Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PAMPA ENERGÍA S.A.
(Exact Name of Registrant as Specified in its Charter)
Pampa Energy Inc.
(Translation of Registrant’s Name into English)
Argentina
(State or Other Jurisdiction of Incorporation or
Organization)
Not Applicable
(I.R.S. Employer Identification Number)
Ortiz de Ocampo 3302, Building #4
C1425DSR, City of Buenos Aires
Argentina
(Address and Telephone Number of Registrant’s Principal
Executive Offices)
CT Corporation System
111 Eighth Avenue, 13
thFloor
New York, New York 10011
Telephone: (212) 894-8940
(Name, Address and Telephone Number of Agent for Service)
Copies to:
Juan G. Giráldez, Esq.
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, New York 10006
(212) 225-2000
Approximate date of commencement of proposed sale to the
public:From time to time after this registration statement
becomes effective.
If only securities being registered on this Form are to be
offered pursuant to dividend or interest reinvestment plans, please
check the following box: ¨
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, check the following box: x
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering: ¨
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering:
¨
If this Form is a registration statement pursuant to General
Instruction I.C. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule
462(e) under the Securities Act, check the following box: ¨
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.C. filed to
register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the
following box: ¨
CALCULATION OF REGISTRATION FEE
(1) Each ADS represents 25 common shares. ADSs evidenced by
American Depositary Receipts issuable on deposit of common shares
registered hereby have been registered under a separate
registration statement on Form F-6 (Registration No. 333-161066)
effective on August 14, 2009.
(2) Includes common shares that may be offered by any selling
shareholders referred to herein, including pursuant to any
over-allotment options.
(3) The registrant is registering an indeterminate amount of
securities for offer and sale from time to time at indeterminate
offering prices. In reliance on Rules 456(b) and 457(r) under the
Securities Act of 1933, as amended, the registrant is deferring
payment of all of the registration fees relating to the
registration of securities.
.
PROSPECTUS
PAMPA ENERGÍA S.A.
COMMON SHARES IN THE FORM OF AMERICAN DEPOSITARY SHARES
We or any selling shareholder identified in a prospectus
supplement may offer and sell from time to time common shares and
American Depositary Shares, or ADSs, representing common
shares.
This prospectus describes some of the general terms that may
apply to these securities and the general manner in which they may
be offered. When we offer securities, the specific terms of the
securities, the offering price and the specific manner in which
they may be offered, will be described in supplements to this
prospectus. The securities may be offered and sold in one or more
series in amounts and at prices and on terms to be determined at
the time of sale and to be set forth in supplements to this
prospectus.
We or any selling shareholder may sell these securities
directly, through agents designated from time to time or through
underwriters or dealers. If any of our agents or any underwriters
are involved in the sale of securities, we will include the names
of those agents or underwriters and any commissions or discounts
they may receive in the applicable prospectus supplement.
Our common shares are currently listed on the
Mercado de Valores de Buenos Aires(“MERVAL”) under the
symbol “PAMP.” ADSs representing our common shares are currently
listed on the New York Stock Exchange (“NYSE”) under the symbol
“PAM.”
Investment in the securities involves risks. See “Risk Factors”
beginning on page 4 of this prospectus.
Neither the U.S. Securities and Exchange Commission “SEC” nor
any state securities commission has approved or disapproved of
these securities or determined if this prospectus or any
accompanying prospectus supplement is truthful or complete. Any
representation to the contrary is a criminal offense.
THIS PROSPECTUS IS SOLELY OUR RESPONSIBILITY AND HAS NOT BEEN
REVIEWED OR AUTHORIZED BY THE ARGENTINE COMISIÓN NACIONAL DE
VALORES (THE NATIONAL SECURITIES COMMISSION, OR “CNV”). THE TERMS
AND CONDITIONS OF ANY OFFER OF SECURITIES WILL BE NOTIFIED TO THE
CNV FOR INFORMATIONAL PURPOSES ONLY AND SUCH NOTICE DOES NOT
CONSTITUTE A CERTIFICATION AS TO THE INVESTMENT VALUE OF THE
SECURITIES OR OUR SOLVENCY. THE SECURITIES MAY NOT BE OFFERED OR
SOLD OR BE THE SUBJECT OF AN INVITATION FOR SUBSCRIPTION OR
PURCHASE, NOR MAY BE IN ANY OFFERING MATERIAL RELATING TO THE
SECURITIES BE CIRCULATED OR DISTRIBUTED TO THE GENERAL PUBLIC OR
SPECIFIC SECTORS OR GROUPS, IN ARGENTINA, ABSENT AN AVAILABLE
EXCEPTION UNDER THE ARGENTINE CAPITAL MARKETS LAW NO. 26,831, AS
AMENDED. IN MAKING AN INVESTMENT DECISION, ALL INVESTORS, INCLUDING
ANY ARGENTINE CITIZEN WHO MAY ACQUIRE SECURITIES FROM TIME TO TIME,
MUST RELY ON THEIR OWN EXAMINATION OF US.
