Shareholder has not approved of.
Section 4.3.
When any of the Special Matters has to be
discussed or decided at an Annual General or Special Meeting of any
of the Corporation’s Affiliates, the Parties undertake to
previously discuss such matters within the Board of Directors of
the Corporation or to agree on any other mechanism which may be
satisfactory for the Class B Director, to the extent it guarantees
that the matters shall not be approved without such
Director’s consent.
FIFTH PART
TRANSFERS
Section 5.1.
The Parties shall not make any Transfer of
their Shares, except for:
(i)
a Transfer by any
Class B shareholder to (w) any Class B shareholder;
(x) any of its Affiliates; (y) their spouse, ancestors,
descendants, or next of kin to the fourth degree; and (z) any
Affiliate of the persons mentioned under item (y) above,
provided that, before any such Transfer, the assignee shall accept
in writing to be bound by the obligations contained in this
Shareholders’ Agreement in the same way and to the same
extent as the assigning shareholder;
(ii)
a Transfer to a
third party Permitted Assignee (as this term is defined below) or
to a Non-Assigning Shareholder (as this term is defined below), in
every such case, pursuant to the provisions of Section 5.3 and
subsequent Sections, provided that, before any such Transfer, the
assignee shall accept in writing to be bound by the obligations
contained in this Shareholders’ Agreement in the same way and
to the same extent as the assigning shareholder ((i) and (ii)
together, the “
Permitted
Transfers
”).
Section 5.2.
The Share certificates and the
Corporation’s Share Record Book shall include the following
caption:
“THE
TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS SUBJECT
TO LIMITATIONS PURSUANT TO THE CORPORATION’S
SHAREHOLDERS’ AGREEMENT DATED NOVEMBER 28, 2018. NO SALE,
PLEDGE, TRANSFER OR ANY OTHER DISPOSAL OF THE SHARES REPRESENTED BY
THIS CERTIFICATE MAY BE MADE EXCEPT AS ESTABLISHED UNDER SUCH
AGREEMENT.”
Section 5.3.
Except for any Permitted Transfers mentioned
under Section 5.1.(i), if the Class B Shareholder informs the
other Party (the “
Non-Assigning
Shareholder
”) of his intention to transfer any or all
of his Shares (the “
Shares to be
Transferred
”), the Class B Shareholder shall notify
the Non-Assigning Shareholder in writing of (i) his intention
to sell the Shares to be Transferred, and (ii) the price he
would be willing to accept for such Shares to be Transferred, as
well as the payment terms (the “
First Offer
Notice
”). Such First Offer Notice shall be an
irrevocable offer by the Class B Shareholder to sell to the
Non-Assigning Shareholder all, and no less than all, the Shares to
be Transferred, at the price and under the terms established in the
First Offer Notice.
Section 5.4.
The Non-Assigning Shareholder may accept the
offer of the Class B Shareholder identified in the First Offer
Notice, which shall entail that such Shareholder accepts to acquire
all (and no less than all) the Shares to be Transferred, by giving
notice in writing of such acceptance to the Class B Shareholder
within twenty (20) working days after the First Offer
Notice has been received. In such event, the transfer shall be made
within sixty (60) working days as from expiration of the
twenty (20) working-day term previously stated.
Section 5.5.
If the Non-Assigning Shareholder expressly
decides not to purchase the Shares to be Transferred or if the
Non-Assigning Shareholder fails to notify its decision within the
term of twenty (20) working days as established in
Section 5.4 above, the Class B Shareholder shall be free to
transfer the Shares to be Transferred to a third party (the
“
Permitted
Assignee
”),
provided that: (i) such Transfer is made to the Permitted Assignee
and is only made under the same terms as, or better terms than,
those described in the First Offer Notice; (ii) such Transfer
is completed within two hundred seventy (270) calendar
days after expiration of the term under Section 5.4., and
(iii) the Permitted Assignee must, before any such Transfer,
accept in writing to be subject to the obligations contained in
this Shareholders’ Agreement in the same way and to the same
extent in which the Class B Shareholder was subject.
Section 5.6.