November 23, 2015
Table of Contents
We are responsible for the information contained in this
prospectus, any accompanying prospectus supplement and the
documents incorporated by reference herein and therein. We have not
authorized any person to give you any other information, and we
take no responsibility for any other information that others may
give you. This document may only be used where it is legal to sell
these securities. You should not assume that the information
contained in this prospectus, any accompanying prospectus
supplement and the documents incorporated by reference is accurate
as of any date other than their respective dates. Our business,
financial condition, results of operations and prospects may have
changed since those dates. We are not making an offer of these
securities in any state where the offer is not permitted.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the SEC using a “shelf” registration process. Under this
shelf process, we or any selling shareholder may from time to time
offer the equity securities described in this prospectus.
As used in this prospectus, “Pampa Energía,” “we,” “our” and
“us” refer to Pampa Energía S.A. and its consolidated subsidiaries
and “securities” refers to our common shares and ADSs representing
our common shares, unless the context otherwise requires or unless
otherwise specified.
This prospectus only provides a general description of the
securities that we or our shareholders may offer. Each time we or
any selling shareholder offers securities, we will prepare a
prospectus supplement containing specific information about the
particular offering and the terms of those securities. We may also
add, update or change other information contained in this
prospectus by means of a prospectus supplement or by incorporating
by reference information we file with the SEC. The registration
statement that we filed with the SEC includes exhibits that provide
more detail on the matters discussed in this prospectus. Before you
invest in any securities offered by this prospectus, you should
read this prospectus, any related prospectus supplement and the
related exhibits filed with the SEC, together with the additional
information described under the headings “Where You Can Find More
Information” and “Incorporation of Certain Documents by
Reference.”
FORWARD-LOOKING STATEMENTS
Some of the information contained or incorporated by reference
in this prospectus may constitute “forward-looking statements”
within the meaning of the safe harbor provisions of The Private
Securities Litigation Reform Act of 1995. Although we have based
these forward-looking statements on our expectations and
projections about future events, it is possible that actual events
may differ materially from our expectations. In many cases we
include, together with the forward-looking statements themselves, a
discussion of factors that may cause actual events to differ from
our forward-looking statements. Examples of forward-looking
statements include the following:
· any changes in government policies or interventions, including
changes in the economy, exchange controls, taxes, tariffs or
regulatory framework, or in the delay or withholding of
governmental approvals, as a result of presidential or legislative
elections or otherwise;
· our ability to arrange financing under reasonable terms;
· the outcome and timing of the tariff renegotiation process of
our regulated businesses and uncertainties relating to future
government approvals to increase or otherwise adjust such
tariffs;
· changes in the laws and regulations applicable to energy and
electricity and oil and gas sectors in Argentina;
· general economic, social and political conditions in
Argentina, and other regions where we or our subsidiaries operate,
such as the rate of economic growth, fluctuations in exchange rates
of the Peso or inflation;
· restrictions on the ability to exchange Pesos into foreign
currencies or to transfer funds abroad;
· competition in the electricity, public utility services and
related industries;
· the impact of high rates of inflation on our costs;
· deterioration in regional and national business and economic
conditions in or affecting Argentina; and
· other risks factors discussed under “Item 3. Risk Factors.” in
our 2014 Form 20-F.
We use words such as “believe,” “anticipate,” “plan,” “expect,”
“intend,” “target,” “estimate,” “project,” “predict,” “forecast,”
“guideline,” “should” and other similar expressions to identify
forward-looking statements, but they are not the only way we
identify such statements.
Forward-looking statements involve inherent risks and
uncertainties. We caution you that a number of important factors
could cause actual results to differ materially from the plans,
objectives, expectations, estimates and intentions expressed in
such forward-looking statements. Some of these factors are
discussed under “Risk Factors” in our most recent annual report on
20-F, which is incorporated in this prospectus by reference, any
reports on Form 6-K that may be incorporated in this prospectus by
reference or a prospectus supplement. They include economic and
political conditions and government policies in the countries in
which we operate, inflation rates, exchange rates, regulatory
developments, technological improvements, customer demand and
competition. See “Where You Can Find More Information” for
information about how to obtain a copy of these documents. We
caution you that the foregoing list of factors is not exclusive and
that other risks and uncertainties may cause actual results to
differ materially from those in forward-looking statements. You
should evaluate any statements made by us in light of these
important factors.
Forward-looking statements speak only as of the date they are
made. We undertake no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information
or future events or for any other reason.
PAMPA ENERGÍA
Pampa Energía S.A. is the largest fully integrated electricity
company in Argentina. Our generation subsidiaries had an aggregate
installed generating capacity of 2,217 MW as of September 30, 2015,
representing 7.0 % of the installed generating capacity in
Argentina at such date, and generated a total of 6,272 net GWh of
electricity during the nine months ended September 30, 2015,
representing approximately 6.1% of total electricity generated in
Argentina during such period. We own an indirect co-controlling
interest in Transener, which operates and maintains the largest
high voltage electricity transmission system in Argentina, with
more than 18,524 km (including Transba) of high voltage
transmission lines that, as of September 30, 2015, represented
approximately 91% of the high voltage system in Argentina,
according to the information made available by CAMMESA. We believe
that our subsidiary Edenor is the largest electricity distribution
company in Argentina, in terms of number of customers and
electricity sold (in terms of both GWh and pesos) in 2014, based on
publicly available figures released by electricity distribution
companies in Argentina.
We are incorporated as a
sociedad anónimaunder the laws of Argentina. Our principal
executive offices are located at Ortiz de Ocampo 3302, Building #4,
City of Buenos Aires, Argentina (C1425DSR). Our telephone number is
+ 54 11 4809 9500. Our website address is
www.pampaenergia.com
. None of the information available on our website or elsewhere
will be deemed to be included or incorporated by reference into
this prospectus.
RISK FACTORS
We have set forth risk factors in our most recent annual report
on Form 20-F, which is incorporated by reference in this
prospectus. We have also set forth below certain additional risk
factors that relate specifically to securities we may offer using
this prospectus. We may include further risk factors in more recent
reports on Form 6-K incorporated in this prospectus by reference,
or in a prospectus supplement. You should carefully consider all
these risk factors in addition to the other information presented
or incorporated by reference in this prospectus.
Risks Related to our Shares and ADSs
Trading of our common shares in the Argentine securities markets
is limited and could experience further illiquidity and price
volatility.
Argentine securities markets are substantially smaller, less
liquid and more volatile than major securities markets in the U.S.
In addition, Argentine securities markets may be materially
affected by developments in other emerging markets, particularly
other countries in Latin America. Our common shares are less
actively traded than securities in more developed countries and,
consequently, an ADS holder may have a limited ability to sell the
common shares underlying ADSs (upon withdrawal from the ADSs
facility) in the amount and at the price and time that it may
desire. This limited trading market may also increase the price
volatility of our common shares underlying the ADSs.
Holders of ADSs may be adversely affected by currency
devaluations and foreign exchange fluctuations.
If the peso exchange rate falls relative to the U.S. dollar, the
value of the ADSs and any distributions made thereon from the
depositary, could be adversely affected. Cash distributions made in
respect of the ADSs are received by the depositary (represented by
the custodian bank in Argentine) in pesos, will be converted by the
custodian bank into U.S. dollars at the then prevailing exchange
rate and distributed by the depositary to the holders of the ADRs
evidencing those ADSs if in the judgment of the depositary such
amounts may be converted on a reasonable basis into U.S. dollars
and transferred to the United States. In addition, the depositary
will incur foreign currency conversion costs (to be borne by the
holders of the ADSs) in connection with the foreign currency
conversion and subsequent distribution of dividends or other
payments with respect to the ADSs.
The relative volatility and illiquidity of the Argentine
securities markets may substantially limit your ability to sell the
common shares underlying the ADSs on the MERVAL at the price and
time you desire.
Investing in securities that trade in emerging markets, such as
Argentina, often involves greater risk than investing in securities
of issuers in the United States, and such investments are generally
considered to be more speculative in nature. The Argentine
securities market is substantially smaller, less liquid, more
concentrated and can be more volatile than major securities markets
in the United States, and is not as highly regulated or supervised
as some of these other markets. There is also significantly greater
concentration in the Argentine securities market than in major
securities markets in the United States. The ten largest companies
in terms of market capitalization represented approximately 66% of
the aggregate market capitalization of the MERVAL as of September
30, 2015. Accordingly, although you are entitled to withdraw the
common shares underlying the ADSs from the depositary at any time,
your ability to sell such shares on the MERVAL at a price and time
at which you wish to do so may be substantially limited.