In the event the Permitted Assignee makes a
less favorable offer to acquire the Shares to be Transferred than
the offer contained in the First Offer Notice and the Class B
Shareholder still wishes to transfer the Shares to be Transferred
under the terms proposed by the Permitted Assignee, the Class B
Shareholder shall first give notice in writing to the Non-Assigning
Shareholder of the material terms and conditions of the offer
received from the Permitted Assignee (the “
ROFR
Notice
”). Such ROFR Notice shall be an irrevocable
offer by the Class B Shareholder to transfer to the Non-Assigning
Shareholder all, and no less than all, the Shares to be
Transferred, at the price and under the terms established in the
ROFR Notice. The Non-Assigning Shareholder may accept the ROFR
Notice, which shall entail that such Shareholder accepts to
purchase all (and no less than all) the Shares to be Transferred,
by giving notice in writing of such acceptance to the Class B
Shareholder within twenty (20) working days after the
ROFR Notice has been received. In such event, the transfer shall be
made within sixty (60) working days as from expiration of
the twenty (20)-working-day term previously stated. If the
Non-Assigning Shareholder expressly decides not to purchase the
Shares to be Transferred or if the Non-Assigning Shareholder fails
to notify its decision within the above term of
twenty (20) working days, the Class B Shareholder shall
be free to transfer the Shares to be Transferred to the Permitted
Assignee under the same terms as, or better terms than, those
described in the ROFR Notice.
Section 5.7.
In the event CEPU receives an offer by a third
party to acquire its Shares (the “
Shares to be
Sold
”), CEPU shall first notify the Class B
Shareholder in writing of the material terms and conditions of the
offer received from the third party (the “
ROFR Notice
II
”). Such ROFR Notice II shall be an irrevocable
offer by CEPU to transfer to the Class B Shareholder all, and no
less than all, the Shares to be Sold, at the price and under the
terms established in the ROFR Notice II. The Class B Shareholder
may accept the ROFR Notice II, which shall entail that such
Shareholder accepts to purchase all (and no less than all) the
Shares to be Sold, by giving notice in writing of such acceptance
to CEPU within sixty (60) working days after the ROFR
Notice II has been received. In such event, the transfer shall be
made within ninety (90) working days as from expiration
of the sixty (60)-working-day term previously stated. If the Class
B Shareholder expressly decides not to purchase the Shares to be
Sold or if the Class B Shareholder fails to notify his decision
within the above term of sixty (60) working days, CEPU
shall be free to transfer the Shares to be Sold to the third
party.
Section 5.8.
Without prejudice to the provisions under
Sections 5.3., 5.4., 5.5., 5.6., and 5.7., in the event the
Class B Shareholder (or any of the shareholders of such class)
receives the ROFR Notice II and decides not to exercise the right
established under Section 5.7., such Shareholder shall have
the right, but not the obligation, to sell all of its Shares (the
“
Follow-Up
Right
”). In such case, Shares shall be sold under such
conditions as agreed by the other Party, including payment of the
same price per share as offered by the third party. It is hereby
expressly clarified that if there is more than one Class B
Shareholder, the Follow-Up Right pertains to each of them for the
total of their share interest, and it is not necessary that all
Class B Shareholders participate.
Section 5.9.
For the purpose of exercising the Follow-Up
Right, the Class B Shareholder shall so notify CEPU within
sixty (60) working days after receiving the relevant ROFR
Notice II (the “
Follow-Up
Notice
”). Not sending the Follow-Up Notice within such
term shall be considered a waiver of the Follow-Up Right with
regards to the specific Transfer described in the ROFR Notice II,
without affecting the validity of the Follow-Up Right for other
Transfers.
Section 5.10.
If, in the future, a Party is made up by more
than one shareholder, due to Transfers or new subscription of
Shares, and one of such shareholders were to Transfer their shares
as per the procedure stated under Sections 5.3., 5.4., 5.5.,
5.6., 5.7., 5.8., and 5.9., as applicable, the other shareholders
who are part of that Party shall have a right of first refusal, as
well as the residual preemptive right, regarding the Shares which
are not to be purchased by the other members of such
Party.
Section 5.11.
If, when Class B Shares are transferred,
guarantees granted by CEPU are in effect so as to secure the
discharge of the obligations of the Corporation and/or its
Affiliates relative to the construction stage of the relevant
renewable electric energy generating plant, the purchaser shall
guarantee the percentage represented by the Shares so acquired in
the corporate capital of the Corporation.
Section 5.12.
In the event CEPU or the Class B Shareholder
or both Parties proceed to the selling of their Shares under a
public offering, the provisions of this FIFTH PART shall not
apply.
SIXTH PART
CHANGE OF CONTROL
Section 6.1.