We are traded on more than one market and this may result in
price variations; in addition, investors may not be able to easily
move shares for trading between such markets.
Trading in the common shares or ADSs in the United States and
Argentina, respectively, will take place in different currencies
(U.S. dollars on the NYSE and pesos on the
MERVAL), and at different times (resulting from different
time zones, different trading days and different public holidays in
the United States and Argentina). The trading prices of the common
shares on these two markets may differ due to these and other
factors. Any decrease in the price of the common shares on the
MERVALcould cause a decrease in the trading price of the
ADSs on the NYSE. Investors could seek to sell or buy the common
shares to take advantage of any price differences between the
markets through a practice referred to as arbitrage. Any arbitrage
activity could create unexpected volatility in both our share
prices on one exchange, and the ADSs available for trading on the
other exchange. In addition, holders of ADSs will not be
immediately able to surrender their ADSs and withdraw the
underlying common shares for trading on the other market without
effecting necessary procedures with the depositary. This could
result in time delays and additional cost for holders of ADSs.
As a foreign private issuer, we will not be subject to U.S.
proxy rules and will be exempt from filing certain Exchange Act
reports.
As a foreign private issuer, we are exempt from the rules and
regulations under the Exchange Act related to the furnishing and
content of proxy statements, and our officers, directors, and
principal shareholders are exempt from the reporting and
short-swing profit recovery provisions contained in Section 16 of
the Exchange Act. In addition, we are not be required under the
Exchange Act to file annual and current reports and financial
statements with the SEC as frequently or as promptly as domestic
companies whose securities are registered under the Exchange Act,
and we are generally be exempt from filing quarterly reports with
the SEC under the Exchange Act.
In addition, we would lose our foreign private issuer status if
a majority of our directors or executive officers are U.S. citizens
or residents and we fail to meet additional requirements necessary
to avoid loss of foreign private issuer status. Although we have
elected to comply with certain U.S. regulatory provisions, our loss
of foreign private issuer status would make such provisions
mandatory. The regulatory and compliance costs to us under U.S.
securities laws as a U.S. domestic issuer may be significantly
higher. If we are not a foreign private issuer, we will be required
to file periodic reports and registration statements on U.S.
domestic issuer forms with the SEC, which are more detailed and
extensive than the forms available to a foreign private issuer. We
would have to present our financial statements under U.S. GAAP and
may also be required to modify certain of our policies to comply
with corporate governance practices applicable to U.S. domestic
issuers. Such conversion and modifications will involve additional
costs. In addition, we may lose our ability to rely upon exemptions
from certain corporate governance requirements on U.S. stock
exchanges that are available to foreign private issuers.
If we do not file or maintain a registration statement and no
exemption from the Securities Act of 1933, or the Securities Act,
registration is available, U.S. holders of ADSs may be unable to
exercise preemptive rights granted to our holders of common
shares.
Under Argentine corporations law, if we issue new shares as part
of a capital increase, our shareholders may have the right
to subscribe to a proportional number of shares to maintain
their existing ownership percentage. Rights to subscribe for shares
in these circumstances are known as preemptive rights. In addition,
shareholders are entitled to the right to subscribe for the
unsubscribed shares remaining at the end of a preemptive rights
offering on a pro rata basis, known as accretion rights. Upon the
occurrence of any future increase in our capital stock, U.S.
persons (as defined in Regulation S under the Securities Act)
holding our common shares or ADSs may be unable to exercise
preemptive and accretion rights granted to our holders of common
shares in connection with any future issuance of our common shares
unless a registration statement under the Securities Act is
effective with respect to both the preemptive rights and the new
common shares, or an exemption from the registration requirements
of the Securities Act is available. We are not obligated to file or
maintain a registration statement relating to any preemptive rights
offerings with respect to our common shares, and we cannot assure
you that we will file or maintain any such registration statement
or that an exemption from registration will be available. Unless
those common shares or ADSs are registered or an exemption from
registration applies, a U.S. holder of our common shares or ADSs
may receive only the net proceeds from those preemptive rights and
accretion rights if those rights can be assigned by the ADS
depositary; if the rights cannot be sold, they will be allowed to
lapse. Furthermore, the equity interest of holders of shares or
ADSs located in the U.S. may be diluted proportionately upon future
capital increases.
Our status as a foreign private issuer allows us to follow
alternate standards to the corporate governance standards
of the NYSE, which may limit the protections afforded to
investors.
We are a “foreign private issuer” within the meaning of the NYSE
corporate governance standards. Under NYSE rules, a foreign private
issuer may elect to comply with the practices of its home country
and not comply with certain corporate governance requirements
applicable to U.S. companies with securities listed on the
exchange. We currently follow certain Argentine practices
concerning corporate governance and intend to continue to do so.
For example, due to certain restrictions imposed by Argentine
corporate law and Argentine securities law, our audit committee,
unlike the audit committee of a U.S. issuer, will only have an
“advisory” and/or “supervisory” role and may only make
recommendations for adoption by our board of directors, which will
be responsible for the ultimate vote and final decision.
Accordingly, holders of our ADSs will not have the same protections
afforded to shareholders of U.S. companies that are subject to all
of the NYSE corporate governance requirements.
If we are a passive foreign investment company for U.S. federal
income tax purposes for any taxable year, U.S. Holders of our ADSs
could be subject to adverse U.S. federal income tax
consequences.
If we were a “passive foreign investment company”, within the
meaning of Section 1297 of the Internal Revenue Code of 1986, as
amended, or a PFIC, for any taxable year during which a U.S. Holder
(as defined in “Taxation—U.S. Federal Income Tax Considerations”)
holds our ADSs or common shares, certain adverse U.S. federal
income tax consequences may apply to the U.S. Holder. We do not
expect to be a PFIC for U.S. federal income tax purposes for our
current taxable year or the reasonably foreseeable future, although
there can be no assurance in this regard. Our possible status as a
PFIC must be determined annually and therefore may be subject to
change. This determination will depend on the composition of our
income and assets, the market valuation of our assets (including,
among others, our goodwill) from time to time, and our spending
schedule for cash balances and the proceeds of any offering, as
well as on the application of complex statutory and regulatory
rules that are subject to potentially varying or changing
interpretations. Accordingly, there can be no assurance that we
will not be considered a PFIC for any taxable year. If we were a
PFIC, U.S. Holders of our ADSs or common shares may be subject to
adverse U.S. federal income tax consequences, such as taxation at
the highest marginal ordinary income tax rates on gains recognized
and on certain actual or deemed distributions, interest charges on
certain taxes treated as deferred, and additional reporting
requirements.
Changes in Argentine tax laws may adversely affect the tax
treatment of our common shares or ADSs.
On September 23, 2013, the Argentine income tax law was amended
by the passage of Law 26,893. Under the amended law, the
distribution of dividends is subject to income tax at a rate of
10%, unless the dividends are distributed to Argentine corporate
entities. In addition, the amended law establishes that the sale,
exchange or other transfer of shares and other securities is
subject to a capital gain tax at a rate of 15% for Argentine
resident individuals and foreign beneficiaries. There is an
exemption for Argentine resident individuals if certain
requirements are met; however, there is no such exemption for
non-Argentine residents. See “Taxation—Material Argentine Tax
Considerations.” However, as of the date hereof many aspects of the
amended tax law remain unclear and, pursuant to certain
announcements made by Argentine tax authorities, they are subject
to further rulemaking and interpretation, which may adversely
affect the tax treatment of our common shares and/or ADSs. The
income tax treatment of income derived from the sale of ADSs,
dividends or exchanges of shares from the ADS facility may not be
uniform under the revised Argentine income tax law. The possibly
varying treatment of source income could impact both Argentine
resident holders as well as non-Argentine resident holders. In
addition, should a sale of ADSs be deemed to give rise to Argentine
source income, as of the date of this prospectus no regulations
have been issued regarding the mechanism for paying the Argentine
capital gains tax when the sale exclusively involves non-Argentine
parties. However, as of the date of this prospectus, no
administrative or judicial rulings have clarified the ambiguity in
the law. Conversely, if the sale of ADSs were deemed to give rise
to foreign source income, no income tax would apply.
Therefore, holders of our common shares, including in the form
of ADSs, are encouraged to consult their tax advisors as to the
particular Argentine income tax consequences under their specific
facts.
We are organized under the laws of Argentina and holders of the
ADSs may find it difficult to enforce civil liabilities against us,
our directors, officers and certain experts.
We are organized under the laws of Argentina. A significant
portion of our and our subsidiaries’ assets are located outside the
U.S. Furthermore, all of our directors and officers and some
advisors named in this prospectus reside in Argentina. Investors
may not be able to effect service of process within the U.S. upon
such persons or to enforce against them or us in U.S. courts
judgments predicated upon the civil liability provisions of the
federal securities laws of the U.S. Likewise, it may also be
difficult for an investor to enforce in U.S. courts judgments
obtained against us or these persons in courts located in
jurisdictions outside the U.S., including judgments predicated upon
the civil liability provisions of the U.S. federal securities laws.