In the event that: a) there is a Change of
Control, or b) any Individual or Entity has to promote a compulsory
public offering to acquire the interests of CEPU pursuant to the
applicable regulations (the occurrence of any of the events set
forth in (a) or (b) above, a “
Control
Acquisition
”), the Class B Shareholder shall have the
right, but not the obligation, to purchase all (but not less than
all) Shares owned by CEPU (the “
Purchase
Option
”). CEPU shall give notice to the Class B
Shareholder of any such events as described above within
three (3) calendar days since CEPU has become aware
thereof (the “
Purchase Option
Notice
”).
Section 6.2.
Within fifteen (15) days following
receipt of the Purchase Option Notice, the Parties shall request a
valuation of the Shares, in accordance with the provisions of
Section 6.3.
Section 6.3.
The price of the Shares shall be the average of
valuations made by Colombus Merchant Banking and Bach Capital,
within thirty (30) days following the relevant request.
If CEPU does not agree with the valuation of these firms, CEPU
shall notify so to the Class B Shareholder at the first opportunity
it has, and in such case, the valuation shall be made by Banco de
Galicia y Buenos Aires S.A. For the purposes of the valuation, in
all cases, the valuation firms shall solely use the discounted cash
flow (DCF) method, considering: (i) the operating cash flow of
each Project; (ii) discounted at the WACC rate (Weighted
Average Cost of Capital), based on the Capital Asset Pricing Model
(CAPM), considering, for determination of the debt/equity ratio of
each Project, the capital structure of each Project’s average
life, plus (iii) a terminal value of each Project, which shall
be determined on the basis of the remaining technical useful life
of the relevant equipment, and the contractual and market
conditions under which the energy so produced is sold. The price,
as determined in this Section, is known as the “
Option
Price
”.
Section 6.4.
Upon determination of the Option Price, the
Class B Shareholder shall have sixty (60) working days to
inform CEPU of his intention to exercise the Purchase Option (the
“
Exercise
Notice
”). Upon delivery of the Exercise Notice, the
transfer of CEPU Shares shall be made within
ninety (90) working days following such Exercise
Notice.
Section 6.5.
If there is a Control Acquisition,
alternatively to the Purchase Option, the Class B Shareholder shall
have the right to incorporate the additional event referred to
above in the definition of the term “Special Matters”.
Such incorporation shall be effective as from the date when the
Class B Shareholder notifies CEPU that it shall exercise such
right. In that case, all the terms and conditions of this
Shareholders’ Agreement applicable to any other Special
Matters shall apply to such Special Matters.
Section 6.6.
Also, if there is a Control Acquisition, the
Class B Shareholder shall have the right to transfer to CEPU all or
part of its Shares at the Option Price. The same terms established
for the delivery of the Exercise Notice and the transfer of the
shares stated above shall apply
mutatis mutandis
.
SEVENTH PART
REGISTRATION RIGHT
Section 7.1.
The Class B Shareholder shall be entitled to
require the Corporation and the other shareholders to call a
general shareholders’ meeting of the Corporation for the
purpose of causing the Corporation to take all actions designed to
cause the Corporation to commence a secondary public offering of
the shares of its corporate stock (the “
Registration
Right
”), in accordance with the provisions of this
Seventh Part.
Section 7.2.
The general shareholders’ meeting at
which the exercise of the Registration Right is discussed shall
(i)
set the tentative
date of the initial public offering, which shall not exceed
twelve (12) months following the date of the meeting;
(ii)
agree upon the
hiring of an internationally recognized investment bank with
adequate experience in the industry to act as underwriters of the
initial public offering;
(iii)
agree upon the number of
Shares to be included in the initial public offering, including,
without limitation, all Shares held by the Class B Shareholder;
(iv)
cause the
Corporation to prepare and file with the appropriate governmental
authorities all relevant documents –including, without
limitation, the registration statement (or equivalent
document)–;
(v)
choose one or more stock
exchanges in which the Shares offered in such initial public
offering shall be listed; and
(vi)
approve and authorize the
execution of customary agreements, as required to effect the
initial public offering.
Section 7.3.
Upon exercising the Registration Right, and as
long as the offering is conducted entirely in the Argentine
Republic, (i) if both Parties participate in the offering,
they shall pay for the underwriting bank’s fees in proportion
to the number of Shares underwritten by each Party; and
(ii) if the Registration Right is exercised solely by the
Class B Shareholder, the underwriting bank’s fees shall be
borne by the Class B Shareholder. In both cases, the remaining
costs and expenses shall be borne by the Corporation. In an
international offering, (i) if both Parties participate in the
offering, they shall pay for related fees, expenses and costs in
proportion to the number of Shares sold by each Party; and
(ii) if the Registration Right is exercised solely by the
Class B Shareholder, the international attorneys’ and
accountants’ fees, as well as the underwriting bank’s
fees, shall be borne by the Class B Shareholder, and the remaining
costs and expenses shall be borne by the Corporation.