It may also be difficult for an investor to bring an original
action in an Argentine court predicated upon the civil liability
provisions of the U.S. federal securities laws against us or these
persons.
Prior to any enforcement in Argentina, a judgment issued by a
U.S. court will be subject to the requirements of Article 517
through 519 of the Argentine Federal Civil and Commercial Procedure
Code if enforcement is sought before federal courts or courts with
jurisdiction in commercial matters of the City of Buenos Aires.
Those requirements are: (1) the judgment, which must be valid and
final in the jurisdiction where rendered, was issued by a competent
court in accordance with the Argentine principles regarding
international jurisdiction and resulted from a personal action, or
an in rem action with respect to personal property which was
transferred to Argentine territory during or after the prosecution
of the foreign action, (2) the defendant against whom enforcement
of the judgment is sought was personally served with the summons
and, in accordance with due process of law, was given an
opportunity to defend against foreign action, (3) the judgment does
not violate the principles of public policy of Argentine law and
(4) the judgment is not contrary to a prior or simultaneous
judgment of an Argentine court. Any document in a language other
than Spanish, including, without limitation, the foreign judgment
and other documents related thereto, requires filing with the
relevant court of a duly legalized translation by a sworn public
translator into the Spanish language. See “Enforceability of Civil
Liabilities.”
Pursuant to separate indemnification agreements, we indemnify
our directors for and hold them harmless against all claims,
actions, suits or proceedings brought against them, subject to
limited exceptions. The rights and obligations among or between us
and any of our current or former directors and officers are
generally governed by the laws of Argentina and subject to the
jurisdiction of the Argentine courts, unless such rights or
obligations do not relate to or arise out of their capacities
listed above.
USE OF PROCEEDS
Unless otherwise disclosed in connection with a particular
offering of securities, we intend to use the net proceeds from the
sale of the securities for general corporate purposes.
We will not receive any proceeds from the sale of our common
shares or ADSs to be sold by any selling shareholders. Such
proceeds will be received by such selling shareholders.
DESCRIPTION OF COMMON SHARES
The following information describes our common shares and
preferred shares and provisions of our by-laws and of the Argentine
Corporation Law. This description is only a summary. You should
read and refer to our by-laws incorporated by reference in the
registration statement of which this prospectus is a part and our
Form 20-F.
SHARE CAPITAL
Pursuant to our by-laws, our capital stock can be amended by the
vote of a majority of our shareholders. As of September 30, 2015,
our outstanding capital stock amounts to 1,314,310,895 common
shares, with a par value of Ps. 1.00 each and the right to one vote
per share, of which 708,627,775 shares were in the form of ADSs
(representing 28,345,111 ADSs). All outstanding shares are fully
paid in and our common shares have been listed on the Buenos Aires
Stock Exchange since 1947.
Prior to May 31, 2006, we had 6 million outstanding common
shares, with a par value of Ps. 1.00 per share. On May 31, 2006,
September 28, 2006 and February 1, 2007, we consummated capital
increases of 140 million, 300 million and 600 million additional
shares, respectively. Also, on September 28, 2007, we issued an
additional 480,194,242 shares to the former indirect shareholders
of EASA (including shares in the form of ADSs) in connection with
our acquisition of Edenor.
On June 16, 2006, our shareholders approved an Opportunities
Assignment Agreement (
Convenio de Asignación de Oportunidades) and on September
27, 2006, we entered into warrant agreements with Marcelo Mindlin,
Damián Mindlin, Gustavo Mariani and Ricardo Torres for the issuance
of warrants for up to 20% of our capital stock on a fully diluted
basis as consideration for their obligation to assign to the
company certain qualified investment opportunities. Pursuant to the
amendment to the warrant agreements executed on September 28, 2007,
the exercise price and the number of underlying shares that the
warrants give the right to purchase will not adjust in case of
future capital increases (other than stock dividends or
capitalization of reserves).
On August 7, 2006, the CNV approved a public offering of 20% our
capital stock on a fully diluted basis that underlies the warrants.
On our shareholders’ meeting held on August 30, 2007, our
shareholders approved the issuance of 480,194,242 common shares.
Our capital stock as of such date consisted of 1,526,194,242 common
shares. As a consequence of such capital increase, the warrants
were adjusted in accordance with the terms of the warrants
agreements, to an aggregate of 381,548,563 warrants which, as of
that date, granted the right to subscribe for shares representing
20% of our capital stock on a fully diluted basis.