Section 7.4.
CEPU undertakes to act diligently in accordance
with its expertise, and in good faith, in the performance of its
obligations in connection with the exercise of the Registration
Right. In the event CEPU breaches the undertaking contained in this
Section, the Class B Shareholder shall have the right, but not the
obligation, to sell all (and not less than all) of his Shares to
CEPU, at the Option Price plus twenty percent (20%). In addition,
all expenses incurred by the Parties or the Class B Shareholder, as
applicable, in exercising the Registration Right shall be borne by
CEPU.
EIGHTH PART
MISCELLANEOUS
Section 8.1.
In the event any of the provisions of this
Shareholders’ Agreement are found to be illegal, void or
unenforceable by any court with competent jurisdiction, the
remaining provisions shall not be affected and shall continue to be
in full force and effect. The Parties shall make their best efforts
to replace any provision which has been found to be illegal, void
or unenforceable with a different provision being as similar as
possible to and of the same nature as the other provision, but
legally enforceable.
Section 8.2.
This Shareholders’ Agreement may not be
amended or modified, and compliance with any of its terms and
conditions or obligations may not be waived, except by a valid
document duly and validly signed by the Parties or, in the event of
a waiver, by a waiver of enforcement by the applicable
Party.
Section 8.3.
This Shareholders’ Agreement shall be
interpreted and governed by the laws of the Argentine
Republic.
Section 8.4.
None of the Parties may assign this
Shareholders’ Agreement, in full or in part, or the rights or
duties resulting herefrom, without prior written consent by the
other Party, except for Permitted Transfers and the provisions of
Section 8.6.
Section 8.5.
Any of the rights resulting from this
Shareholders’ Agreement may be waived in writing by its
holder at any time. Failure by any of the Parties to enforce any of
its rights or delay in doing so shall not be deemed to be a waiver
of such provision or of the right of the Party to enforce the right
afterwards, except as this Shareholders’ Agreement may
expressly state otherwise or set a term for the enforcement of a
right. The individual or partial enforcement of any of the rights
under this Shareholders’ Agreement shall not prevent their
later or complete enforcement. No waiver of any breach at a time
shall be deemed to be a waiver of any subsequent
breach.
Section 8.6.
The transfer of Shares by reason of death to
forced heirs shall not entail a Transfer for the purposes of this
Shareholders’ Agreement and, therefore, shall not be subject
to the restrictions provided for under the Fifth Part.
Section 8.7.
For any legal purposes resulting from this
Shareholders’ Agreement, the Parties establish their
domiciles at the addresses specified below, for any notice, service
of process, claim and summons to any of the Parties to be deemed
valid, until such domiciles are replaced with a different domicile
within the Argentine Republic by notice through a reliable means to
the other Parties:
Av.
Thomas Edison 2701
Ciudad
Autónoma de Buenos Aires
Att.:
General Manager, Ing. Jorge Rauber
(ii)
Class B Shareholder
:
Av.
Thomas Edison 2701
Ciudad
Autónoma de Buenos Aires
Section 8.8.
Should any dispute, difference, or conflict
arise regarding the interpretation or performance of this
Shareholders’ Agreement (a “
Legal
Conflict
”), the Parties may submit such Legal Conflict
to the decision of the Permanent Arbitration Tribunal of the Buenos
Aires Stock Exchange, with express submission to any such
arbitration rules of such body regarding arbitration and court of
law as may be in force on the date of filing of the claim. Both
Parties hereby waive, to the greatest extent permitted by law, the
right to appeal or challenge the arbitral award at any court, or to
claim that the action, trial or proceeding is being heard by an
inconvenient court or that the jurisdiction of the action, trial or
proceeding is not appropriate. Nevertheless, the Party prevailing
in the Legal Conflict may demand compliance with the arbitral award
before a court. Furthermore, if essential to protect their rights,
the Parties may file legal actions for the purpose of challenging
resolutions of the Corporation’s Board of Directors or
Shareholders’ Meeting, may seek precautionary measures or
apply any other similar judicial procedure. This shall not release
the Parties from following the procedure established in this
Section for dispute resolution, and the resolution thereof shall be
final for the Parties, regardless any judicial decision rendered in
the above-mentioned cases.