As of the date of this registration statement, we have issued
381,548,563 warrants, granting the right to subscribe equal number
of common shares, at an exercise price of U.S. $0.27 per share. The
warrants were fully vested on September 28, 2014. The exercise
period for the warrants is 15 years from September 27, 2006, their
date of issue, after which time the warrants expire. As of the date
of this registration statement, we have repurchased and cancelled
211,883,347 shares of our common stock. Consequently, the
outstanding warrants grant the right to subscribe for 22.5% of our
capital stock on a fully diluted basis.
We valued the warrants granted at Ps. 2,639,003.56. We record a
compensation expense ratably over the effective term of the
Opportunities Assignment Agreement consistent with the vesting
period, with a credit to the equity reserve. At September 30, 2015,
the equity reserve totaled Ps. 266.1 million.
MEMORANDUM AND ARTICLES OF ASSOCIATION
Corporate Purpose
Pursuant to Article 4 of our by-laws, our corporate purpose is
to carry out investment activities in any kind of ventures and
companies whatsoever, either directly or through third parties or
in association with third parties, in Argentina or abroad, in
accordance with and subject to the limitations set forth by
Argentine laws and regulations in force; we may organize or take
part in the organization of companies or acquire and hold
shareholding interests in companies already existing or to be
created in Argentina or abroad, be member of temporary business
associations, pooling agreements, joint ventures and consortia;
make capital contributions for transactions already executed or to
be executed in the future; provide financing, exception made of
such activities as are governed by the financial institutions law;
enter into management agreements in order to manage third-party
projects or to be managed by third parties, take part in the
purchase, sale and trading of securities, stock and any kind of
negotiable instruments and commercial paper in any systems and
under any mechanisms already in existence or to be created in the
future. We may also acquire, develop, dispose of, encumber, and
give and take on lease, concession or lease with option to
purchase, any kind of personal and real property for investment
purposes. To such end, we have full legal capacity to acquire
rights and incur obligations and to carry out any such acts as are
not prohibited by the laws or our bylaws, including, without
limitation, guaranteeing any obligations of our company or any
third party.
Year-End Date
Our shareholders’ meeting on October 11, 2006 resolved to
substitute our former fiscal year-end date of June 30 with the
current year-end date of December 31. Registration of this change
in the fiscal year-end date with the Argentine Public Registry of
Commerce was completed on May 3, 2007.
Shareholders’ Liability
Shareholders’ liability for losses of a company is limited to
the value of their shareholdings in the company. However, under the
Argentine Corporate Law, shareholders who have a conflict of
interest with the company and do not abstain from voting may be
held liable for damages to the company, provided that the votes
have been decisive for the formation of the corporate will. In
addition, shareholders who voted in favor of a resolution that is
subsequently declared void by a court as contrary to Argentine laws
or a company’s by-laws (or regulations, if any) may be held jointly
and severally liable for damages to such company, other
shareholders or third parties resulting from such resolution. See
also “Item 3. Key Information—Risk Factors—Risks relating to our
shares and the ADSs—Our shareholders may be subject to liability
for certain votes of their securities” in our 2014 Form 20-F.
Redemption and Withdrawal Rights
Our shares are subject to a proportional redemption in
connection with a capital reduction by the vote of a majority of
shareholders at an extraordinary shareholders’ meeting based on a
favorable report of a statutory auditor. Any shares so redeemed
must be cancelled by us.
In that event, we would be required to reimburse the value of
the shares to the shareholders exercising such right in the cases
described below.
Whenever our shareholders approve a spin-off or merger in which
we are not the surviving corporation and the shares our
shareholders receive as a result of such spin-off or merger are not
publicly traded, the change of our corporate legal status, a
fundamental change in our corporate purpose, change of our domicile
outside of Argentina, voluntary withdrawal from public offering or
delisting, our continuation in the case of mandatory delisting or
cancellation of the public offering authorization, or a total or
partial recapitalization following a mandatory reduction of our
capital or liquidation, any shareholder that voted against such
action or did not attend the meeting at which the decision was
taken, may withdraw and receive the book value of its shares,
determined on the basis of our latest balance sheet prepared or
that should have been prepared in accordance with Argentine laws
and regulations, provided that such shareholder exercises its
appraisal rights within a determined period. However, because of
the absence of legal precedent directly on point, there is doubt as
to whether holders of ADSs will be able to exercise their appraisal
rights either directly or through the depositary with respect to
the shares represented by the ADSs. The appraisal rights must be
exercised within the five days following the adjournment of the
meeting at which the resolution was adopted, in the event that the
dissenting shareholder voted against such resolution, or within 15
days following such adjournment if the dissenting shareholder did
not attend such meeting and can prove that it was a shareholder on
the date of such meeting. In the case of merger or spin-off,
appraisal rights may not be exercised if the shares to be received
as a result of such transaction are authorized for public offering
or listed. Appraisal rights are extinguished if the resolution
giving rise to such rights is revoked at another shareholders’
meeting held within 60 days of the meeting at which the resolution
was adopted.
Payment on the appraisal rights must be made within one year of
the date of the shareholders’ meeting at which the resolution was
adopted, except when the resolution was to delist our shares or to
continue following a mandatory delisting, in which case the payment
period is reduced to 60 days from the resolution date.
Preemptive and Accretion Rights
Pursuant to section 194 of the Argentine Corporate Law, holders
of common shares have preemptive rights proportionate to the number
of shares held by each holder, to subscribe for shares of capital
of the same class owned by the shareholder, and accretion rights to
subscribe additional common shares not subscribed by other
shareholders on a pro rata basis. Preemptive rights and accretion
rights may be waived only by each shareholder on a case-by-case
basis. In accordance with section 194 of the Argentine Corporate
Law, our by-laws provide that the holders of common shares have
preemptive rights to subscribe additional common shares in any
amount sufficient to maintain their pro rata share of capital.
Alternatively, pursuant to the Argentine Corporate Law, in
exceptional cases and on a case by case basis when required for the
best interest of the company, the shareholders at an extraordinary
meeting with a special majority may decide to limit or suspend
shareholders preemptive rights, provided that the resolution is
included in the agenda of the meeting and the shares to be issued
are paid in kind or are issued to cancel preexisting
obligations.
Pursuant to Argentine law, if authorized by an extraordinary
shareholders’ meeting, companies authorized to make public
offerings of their shares may shorten the period during which
preemptive rights may be exercised from 30 to up to 10 days
following the publication of the offering to the shareholders to
exercise preemptive rights in the official gazette and a newspaper
of wide circulation in Argentina. Preemptive rights are exercisable
following the described publication (which has to be made for three
days) for a period of 30 days, provided such period is not reduced
as described above.
Shareholders who have exercised their preemptive rights have the
right to exercise accretion rights at the same time, on a pro rata
basis, with respect to any unsubscribed common shares. Shares not
subscribed by shareholders by virtue of preemptive or accretion
rights may be offered to third parties.
Holders of ADSs may be restricted in their ability to exercise
preemptive rights if a prospectus under the Securities Act relating
thereto has not been filed or is not effective or an exemption from
registration is not available.
Voting Rights
Under our by-laws, our common shares entitle the holder thereof
to one vote per share at any meeting of our shareholders.
Dividends
In accordance with section 36 of our by-laws, our yearly net
income (as adjusted to reflect changes in prior results) is
allocated in the following order:
(1) to comply with our legal reserve policy requirement of 5% of
our realized and liquid earnings until such reserve equals up to
20% of the capital (pursuant to section 70 of the Argentine
Corporate Law);
(2) to pay the accrued fees of the members of the board of
directors and statutory audit committee;
(3) for voluntary or contingent reserves, as may be resolved
from time to time by our shareholders at the annual ordinary
shareholders’ meeting; and
(4) the remainder of the net income for the year may be
distributed as dividends on common shares or as otherwise decided
by our shareholders at the annual ordinary shareholders’
meeting.
Registration Requirements of Foreign Companies
Under the Argentine Corporate Law, foreign companies that hold
shares in an Argentine company must register with the public
registry of commerce to exercise certain shareholder rights,
including voting rights. The registration with the public registry
of commerce in certain jurisdictions, such as in the City of Buenos
Aires, requires the filing of corporate and accounting documents in
order to demonstrate that the foreign shareholder: (1) is not a
special purpose vehicle created solely to conduct business in
Argentina, (2) owns non-current assets outside of Argentina that
are significant compared to its assets owned or to be owned in
Argentina and (3) is entitled to conduct business in its place of
organization.
Liquidation Rights
Pursuant to section 109 of the Argentine Corporate Law, in the
case of our liquidation or dissolution, our assets will be applied
to satisfy our outstanding liabilities and then proportionally
distributed among holders of our shares.
Ordinary and Extraordinary shareholders’ Meetings
Shareholders’ meetings may be ordinary meetings or extraordinary
meetings. We are required to convene and hold an ordinary meeting
of shareholders within four months of the close of each fiscal year
to consider the matters specified in the first two paragraphs of
Section 234 of the Argentine Corporate Law, such as the approval of
our financial statements, allocation of net income for such fiscal
year, approval of the reports of the board of directors and the
audit committee and election...
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